Pre-Action Procedures Property Settlement — Steps Before Filing

Before you can file a contested property settlement application with the Federal Circuit and Family Court of Australia, you're required to attempt resolution outside court. These pre-action procedures aren't optional suggestions — they're mandatory steps the court will check before accepting your application.

What Pre-Action Procedures Require

The Family Law Rules 2021 establish a series of "genuine steps" each party must take before initiating court proceedings for property settlement. The core obligation is straightforward: you must make a genuine effort to resolve the dispute through negotiation or alternative dispute resolution before asking a judge to decide for you.

The required sequence:

1. Written notification. Before filing, the applicant must write to the other party setting out the issues in dispute and proposing a way to resolve them. This doesn't need to be a formal legal letter — a clear email or letter identifying what assets and debts are in dispute and suggesting a negotiation approach is sufficient.

2. Response. The other party has 14 days (21 days if overseas) to respond in writing. Their response should identify the issues they agree on, the issues they disagree on, and propose their own resolution method.

3. Genuine attempt at resolution. Both parties must make a genuine attempt to resolve the dispute through at least one of these methods:

• Direct negotiation between the parties
• Mediation with a qualified family dispute resolution practitioner (FDRP)
• Collaborative law process
• Conciliation through a lawyer-assisted conference
• Arbitration

4. Exchange of information. Both parties must provide full and frank financial disclosure before or during the dispute resolution process. You can't negotiate meaningfully without knowing the full picture.

What "Genuine Steps" Actually Means

The court doesn't require you to reach agreement — just to genuinely try. The standard is whether a reasonable person would consider your efforts genuine. Sending a one-line email proposing an absurd split and then filing the next day won't satisfy the requirement.

Evidence of genuine steps includes:

• Correspondence showing good-faith proposals and counter-proposals
• A certificate from a family dispute resolution practitioner confirming attendance at mediation (even if it didn't result in agreement)
• Records of collaborative law sessions or lawyer-assisted conferences
• Evidence that you provided financial disclosure to the other party

When Pre-Action Procedures Don't Apply

You can skip pre-action procedures and file directly with the court when:

• Urgency: There's a risk of asset dissipation — one party is selling, hiding, or transferring assets to defeat the other's claim
• Family violence: There's a history of family violence that makes direct negotiation unsafe or ineffective
• Contravention: One party has already breached existing court orders
• Consent orders: Both parties agree on the split and are filing consent orders by agreement — no dispute to resolve

If you're filing consent orders (which is the case for most amicable property settlements), the pre-action procedures don't apply. You've already resolved the dispute by reaching agreement.

Mediation vs Direct Negotiation

For property disputes, mediation through a registered family dispute resolution practitioner is the most structured option. The mediator doesn't make decisions — they facilitate discussion and help both parties identify common ground.

Mediation for property settlement typically:

• Costs $300–$1,500 per session (per party), or is available through Legal Aid or community mediation services on a reduced-fee basis
• Takes 1–3 sessions to reach agreement or establish that agreement isn't possible
• Results in either a negotiated agreement (which can be converted to consent orders) or a Section 60I certificate confirming that mediation was attempted

Direct negotiation works well when both parties are communicating effectively, have exchanged financial disclosure, and the asset pool is relatively straightforward. It costs nothing beyond your time and produces correspondence that satisfies the genuine steps requirement.

The Filing Statement

When you file an Initiating Application for property orders, you must include a "genuine steps" certificate or statement confirming that you complied with pre-action procedures. If you didn't comply, you must explain why — and the court may refuse to proceed until you do.

Why This Matters for Self-Represented Filers

Many self-represented filers skip straight to court forms without completing pre-action procedures, leading to rejection or an order to attend mediation before the case can proceed. This adds months to the timeline and costs money in wasted filing fees.

The more practical path for most separating couples: complete financial disclosure, negotiate a property split, and convert the agreement into consent orders. This bypasses the pre-action procedure requirement entirely because consent orders are filed by agreement.

The NSW Divorce Financial Split Guide walks through structured negotiation with worksheets for building a joint balance sheet and reaching agreement — the most efficient path to consent orders without contested court proceedings.

See more New South Wales guides →