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Dispute resolution and property

Information about the procedures that are necessary before parties can apply to court for a property settlement.

Each prospective party to a case is expected to make a genuine effort to resolve their dispute before staring a case in court by:

  • participating in dispute resolution (conciliation, negotiation, counselling or arbitration)
  • exchanging a notice of intention to claim and exploring option for settlement by correspondence
  • complying as far as possible with their duty of disclosure.

These actions are called 'pre-action procedures' because they come before applying to court.

Note: Unlike the Family Court, there is no specific requirement in the Federal Circuit Court that couples use dispute resolution before they apply to court for property settlement matters.

See Part 1 cl. 1 Schedule 1—Family Law Rules 2004 (Cth)(opens in a new window).

If parties do not comply

There may be serious consequences if a party does not comply with their obligations. These could include an award of costs. This means that the court could order the non-complying party to pay some or all of the other party's costs. Basically the court may make sure that the other party is in no worse position than they would have been in if the other party had complied as required.

See Part 1 Item 1 cl. 2 Schedule 1—Family Law Rules 2004 (Cth)(opens in a new window).

Where exemptions may be made

The court may accept that it was not possible or appropriate for a party to follow pre-action procedures where:

  • the matter is urgent
  • family violence is alleged
  • fraud is alleged
  • the dispute is genuinely intractable
  • a person may be adversely affected or prejudiced if notice were given to another person (in the dispute) of an intention to start a case
  • the time limits are due to expire soon, or
  • where there is a dispute about whether a de facto relationship existed.

See Part 1 Item 1 cl. 4 Schedule 1—Family Law Rules 2004 (Cth)(opens in a new window).

Aims of pre-action procedures

The objectives of pre-action procedures are to:

  • make sure that there is full disclosure through the exchange of information and documents about the case
  • to help people to sort out differences quickly and fairly, and to avoid litigation if possible
  • to minimise the costs of property division
  • to ensure efficient management of proceedings in court, if these become necessary
  • to encourage parties to only seek those orders that are reasonably achievable on the evidence
  • to give effect to the overarching purpose of the family law practice and procedure provisions (as set out in s. 67 of the Federal Circuit and Family Court of Australia Act 2021(opens in a new window) (Cth).

See Part 1 Item 1 cl. 4 Schedule 1—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

For information about the duty of disclosure see Discovery and exchange of documents.

What each party must do

At all stages of negotiations during pre-action negotiations all parties must be mindful of:

  • the importance of identifying issues early and exploring options for settlement
  • the need to avoid drawn out, unnecessary, hostile and inflammatory exchanges
  • the impact of correspondence on the other party
  • the need to seek only orders that are realistic and reasonable
  • the need to control costs, and
  • the duty to make full and frank disclosure of all material facts, documents and other relevant information.

Parties must not:

  • use re-action procedure to harass the other party or cause unnecessary delay
  • raise irrelevant issues, or inflammatory issues that may cause the other party to adopt a hostile, polarised or entrenched position.

See Part 1 Item 1 cl. 6 Schedule 1—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window)

Steps involved in pre-action procedures

1. Invite other parties to participate in dispute resolution

A person considering filing an application for property settlement or spousal maintenance must:

2. Agree on a dispute resolution service and attend

Each prospective party must:

  • agree on a dispute resolution service, and
  • make a genuine effort to resolve their dispute by participating in the dispute.

See Family Court—Before you file—Pre-action procedure for property cases(opens in a new window).

3. Written notice of issues and future intentions

If there is:

  • no dispute resolution service available
  • one party refuses or fails to participate, or
  • agreement is not reached at dispute resolution

the person who is considering applying to court must give the other party(s) in dispute a written notice of their intention to start a court case. This is called a notice of claim. The notice of claim sets out:

  • the issues in dispute
  • the orders they are seeking
  • a genuine offer to resolve the issues, and
  • a nominated time within which the other party is to reply. (This must be at least 14 days after the notice of claim is sent).

4. Replying to the notice of claim

A person who gets a notice of claim must reply in writing within the nominated time stating whether or not they accept the offer.

If both parties are able to agree they should consider formalising the agreement by entering into a financial agreement or filing an application for consent orders.

If the offer is not acceptable the person responding to the notice of claim must set out in a letter:

  • the issues they disagree with
  • the court orders they will seek if the issue is not resolved
  • a genuine counter-offer to resolve the issues
  • a nominated time (at least 14 days after the date of the letter) that they require a response.

If the person does not respond the person who initiated the pre-action procedures ends and they can apply to court.

More information

Legislation

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

  • Schedule 1—pre-action procedures

See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window)

Family Law Rules 2004 (Cth)(opens in a new window).

Related pages

References

Federal Circuit and Family Court

The court website has information to help parties who are trying to sort out division of property after separation.

See:

Updated