What are pre-action procedures?

What are pre-action procedures?

By Ezra Sarajinsky

· Read time: 8 minutes

Pre-action procedures are steps that parties and their legal representatives can take to try and solve issues in dispute without having to go to Court.

If they are unable to resolve the issues in question, then pre-action procedures can be used to simplify the contentious matters involved. 

What is the Purpose of Pre-Action Procedures?

The goals of pre-action procedures include:

  1. Promoting Open Communication and frank disclosure: Encouraging parties to share information and relevant documents upfront to ensure transparency with the issues at hand.
  2. Swift and Fair Resolution: Aiming to swiftly and fairly resolve conflicts, steering clear of legal actions whenever possible. This approach minimises costs for both sides and ideally prevents the need for court intervention.
  3. Narrowing the Focus to Core Issues: In scenarios where out-of-court agreements prove unattainable, helping parties closely identify the actual points of contention. This targeted approach reduces both the time and expenses linked with court proceedings.
  4. Keeping Realistic Expectations: Encouraging parties to pursue only those legal orders that are reasonable and based on sound evidence.

The Court Rules as basis of the procedures

Pre-action procedures are governed by various rules and guidelines, one of which is the Rule 4.01 of the Family Law Rules. According to Rule 4.01, there’s a requirement (with a certain exception) that before initiating a legal proceeding, every potential party involved in the proceeding needs to adhere to the pre-action procedures.

The core principle is simple: try to find common ground before escalating the situation.

Pre-Action Procedures in Property Matters

At the outset, you are required to furnish the other party with the pre-action procedures brochure published by the Court. Your first step involves inviting the other party to engage in dispute resolution. This entails settling on a suitable method and genuinely working towards finding a resolution for your disagreement.

Should an agreement be successfully reached, it has the potential to be formalised either as a financial agreement or as consent orders.

However, if reaching an agreement proves unfeasible due to reasons such as the unavailability of dispute resolution services, the other party declining to partake in dispute resolution, or unsuccessful attempts at resolution, you have the option to dispatch a Notice of Intention to commence proceedings. This notice should include a sincere proposal to resolve the dispute, complete with a stipulated timeframe for acceptance.

Upon receiving a Notice of Intention, you are required to make a decision to either accept or reject the offer within the timeframe specified in the document.

Should agreement be achieved, it can be documented through a financial agreement or consent orders, as previously mentioned. 

However, if no consensus is reached, the party rejecting the initial offer is obligated to send a letter detailing the specific points in dispute, the sought-after orders, and a legitimate counter-offer to resolve the issue, including a designated deadline for acceptance. Failure to send this letter empowers the other party to initiate further actions.

Subsequent to these exchanges, either party possesses the right to take further steps to resolve the dispute, which might involve commencing Court proceedings. In such cases, it is imperative to file a Genuine Steps Certificate, which outlines the sincere attempts made to adhere to the pre-action procedures, both prior to and after commencing proceedings.

Throughout the entire process, from the pre-action phase to the resolution of the dispute, both parties are also obliged to uphold their duty of disclosure, ensuring transparency and fairness at all stages.

Pre-Action Procedures in Parenting Matters

To kick off the process, your first step is to furnish the other party with the pre-action procedures brochure published by the Court.

You’re expected to extend an invitation to the other party for dispute resolution, unless you qualify for an exemption. Collaboratively choosing a suitable service is recommended, followed by a sincere endeavor to settle your dispute. This might also lead to your receipt of a section 60I certificate, as a reflection of your participation.

Should a consensus be reached, it can be solidified through the creation of a parenting plan or consent orders.

However, if an agreement proves elusive due to reasons such as the unavailability of dispute resolution services, the other party’s reluctance to engage in dispute resolution, or the ineffectiveness of the resolution attempts, you have the option to issue a Notice of Intention to initiate proceedings. This notice should encompass a bona fide proposal to resolve the dispute, complete with a specified deadline for acceptance.

Upon receiving a Notice of Intention, you’re tasked with deciding whether to accept or reject the offer within the timeframe stipulated in the document.

Should an agreement be struck, it can be concretised through a parenting plan or consent orders, as previously mentioned.

However, if no accord is achieved, the party declining the initial offer is obliged to dispatch a letter detailing the points in contention, the desired orders, and a legitimate counter-offer to resolve the dispute, complete with a deadline for acceptance. The absence of this letter grants the other party the prerogative to proceed with further action.

Following these exchanges and reasonable endeavors to resolve the matter through correspondence, either party is free to take further action to settle the dispute, potentially including the initiation of Court proceedings.

At every stage of this journey – prior to commencing proceedings, after their commencement, and throughout the resolution process – both parties bear the responsibility to adhere to their duty of disclosure, ensuring transparency and fairness throughout.

What are the Benefits of Pre-Action Procedures?

We often have clients who initially want to rush to Court, feeling that this would offer them the best chance to bring finality to their issue. Thus they may get frustrated at having to go through pre-action procedures that slow down their rush for Court. 

However the purpose of the procedures is often of benefit to both parties. It gives everyone a chance to resolve their issue outside the Court system saving time, money, and the stress of litigation.

Another benefit is that it can foster a climate of open communication, as both parties are urged to provide comprehensive and candid disclosures. This encompasses documents such as:

  • pay slips
  • bank statements
  • tax records
  • superannuation statements

These  collectively offer a clear view of the financial standing of each party.

In scenarios where out-of-court agreements remain elusive, the pre-action procedure is designed to streamline the duration and financial implications of subsequent court proceedings.

Furthermore, the process serves as a guidepost for parties, steering them toward grounded and reasonable expectations, rooted firmly in the available evidence.

Exemptions to Pre-Action Procedures

There are certain exemptions to otherwise obligatory procedures. When relied upon, the specific exemption in question needs to be specified and addressed within the Genuine Steps Certificate or the Affidavit of Non-Filing of a Family Dispute Resolution Certificate. Both of these certificates need to accompany any Initiating Application or Response to Initiating Application.

Exemptions include:

  1. When complying with pre-action procedures would adversely impact the Applicant’s position.
  2. In cases where the Application is of an urgent nature.
  3. When either party has submitted a family law Application within the preceding 12 months.
  4. In situations involving divorce exclusively or pertaining to child support or appeal matters.
  5. When the Application involves the Court’s jurisdiction under section 35 or 35B of the Bankruptcy Act 1966.
  6. In the presence of allegations or concerns regarding family violence, or for parenting proceedings, allegations or concerns related to child abuse.


What is the Rule 4.01 Family Law Rules?

The Rule 4.01 of the Family Law Rules in Australia outlines the requirement for parties to engage in pre-action procedures before initiating formal legal proceedings. This rule emphasises the importance of genuine attempts to resolve disputes through communication and negotiation.

What is a Genuine Steps Certificate?

A Genuine Steps Certificate is a document that confirms a party’s compliance with the pre-action procedures outlined in Rule 4.01 of the Family Law Rules. It signifies that the party has made sincere efforts to resolve the dispute through alternative means before resorting to litigation.

What is Section 60I Certificate?

A Section 60I Certificate is a certificate obtained after attending a Family Dispute Resolution (FDR) conference, as required by Section 60I of the Family Law Act. This certificate demonstrates the parties’ commitment to resolving parenting disputes amicably before pursuing formal legal actions.

Last point

Litigation is a process, not a single day or week in Court. These procedures are designed as another step to have parties work through the issues in conflict, and to hopefully reach some compromise or resolution without having to go through the Court system.

See the FCFOA’s page on pre action procedures.

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