Last updated 21 November 2016

Approximately 95% of property settlements are obtained without going to trial before the family law courts. Of this percentage, many parties are able to reach agreement as to how their property should be divided, without having to file an application for property settlement in the courts.

Under the Family Law Rules 2004 (Cth) (Family Law Rules), before the parties can commence proceedings in the Family Court, except in certain cases, for example where there are issues of domestic violence, the parties must engage in the following process known as the pre-action procedures (sch 1 pt 1 Family Law Rules):

  • participate in primary dispute resolution (e.g. negotiation, mediation or counselling)
  • exchange, by correspondence with the other party, a notice of intention to claim and explore options for settlement
  • comply with the duty of disclosure (pt 13.1 Family Law Rules) and provide relevant financial documents to the other party.

The pre-action procedures do not apply to proceedings commenced in the Federal Circuit Court of Australia (FCC) in relation to property settlement. However, it is always recommended that parties try to resolve their matter by primary dispute resolution before instituting proceedings in either of the family law courts. Parties need to consider the costs, delays to a final hearing, emotional drain on themselves and opportunities lost while the proceedings are underway. Before making an application to the family law courts, parties can:

  • reach an agreement by themselves
  • agree with the help of a mediator
  • engage solicitors to provide them with advice, write letters setting out offers and attend round table conferences (similar to a negotiation but with solicitors present) with a view to reaching an agreement; where an agreement has still not been reached, the parties can agree to proceed to arbitration rather than to start proceedings in court.

If an agreement is reached during negotiation or other primary dispute resolution process, then it should be either:

  • documented and submitted to the Family Court for the making of orders (or the FCC if there are proceedings on foot in that court) or
  • the parties may enter a financial agreement under pt VIIIA (for married couples) or pt VIIIAB (for de facto couples) of the Family Law Act (or a superannuation agreement under pt VIIIB) to finalise all claims for property settlement .

The Federal Circuit Court

The FCC deals with the bulk of property settlement matters, and only complex property settlement matters should be filed in the Family Court. The FCC adopts a docket system, which ensures that wherever possible the same judge will be involved in the matter from the first return date through to the trial.

The Family Court

The Family Court, either by a judge or registrar, manages the progress of a case from the time it is filed through to the trial.

The court treats each case individually, and the speed with which the case progresses largely depends on the needs of the case. There are time standards between each event that the court aims to follow. However, the time frame for matters varies substantially from matter to matter.