Unless you live in Western Australia, the court which administers family law is known as the Federal Circuit & Family Court of Australia (these two courts merged in 2021). The Family Court of Western Australia applies the Family Law Act but has operated as a separate court before the rest of Australia adopted a national Family Court system.

Under the newly merged Federal Circuit & Family Court of Australia, [FCFCOA] the court has two major roles; one to deal with General Administrative law and another to deal with Family Law. The Family Law arm of the court operates in two divisions with the more complex cases being dealt with in Division 1, but most matters commence in Division 2. The ordinary litigant need not worry about these aspects as the court registries organise the filing and many applications are filed online in Division 2.

Unless there is an urgent or serious reason, court proceedings about any family law matter cannot usually commence unless parties undertake pre action procedures to try to resolve a dispute or at least to work out exactly what is disputed.

If there is an emergency situation or there are special circumstances, such as fear of violence, or a child being at risk of abuse, these circumstances should be explained in an affidavit with an application filed as urgently as possible.


If parties reach agreement, they may, when appropriate, file an application for consent orders to be made which usually is a paperwork application and does not require any personal appearance at court. Obviously, it saves time money and stress if a consent application can be negotiated at an early stage between parties.


If no agreement is reached then court action might be required but the court requires each party to file a Certificate of the Genuine Steps to indicate what attempt at dispute resolution were taken prior to filing.

The idea behind the legislation drafted is to encourage parties to avoid court disputes and enter into co-operative arrangements, which is in theory a good idea and could save money and stress. In practice life is more complicated.

The Family Law legislation for a long-time required parties to try to resolve differences before taking court action but the new laws commenced in October 2021 have increased requirements to demonstrate that formal procedures have been followed before anyone starts an action in court (unless special circumstances apply).


The genuine steps parties on both sides should take include that each party should declare if they have:

  1. Given a copy of the pre-action procedures to all other parties to the proceeding
  2. Made inquiries about available dispute resolution services
  3. Invited the other party to participate in dispute resolution
  4. Participated in dispute resolution with the other party
  5. Given the other party written notice of my intention to start proceedings before they start said proceedings;
  6. Cooperated with the other party to agree on an appropriate dispute resolution service such as a mediation arrangement
  7. Exchanged copies of relevant documents with the other party (*explained below).

These rules will help some parents to achieve agreement by consent but obviously this does not work for all situations.


Genuine Steps 2-3-4

If a parent wants to take action about parenting matters, they must first try to resolve the issues by attending at counselling sessions and there are some governments funded dispute resolution services.

If either parent then wants to pursue a court application, they ordinarily must file what is known as a Section 60I certificate to confirm that a mediation as an attempt at dispute resolution was made (at least by the applicant even if the other parent would not attend).

If both parties attend but still cannot reach a parenting agreement that is satisfactory, they also are able to ask the counsellor for the section 60I certificate. That refers to a certificate as prescribed in section 60I of the Family Law Act.


Section 60I: Attending family dispute resolution before applying for Part VII order

Object of this section

(1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

(2) The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order. 

Obtaining such certificate does not mean that either parent necessarily should immediately take any formal court action without further attempts at resolution.

As stated earlier, except in an urgent or serious, situation compliance is required to show that the genuine steps 1-7 as  set out above were attempted.

Genuine Step 7

Under the court rules there are duties of disclosure which may be relevant to an issue in dispute. With parenting the disclosure requirements may include the following [obviously different matters might have very different requirements].

6.05 Duty of disclosure – parenting proceedings

(1) The duty of disclosure applies to a parenting proceeding.
(2) Documents that may contain information relevant to a parenting proceeding may include, among other documents:
     (a)  criminal records of a party; and
    (b)  documents filed in intervention order proceedings concerning a party; and
    (c)  medical reports about a child or party; and
   (d)  school reports. 

In the event no agreement can be reached each party to an application will be required to lodge what is termed as a Notice of Child Abuse Family violence or Risk – to say if there is or is not any risk – in this regard the risk is of serious harm to a child. Unfortunately, some parents seeing the heading get upset even if the form is not making a claim that there is any such risk.

Parents in a continuing dispute are also required to lodge a parenting questionnaire answering specific questions.

When our law firm  represents a client  in family law matters, we typically try to ensure that the genuine steps have been complied with and when relevant notify the other party of the genuine steps requirements and try  to facilitate a dispute resolution process. 

We recommend our clients think carefully about preferred parenting arrangements. We also provide each party with a copy of the Marriage, Families & Separation Brochure issued by the court and which can be located online at the court website. When appropriate, we advise the other party of our client’s parenting proposal and invite them to respond. 

In considering what parenting orders should be made it is important each parent understand that the court must focus on what might be in the child’s best interests.

The ‘primary considerations’ for determining a child’s best interests, to which the Court is required to give the greatest weight, include:

(a) the benefit to the child of having a meaningful relationship with both of their parents, and

(b) the need to protect the child from physical or psychological harm

(c) the need to protect the child from being subjected to, or exposed to, abuse, neglect or family violence.

In balancing those primary considerations, the Court must give greater consideration to protecting the child from harm (see section 60CC (2) and 60CC(2A) of the Family Law Act 1975).

You can find more information on the court website: https://www.fcfcoa.gov.au/fl/pd/fam-parenting.

In the meantime if you or someone you know wants more information or needs help or advice in a family law matter, please contact us on 02 9699 9877 or email [email protected] and we will be happy to advise you on your specific situation.