Do I have to go to court for a divorce property settlement or childrens’ matter?

No, the vast majority of family law cases settle without the need for parties to end up in court. This is so whether the matter relates to children or property. 

95% of Family Law matters settle out of court

The vast majority of family law cases settle without the need for parties to end up in court. This is so whether the matter relates to children or property. 

Frequently, parties reach an agreement between them and then engage lawyers to formalise the agreement legally.

The Federal Circuit and Family Court of Australia (FCFCA) places a lot of emphasis to require parties to attempt to settle their case before the parties consider commencing court proceedings. Parties are required to take steps known as “pre action procedures” communicate with each other, exchange relevant information and documentation, and make offers and attempt mediation and negotiations to resolve their dispute

In cases involving children, it is compulsory that the parents attend mediation/ counselling attempt to negotiate an agreement. (1)

In matters involving property and financial issues, parties must also make “a genuine attempt” to resolve their dispute before they commence Court proceedings. (2)

Becoming informed

The starting point for achieving an out of court settlement is knowledge and information. Parties should obtain appropriate advice as to their rights, obligations, and prospects, about the law relating to disputes about children, the law about property matters, child support, spousal maintenance entitlements and so on. (3)

Preparing for mediation/negotiations

At the same time, with the assistance of their lawyers, parties should prepare before they attend mediation. consider the various possible scenarios to resolve their disputes out of court and strategic and tactical considerations about the approach to negotiations.

Formalising the agreement legally

Once a settlement is reached, it is necessary to formalise the agreement legally. The parties may enter into a Parenting Plan or choose to enter into parenting court orders instead.

The parties must complete and sign an Application for Consent Orders which is a pro forma document which must contain detailed information about the arrangements about the children and also detailed financial information. The parties must also enter into Consent Orders which is the legal document that reflects the agreement reached. The Application for Consent Orders and the Consent Orders must be filed with the Court.

A Registrar of the Court will then consider the documents and issue the orders in accordance with the Consent Orders documents.

If Court proceedings must be commenced

Sometimes, parties involved in a family law dispute are unable to resolve the dispute via negotiations and must commence Court proceedings. During the lifetime of the proceedings, the court will require the parties to attempt to resolve their dispute.

For more information or to make an appointment please contact:

Carlos Turini at: cturini@elringtons.com.au or

Phone  the Family Law Team on (02) 6206 1300


  1. See FCFCA issued brochure about children matters–https://www.fcfcoa.gov.au/sites/default/files/2021-08/Before-you-file-pre-action-procedure-for-parenting-cases-0921V1.pdf
  2. See FCFCA brochure about property matters. – https://www.fcfcoa.gov.au/sites/default/files/2021-08/Before-you-file-pre-action-procedure-for-financial-cases-0921V1.pdf. See also – https://www.fcfcoa.gov.au/sites/default/files/2021-08/Compulsory-pre-filing-Family-Dispute-Resolution-court-procedures-and-requirements-0921V1.pdf
  3. The law about disputes about children – see for example:

https://elringtons.com.au/2014/05/family-law-disputes-involving-children/ https://elringtons.com.au/2014/05/family-law-disputes-involving-children-part-iii/ https://elringtons.com.au/2016/05/why-should-i-get-a-parenting-plan/

The law about property matters – see for example article on the “four-steps approach” at https://elringtons.com.au/2011/04/family-law-property-disputes/

Last Updated: 2022-11-14 17:42:55