Part 4.2—Offers to settle a proceeding

## Part 4.1—Requirements before applying for orders #### 4.01 Compliance with pre‑action procedures (1) Subject to subrules (2) and (3), before starting a proceeding, each prospective party to the proceeding must comply with the pre‑action procedures. > Note: The pre‑action procedures are set out in Schedule 1. (2) Compliance with subrule (1) is not necessary if: (a) the proceeding is an application for divorce only; or (b) the proceeding is an application relating to nullity or validity of marriage only; or (c) the proceeding is a child support application or appeal; or (d) the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act; or (e) the proceeding involves a child born under a surrogacy arrangement and either: (i) there is no respondent seeking different orders to the orders sought by the applicant; or (ii) all parties consent to the orders sought; or (f) the court is satisfied that, in the circumstances, it was not appropriate for a party to comply with the pre‑action procedures. (3) For the purposes of paragraph (2)(f), circumstances include the following: (a) for a parenting proceeding—the proceeding involves allegations of child abuse or family violence, or of a risk of child abuse or family violence; (b) for a financial or property proceeding—the proceeding involves allegations of family violence, or of a risk of family violence; (c) the application is urgent; (d) the applicant would be unduly prejudiced; (e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the proceeding. (4) A person who starts a proceeding by making an application for final orders, or a respondent to an application for final orders, must indicate in the Genuine Steps Certificate filed with the application or response either: (a) that the person has complied with the pre‑action procedures; or (b) the factual basis on which the court should be satisfied that it was not appropriate for the person to comply with the required pre‑action procedures. (5) A person who is legally represented must comply with subrule (4) through the person’s legal representative. > Note 1: The court publishes a brochure setting out the pre‑action procedures for financial or property proceedings and parenting proceedings. > Note 2: Section 60I of the Family Law Act provides for attendance at family dispute resolution before applying for a parenting order in relation to a child. #### 4.02 Requirement to file family dispute resolution certificate with application for a parenting order (1) A person who starts a proceeding by making an application for an order under Part VII of the Family Law Act, such as a parenting order, must file with the application: (a) a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act; or (b) if an exemption from having to file a certificate is sought under subsection 60I(8A) of the Family Law Act—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exemption sought. (2) An applicant in proceedings referred to in subsection 100(1) of the Assessment Act or subsection 105(1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act. #### 4.03 Requirements before seeking an interlocutory order (1) Before filing an application seeking an interlocutory order, a party must make a reasonable and genuine attempt to settle the issue to which the application relates. (2) Compliance with subrule (1) is not necessary if: (a) compliance will cause undue delay or expense; or (b) the application would be unduly prejudiced; or (c) the application is urgent; or (d) there are circumstances in which an application is necessary (for example, if there is an allegation of child abuse, family violence or fraud). (3) A person who makes an application for an interlocutory order must indicate, in the affidavit filed with the application, either: (a) that the person has made a reasonable and genuine attempt to settle the issue to which the application relates; or (b) which exception in subrule (2) applies to the application and the factual basis for the exception claimed. (4) A person who is legally represented must comply with subrule (3) through the person’s legal representative. #### 4.04 Consequences of failure to comply with rules 4.01 to 4.03 (1) If: (a) a person makes an application for a final order without complying with the pre‑action procedures; and (b) the court considers that no exception in subrule 4.01(2) applied to the application; the court may stay the application, on its own initiative or on the application of the respondent, until the applicant complies with the pre‑action procedures. > Note: See also subsection 60I(7) of the Family Law Act, which sets out a requirement that must be met before the court will accept for filing an application for an order under Part VII of that Act. (2) The court may take into account a party’s failure to comply with rule 4.01, 4.02 or 4.03 when considering whether to make an order as to costs. (3) The court may take into account the involvement of a legal practitioner in a party’s failure to comply with rule 4.01, 4.02 or 4.03 when considering whether to make an order as to costs. > Note: Rules 12.15‑12.16 relate to the making of costs orders against lawyers. #### 4.05 Dispute resolution events Court may require attendance at dispute resolution events (1) In the exercise of its general powers of case management to achieve the overarching purpose of these Rules, the court may order a party to attend: (a) a family consultant; or (b) family counselling or family dispute resolution; or (c) another dispute resolution event as permitted by the Family Law Act. Judicial officers may conduct dispute resolution events (2) A dispute resolution event may be conducted by a judicial officer. ## Part 4.2—Offers to settle a proceeding ### Division 4.2.1—General #### 4.06 How to make an offer (1) A party may make an offer to another party to settle all or part of a proceeding by serving on the other party an offer to settle at any time before the court makes an order disposing of the proceeding. > Note: See also paragraph 114UB(3)(f) and section 117C of the Family Law Act in relation to offers to settle. (2) A party may make an offer to settle all or part of an appeal by serving on the other party an offer to settle at any time before the court makes an order disposing of the appeal. (3) An offer to settle: (a) must be in writing; and (b) must not be filed. > Note: A later offer to settle has the effect of withdrawing an earlier offer (see subrule 4.08(3)). #### 4.07 Open and without prejudice offers (1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer. (2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer: (a) in any document filed; or (b) at a hearing or trial. (3) If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court. (4) Subrule (2) does not apply to: (a) an application relating to an offer; or (b) an application for costs. #### 4.08 How to withdraw an offer (1) A party may withdraw an offer to settle by serving a written notice on the other party that the offer is withdrawn. (2) A party may withdraw an offer to settle at any time before: (a) the offer is accepted; or (b) the court makes an order disposing of the application or appeal to which the offer relates. (3) A second or later offer by a party has the effect of withdrawing an earlier offer. #### 4.09 How to accept an offer (1) A party may accept an offer to settle by notice, in writing, to the party making the offer. (2) A party may accept an offer to settle at any time before: (a) the offer is withdrawn; or (b) the court makes an order disposing of the application or appeal. (3) If an offer to settle is accepted, the parties must lodge a draft consent order. > Note 1: The draft consent order should set out the orders agreed to by the parties and must be signed by each party or the party’s legal representative (see subrules 5.28(2) and 10.04(2)). > Note 2: If a litigation guardian seeks a consent order (other than an order relating to practice or procedure), the litigation guardian must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests (see subrules 5.28(3) and 10.04(3)). #### 4.10 Counter‑offer A party may accept an offer to settle even though the party has made a counter‑offer to settle. ### Division 4.2.2—Offers in financial or property proceedings #### 4.11 Compulsory offer to settle (1) This rule applies to a financial or property proceeding. (2) Each party must make a genuine offer to settle to all other parties within: (a) 28 days after a conciliation conference or mediation; or (b) if no conciliation conference or mediation has been held or is to be held—28 days after the first court date; or (c) such further time as ordered by the court. (3) The offer to settle must state that it is made under this Division. > Note: Example: The offer to settle must include a statement along the following lines: > Note: This offer to settle is made under Division 4.2.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. > Note 1: An offer to settle is a factor that must be taken into account when the court exercises its discretion in relation to costs (see paragraph 114UB(3)(f) of the Family Law Act). > Note 2: Rule 10.27 sets out the consequences of failing to comply with these Rules. #### 4.12 Withdrawal of offer A party who withdraws an offer to settle made under this Division must, at the same time, make another genuine offer to settle.