The Courts that deal with family law matters
There are three different courts that women may have contact with in family law matters: the Family Court, the Magistrates Court (state) and the Federal Circuit Court.
The Family Court
The Family Court of Australia can hear all family law matters except divorces (which are heard in the Federal Circuit Court). It specialises in family law and is set up to deal with more complex matters including family violence, allegations of drug or alcohol abuse, issues around parental mental health and/or allegations of child abuse. This court has counselling and mediation servces.
The Family Court of Australia is the highest court in Australia dealing with family law issues.
The Court has offices throughout Australia except in Western Australia which has its own Family Court. Family Court offices are known as registries.
The Federal Circuit Court of Australia
This court deals with a range of matters in federal law including family law. It is where most proceedings are first filed and the court deals with the less complex family law matters included divorce, property matters, parenting and child support.The majority of applications under the Family Law Act may be filed in the Family Court of Australia or the Federal Circuit Court.
The Magistrates Court (State)
The Magistrates Courts can deal with a whole range of matters in state law. It can also deal with family law matters but only in limited circumstances.
This court can hear family law matters in regard to:
- Disputes about children but only if both parties agree to the matter being heard in this court, and/or
- Disputes about property worth less than $20,000 and above $20,000 if both parties agree to the matter being heard in this court.
This court cannot hear matters in regard to divorce.
For a matter about children to proceed in the State Magistrate Court, both parties must agree to it proceeding there. If one party does not agree, the State Magistrate must transfer the matter to the Family Court. The State Magistrate’s decision is not discretionary. The matter must be transferred to the Family Court if one of the parties requests it. The State magistrate can make temporary orders until the Family Court hears the matter.
In urgent circumstances, a State magistrate can make an order when only one of the parties is attending at the Court. This is called an ex-parte order. This order can be challenged later but it must be abided by until the matter is heard in the Family Court.
In property matters, a State magistrate cannot hear disputes about property worth more than $20,000 unless both parties agree. Therefore, if the property is worth $20,000, one of the parties can request a transfer and the State magistrate must transfer the matter to the Family Court.
Generally, in rural and regional areas, the State Magistrates court is used more often than the Family Court for reasons of cost and convenience.
The Family Court of Western Australia
In Western Australia, the Family Court of Western Australia has authority to deal with family law matters under State and Federal law. If you live in Western Australia, you apply to this Court for help with family law matters.
It is vested with State and Federal jurisdiction in matters of family law and deals with divorce, property of a marriage or defacto relationship, matters relating to children, maintenance, adoptions and surrogacy.
Which court to use?
If any one of the following criteria applies then the application for final orders should be filed and/or heard in the Family Court of Australia.
- International child abduction.
- International relocation.
- Disputes as to whether a case should be heard in Australia.
- Special medical procedure (of the type such as gender reasssignment and sterilisation).
- Contravention and related applications in parenting cases relating to orders which have been made by the Family Court proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
- Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
- Complex questions of jurisdiction or law.
- If the matter proceeds to a final hearing it is likely it would take in excess of four days of hearing time.
The Family Court of Australia has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Either court on its own motion or an application of a party can transfer a matter to the other court.
There is no right of appeal form a decision as to transfer.