In Australia, there are two courts your family law matter can be filed or heard in; the Family Court of Australia and the Federal Circuit Court. Just because you might have a family law dispute with your former spouse, doesn’t necessarily mean your application would be filed or heard in the Family Court of Australia.
In which court should my family law matter be dealt with?
Choosing the correct court to file your application depends on the complexity of your family law dispute.
Of course, there is common view among the general public that all family law disputes are complicated. However, there are a set of issues that determine the complexity of your specific dispute which in turn determines which court you should file in.
What are considered complex family law disputes?
If your case deals with any of the following issues, it should be initiated and be heard in the Family Court of Australia. The Family Court has jurisdiction to hear the following complex family law disputes:
- International child abduction;
- International relocation;
- Disputes as to whether the case should be heard in Australia;
- Special medical procedures (gender reassignment);
- Contravention of parenting Orders made within 12 months of filing;
- Serious allegations of sexual or physical abuse of a child;
- Complex issues regarding jurisdiction;
- Matters exceeding four days of hearing time;
- Validity of marriages and divorces; and
On the other hand, the Federal Circuit Court, previously known as the Federal Magistrates Court has jurisdiction to hear most family law disputes and federal law disputes. Family law disputes which are deemed to be less complex and under the jurisdiction of the Federal Circuit Court are issues which deal with:
- Parenting and financial matters;
- Child support and maintenance;
- Injunctions; and
- Location and recovery of children.
The differences between the Family Court and the Federal Circuit Court
The Federal Circuit Court was established to assist the Family Court in relieving the workload so that the Family Court may allocate more time to consider complex family law matters. Therefore, the Federal Circuit Court deals with a higher number of cases and is governed by the Federal Circuit Court Rules (2001) whereas the Family Law Rules (2004) govern the Family Court. Accordingly, there are different sets of rules and forms to complete depending on which court your matter is heard in.
Steps required prior to filing applications
Another difference is the requirement from the Family Court for you to complete certain steps before you file your application. This is known as pre-action procedures. This is not required for financial cases filed in the Federal Circuit Court.
At the time of writing, there is no difference in filing fees between the Federal Circuit Court and the Family Court for comparable fees. The difference lies in the Court Event fees. For example, a daily hearing fee in the Family Court of Australia is $860, while the daily hearing fee in the Federal Circuit Court is $630.
Ultimately, it is imperative to understand that both courts will use the Family Law Act (1975) in determining your family law disputes. The Family Court is a more formal, specialised and superior court. Therefore, in certain circumstances the decisions made in the Federal Circuit Court can be appealed to the Family Court within 28 days.
If in doubt file in the Federal Circuit Court
Due to the overlapping jurisdiction of both courts and where your application can be filed in either the Federal Circuit Court or the Family Court it is best practice to first file in the Federal Circuit Court and allow the court to determine if it should be transferred to the Family Court if resources permit.
If you have filed in the wrong court, there are protocols in place for either the court or a party to transfer the matter to the correct court.
The future – a new Bill has been proposed
Having two different courts, rules and forms can be complicated for a lay person and possibly even prevent access to justice.
A new Bill known as the Merger Bill has been put forward to the Senate Committee proposing a merger of the courts to be known collectively as the ‘Federal Circuit and Family Court of Australia’; being made up of two divisions. It is uncertain if the Bill will be supported by the opposition before the next Federal Election, expected in May 2019. In any case commentators have voiced their concerns that having a ‘shift away from family law specialsation is concerning.’
As the progress of this Bill continues or if its contents are legislated in part or full, we will provide further details.
If you’re unsure which court to file your family law application in or you believe you may have filed in the wrong court, our family law team can assist you. No matter what your family law inquiry is, feel free to get in touch directly with today’s writer, Gary Su.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.