Federal Circuit and Family Court

Update on Family Court and Federal Circuit Court reform

In May 2018 Peter Hooper’s blog referred to the Federal Government’s announcement of a significant shake up of the Australian Family Law Courts system.

The changes were due to occur on 1 January 2019 however delays have been encountered and at the current date the changes haven’t come into effect.

This article outlines the current structure and difference between the courts exercising jurisdiction pursuant to the Family Law Act 1975.

The current Family Law Courts structure

The Federal Circuit Court and Family Court are two separate divisions of the same court that operate under the Family Law Act. For example, applications for Parenting Orders can be made to both courts,[1] however there are guidelines as what type of parenting matters are filed in which court.

Family Court

A Protocol for the division of work between the two courts was released in April 2013. This protocol is not binding but it offers guidance to solicitors and judicial officers.[2]Using the example for parenting matters, this protocol advised that parenting matters involving the following issues should be filed in the Family Court of Australia or transferred to the Family Court of Australia (where the matter had already been filed).[3]

  1. International Child Abduction;
  2. International Relocation;
  3. Dispute as to whether the matter should be heard in Australia;
  4. Special Medical Procedures (e.g. gender reassignment);
  5. Where are party has contravened Family Court of Australia Orders and the contravention was within 12 months of the Orders being made.

    [1]Family Law Act 1975 (Cth) s 69H.
    [2]Morris &Rosetti [2017] FamCA 249.
    [3]Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court – 12 April 2013.

  6. Serious allegations of sexual abuse of a child, serious allegations of physical abuse of a child or serious controlling family violence;
  7. Complex questions of jurisdiction or law; and
  8. If the matter is likely to take in excess of four days of hearing time if the matter was to be heard.

In addition to the above, the Family Court of Australia has exclusive jurisdiction in relation to adoption.[4]

Further, if there are allegations of sexual abuse or physical abuse, the matter may be placed in the Magellan List. This is a list that is designed to fast-track proceedings that involve these allegations in accordance with the requirements of the Family Law Act.[5]

Transfer of Proceedings

If the matter has been filed in the Federal Circuit Court, the court has the power to transfer the proceedings to the Family Court.[6] In deciding whether to transfer the proceedings the court has regard to the following:

  1. Whether the matter involves questions of general importance, such that it would be desirable for there to be a decision of the Family Court on one or more points in issue;[7]
  2. Whether the matter is likely to be heard and determined at less cost and more convenience to the parties than if the proceedings were not transferred (including whether the proceedings would be heard earlier);[8]
  3. The wishes of the parties.[9]

The court can transfer the proceedings of its own initiative or by the request of one of the parties (made by application and supporting affidavit).[10]

The Federal Circuit Court is responsible for the bulk of cases while the Family Court hears more complex cases and is responsible for Appeals.

[4]Family Law Act 1975 (Cth) s 69H (4).
[5]Family Law Act 1975 (Cth) s 67ZBB.
[6]Federal Circuit Court of Australia Act 1999 (Cth) s 39 (1); Morris & Rosetti [2017] FamCA 249.
[7] Federal Circuit Court Rules 2001 r 8.02 (4) (a).
[8] Federal Circuit Court Rules 2001 r 8.02 (4) (b) and (c).
[9] Federal Circuit Court Rules 2001 r 8.02 (4) (e).
[10] Federal Circuit Court Rules 2001 r 8.02 (1) and (3).

The reform

It is envisaged the new Federal Circuit and Family Court of Australia will be one Court with two Divisions, and the shared registry will continue for both divisions. Basically, division one will be what was the Federal Circuit Court and Division two will be made up of the Family Court Judges. Appeals will be sent to an appeal division of the Federal Court of Australia.

One set of Court Rules will apply obviating the necessity for situation currently with theFederal Circuit Court Rules 2001 and the Family Court Rules 2004 both operating.

Current progress of the reform

The third reading of the Federal Circuit Court and Family Court of Australia Bill 2018 in the House of Representatives was agreed to on 27 November 2018 with the second reading moved in the Senate on 3 December 2018.

How the new structure will operate in practice is still “wait and see” however it is hoped the reform will assist Families navigating their way through parenting matters and family law property settlement matters to obtain faster and more cost effective family law outcomes.

Shaun Mill

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Mill Family Lawyers on the Gold Coast on (07) 5599 3026.

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