Litigation - Where is best for me to file?


There are a few options of where to file your proceedings following the breakdown of your marriage or de facto relationship. Generally, Courts in this area are Commonwealth or Federal Courts because the Family Law Act, which is the primary piece of legislation dealing with family law matters, is a Commonwealth Act.

This legislation deals with parenting, property, spousal maintenance and child support matters following the breakdown of relationships. In each State, there are Local Courts or Magistrate Courts that also have jurisdiction in family law matters. In New South Wales (NSW) there are Local Courts which can also deal with these issues.

Location Of The Court

Depending on what issues you require the Court’s determination on, will also depend on where you file, and also your location. The Federal Circuit Court (Family Law Division) and Family Court of Australia are specialist Courts that deal with Family Law Matters. The Local Court of NSW, whilst having jurisdiction are not specialist Courts, and in locations where there is a Family Court or Federal Circuit Court nearby most Local Court’s will not deal with family law issues, as the specialist Courts are more equipped to deal with these matters and also the judiciary are more specialised in these areas.

Depending on where you live, what is convenient to you and the children will also determine the location or which Registry you should file. For example, you live in Wollongong, and so do your children, but your property is in Sydney. It is most likely to be more convenient to you to file in the Wollongong Registry than the Sydney Registry.

The Courts can transfer matters between Registries and between Courts on their own motion or upon the Application of either party. Therefore, you need to be aware that if you file in a Registry that is inappropriate, or incredibly inconvenient for most people concerned with the litigation, that a Court can move the case to a more appropriate venue. There is no right of Appeal from a decision as to transfer between the Courts.

In NSW, the Federal Circuit Court sits in the following areas: Sydney, Parramatta, Wollongong, Newcastle, Albury, Armidale, Broken Hill, Coffs Harbour, Dubbo, Lismore, Orange, Tamworth, Wagga Wagga and Wauchope. Save for Sydney, Parramatta, and Newcastle, all other locations are on Circuits, which means they are only serviced by a Judge visiting between once a month to once per quarter.

Some decisions about location of filing proceedings may be made based on the delay at a specific Registry.

Local Court Of New South Wales

These Courts, whilst having a jurisdiction to deal with family law matters, generally only deal with family law matters in more rural or regional towns which are not serviced, or not serviced regularly by the Federal Circuit Court. Section 39 of the Family Law Act gives jurisdiction to the Local Court to deal with matrimonial causes and Section 69J for parenting matters under Part 7 of the Act. In capital cities, Local Courts usually only deal with matters by consent, by way of an Application for Consent Orders or contested matters in circumstances of urgency given delays in other Courts. The Local Courts in major cities do not generally deal with family law matters that are contentious or not by agreement. Section 46 (property) and 69N (parenting) of the Family Law Act requires matters to be transferred to the Federal Circuit Court or Family Court of Australia after the first Court event, unless the parties all agree for the matter to be heard in the Local Court.

The Federal Circuit Court Of Australia

This Court is an arm of the Federal Court of Australia and deals with the majority of family law cases in NSW and in Australia.

The Family Court Of Australia

This Court is a superior Court of record compared to the Federal Circuit Court of Australia. It is usual for the Family Court and the Federal Circuit Court to physically sit in the same building at each venue. The Courts have a protocol for the division of work between the Family Court of Australia and the Federal Circuit Court. There are 8 criteria that would suggest a matter should be dealt with by the Family Court rather than the Federal Circuit Court. A matter must generally meet at least one of those criteria, especially when considering a transfer application between the Courts. The purpose of the protocol is to allow the Chief Justice and Chief Judge of each Court to properly allocate resources between the Courts and to better serve litigants.

If any one of the following criteria applies then it is more appropriate for the matter to be commenced or transferred to the Family Court of Australia:

  • Matters relating to international child abduction.
  • Matters relating to international relocation.
  • Disputes as to whether a matter should be heard in Australia or overseas.
  • Matters involving special medical procedures of the types such as gender reassignment or sterilisation.
  • Contravention or related Applications in parenting matters relating to Orders that have been made in Family Court of Australia proceedings which have reached a final stage of hearing or a judicial determination which have been made within the 12 months prior to filing the Contravention.
  • 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 intention of a superior Court.
  • Complex questions of jurisdiction or law.
  • If the matter proceeds a Final Hearing it is likely to take in excess of four days of hearing time.

The protocol also notes that the Family Court of Australia has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

It is the general procedure that in the event the matter may be required to be transferred to either Court, that the Court that deals with the interim work should also be the Court that deals with the final work involving the matter. That is to say that a matter should be transferred sooner rather than later within proceedings to ensure proper and efficient case management of a matter through the Court’s system.

The location and which Court you commence proceedings is an important decision to make at the outset of the proceedings.

 

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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