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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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 1975, 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.

Location Of The Court

Where you file is determined by the type of decision you seek and 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 has jurisdiction but is not a specialist court, and in locations where there is a Family Court or Federal Circuit Court nearby, most local courts will not deal with family law issues.

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, 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.

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 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 Act gives jurisdiction to the Local Court to deal with matrimonial causes and section 69J for parenting matters. In capital cities, Local Courts usually only deal with matters by consent, via 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 Act requires matters to be transferred to the Federal Circuit Court or Family Court 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 most family law cases.

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 be  in the same building at each venue. The courts have eight criteria for the division of work between the two. A matter must generally meet at least one criteria, especially when considering a transfer application between the courts. The criteria 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 begun 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;
  • matters involving special medical procedures of the types such as gender reassignment or sterilisation;
  • contravention of parenting orders made within 12 months of filing;
  • serious allegations of sexual abuse of a child, and serious allegations of physical abuse of a child or serious controlling family violence;
  • complex questions of jurisdiction or law;
  • a final hearing is likely to take more than four days.

The Family Court has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

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

For advice or representation in any legal matter, please contact Armstrong Legal.

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