Litigation - Where is Best For Me To File?
On 1 September 2021, the Federal Circuit and Family Court of Australia (FCFCA) was established. All family law matters are now to be filed in the FCFCA. Prior to the establishment of the FCFCA, the Federal Circuit Court and the Family Court of Australia were separate, but overlapping, jurisdictions.
A person wanting to file a family law matter must now do so in either Division 1 or Division 2 of the Federal Circuit and Family Court of Australia. Which division a matter should be filed in depends on the type of matter it is.
The geographical location of the parties to a matter will generally determine which court location the matter should be filed in. Courts can transfer matters between registries and between courts on their own motion or upon the application of either party. Therefore, if a person files an application in a registry that is inappropriate, or very inconvenient for most people involved, the court can move the case to a more appropriate venue. There is no right of appeal against a decision as to transfer a matter between 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 and Family Court of Australia. 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 FCFCA after the first court event, unless the parties all agree for the matter to be heard in the Local Court.
Division 1 of the FCFCA
Division 1 of the FCFCA deals exclusively with family law matters. It is the entry point for family law appeals, which are heard by a single judge unless the Chief Justice decides that a matter should be heard by the full court.
Division 1 of the FCFCA continues the work that used to be done by the Family Court of Australia. It is presided over by specialist family law judges.
Division 2 of the FCFCA
Division 2 of the FCFCA is the entry point for all family law matters other than appeals. It also deals with general federal law matters such as immigration matters and fair work matters.
A matter may be transferred from Division 2 of the FCFCA to Division 1 of the FCFCA by the Registrar where it is appropriate.
Division 2 continues the work that used to be done by the Federal Circuit Court.
Changes to the family courts
Prior to the merging of the Federal Circuit Court and the Family Court, parties had a choice about which jurisdiction they commenced litigation in. This caused a lot of confusion, with matters sometimes being filed in the less appropriate forum. Now that the Federal Circuit and Family Court has been established, there is a single entry point for family law matters. This is aimed to make the family law system more efficient, more consistent and quicker.
For advice or representation in any legal matter, please contact Armstrong Legal.