There are several courts – at both state and federal level – that deal with issues concerning families and children. Each court has jurisdiction to deal with specific types of cases, although there are several areas of overlap. Court policy about the sharing of cases can also affect which court will actually hear a particular case.
Family Court of Australia
The Family Court of Australia was created by the Family Law Act 1975 (Cth). It currently has jurisdiction to hear and decide on disputes in relation to parenting arrangements after separation, and also in relation to the sharing of property and financial resources after marital breakdown. It also has jurisdiction to hear certain applications under the Child Support Act and Marriage Act. The Family Court also has an additional special child welfare jurisdiction, not often exercised, that originated in the Crown’s obligation to protect children under ancient British law. For more details see Commonwealth special welfare jurisdiction.
Quite apart from these areas of its ‘inherent jurisdiction’ the Family Court has entered into case-sharing administrative arrangements with the Federal Circuit Court. Under these arrangements, the Family Court will usually only deal with the following more specialised types of cases within its jurisdiction:
- international child abduction and relocation and other international disputes;
- special medical procedures (such as gender reassignment and sterilisation);
- serious contravention of parenting orders (made by the Family Court);
- serious allegations of abuse of a child or of controlling family violence;
- complex questions of jurisdiction or law or likely lengthy hearing;
- adoption; and
- validity of a marriage or of a divorce.
Federal Circuit Court
The Federal Circuit Court is a federal court. It was created as the ‘Federal Magistrates Court’ in 1999 and renamed in 2012. Under the administrative arrangements with the Family Court, it is now the court in which all applications under the Family Law Act must first be made (unless they involve one of the issues of Family Court specialisation: see above). The Federal Circuit Court exercises jurisdiction in both parenting and property cases, and is the Court principally responsible now for granting divorce applications.
Family Court of Western Australia
Western Australia is the only state with a ‘one-stop-shop’ for family cases. The Family Court of Western Australia can deal with the Commonwealth and with the state areas of jurisdiction in all family-related matters.
The Family Court of Western Australia has special authority to hear cases and make final orders for all cases that can be heard in the Commonwealth’s Family Court of Australia. It can grant divorces, deal with parenting matters for children of both married and unmarried parents, and deal with property cases of both married and de facto couples. The Court also exercises jurisdiction in child welfare and adoption.
Local (or Magistrates) Courts
The Local or Magistrates Court in each state and territory (other than Western Australia where different arrangements apply), have been authorised under the Family Law Act:
- to make interim (temporary) orders for property cases for both married and eligible de facto parties, or even final orders where the total value of the property is less than $20,000 (or more, if both parties agree);
- to make interim orders for parenting cases, or even final orders (if both parties agree; or if the case is about resolving inconsistency between existing parenting orders and family violence orders);
- to make ‘consent orders’ for both property and parenting matters, having the effect of formalising an agreement already reached in private by the parties; and
- to make orders about family violence.
The Local or Magistrates Courts can also deal with property cases involving assets up to $100,000 for de facto partners who are not eligible for coverage under the Family Law Act, but who are eligible under the relevant state or territory law (in NSW this is the Property (Relationships) Act 1984). They also deal with family violence matters under the relevant state or territory legislation (for details see Family violence and child abuse).
In most states and territories, Children’s Courts deal with juvenile crime and care and protection issues for children at risk of harm. For more details see Hot Topics 73: Young people and crime, and Hot Topics 81: Child care and protection.
District (or County) Courts
In addition to a heavy load in criminal and non-family-related civil law cases, District (or County) Courts do also hear some property distribution cases for separating de facto couples (in NSW, where property value is between $100,000 and $750,000) where the relationship is not eligible for coverage under the Commonwealth’s family law legislation. In each state except WA, District Courts can also hear adoption matters.
The Supreme Court in each state and territory (except WA) hears the highest-value de facto couple property cases that do not meet the criteria for coverage under the Commonwealth’s scheme (in NSW, where property value is exceeds $750,000).
Supreme Courts in each state and territory can hear appeals on cases originally decided in their lower courts (District and Local).
A second appeal on an appeal first heard in the Supreme Court on a case under the Family Law Act goes to the Family Court of Australia.
Appeals from cases heard in the Federal Circuit Court and the Family Court of WA go to the Family Court of Australia.
An appeal from a case heard by the full bench of the Family Court of Australia or a Supreme Court may be heard in the High Court of Australia if permission is granted.