Historically, the Commonwealth made laws dealing with marriage relationships, whereas the various States and Territories had the power to make laws dealing with matters arising out of the breakdown of de facto relationships, including parenting and financial issues.
In the mid 1980s various States and Territories conferred upon the Federal government the power to deal with parenting issues arising out of de facto relationships. Previously, contested parenting issues involving children from de facto relationships were dealt with in the State Civil Courts. After the Federal government acquired the power to deal with children of de facto relationships, all parenting disputes, whether arising from marriage or de facto relationships, were then dealt with in the Family Court jurisdiction.
Financial issues in marriage cases have always been dealt with in the Family Court. However, financial issues in de facto relationship cases were historically dealt with in the State and Territory Civil Courts.
To add to the confusion of which Court to turn to in contested financial cases after the breakdown of a relationship, the Federal government established the Federal Magistrates Court in 2000. The idea was for the Federal Magistrates Court to deal with the simpler cases, whereas the Family Court was to deal with the more complex cases. .
In late 2008 the Federal government passed legislation to change the Family Law Act after various States surrendered to the Commonwealth the power to deal with financial matters arising out of de facto relationships.
This meant that any de facto relationship which broke down after 1 March 2009 would be subject to the new laws under the Family Law Act. Those new laws would treat financial issues arising out of the breakdown of de facto relationship on a par with marriage cases. This was seen as a sensible move as potentially de facto relationships which had broken down involving contested parenting and property issues could end up having parenting issues litigated in the Family Court/Federal Magistrates Court and financial issues in the State Civil Courts. Now all issues arising out of the breakdown of de facto relationships will be litigated in the Family Court or Federal Magistrates Court.
In a move which will relieve confusion over which Court in which to commence proceedings, it has been announced that there will be an examination to merge the Family Court and the Federal Magistrates Court. The practical result of this, if it eventually occurs, will be that any contested parenting or financial issues whether arising out of marriage or de facto relationships, will now all be dealt with in the one Commonwealth Court rather than having to navigate the minefield of State Civil and Commonwealth Courts.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.