What Court Do We Go To?

Date: Aug 03, 2009
Document Type: Newsletter

There are a number of courts which can deal with matters under the Family Law Act, which covers both parenting and financial or property matters between couples, whether married, de facto or, in some parenting cases -parents who never had any ongoing relationship. Choosing the right court can save time, money or both, and the choice is one which family lawyers have to make all the time for their clients.

There are three courts which can make Family law orders, the Family Court of Australia, the Federal Magistrates Court of Australia and the Local Courts or Magistrates Courts, which are State courts. The Family Court was the original court for Family law matters, and is staffed by Judges, known as Justice Smith or Jones. The court does also have judicial officers known as Judicial Registrars, who can deal with the shorter and less complicated cases. These have now largely been replaced by Federal Magistrates. At the present time, the Family Court deals with the longer and more complicated cases, and with appeals.

Cases are initially heard by one judge, but an appeal will usually lie to the Appeals Division, where they are heard by a panel of three judges, normally judges permanently assigned to the Appeals Division. Appeals from decisions of Federal Magistrates are heard by one Family Court judge. Appeals can lie from the Appeals Division to Australia's highest court, the High Court of Australia, but require the leave of the High Court. This is normally only given when an important point of law warrants a high Court decision.

Some years ago the Federal government created the Federal Magistrates Court, which in Family Law matters was designed to provide a quicker, cheaper and less formal resolution of disputes. The Court does handle other matters, such as bankruptcy and immigration, but most of its work is in the Family Law field, and most of the Federal Magistrates who deal with Family Law do Family Law almost exclusively, and were appointed from the ranks of experienced family lawyers.

The day to day administration of the Family Court and the Federal Magistrates Court is virtually unified. The same premises are used, the same staff handles document filing and the same Registrars handle registrars' functions for both courts. Registrars are qualified lawyers, who deal with divorces, procedural hearings and chair conciliation conferences. The Federal government has indicated that it proposes to unify the two courts, so that presumably the Federal Magistrates Court will become a junior division of the one court, and it seems that both courts favour the amalgamation.

The state local or magistrates courts do have a limited jurisdiction under the Family Law Act, which is most often used in regional areas where the Family Court or the Federal Magistrates Court do not sit frequently. A state magistrate can make orders which are agreed to, but otherwise must transfer a matter to one of the Family Law courts. In this situation, the court can make interim or temporary orders which will take effect until a Family Law court orders otherwise.

The final complication is that cases can be commenced in any court registry, regardless of where the parties live - there are no fixed boundaries for each court registry. However, the court has the power to direct where a case should be heard, normally based on common sense and convenience. Choosing a registry can be a problem when, say, one party has moved interstate.

The lesson from all of this? Ask your family lawyer, and if the advice surprises you, ask the reasons for the advice.

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