Family Court of Australia
Encyclopedia
The Family Court of Australia is a superior Australia
n federal court of record which deals with family law
matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia
except Western Australia
. Its core function is to determine cases with the most complex law, facts and parties, to cover specialised areas in family law, and to provide national coverage as the national appellate court for family law matters.
Established by the passing of Family Law Act 1975
, under Chapter 3 of the Australian Constitution, it commenced operations on 5 January 1976. It currently comprises a Chief Justice, Deputy Chief Justice, Appeal Division judges and other judges. At July 2008, there were 44 judges (5 of whom were also Judges of the Family Court of Western Australia), 2 judicial registrars and 1 senior registrar. The Court maintains registries in all Australian states and territories except Western Australia.
The Court has had three Chief Justices to date, Elizabeth Evatt
AC
, Alastair Nicholson
and Diana Bryant QC
(Formerly Chief Federal Magistrate, appointed to current role in 2004 The Deputy Chief Justice is John Faulks (appointed as a Judge in 1994 and to his current position in 2004).
The 2008-09 federal budget provided for Family Court expenditure of $137m (including services provided free to the Federal Magistrates' Court).
The Court has jurisdiction over all marriage-related cases in all states and territories of Australia
, except Western Australia
which has its own family court
. An avenue of appeal to the Family Court of Australia does however exist in relation to judgments in the Western Australian court.
Its juridiction covers applications for declarations of the validity or nullity of marriage
s, divorce
s, residence, contact , maintenance, child support
and property issues. This jurisdiction, granted under the Family Law Act 1975, is a Commonwealth responsibility under the 'matrimonial causes' head of power in Section 51(xxii) of the Australian Constitution. Prior to 1975, jurisdiction over family law matters was held and exercised largely by state Supreme courts under the Matrimonial Causes Act.
The Family Court also has jurisdiction over the children of defacto couples and those that have never lived together. This jurisdiction was acquired by the Commonwealth through a referral of powers
agreed between the Commonwealth and all states except Western Australia
). The initial referral referred to custody
and access in the breakdown of de facto relationships. A number of states have also referred de facto property issues, however the federal government has not yet legislated in this area. As a result, in all Australian states, financial issues between de facto couples are dealt with by state courts pursuant to state legislation.
Appeals from first-instance decisions of the Court lie to Appeals Division, which includes the Full Court of the Family court. From the Full court, the only possible avenue of appeal lies to the High Court of Australia
, an action which requires the grant of special leave from the High Court.
(FMC) in 1999, the Family Court has concurrent jurisdiction in most areas, with the FMC. The FMC was initially given jurisdiction to hear applications for nullity and dissolution of marriage,
family law property disputes (where the property in dispute was worth less than $0.3m, or property disputes worth more than this if the parties consented), parenting orders providing for matters such as contact, maintenance and specific issues, and where the parties consented, parenting orders providing for the residence of a child. In December 2000, its jurisdiction was extended to encompass ‘residence’. The majority of proceedings under the Family Law Act are now filed in the FMC. In general practice, only the more complex and intractable family law cases are transferred from the Federal Magistrates' Court to the Family Court.
According to the report, all review submissions, with the exception of that provided by the Federal Magistrates' Court, "considered that the most effective model for the delivery by the Courts of family law services would be a single family court, with two separate judicial divisions serviced by a single administration." The proposed model is similar to that of the Family Court of Western Australia
, which the
Law Council of Australia, in its submission, had noted as providing a useful model of the structure and functioning of an integrated Family Court. The Law Council stated that "Chapter III courts exercising largely identical jurisdictions, with separate administrations and competing for funds and resources, is wholly unacceptable and that rationalisation and integration of the two federal courts exercising family law jurisdiction is urgently required."
In her written submission to the Attorney-General, the current Chief Justice, Diana Bryant, noted "the budgetary pressures facing both existing Courts", and that as far as litigants and the public were concerned, there appeared to be significant duplication of resources and functions. She noted that "there are at present two courts with concurrent jurisdiction doing first instance family law work with no legislative differentiation. Her submission favoured combining the current family law functions of the Federal Magistrates Court with the Family Court of Australia under a new Court, with a new name.
According to the Family Court, "in a less adversarial trial:
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n federal court of record which deals with family law
Australian family law
Family Law in Australia is contained in various pieces of legislation, but also includes the common law and laws of equity, which affect the family and the relationship between those people - including when those relationships end....
matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
except Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
. Its core function is to determine cases with the most complex law, facts and parties, to cover specialised areas in family law, and to provide national coverage as the national appellate court for family law matters.
Established by the passing of Family Law Act 1975
Family Law Act 1975
The Australian Family Law Act 1975, sometimes referred to as the FLA by legal practitioners, is an Act of the Australian Parliament. It is one of four separate Acts that provide the framework for family law in Australia...
, under Chapter 3 of the Australian Constitution, it commenced operations on 5 January 1976. It currently comprises a Chief Justice, Deputy Chief Justice, Appeal Division judges and other judges. At July 2008, there were 44 judges (5 of whom were also Judges of the Family Court of Western Australia), 2 judicial registrars and 1 senior registrar. The Court maintains registries in all Australian states and territories except Western Australia.
The Court has had three Chief Justices to date, Elizabeth Evatt
Elizabeth Evatt
Elizabeth Andreas Evatt, AC , an emminent Australian reformist lawyer and jurist who sat on numerous national and international tribunals and commissions, was the first Chief Judge of the Family Court of Australia, the first female judge of an Australian federal court, and the first Australian to...
AC
Order of Australia
The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...
, Alastair Nicholson
Alastair Nicholson
Alastair Bothwick Nicholson AO RFD QC was the Chief Justice of the Family Court of Australia from 1988 until 2004.Nicholson was born in 1938 in Melbourne returning with his mother Jean to Papua New Guinea , where his parents owned a rubber and coconut plantation...
and Diana Bryant QC
Diana Bryant
Diana Bryant QC was appointed Chief Justice of the Family Court of Australia on 5 July 2004.Bryant attended grammar school in Melbourne, at the Firbank Girls' School. Chief Justice Bryant holds a Bachelor of Laws degree from Melbourne University, and a Master of Laws degree from Monash University....
(Formerly Chief Federal Magistrate, appointed to current role in 2004 The Deputy Chief Justice is John Faulks (appointed as a Judge in 1994 and to his current position in 2004).
The 2008-09 federal budget provided for Family Court expenditure of $137m (including services provided free to the Federal Magistrates' Court).
Jurisdiction
Commonwealth family law is dealt with by the Family Law Act 1975, the Family Law Regulations 1984 and the Marriage Act 1961. In 1986-87, the States agreed that children should be dealt with under the same legislation. The Family Law Act 1975 was amended in 1988 to reflect this agreement (although this did not happen in relation to Queensland until 1990). Western Australia, however, did not enter into the agreement and has maintained its own separate Family Court which deals with federal legislation (such as the Family Law Act) as well as state legislation such as the Family Court Act (WA). Unmarried partners in dispute over property are still required to go to State courts.The Court has jurisdiction over all marriage-related cases in all states and territories of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, except Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
which has its own family court
Family Court of Western Australia
The Family Court of Western Australia is a state court that deals with family law. It was established by the passing of the Family Court Act and commenced operation in 1976. It deals with divorce, marital property settlements, child custody, adoption and surrogacy...
. An avenue of appeal to the Family Court of Australia does however exist in relation to judgments in the Western Australian court.
Its juridiction covers applications for declarations of the validity or nullity of marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
s, divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
s, residence, contact , maintenance, child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
and property issues. This jurisdiction, granted under the Family Law Act 1975, is a Commonwealth responsibility under the 'matrimonial causes' head of power in Section 51(xxii) of the Australian Constitution. Prior to 1975, jurisdiction over family law matters was held and exercised largely by state Supreme courts under the Matrimonial Causes Act.
The Family Court also has jurisdiction over the children of defacto couples and those that have never lived together. This jurisdiction was acquired by the Commonwealth through a referral of powers
Section 51(xxxvii) of the Australian Constitution
Section 51 of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power...
agreed between the Commonwealth and all states except Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
). The initial referral referred to custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
and access in the breakdown of de facto relationships. A number of states have also referred de facto property issues, however the federal government has not yet legislated in this area. As a result, in all Australian states, financial issues between de facto couples are dealt with by state courts pursuant to state legislation.
Appeals from first-instance decisions of the Court lie to Appeals Division, which includes the Full Court of the Family court. From the Full court, the only possible avenue of appeal lies to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, an action which requires the grant of special leave from the High Court.
Relationship with Federal Magistrates' Court
With the establishment of the Federal Magistrates' CourtFederal Magistrates' Court of Australia
The Federal Magistrates Court is an Australian court established by the Federal Magistrates Act 1999 , although its first officers were not appointed until 2000...
(FMC) in 1999, the Family Court has concurrent jurisdiction in most areas, with the FMC. The FMC was initially given jurisdiction to hear applications for nullity and dissolution of marriage,
family law property disputes (where the property in dispute was worth less than $0.3m, or property disputes worth more than this if the parties consented), parenting orders providing for matters such as contact, maintenance and specific issues, and where the parties consented, parenting orders providing for the residence of a child. In December 2000, its jurisdiction was extended to encompass ‘residence’. The majority of proceedings under the Family Law Act are now filed in the FMC. In general practice, only the more complex and intractable family law cases are transferred from the Federal Magistrates' Court to the Family Court.
Proposed changes
In 2008, the federal Attorney-General announced a review of the delivery of family law services by the Family Court of Australia and the Federal Magistrates Court. A November 2008 report set out a possible framework of governance options to achieve a more integrated system of case management practices across the family law jurisdiction, with changes in judicial structures and reporting relationships. The report concluded that "there exists a significant level of duplication of administrative structures and corporate services across the Family Court and the FMC and that the existing and proposed duplication is not financially sustainable".According to the report, all review submissions, with the exception of that provided by the Federal Magistrates' Court, "considered that the most effective model for the delivery by the Courts of family law services would be a single family court, with two separate judicial divisions serviced by a single administration." The proposed model is similar to that of the Family Court of Western Australia
Family Court of Western Australia
The Family Court of Western Australia is a state court that deals with family law. It was established by the passing of the Family Court Act and commenced operation in 1976. It deals with divorce, marital property settlements, child custody, adoption and surrogacy...
, which the
Law Council of Australia, in its submission, had noted as providing a useful model of the structure and functioning of an integrated Family Court. The Law Council stated that "Chapter III courts exercising largely identical jurisdictions, with separate administrations and competing for funds and resources, is wholly unacceptable and that rationalisation and integration of the two federal courts exercising family law jurisdiction is urgently required."
In her written submission to the Attorney-General, the current Chief Justice, Diana Bryant, noted "the budgetary pressures facing both existing Courts", and that as far as litigants and the public were concerned, there appeared to be significant duplication of resources and functions. She noted that "there are at present two courts with concurrent jurisdiction doing first instance family law work with no legislative differentiation. Her submission favoured combining the current family law functions of the Federal Magistrates Court with the Family Court of Australia under a new Court, with a new name.
Less Adversarial Trials
In July 2006, under Division 12A of Part VII of the Family Law Act, the Court implemented its model for 'less adversarial trials' - to be applied to all new child related proceedings in the Family Court, without the need for consent of the parties. According to the Court, the change from a traditional common law approach to a less adversarial trial "has significant implications, not only for the conduct of family law litigation, but also for the conduct of litigation as a whole."According to the Family Court, "in a less adversarial trial:
- no affidavits are filed before the trial—parents only complete a questionnaire
- the judge, rather than the parties or their lawyers, decides how the trial is conducted
- the judge controls the case and keeps everyone concentrated on the major disagreements about their children’s best interests
- parents and carers can speak directly to the judge, not simply through their lawyers
- the judge identifies the issues to be decided and the evidence to be heard, and
- the judge is assisted by evidence from a family consultant."
Miscellaneous
When the Family Court was established, an attempt was made to make the court less formal and more ‘family friendly’, with a proposal that wigs should not be worn, although gowns would be retained. In 1987, the requirement to wear wigs were reinstated. Judges and judicial registrars of the Family Court of Australia wear a black silk gown, a bar jacket with either bands or a jabot and a bench wig. On formal occasions, judges wear full-bottomed wigs.External sources
- Annual Budgetary Statement 2008-09
- Family Law Act 1975
- Family Law Regulations 1984
- Family Law Rules 2004
- Significant judgments of the Family Court of Australia
- Significant family law judgments of the Federal Magistrates' Court
- Significant judgments of the Full Court of the Family Court of Australia
- Jurisdiction of the Court
- Family Law and the Family Court of Australia: The First 25 Years - by former Chief Justice Nicholson and M Harrision (Melbourne University Law Review)