Which Court do I/we make an application to? the Family Court of Australia / Federal Circuit Court / Family Court of Western Australia?

Family Court of Australia / Federal Circuit Court?

The general rule (judicial resources permitting) is that unless special or exceptional circumstances apply (refer below) your application will most likely be heard by the Federal Circuit Court (“FCC”).

Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court*

"The Chief Justice and the Chief Judge have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them.
The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Circuit Court (“FCC”).
1️⃣ International child abduction;
2️⃣ International relocation;
3️⃣ Disputes as to whether a case should be heard in Australia;
4️⃣ Special medical procedures (of the type such as gender reassignment and sterilisation).
5️⃣ Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6️⃣ Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7️⃣ Complex questions of jurisdiction or law.
8️⃣ If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.

NOTE: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

Family Court of Western Australia

Western Australia is unique amongst Australian states in being the only state with its own Family Court.

This may change in the future as we understand there are discussions regarding a future merger with the Family Court of Australia.

If your matter has a nexus (i.e., connection) to Western Australia, then you may make an application to the Family Court of Western Australia.

If you are unsure whether you matter is connected to Western Australia, please contact our legal team to seek legal advice specific to your circumstances.

To provide some general background to what constitutes connection the threshold tests differ for parenting and financial matters.

Parenting Matters

The test for the required connection Western Australia differs depending upon the specific orders being sought.

Financial Matters

The threshold test is specified in s. 205X of the Family Court Act 1997 (WA):

205X. People to whom this Part applies — connection with WA

Despite section 36(5), before making an order under this Division a court must be satisfied —
(a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and
(b) that —
(i) both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or
(ii) substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant.

*Source: Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.