Role of the Courts

In 1975, the Family Law Act was enacted. The Family Court of Australia was established as a superior court of record, resolving and determining disputes falling within the ambit of "matrimonial causes", defined in the Act as, amongst other things, proceedings between parties to a marriage as to divorce, spousal maintenance and property settlement as well as parenting matters.

In 1999, the Commonwealth established the Federal Magistrates Court, which commenced operation in July 2000 and has been known as the Federal Circuit Court since 2013. The Federal Circuit Court is an independent federal court designed to provide a simpler, more streamlined approach to litigation, accessible to all, as an alternative to litigation in an overwhelmingly busy Family Court.

Up until recently, parties were able to issue proceedings in their preferred court. The Family Court traditionally had various resolution stages which parties were encouraged to engage in, namely mediation and counselling, prior to a determination being made on interim issues. The Federal Circuit Court however permitted interim issues to be determined by a Judge on the first return date, that being the first date on which the matter comes before the court.

In recent times however, the Family Court has limited the matters which come before it to complex financial matters, matters concerning child abuse and neglect and matters which, by their very nature, would require many days of trial. This has resulted in the remaining matters concerning property, children's issues, spousal maintenance and child support commencing in and ultimately less complex being determined in the Federal Circuit Court.

Regardless of which court proceedings are commenced, parties are positively encouraged to resolve their disputes prior to going to court. Pursuant to the Family Law Rules 2004 parties must comply with pre-action procedures which, amongst other things, requires the parties to make a genuine effort to resolve their dispute before starting a case. Further, in parenting matters parties are required to attend upon a Family Dispute Resolution Practitioner and make a genuine effort to resolve the issues in dispute before they are allowed to apply to the courts. A certificate from a Family Dispute Resolution Practitioner will be required before either party is able to make an application to the court. There are of course a number of exceptions to this rule, particularly in cases of family violence or urgency.

To find out more, please contact our Family Law team.