Commencing parenting proceedings-Family Court of Australia or Federal Circuit Court of Australia?

By Andrew Sauer

A common question that arises is whether proceedings for parenting orders should be filed in the Family Court of Australia or the Federal Circuit Court of Australia. Parenting proceedings can be commenced in either court, as both have jurisdiction under the Family Law Act 1975.

At present, different Rules and procedures apply in both courts. When commencing parenting proceedings in the Federal Circuit Court, the applicant is required to file:

1. An initiating application;
2. Certificate verifying the completion of family dispute resolution (unless seeking an exemption);
3. Notice of risk (whether or not risk is alleged); and
4. An Affidavit; (whether or not interim orders are sought).

In the Family Court, however, the applicant is only required to file a Notice of Child Abuse, Family Violence or Risk of Family Violence is such conduct/risk is alleged. Further, they are only required to file an affidavit if interim orders or an exemption from filing a certificate verifying the completion of family dispute resolution is sought. Accordingly, they may only need to file documents 1 and 2 above.

In the Federal Circuit Court, the first court date is usually a hearing before a Judge in the court’s duty list. In the Family Court the first court date is usually a case assessment conference before a Registrar, if urgent interim orders are not sought.

As a general rule, straightforward matters should be dealt with by the Federal Circuit Court and more complex matters should be dealt with by the Family Court. However, in practice, choosing which court to commence parenting proceedings in is often influenced by legal costs, urgency and which court is likely to offer the quickest resolution.

In 2013, the courts published a non-binding protocol for practitioners and litigants in relation to the division of work between the two courts. According to the protocol, the following matters should be heard by the Family Court:

1. Adoption;
2. Nullity/Validity of marriages and divorces;
3. International child abduction;
4. International relocation;
5. Forum disputes;
6. Special medical procedures;
7. Contravention relating to final orders made in earlier Family Court proceedings within the previous 12 months;
8. Matters concerning serious allegations of sexual or physical abuse of a child or serious family violence impacting upon a child;
9. Complex questions of jurisdiction/law;
10. If the matter proceeds to final hearing, it would likely take over four days.

Either court may deem that proceedings issued in its court should be transferred to the other and the court may transfer a case on application of a party or on its own initiative. In deciding whether to transfer a case, the court must have regard to:

1. Any relevant rules of court;
2. Whether proceedings in respect of an associated matter are pending in the other court;
3. The resources of the other court to hear the proceeding;
4. The interests of the administration of justice.

The Family Law Rules 2004 sets out a number of factors the Family Court may consider in deciding whether to transfer a matter to the Federal Circuit Court and the Federal Court may also be relevant to a decision to transfer a matter to or keep a matter in the Family Court, which can cross-vest with the Federal Court.