EstablishmentThe Family Court of Australia was established under Chapter 3 of the
JurisdictionCommonwealth 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). 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 jurisdiction covers applications for declarations of the validity or nullity of marriages,
Difference between relationshipsThe Commonwealth power to legislate for marriage and 'matrimonial causes' is supported by sections 51(xxi) and (xxii) of the Constitution, whereas the power to legislate for de facto financial matters largely relies on referrals by States to the Commonwealth in accordance with section 51(xxxvii) of the Australian Constitution. A special cause was created called a 'de facto financial cause'; see the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 200
Limited jurisdiction over de facto relationshipsHence, from 1 March 2009 a new section in th
Children of de facto relationshipsThe Family Court also has jurisdiction over the children of de facto 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.
Appeals from first-instance decisionsAppeals from first-instance decisions of the Court are to Appeals Division, which includes the Full Court of the Family Court. From the Full Court, the only avenue of appeal is to the
Relationship with Federal Circuit CourtWith the establishment of the Federal Magistrates' Court in 1999 (now the Federal Circuit Court of Australia (FCCA)), the Family Court has concurrent jurisdiction in most areas, with the FCC. 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 Circuit Court to the Family Court.
Proposed changesIn 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, 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 trialsIn 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."
MiscellaneousWhen 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 wore a black silk gown, a bar jacket with either bands or a jabot and a bench wig. Now judges wear a black gown (with a red stripe on appeals and formal sittings).
See also* Family Court of Australia attacks * Family dispute resolution * List of judges of the Family Court of Australia