All family law matters must be commenced in the Federal Circuit and Family Court of Australia (Division 2). More complex matters that are filed in Division 2 can be transferred to the Federal Circuit and Family Court of Australia (Division 1) or in some cases the Federal Court of Australia (whichever has jurisdiction). Similarly, there are provisions to transfer less complex matters from other courts to the Federal Circuit and Family Court of Australia (Division 2).
The legislation has been drafted to minimise the possibility of parallel proceedings being run in different courts. It prohibits proceedings being issued in one court if associated proceedings are already on foot in another court, where that other court would have jurisdiction to deal with the matter.
Many parties consent to a transfer of their matter, whether there is jurisdiction or not, to achieve an early hearing date. Because of the definition of 'proceedings' in the Family Law Act 1975, part of a proceeding can be transferred, enabling the Federal Circuit and Family Court of Australia (Division 2) to deal with interim matters, while the final hearing is conducted by the Federal Circuit and Family Court of Australia (Division 1).
When determining whether to transfer a matter, the Court must have regard to the following matters:
- whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Circuit and Family Court of Australia (Division 1) on one or more of the points in issue
- the financial value of the claim
- the complexity of the facts, legal issues, remedies and procedures involved
- whether the proceeding, if transferred, is likely to be dealt with at less cost to the parties, at more convenience to the parties, or earlier
- the availability of a judicial officer specialising in the type of proceeding to which the application relates
- the availability of particular procedures appropriate for the class of proceeding
- the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns, and
- the wishes of the parties.
The parties can apply to the Court to be transferred, or the Court can transfer a proceeding on its initiating. The parties do not need to consent for the Court to transfer proceedings. An application to transfer a proceeding must be made by:
- seeking the transfer in the interlocutory orders sought in the Initiating Application or Response to Initiating Application, if a proceeding has not yet been commenced, or
- filing an Application in a Proceeding, after a proceeding has commenced.
The application will need to be supported by an Affidavit – Family law and child support setting out the facts relied upon in support of the transfer.
More information
For more information, including access to the Family Law Act 1975, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, and any of the forms or publications listed in this brochure:
- go to www.fcfcoa.gov.au
- Live Chat on the website
- call 1300 352 000, or
- visit a family law registry near you.
This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Federal Circuit and Family Court of Australia cannot provide legal advice.
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