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Family Court and Federal Circuit Court – What’s the Difference?

There is some overlap in the area of family law between the Family Court and the Federal Circuit Court. Both have jurisdiction over family law, and both focus on alternative dispute resolution methods for resolving legal disputes. Both the Family Court and the Federal Circuit Court stress dispute resolution alternatives to litigation. Both courts have jurisdiction over both marriage and de facto relationships. Both courts also provide e-filing for divorce, initiating applications and response to initiating applications.

Family Court – Exclusive Jurisdiction

The Family Court has exclusive jurisdiction over the validity of marriages and divorces, and adoption. It is also the court which deals with more difficult issues of family law, such as:

  • international child abduction
  • international relocation
  • special medical procedures
  • serious allegations of sexual abuse of a child
  • serious allegations of physical abuse of a child

The Family Court also hears disputes over whether a case should be heard in Australia, and also complex questions of jurisdiction and law. The Federal Circuit Court will deal with many of the smaller scale issues in family law.

There is a large body of publications available on the Family Court website concerning all aspects of the Family Court process.

Federal Circuit Court and Family Court: Overlap

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker.

Whilst both the Family and Circuit courts deal with normal family law issues such as divorce, separation, maintenance, and child support, the Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, as noted above, and so the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court deals with many of the smaller scale issues of family law. It has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes
  • Spousal and de facto maintenance
  • Property disputes
  • Divorce
  • Contravention applications (alleging a breach of a court order)
  • Enforcement of orders made by either the Federal Circuit Court or Family Court
  • Location and recovery orders as well as warrants for the apprehension or detention of a child
  • Determination of parentage and recovery of child bearing expenses
  • Applications for injunctions
  • Superannuation (which can now be considered property in a divorce or separation)

For self-representing parties, forms for some of the above listed areas are available.

The Family Law Court website also provides information on the court processes, forms, and costs associated with going to court over a family dispute.

Both courts encourages parties to settle matters between themselves before proceeding to court. Sometimes this may not be possible, and court is the only option. You will find that once you access the Family Law Court website or the Federal Circuit Court website there is a great deal of connection between the two because of their joint jurisdiction.

How and when you can begin certain proceedings is discussed in the Family Law section of this website. For more information on family law in general go to the Family Law section.

 

Legal Advice or Self-Representation?

The Federal Circuit Court stresses speed, efficiency and cost effectiveness in their resolution of disputes. For this reason, the court website is accessible, and provides means of self-representation for parties to a family law dispute. If the ‘dispute’ is merely an amicable divorce, or involves an agreement between amicable parties, legal advice may only be necessary for the paperwork involved in property division or settling means of paying maintenance.

It is always important to seek legal advice where matters are hostile or unsettled between parties. This includes situations where one party is seeking a divorce but the other party is resistant. Other examples could include where the custody of a child or children is disputed, or where one party is not willing to pay maintenance or divide property. Issues like these will often end up before the courts. There is compulsory dispute resolution, but continued hostility and an unwillingness of one or both parties to agree will result in the matter being heard in court, and the need for legal representation.

If the two parties are amicable, and have settled relationship and financial matters between themselves, self-representation is an appealing option.

It is your choice to self-represent, but where matters between married parties are not amicable or settled, legal advice is the wisest choice. Legal Aid is available to some people, and Legal Aid provides Duty Solicitors at the Federal Circuit Court.

 

What you can do in the Federal Circuit Court

The Federal Circuit Court was created in 1999 in order to relieve the court loads on the Federal and Family Courts of Australia. The rules and procedures of the court are generally less formal than other courts, making the processes of court more accessible and quicker. The Federal Circuit Court will hear the majority of divorce applications in Tasmania. As the Family Court has exclusive jurisdiction over the more complex or sensitive cases, the Federal Circuit Court takes the burden of more typical cases, such as separation or divorce.

The Federal Circuit Court deals with many of the smaller scale issues of family law. It has the jurisdiction to determine applications concerning:

  • Orders to resolve parenting and financial disputes;
  • Spousal and de facto maintenance;
  • Property disputes;
  • Divorce;
  • Contravention applications (alleging a breach of a court order);
  • Enforcement of orders made by either the Federal Circuit Court or Family Court;
  • Location and recovery orders as well as warrants for the apprehension or detention of a child;
  • Determination of parentage and recovery of child bearing expenses;
  • Applications for injunctions;
  • Superannuation (which can now be considered property in a divorce or separation);

For self-representing parties, forms for some of the above listed areas are available at the Federal Circuit Court website, however some of these matters are best dealt with by lawyers, as the matters to be resolved may be complicated and require paperwork that is difficult to manage.

While the court encourages parties to settle matters between themselves before proceeding to court this may not always be possible, and court will be the only option, in which case, it is important to seek legal advice.

Separation and Divorce

Applying for a divorce where the split is amicable, or at least mutually desired, can be quite simple. A joint application where there are no children under the age of 18 years requires very little effort from the two parties. However, there are steps that must be followed.

The Federal Circuit Court (FCC) provides information on divorce, and links to the Family Court page that provides a step-by-step guide to applying for a divorce. Parties must:

  1. Complete an application for divorce. Application for Divorce Kits are available.
  2. Sign the application before a lawyer, Justice of the Peace, or other authorised person
  3. Make two photocopies of the completed and signed Application, plus any supporting documents
  4. File the original and two copies of the Application, plus a copy of your marriage certificate with the FCC
  5. Receive a hearing date and documents
  6. Serve papers on your spouse
  7. Attend the hearing. You need not attend if there is no child under the age of 18, or if there is such a child, you needn’t attend if the divorce application was a joint application. If there is a child under the age of 18 and the application was made by you alone, you must attend the court hearing.
  8. Receive the outcome of the hearing

Property and Maintenance

Property

If parties can agree on property settlement, the process in the FCC is much smoother. It will often involve legal advice, particularly if the property settlement requires sale of real estate or assets. If parties can’t agree, the courts will intervene, but if the parties can agree, they are empowered to make enforceable private agreements, which the courts will then make orders on.

For example, Bob and Jenny decide to divorce. It is an amicable split, they have no children, they have already agreed on what personal items they will keep. Bob and Jenny have agreed that Jenny can have the residential house and Bob can keep the holiday house on Bruny Island. They can make an agreement to this effect, and then seek consent orders from the FCC. They do this by filing an ‘Application for Consent Orders’ form.

If the matter is not so simple, legal advice and representation will be necessary.

Maintenance

Parties to a marriage can make agreements on maintenance. These are called ‘Maintenance Agreements’. There are two types of agreement that can be made: Section 86 and Section 87 Agreements. Section 86 Agreements need only be registered with the Court. It must be accompanied by an affidavit from one of the parties swearing to both parties having signed the original agreement. The agreement must be witnessed by a justice of the peace or a lawyer. A Section 86 Agreement can be contested or varied at a later date, as it is not a final agreement.

Section 87 Agreements are much more formal, as they substitute any claims for maintenance that can be made in the future. They constitute a final agreement between the parties. For this reason, approval must be sought from the FCC. The court will look at whether the agreement is fair between the parties. For this, it is recommended that legal advice be sought.

Section 86 and Section 87 agreements can also cover property settlements.

Child Support and Custody of Children

Child support is dealt with by the Child Support Agency (CSA), a federal government body. Child support is not a matter for the courts unless enforcement is required. The FCC can issue a court order to ensure payment. Non-payment of court ordered child support can be contempt of court and result in imprisonment for the non-paying party. Usually, child support issues before the court will be a matter of last resort, after the CSA has exhausted all other remedies.

The FCC has compulsory dispute resolution sessions for parents to reach agreement concerning their children. Informal and consensual agreements are encouraged. Written agreements called ‘Parenting Plans’ detail the continued care of children after separation. A parenting plan, arising from dispute resolution sessions is enforceable like a court issued parenting order.

Obviously, if there is acrimony and disagreement between the parties, legal advice should be sought. However, it is important that parents bear in mind the best interests of their children, and as the court has compulsory dispute resolution, it is possible to make applications without legal advice, to register or reach an agreement on parenting. This is particularly desirable where both parties are already agreed. The parties or a party can lodge an application for consent orders.

The court can vary parenting orders if issues arise. If sexual abuse is involved, the matter will go to the Family Court rather than the FCC. In situations like this it is imperative to seek legal advice.

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