In family law matters which requires adjudication by a court, it is hard to know whether to initiate a case with the Family Court of Australia or the Federal Circuit Court. There are a number of differences between the Family Court and the Federal Circuit Court to consider when deciding which court to start your proceedings.
The purpose of the Family Court is to assist in determining complex family law matters. The Family Court was created by the Family Law Act 1975 (Cth) which means this Act regulates the Family Court’s jurisdiction and functions.
The purpose of the Federal Circuit Court is to assist in determining far less complex family law matters and to determine general law matters in the federal jurisdiction. The Federal Circuit Court deals with a higher volume of cases which relieves the workload of the Family Court. Its functions and jurisdiction are linked to family law and are set out in the Federal Circuit Court of Australia Act 1999 (Cth). The Federal Circuit Court hears matters such as:
- Family law and child support;
- Administrative law;
- Privacy law;
- Migration law;
- Trade practices law;
- Trade mark and design law; and
- Workplace relations.
Differences between the Family Court of Australia and the Federal Circuit Court of Australia
Both the Family Court of Australia and the Federal Circuit Court use the Family Law Act 1975 (Cth) to determine family law matters.
Each court is similar despite having their own rules and procedures. The rules which govern how the Family Court operates are contained in the Family Law Rules 2004 (Cth) and the rules relating to the Federal Circuit Court are contained in the Federal Circuit Court Rules 2001 (Cth).
The Federal Circuit Court hears cases regularly while the Family Court sits less frequently. The rules and procedures for the Federal Circuit Court are less formal and the processes are often quicker than the Family Court’s.
In the order of superiority, the Family Court is more superior than the Federal Circuit Court. Decisions of the Federal Circuit Court can be appealed to the Family Court within 28 days of an order being made. More information on time limits can be read in our Time Limits in Family Law Matters article.
The filing fee in each court is the same for most applications.
Which court to file?
The Family Court has jurisdiction to hear all family law matters except divorce. It deals with more complex matters, including:
- International child abduction;
- International relocation;
- Disputes as whether the case should be heard in Australia;
- Special medical procedures such as gender reassignment and sterilisation;
- Contravention of parenting orders made within 12 months prior to filing;
- Serious allegations of sexual abuse of a child;
- Complex questions of jurisdiction or law;
- Validity of marriage;
- Consent orders; and
- Matters that would exceed four days of hearing time.
The Federal Circuit Court can hear family and federal law matters. Most cases are filed in the Federal Circuit Court but some can be filed in either the Family Court or the Federal Circuit Court. In cases where the matter can be filed in either court, applications should be made to the Federal Circuit Court first and then the court can determine if it should be transferred to the Family Court.
Filing in the wrong Court
There may be instances where a party files an application in the wrong court. This is owing to the overlap in the jurisdiction. In this instance, either party or the court can transfer the matter to the correct court.
There is no right of appeal from a decision to transfer a matter between the Family Court of Australia and the Federal Circuit Court.