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Federal Magistrates Court: family law jurisdiction

1. Introduction

Over the last decade or so there has been a perception in the community that the Family Court has not fulfilled its original charter to provide for the simple and speedy resolution of Family Law disputes. In response to a creeping formalism in the Family Court, and the mounting costs of Family Court litigation, the Federal Magistrates Court (FMC) was created and given responsibility for various aspects of Australia's family law system.

The Federal Magistrates Court has an extremely broad general jurisdiction that includes administrative law, consumer protection, bankruptcy, privacy law, human rights, child support, and other aspects of family law.

In the jurisdiction of Family Law it is important to note that the Federal Magistrates Court works alongside the existing Federal and Family Courts. As a general rule it deals with matters that are less complex than those heard in the other Federal Courts.

2. Jurisdiction of the Federal Magistrates Court

The various Family Law matters dealt with by the Federal Magistrates Court are as follows:

applications for divorce;

applications regarding spousal maintenance;

property disputes under $300 000-00

property disputes over $300 000-00 where the parties agree to have the FMC determine the dispute;

enforcement of the orders of the Family Court;

location, recovery, apprehension, or detention orders relating to children;

determining the parentage of a child

recovering child-bearing expenses;

parenting orders eg. maintenance, residence, and contact orders.

There are, however, various matters that the Federal Magistrates Court does not deal with including:

adoption;

the validity or nullity of a marriage;

property disputes over $300 000-00 (see above).

Complete information about the Family Law jurisdiction of the Federal Magistrates Court is contained in the following legislation:

Family Law Act 1975 (Cth);

Child Support (Assessment) Act 1989 (Cth);

Child Support (Registration & Collection) Act 1988 (Cth).

3. What can I expect at the Federal Magistrates Court?

The process begins when someone approaches the Court seeking a remedy or resolution to a family law problem that they are facing. The person completes an application and attaches an affidavit to it. An affidavit is a statement of the evidence or facts that they are relying upon. This is presented to the Court and to the other party (ie. the respondent).

Often the next stage in the process will be alternative dispute resolution. If the matter relates to children, for example, then the parties to the dispute will be ordered to attend mediation. And often in matters involving property a party will be referred to conciliation. The use of alternative dispute resolution practices is consistent with the FMC's goal of providing simple, inexpensive and timely resolutions to family law disputes.

One of the progressive features of the FMC is their docket system. This means that in most cases the magistrate who initially hears a matter will be the one who finally passes judgment on the matter. This avoids the situation so often faced in the Family Court where matters would drag on before a number of different judges as each phase of the case unfolded.

There are a variety of interim hearings in the Federal Magistrates Court. The most important hearing, however, is the final hearing where the matter is determined. You will usually be advised of this date when you first make an appearance in the FMC. It is important to note that determinations of the FMC are enforceable. If a party breaches their obligations then the party not in breach is entitled to bring the dispute back to the FMC for a re-determination or enforcement of the original judgment.

4. Legal Advice

The Federal Magistrates Court is not allowed to provide legal advice. It simply cannot appear to favour one party over the other. The best that it can do is to refer you to an approved legal practitioner or an office of Legal Aid. The FMC provides valuable general information but it cannot give you advice tailored to your particular circumstances.

In light of these considerations, and the often-complicated nature of family law litigation, we strongly advise that you seek the advice of Family Law Solutions.

December, 2001

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