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The Australian Family Court System

Understanding how the Australian family court system works can be helpful if you’re thinking about filing a parenting application.


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 Separating from a partner is always difficult, and resolving your matter in court can make it even more stressful.

Understanding how the family court system works is a good first step.

It doesn’t matter whether you’re just exploring your options or you want to seek an order – having the right information makes moving forward easier.

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The Difference Between the Federal Circuit Court and the Family Court

 

Before 2021, the Federal Circuit Court and the Family Court were two different courts with slightly different purposes.

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The Federal Circuit Court

The Federal Circuit Court heard general family law and federal law cases.

Typically, it dealt with a higher number of less complex cases.  Matters under its jurisdiction included separation, parenting orders, and child support.

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The Family Court

The Family Court heard more complicated family law cases.  Often, cases would be filed at the Federal Circuit Court first, which would then determine if they needed to be transferred to the family court.

The Family Court heard matters related to international parenting, jurisdiction issues, special medical procedures, serious child sexual/physical allegations, and other complex disputes.

The Federal Circuit and Family Court of Australia (FCFCOA)

In September 2021, the Federal Circuit and Family Court of Australia Act 2021 (Cth) combined the Federal Circuit Court and the Family Court into a single court, with the intent of making family law cases faster, simpler, and less expensive.

Now, all family law cases are heard in the same court: the Federal Circuit and Family Court of Australia (the FCFCOA).

The FCFCOA is made up of two divisions:

  • Division 1, which deals with family law matters; and
  • Division 2, which deals with family law, migration, and general federal law matters.

Differences in the FCFCOA

The FCFCOA isn’t just a combination of the Federal Circuit Court and the Family Court.  It also has streamlined systems and new features designed to make the family court process smoother. Here are a few of the key changes:
  • The FCFCOA places a greater emphasis on dispute resolution.  The Court views trials as a ‘last resort’ – before you can start court proceedings, you need to show you have taken genuine steps to resolve the dispute between you and your former partner.
  • The FCFCOA officially aims to resolve 90% of cases in 12 months.  That means, unless your case is unusual or complicated, your court case will likely take less than a year to resolve.
  • The FCFC has 90 specialist family law judges, who are experienced in dealing with family law matters.

Differences in the FCFCOA

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Differences in the FCFCOA

The FCFCOA is regulated by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which legislates how family law and child support proceedings should be run in the court.  They cover key topics like case management, starting a proceeding, admissions, costs, and enforcement.

The 2021 rules replaced the previous set of rules from 2004.  Your lawyer will be able to explain the relevant rules to you, but, if you want to read them yourself, you can find the legislation here

The Family Law Process

Most family law cases follow a standard six- to seven-step process.  Your family lawyer will explain each of these stages to you as you move forward with your case.  The exact process and timeframes will vary depending on your situation.

0. Pre-action Procedures

Before you go to court, the FCFCOA requires that you complete ‘pre-action procedures’ – certain actions that may help you resolve your dispute without the Court getting involved.

Pre-action procedures are required for financial and parenting cases (with some exceptions).  Generally, there are five different steps involved.

  1. Invite the other parties to participate in family dispute resolution.
  2. Attend dispute resolution with the other parties and make a genuine effort to resolve your dispute.
  3. If your dispute isn’t resolved during step 2, you must give the other parties a notice of intention to start FCFCOA proceedings, which details the orders you’re seeking and a genuine offer to resolve the dispute immediately.
  4. If you receive a notice of intention, you need to reply with either acceptance of the offer or refusal.  If you refuse, you need to detail the orders you’ll seek if proceedings begin, as well as a genuine counteroffer.  
  5. If you can’t agree on an offer, the applicant can file with the FCFCOA.

You don’t need to undertake pre-action procedures if:

  • in an application for parenting orders, there are allegations of child abuse or family violence or a risk of child abuse or family violence;
  • in an application for financial orders, there are allegations of family violence or a risk of family violence;
  • the application is urgent;
  • the applicant would be unduly prejudiced if required to comply with pre-action procedures;
  • a previous family law application has been filed by one of the parties in the last 12 months;
  • the application is for divorce only;
  • if the application is for child support or appeal; or

if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966 (Cth).

1. Initiate an Application

Every FCFCOA proceeding starts with initiating an application for a court order.  You can seek the following types of orders:

  • Parenting
  • Financial
  • Maintenance
  • Child support
  • Medical procedures
  • Nullity
  • Validity of marriage, divorce or annulment
  • Passports

Generally, your lawyer will initiate an application for you, but you can also do it yourself by lodging an ‘Initiating Application Kit’ form.  

In either case, you or your lawyer will also need to file an affidavit confirming that the facts in your application are true.  

Your application and affidavit can be filed at comcourts.gov.au or by post/in-person submission at any FCFCOA court location.

2. First Court Event

6–8 weeks after initiating an application (unless the situation is urgent)

Your first court event is where a court official hears from you and your partner/ex-partner and identifies what steps need to be taken next.

These steps can include orders for gathering evidence, for valuations, to attend parenting courses, or for expert reports.

3. Interim Hearing

Sometimes, you or the other parties involved will want an issue temporarily resolved as your matter proceeds (for example, child custody arrangements).  

In situations where a temporary solution is required, an interim hearing can be held.  This is where a court official makes an interim decision about a specific issue in your matter; their decision/order will stay in place until your matter is fully resolved.   

You can appeal an interim hearing result under certain circumstances.

4. Compliance and Readiness Hearing

If you haven’t managed to resolve your dispute, a compliance and readiness hearing may be conducted by an FCFCOA judge.  

The purpose is to make sure you and the other parties have complied with any court orders or directions and are ready for a final hearing.

Before you attend a compliance and readiness hearing, you’ll need to complete a certificate of readiness.   

5. Trial Management Hearing

Sometimes, trial management hearings are held to make trials faster and simpler.  

They’re an opportunity for the parties involved to agree on efficient trial processes and propose pre-trial orders to the Court.

Trial management hearings also include resolving any interim applications, receiving evidence, and identifying the outcomes desired by both parties.

6. Final Hearing

Within 12 months of initiating an application (unless the situation is urgent)

At a final hearing, an FCFCOA judge determines the outcome of your matter.

After hearing opening addresses, evidence, and arguments from both your lawyer and the other parties, the judge will make a decision (and provide reasons for that decision).

Final hearings can range from one to several days, and judges may take up to three months to hand down their decision.

If you aren’t satisfied with the results of a final hearing, you can talk to your family lawyer about lodging an appeal.

Family Law System FAQs

Is the Family Court a federal court?

The Family Court used to be a federal Australian court that dealt exclusively with family law matters. In September 2021, the Family Court merged with the Federal Circuit Court to create the Federal Circuit and Family Court of Australia (FCFCOA). All family law matters are now under the jurisdiction of the FCFCOA.

Is there a higher court than the Family Court?

The Federal Circuit and Family Court of Australia (FCFCOA) is the court that deals with family law matters. If a matter has been decided in a way that you think is wrong, you can lodge an appeal, which means asking a different judge or panel of judges of the FCFCOA Appeals Court to overturn the decision made by the judge in the original application (the primary judge).

Provided you meet the criteria for an appeal, you can lodge a notice of appeal within 28 days of the primary judge’s decision. Your appeal will be heard before either a single judge or a panel of three judges (a Full Court) in Division 1 of the FCFCOA.

If your original application was heard in Division 1, your appeal will be before a Full Court. If your original application was heard in Division 2, your appeal may be heard by a single judge or by a Full Court.

Occasionally, appeal decisions are referred to the High Court of Australia, where leave must be obtained from the High Court to proceed with an appeal.

Keep in mind that lodging an appeal does not stop any orders made by the primary judge, with the exception of divorce orders. To keep the orders from being carried out, you’ll need to file an application to stay the orders and an affidavit to confirm the statements made in your application are true.

If you need advice about or assistance with lodging a family court appeal, book a free 30-minute consultation with our experienced family law team.

What cases does the Federal Circuit Court hear?

In 2021, the Federal Circuit Court merged with the Family Court to create the Federal Circuit Court and the Family Court of Australia (FCFCOA).  The FCFCOA hears a range of federal law, family law, and migration cases, including matters relating to:
  • Divorce
  • Separation
  • Parenting arrangements
  • Child abuse and family violence
  • Finances and property
  • Litigation guardians
  • Breaches and enforcement of FCFCOA orders
  • Migration cases in which there may have been a jurisdictional error
  • Fair work
  • Bankruptcy
  • Consumer law
  • Administrative law
  • Human rights
  • Intellectual property
  • Admiralty

Can I withdraw a family court application?

You can choose to discontinue all or part of your application at any time using a notice of discontinuance. You can file the notice online using the Commonwealth Courts Portal or in person at any FCFCOA court location. Keep in mind, though, that the court may order costs against a party who discontinues proceedings that have been served.

Our Family Law Team

Margaret Miller

Partner

Dispute Resolution / Litigation / Estate Disputes / Employment Law / Business & Compliance / Family Law

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