Can state courts conduct Family Law proceedings?

Family law and the Family Court have been in the media quite a lot in the past month with Attorney-General George Brandis and the Federal Government acknowledging the issues the system faces. The government has floated a number of ideas and provided funding for some of those, including ‘parenting management hearings’, which aim to reduce the workload of the Family Court and provide better outcomes for families.

One of the ideas that has been put forward by Mr Brandis is to have state courts take some of the burden from the Family Court. As noted in a previous post, the Family Court is operated by the Commonwealth Government and therefore has federal jurisdiction. Mr Brandis’ proposition is to have state courts make decisions that have typically been made by the Family Court since it was established in 1976.

Mr Brandis makes note of state courts’ jurisdiction within the Family Law Act 1975 (Cth) to make such decisions. The Act, in theory, gives Local Courts the power to determine most issues that the Family Court deals with (s 39, 69J). Additionally, any appeals from these decisions of Local Courts can be heard and determined by the Supreme Court of that state (s 96) meaning that cases can stay out of the Family Court in a great number of cases. Only if that decision of the state Supreme Court is appealed does the matter have to go to the Family Court (s 94(1)(b)(ii)).

Although this seems like a reasonable solution to a significant problem, despite state courts seemingly having the power to rule on these matters, they rarely do. According to Newnhams Solicitors associate Rebecca Gilbert, in practice local courts play little role in the Family Law system.

Given the practical reality of the separated role that the Family Court plays, switching from a system whereby (for the most part) only the Family Court deals with proceedings under the Family Law Act, to a hybrid system raises difficulties. Each state has, while similar, differing procedural rules which govern how cases are run and can have significant impacts on the results of trials. Under Mr Brandis’ proposal, would Local and Supreme Courts use their own procedural rules or be forced to operate under two separate sets of rules, one for ordinary matters and another for family law matters? Additionally, given the lack of training in family law matters, the Local Courts would be unlikely to deal with these matters in the short-term as Mr Brandis is seemingly suggesting.

Given the significant issues it raises, it may be best for the proposal to be considered a long-term strategy as opposed to a short-term fix. As Mr Brandis states, if matters could be dealt with in one forum, it would stop the revictimisation of children and domestic violence survivors by having to recount their stories multiple times. This can only be a positive and is something that should be considered further.

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The information posted on this blog represents our opinion and should not be taken as legal advice.