When judgment on a controversial family law matter needs assessment by the Court, it is necessary to understand whether your family law case will be handled by Division One or Division Two of the Federal Circuit and Family Court of Australia. This article can assist you in determining the differences between the two divisions and which applies to your case.
Court merger application for family law matter
Prior to September 2021, there were two separate courts:
The Family Court of Australia
The Federal Circuit Court of Australia.
On 1 September 2021, the Federal Circuit and Family Court of Australia Act 2021 took effect. Instead of the Courts operating independently, they’re now one structure. There were many reasons for this change. Primarily, the government wanted to streamline family law processes to deal with the backlog of cases.
It could be confusing to have two separate courts with their own court process and court forms. The merger provides a single point of entry for all family law cases. This simplifies your case pathway and leads to faster resolution times.
The Court is now made up of two divisions, which operate as follows:
Division One continues the responsibilities of the Family Court.
Division Two continues the responsibilities of the Federal Circuit Court.
The single point of entry for new cases is through Division Two. Once you’ve made your application, the Court will decide on the merits of the case if it’s appropriate to transfer the case to Division One.
Federal Circuit and Family Court (Division One)
The purpose of Division One is to assist in complex family law matters. The Family Court was created by the Family Law Act 1975 (Cth) to regulate the Family Court’s jurisdiction and functions. The principles that govern its operations are contained in the Federal Circuit And Family Court Of Australia (Family Law) Rules 2021. Division One is superior to Division Two and will hear appeals from cases associated with the Federal Circuit Court (within 28 days of an order being issued).
Division One deals with more complex matters and has the authority to determine all family law matters except divorce, including:
Complex parenting or property/financial disputes
Property settlements often involve complicated financial structures like business interests, trusts, and unique or rare assets. The Family Court may be better prepared to get a proper valuation for the asset pool.
Some parents are dealing with complicated family relationships. Disagreements over where a child should live or the capacity of one parent to meet their parenting responsibilities can be difficult to overcome. The Family Law Court may take over your case to find a dispute resolution.
International child abduction or relocation
Cases involving international jurisdictions are some of the most difficult to resolve. After a dispute, a parent may seek to relocate a child overseas. In some instances, it may not be clear which country has jurisdiction over the case. You’ll likely have a Family Court hearing of your case if you’re affected by these issues.
Breach of parenting orders
Breaching a parenting order can be a serious issue. They can be resolved by altering the order depending on why the breach occurred. The alteration can seek to accommodate the breaching party or adjust in favour of the aggrieved party to make up for time lost with their child. If you’re seeking to have a parenting order enforced, Division One will assist.
Serious accusations of child sexual abuse
Child abuse allegations are taken very seriously by the Court. If there’s evidence that abuse occurred, the matter will be transferred to Division One for a hearing. Under section 4AB of the Family Law Act, scenarios constituting a child being exposed to family violence may include:
Overhearing physical threats made by one family member to another.
Witnessing assault between family members.
Comforting or otherwise assisting a family member who’s suffered family violence.
Cleaning up intentional property damage inflicted by the child’s family member.
Being present when police or ambulance workers attend the scene of family violence.
Marriage validity
While Division One doesn’t handle divorce proceedings, it will hear issues around marriage validity. A marriage can be invalidated for different reasons, such as one party being underage or having been coerced into it. If a marriage is being assessed for its validity, it will go through Division One.
Federal Circuit and Family Court (Division Two)
Division Two of the FCFCOA assists in resolving less complex family law matters to alleviate the workload of the Court’s Division One and, therefore, deals with a higher number of cases. Division Two determines matters such as:
Parenting or property/financial matters
Applications for property or parenting orders will go through Division Two unless they involve certain complexities. Most people should expect their matter to be heard in this Division.
Child support
Child support and maintenance applications will typically occur in Division Two. However, it may be transferred to Division One for various reasons, such as:
The size of the financial claim.
The case involves several complex facts or legal issues.
The transfer will make the proceeding less costly or more convenient for the applicants.
The parties wish to have the case transferred.
Divorce applications
Divorce applications are all heard in Division Two of the Court. There are straightforward requirements parties must meet to get a divorce. Considering the high volume of divorces sought, 49,241 out of 127,161 marriages in 2022, Division Two maintains its jurisdiction.
The rules and methods for Division Two are less formal which allows the process to resolve quicker than Division One.
Conclusion
The recent court merger has made family law processes easier to navigate. With a single initial entry point through Division Two, you’ll know where to begin. The Court may decide to transfer the matter to Division One based on certain variables. This is typically done when the issue involves complexities Division Two is unequipped to handle.
If you would like to submit your case or need a free initial discovery call if you feel your case has merit for an appeal, our team of family law solicitors at Shanahan Family Law can help.
