See procedure Family Court, Federal Circuit Court and Magellan List for tasks that must be undertaken.
Both the Family Court and the Federal Circuit Court have jurisdiction under the Family Law Act 1975 (Cth) to make orders in relation to parental responsibility, including with whom a child should live, spend time and communicate, and concerning the financial support of children under the age of 18 years.
In 1996 a protocol was established between the then Department of Human Services (the department) and the Family Court of Australia (Family Court) and the then Federal Magistrates Court (now the Federal Circuit Court) to facilitate contact between the department and the courts in order to ensure a child’s needs for protection are met. The protocol was designed to assist cooperation, clarify procedures and improve decision making in cases that may occur in either or both jurisdictions.
Since the commencement of the protocol some changes have taken place that have a direct impact on the protocol and necessitated its revision. For example, privacy legislation has been introduced, legislative changes to federal legislation have occurred, the Magellan list has been introduced and the Federal Circuit Court now hears Family Court matters. An updated protocol was released in May 2011.
Collectively, the Family Court and the Federal Circuit Court may be referred to as the Family Law Courts.
Child protection practitioners must refer to the protocol in all cases which involve the Family Law Courts, for example, where the department has received a report from the Family Court or where a protection application has been issued in the Children’s Court in respect of a child who is also the subject of proceedings in the Family Law Courts. It is important for child protection practitioners to familiarise themselves with the protocol. See protocol Family Court & Federal Circuit Court.
The Family Court of Australia
Powers of jurisdiction
The Family Court hears matters under the Family Law Act 1975. In Victoria there is a Family Court located in Melbourne and Dandenong and circuit Court sittings are held periodically in major country centres. The Family Court can make orders in relation to parental responsibility, with whom a child should live, or spend time and communicate with, and the financial support of a child. The Family Court also has jurisdiction to make orders relating to the welfare of children. In deciding whether to make an order relating to the welfare of a child, the Court must regard the best interests of the child as the paramount consideration.
The primary considerations in family law regarding a child’s best interests are:
- the benefit to the child of having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence.
The court is required to give greater weight to the need for protection.
Additional considerations regarding a child’s best interests are also specified. Refer to s. 60CC of the Family Law Act.
Section 69ZK of the Family Law Act provides that orders must not be made under that Act in relation to a child who is under the care (however described) of a person under a child welfare law, unless:
- the order is expressed to come into effect when the child ceases to be under that care (however described); or
- the order is made with the written consent of the relevant child welfare officer, which in Victoria is the Secretary of the Department of Health and Human Services.
Where it appears to the Family Court that the Children’s Court proposes to make an order or take any other action in relation to a child, the Family Court must adjourn any proceedings before it in relation to that child.
Appeals from the Family Court
Appeals from the Family Court may be made on a point of law. Appeals from a single Justice of the Family Court are heard by the ‘Full Court’ of the Family Court. The Full Court consists of three judges. If leave is granted, an appeal from the Full Court may be heard in the High Court of Australia.
Federal Circuit Court
Powers of jurisdiction
In relation to family law, the jurisdiction of the Federal Circuit Court is very similar to the Family Court jurisdiction. The major difference is that the Federal Circuit Court hears less complex matters than the Family Court, and there are certain applications that are only heard by the Family Court, such as applications for annulment of a marriage. The Federal Circuit Court provides for a quicker and cheaper option for litigants. The court also hears non-family law matters such as bankruptcy matters, unlawful discrimination matters and consumer protection issues.
Limitations to jurisdiction
The Federal Circuit Court, in exercising jurisdiction in relation to family law, has the same obligations and limitations as the Family Court.
Appeals from the Federal Circuit Court can be made on a point of law. Appeals from final decisions of the Federal Circuit Court are to the Full Court of the Federal Court, or the Family Court, depending on the jurisdiction exercised.