How do I transfer my family law case to a different court?

In Plain English

You can move your family law case to a different court, but the process depends on which courts are involved. Here's a breakdown:

  1. Within the Federal Circuit and Family Court:

    • Changing Registry: If you want to move your case to a different location (registry) within the same court (either Division 1 or Division 2), you can apply to the court where the case was originally filed. The court will consider things like convenience for everyone involved, costs, available facilities, and whether the case is already set for a final hearing.
    • Transferring Between Divisions: Cases can be transferred between Division 1 and Division 2 of the Federal Circuit and Family Court. This can be done if a party applies or if the Chief Justice decides to do so. The court will consider factors like the complexity of the case, the financial value of the claims, and whether a transfer would make things cheaper or more convenient.

  2. Between Courts Exercising Family Law Jurisdiction:

    • If your case is in one court that handles family law (like the Federal Circuit and Family Court or a state Family Court) and you want to move it to another court that also handles family law, you can apply for a transfer. The court will consider things like the public interest, the value and complexity of the case, convenience, and the availability of specialized judges.

  3. From a Court of Summary Jurisdiction:

    • If your case is in a lower court (like a Magistrates Court) and involves complex issues or significant assets, it might need to be moved to a higher court like the Federal Circuit and Family Court or a state Family Court.

Detailed Explanation

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 outline the procedures for transferring proceedings. Here's a breakdown based on the type of transfer:

  1. Change of Venue (Registry)

    • Rule 8.01(1) allows a party to apply to have a proceeding heard in another registry of the court.
    • The application must be filed in the original filing registry (8.01(2)).
    • The court must consider the factors listed in 8.01(3):
      • Adequacy of facilities, considering disabilities and safety concerns.
      • Convenience of the parties.
      • Limiting expense and cost.
      • Whether the matter is listed for final hearing.
      • Any other relevant matter.

  2. Transfer Between Division 1 and Division 2 of the Federal Circuit and Family Court

  3. Transfers Between Courts Exercising Family Law Jurisdiction

    • Rule 9.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 allows a court to transfer a proceeding to another court exercising jurisdiction under the Family Law Act, as per section 45 of the Family Law Act.
    • The transfer can occur on application by a party or on the court's own initiative (Rule 9.05(2)), within the bounds of section 45 of the Family Law Act.
    • Unless otherwise ordered, applications must be made by application supported by affidavit on or before the first court date (Rule 9.05(3) and (4)).
    • The transferring court may consider the factors in Rule 9.05(5):
      • The public interest.
      • The financial value of the claim.
      • The complexity of the case.
      • Cost and convenience to the parties.
      • Availability of specialized judicial officers and procedures.
      • Adequacy of facilities and safety concerns.
      • The wishes of the parties.
    • These considerations do not apply in certain cross-vesting situations, transfers under the Corporations Act 2001, or where a legislative provision mandates the transfer (Rule 9.05(6)).

  4. Removal of Proceedings from Court of Summary Jurisdiction

    • Rule 9.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 addresses the removal of proceedings from a court of summary jurisdiction (e.g., a Magistrates Court) to the Federal Circuit and Family Court (Division 2), a Family Court of a State, or the Supreme Court of a State or Territory, under subsection 46(3A) of the Family Law Act.
    • This can occur on application by a party or on the court's own initiative.
    • Applications must be supported by an affidavit unless the court orders otherwise.
    • The court may consider factors such as the public interest, the financial value of the claim, and the complexity of the case.

It's important to note that the Federal Circuit and Family Court of Australia Act 2021 prohibits the institution of first instance family law or child support proceedings in the Federal Circuit and Family Court of Australia (Division 1) (section 50). Proceedings started there in error are automatically transferred to Division 2 unless transferred to the Federal Court.