The web of courts in family violence matters

Overview

2.69 Family violence issues not only straddle the constitutional division of power described above, they may also arise in a number of judicial settings:[90]

  • magistrates courts;
  • District (County) and Supreme Courts;
  • children’s courts; and
  • family courts—including the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia.

2.70 Children’s courts and family courts can be described as ‘specialist’ courts, with specific jurisdiction in relation to particular matters. The other courts listed are ones of general jurisdiction, although aspects of specialisation may be present in the form, for example, of specialist lists, such as a family violence list.[91] The jurisdiction of each court will be described briefly, leading into a consideration of where family violence matters may arise in the context of such jurisdiction.

Magistrates courts

2.71 Many family violence matters are likely to arise first in a local court of a state or territory, before a magistrate. Such matters may include proceedings for protection orders and summary criminal offences—such as common assault, property damage, stalking, and breach of a protection order. Committal proceedings for serious criminal offences—for example, sexual assault—may also be heard in such courts.[92] Magistrates courts also exercise some limited jurisdiction in matters under the Family Law Act.[93]

District (County) and Supreme Courts

2.72 State and territory District (County) and Supreme Courts exercise jurisdiction in relation to state and territory law, in particular as to more serious criminal offences. Appeals regarding protection orders may go to the District (County) Court.[94]

2.73 Although s 39 of the Family Law Act originally vested the Supreme Courts of the states and territories with jurisdiction in relation to matrimonial causes, this vesting arrangement was terminated by Proclamation in 1976, except in relation to the Northern Territory. However, the Supreme Courts may exercise the jurisdiction of the Family Court of Australia by virtue of the cross-vesting of jurisdiction legislation discussed above, under s 77(iii) of the Australian Constitution.[95]

Children’s courts

2.74 In all states and territories there are specialised children’s courts that have jurisdiction related to the care and protection of children and young people, and also criminal cases concerning children and young people.[96]

2.75 The proceedings are conducted with as little formality and legal technicality as the case permits. Proceedings in the care and protection jurisdiction are not conducted in a strictly adversarial manner. Children’s courts take all measures practicable to ensure that a child or young person has every opportunity to be heard and participate in proceedings, and that the proceedings, decisions or rulings are understood by the child or young person.

2.76 In Tasmania, the ACT and the Northern Territory, the Children’s Court is presided over by a magistrate. In New South Wales, Victoria, Queensland, Western and South Australia, the head of the court is a specialist judge from the District Court.[97] Most states have specialist children’s courts operating in the capital cities. Outside these areas, the local magistrate can convene a children’s court when necessary.[98]

Family courts

2.77 The Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia all exercise jurisdiction under the Family Law Act to hear family law matters. The Family Court of Australia was established by the Family Law Act as a superior court of record. Appeals from a judge of the Family Court go to the Full Court of the Family Court with a further appeal to the High Court of Australia where the court grants special leave.

2.78 The Federal Magistrates Court was established under the Federal Magistrates Act 1999 (Cth) and commenced operation on 23 June 2000. As set out in s 3, it is intended that the court: operate as informally as possible; use streamlined procedures; and encourage the use of dispute resolution procedures.[99] The Federal Magistrates Court exercises limited jurisdiction under the Family Law Act including in relation to matrimonial causes, and matters arising under Part VII (Children).

2.79 A very high proportion of the work in the Federal Magistrates Court concerns family law—in 2007–08, it was 91.7% of the work.[100] The majority of family law matters overall are heard in the Federal Magistrates Court. For example, in the period 2007–08, over 79% of first instance family law applications were filed in the Federal Magistrates Court.[101] Appeals in family law matters go to the Family Court.

2.80 The Family Law Council described the differences in the work of the two courts as follows:

In the family law context, the Family Court of Australia deals with the most intractable disputes and in particular with those parenting applications where there are extremely serious allegations of child abuse or physical abuse which often involve allegations of substance abuse and mental health issues. However, issues of child abuse, substance abuse, mental health and family violence are also highly prevalent issues in parenting applications dealt with by the Federal Magistrates Court.[102]

2.81 As discussed above, the Family Court of Western Australia is a state family court, exercising both federal and state jurisdiction. It is vested with jurisdiction in relation to most original proceedings arising under the Family Law Act, including matrimonial causes, and to hear appeals under the Act from the Magistrates Court of Western Australia, other than appeals against decisions made by a family law magistrate.

[90] The particular name of the court in each jurisdiction may vary.

[91] Specialised courts are considered in detail in Ch 32.

[92] Various lower courts generally have their own legislation, eg Local Court Act 2007 (NSW); Magistrates Court Act 1989 (Vic).

[93]Family Law Act 1975 (Cth) ss 69J(1), 67ZC. See A Dickey, Family Law (5th ed, 2007), 110–111; B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 83–84.

[94] For example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 84.

[95] The Supreme Court of the Northern Territory still exercises original jurisdiction under the Family Law Act, together with the Family Court of Australia: see A Dickey, Family Law (5th ed, 2007), 108.

[96] For example, the NSW Children’s Court has jurisdiction to hearing protection order matters where the defendant is less than 18 years of age: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 91(1)(b). South Australia and the Northern Territory have a Youth Court and a Family Matters Court with jurisdiction over child welfare.

[97] C Cunneen, ‘Young People and Juvenile Justice’ in G Monahan and L Young (eds), Children and the Law in Australia (2008) 187, [9.11]—note that since this publication, the Chief Children’s Magistrate in NSW is a District Court Judge, as reflected in the text above.

[98] Ibid, [9.11].

[99]Federal Magistrates Act 1999 (Cth) s 3(2).

[100] Federal Magistrates Court of Australia, Annual Report 2007–08, 24.

[101] Ibid, 28.

[102] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 49; drawing upon L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), prepared for the Australian Institute of Family Studies.