Transfer of Proceedings
More complex matters that are filed in the Federal Magistrate Court, can be transferred
to the Federal or Family Court (whichever has jurisdiction). Similarly, there are provisions to transfer less complex matters from other courts to the Federal Magistrates Court.
The court has adopted a benchmark of two days hearing as the primary indicator for
hearing a family law matter itself or transferring the proceedings to the Family Court.
With few exceptions, the practice of the court is that it will not retain longer matters
in its lists.
Occasionally, the court will retain a longer matter because, for example:
the complexity of the matter becomes apparent only in the hearing; or
it is in the interests of justice for the court to continue to hear the matters
notwithstanding the hearing time required.
This policy will be applied flexibly by the court.
The legislation has been drafted to minimise the possibility of parallel proceedings being run in different
courts. It prohibits proceedings being issued in one court if associated proceedings are already on foot in another court, where that other court would have jurisdiction to deal with the matter.
Both the Federal Magistrates Court and the other courts will be able to transfer proceedings on the application of
a party, or of their own motion. The courts have rules about transfers, which may provide guidance about when transfers should occur. Significant numbers of matters have been transferred from the Family Court, and from the Federal Court. These matters, identified as being within the jurisdiction of the Federal
Magistrates Court, are the subjects of transfer, usually by a registrar. In family law matters, this happens by the registrar transferring the matter immediately, having established that a federal
magistrate is available, or by a date being given at which directions are made and a date for a hearing fixed.
The main criteria for transfers, which can be made without consent, are the subject matter of the dispute the
prompt disposition of the case, either on that day or in a fairly short space of time. For example, maintenance cases and applications over breaches of orders are commonly transferred.
Many parties consent to a transfer of their matter, whether there is jurisdiction or not, to achieve an early
hearing date.Because of the definition of 'proceedings' in the Family Law Act 1975, part of a proceeding can be transferred, enabling the Federal Magistrates Court to deal with interim matters,
while the final hearing is conducted by the Family Court.
It is expected that if the Federal Magistrates Court has the resources to do so, that
the Federal Magistrates Court should be doing as much of the workload of the Family Court in particular, as can be transferred on the basis described above. |
