High Court & Family Court

1. High Court & Family Court The Federal Courts

2. Federal Courts • The Federal courts include; • High Court • Federal Court • Family Court • Federal Magistrates’ Court

3. Victorian Court Hierarchy FEDERAL COURTS Family Court STATE COURTS Coroner’s Court Children’s Court

4. FAMILY COURT of AUSTRALIA

5. Family Court background info • Located in each capital city except Perth (they have their own state family court) • Family Court in Victoria are located in Melbourne & Dandenong. • Was set up by the Family Law Act 1975 (Cth) • Due to the sensitive nature of the disputes resolved in this court, the court deals with this cases in a less formal and less intimidating manner.

6. Family Court Function • The Family Court’s main function is to deal with family disputes between married couples wishing to seek a dissolution of marriage (divorce) and; • Orders relating to the children of the marriage or property settlement. • The Family Court has both original and appellate jurisdiction. Meaning it hears cases for the first instance (first time) AND cases on appeal.

7. Before a case goes to trial • Before a case in the Family Court is sent to a hearing, there are a number of pre-trial procedures and dispute resolution methods utilized to ensure the best possible outcome for the family unit. • Compulsory counseling is requested by the judge of parties who wish to dissolve their marriage before the court will issue the appropriate decree’s. • MEDIATION; The Family Court is less formal than the Supreme Court or Federal Court. The court can order parties to seek advice from family consultants to help the parties cope with their family breakdown. Many issues are resolved through mediation, such as where the children should live and times and durations of visits to the parent with whom the children are not living

8. Pre-trial conference: • If an agreement cannot be reached, the parties will attend a pre-trial conference held by the deputy registrar. The aim of the conference is to identify the issues that are in dispute, and those that are not, and explore the possibility of a settlement. If a settlement is not reached, a date is set for a formal trial. • The purpose of these pre-trial hearings, is to lessen the formalities often associated with court hearings and to attempt to maintain a good relationship with all parties despite the breakdown in the marriage/family. • All efforts are done to reduce the need to have the case heard by a judge.

9. Original Jurisdiction The Family Court has jurisdiction over matters that arise under the Family LawAct 1975 (Cth), including: • Divorce • A decree of nullity of a marriage • Maintenance arrangements • Parenting orders • Injunctions • Property settlements (distribution of property from parties to a marriage. *Divorce applications are lodged in the Federal Magistrates’ Court, but are finalised by the Family Court.

10. Other aspects of their jurisdiction… The Family Court also has the power to hear • Injunctions to protect a spouse or child from family violence (can also be obtained from Magistrates’ Court) • Referred jurisdiction such as taxation, bankruptcy (referred from federal court) • Some disputes relating to the custody of children OR division of property arising from a breakdown in a de-facto relationship. This does not apply to same-sex relationships.

11. Appellate Jurisdiction (what appeals does the Family Court hear? • The FULL COURT of the Family Court hears appeals on the following matters; • An appeal from a decision of a single judge of the Family Court • An appeal from a Federal Magistrates’ Court decision OR decision of a state court exercising Family Law Act 1975 (Cth) jurisdiction. Or a state family court such as Western Australia. Family Law appeals are not common and can be complex to determine. There is NO APPEAL from a decree of dissolution of marriage after the decree has become absolute. (Decree nisi for 6 months than decree absolute is granted)

12. Appeals FROM the Family Court Appeals from the Family Court are heard in the High Court. • The High Court can hear an appeal from the Full Court of the Family Court if special leave is obtained, OR • If a certificate of a Full Court of the Family Court is provided indicating that an important question of law or of public interest is involved.

13. HIGH COURT of AUSTRALIA

14. High Court background info • Main court located in Canberra ACT, however there are branches in each of the capital cities around Australia. • It is the highest court in Australia • The High Court is a federal court. The principal courts established by Commonwealth legislation include the High Court, the Family Court and the Federal Court. • If a precedent is established in the High Court, it applies to all states and territories where the law is relevant. • The Commonwealth Parliament was given the power to set up the High Court of Australia by the Commonwealth of Australia Constitution Act 1900 (UK), S71.

15. Function of the High Court • The High Court is seen to be the guardian of the Constitution. It is responsible for interpreting the jurisdictional power of the Commonwealth and state parliaments as stated in the Constitution and, as such, ensuring that neither the state nor Commonwealth parliaments go outside their powers. • It is called upon to decide cases of special federal significance and to hear appeals, by special leave, from federal, state and territory courts. • It has both original and appellate jurisdiction.

16. Original Jurisdiction (Single Justice) The original jurisdiction of the High Court heard before a single justiceincludes: • matters arising out of any laws made by the Commonwealth Parliament — criminal or civil • matters arising under a treaty • disputes where the Commonwealth is a party • disputes between states or between residents of different states • Criminal cases such as treason and sedition (inciting hatred against the Crown).

17. Original Jurisdiction(Full Bench- 7 justices) The original jurisdiction of the High Court heard before the Full Bench of the High Court (seven justices) • Includes interpretation of the Constitution. • The High Court is also the Court of Disputed Returns in relation to disputes about the validity of federal elections.

18. Appellate JurisdictionFull Court (usually 3) • Appellate jurisdiction is set out in S.73 of the Constitution. Full Court of the High Court (usually 3 justices) hears appeals in both civil and criminal matters from: • A single judge exercising original jurisdiction in the High Court • Any other federal court or court exercising federal jurisdiction • State Supreme courts.

19. Appellate JurisdictionFull Bench (usually 7) • Cases that involve the interpretation of the Constitution • Cases where the court may be invited to depart from one of its previous decisions • Cases where the court considers the principle of law involved to be one of major public importance.

20. Review of High Court • There is no automatic right of appeal to the High Court from a state supreme court. The High Court must grant special leave to appeal.