Jurisdiction of state/territory courts

Courts of summary jurisdiction, usually local, magistrates’ or children’s courts, have limited jurisdiction under the Family Law Act 1975 (Cth) (FLA) (Sections 39, 39B, and 69J FLA). The position in Western Australia is different as it is the only state that has its own Family Court established under the Family Court Act 1997 (WA) (FCA) (Sections 38 and 39 FCA). Courts of summary jurisdiction have jurisdiction to hear defended property proceedings in relation to property with a total value up to $20,000 (Section 46 FLA; Section 43A FCA) without restriction (Sections 39 and 39B FLA). They can also hear matters where the value of the property exceeds $20,000 with the consent of all parties. If a party does not consent, the matter must be transferred to the Federal Circuit Court of Australia or the Family Court of Australia (Section 46 FLA; Section 43A FCA).

Courts of summary jurisdiction also have jurisdiction in relation to children’s matters. However, a court cannot hear defended proceedings for a parenting order unless all parties consent (Section 69N FLA; Section 43 FCA). Should the parties not consent to the court determining the matter, then the court of summary jurisdiction must transfer the matter to the Federal Circuit Court of Australia or the Family Court of Australia. Before transferring the matter, the court of summary jurisdiction can make such orders as it considers necessary. If the parties consent to the court hearing a defended matter, the court of summary jurisdiction may still transfer the matter on its own initiative.

In addition to this jurisdiction, the FLA and FCA allow state and territory courts of summary jurisdiction, when making or varying a protection order under state or territory family violence legislation, to vary a parenting order. Section 68R FLA and Section 176 FCA permit a state or territory court with jurisdiction under Part VII Division 11 FLA/Part 5 FCA to ‘revive, vary, discharge or suspend’:

  • a parenting or recovery order;
  • an injunction granted under Section 68B or 114 FLA/Section 235 or 235A FCA
  • an undertaking given to a court exercising jurisdiction under the FLA or FCA;
  • a registered parenting plan; or
  • a recognisance entered into under an order under the FLA or FCA.