Silvio Auditore

Clients are sometimes confused about which Family Law Court is appropriate to hear their case in Melbourne.  This is understandable as there are three separate courts on the same street in Melbourne which have jurisdiction on Family Law related issues.

#1 Magistrates Court of Victoria

233 William Street Melbourne

This is a State Court which has the exclusive jurisdiction to grant Intervention Orders under the Family Violence Protection Act 2008 in situations where people are subjected to family violence.  “Family violence” includes threats, physical and sexual abuse, emotional and psychological abuse, economic abuse, damage to property, injury to animals and other threatening, coercive or in any way controlling and dominating behaviour which makes a family member fear for their safety or wellbeing or for the safety or wellbeing of another person.

#2 Federal Circuit Court of Australia (formerly Federal Magistrates’ Court of Australia)

305 William Street Melbourne

The court for custody in Australia is the FCFCOA or the Federal Circuit and Family court of Australia.

The primary objective of the court is to make decisions that are in the child’s best interests, taking into account a variety of factors, such as the child’s age, the character of the child’s relationship with each parent, and the child’s emotional and physical well-being.

This is a Commonwealth (or Federal) Court which has jurisdiction under the Family Law Act and Child Support Acts.  It hears Divorce, Property Division, Maintenance, Child Support and Children/Parenting cases.

What Are the Functions of the Court for Custody?

The primary function of a court for custody is to make decisions about the care and custody of children when parents are unable to agree on their own. These courts are responsible for guaranteeing that the child’s best interests take priority in all custody disputes.

Among the specific functions of a custody court in Australia are:

• Making custody orders: The court has the power to make custody orders that determine who will have legal and physical custody of the child. Custody may be awarded to one parent, both parents or a third party.

• Determining parenting arrangements: The court can make orders about parenting arrangements, including the time each parent will spend with the child, the communication that will take place between parents and the child, and other matters related to the child’s care and wellbeing.

• Resolving disputes: If parents are unable to agree on custody arrangements, the court can intervene to help resolve the dispute. Before reaching a final decision, this may involve ordering mediation or other forms of dispute resolution.

• Enforcing custody orders: The court has the power to enforce custody orders if one parent fails to comply with the court’s orders. This may include fining or otherwise penalizing the non-compliant parent.

• Safeguarding the child’s best interests: The court’s primary duty is to safeguard the child’s best interests. This means that the court will consider a variety of factors when determining child custody, such as the child’s age, relationship with each parent, emotional and physical well-being, and any other pertinent factors.

How Does a Court for Custody Work?

Whenever a custody dispute arises, the first stage is typically to attempt a resolution through mediation.

This entails both parents gathering with a trained mediator in an attempt to reach a custody agreement.

If mediation is unsuccessful, the matter may be referred to a court for custody.

Both parents will have the opportunity to present evidence and argue why they should be granted custody of the child in court. The court will also consider the child’s opinion, if he or she is mature enough to have one, and any other relevant factors, such as the child’s relationship with their grandparents and other family members.

The court will then determine the custody arrangements. This may involve granting custody to one parent, granting joint custody to both parents or sending the child with a third party, such as a grandparent or other relative.

It is important to note that the decision of the court is final and legally binding. Failure to comply with the court’s orders may result in severe penalties, such as fines or imprisonment.

When Is There a Need to Go to Court for Custody?

There are several reasons why parents may need to go to court for custody of their child. Here are some common scenarios:

• Disagreements over custody: When parents are unable to agree on custody arrangements, they may need to go to court to have a judge make a decision.

• Safety concerns: If one parent is concerned about the safety or well-being of the child while in the care of the other parent, they may seek court intervention to assure the child’s protection.

• Relocation: If one parent wishes to move to a different state or country with the child, the other parent may object, resulting in a custody dispute that must be resolved in court.

• Parental alienation: When one parent attempts to alienate a child from the other parent, the afflicted parent may seek court intervention to preserve their relationship with the child.

• Domestic violence: If there is a history of domestic violence between the parents or if one parent has concerns about the safety of the child in the care of the other parent due to domestic violence, they may need to seek custody orders that safeguard the child from harm.

How to Contact the Court for Custody?

If you need to contact a court for custody, you can find the contact details for your local court by searching for the FCFCOA online.

Once you have identified the court in your area with jurisdiction over custody matters, you can contact them to learn more about the application process.

Depending on the court and the state or territory in which you reside, the specific procedures for filing a petition for custody may vary.

It is important to note that the process of filing an application for custody can be complex and time-consuming. It is always a good idea to seek legal advice of child custody lawyers and support throughout the process to ensure that your rights and the best interests of your child are protected.

A court for custody is a crucial legal forum for resolving disputes about child custody in Australia. These courts have the power to make decisions that are in the best interests of the child, taking into account a range of factors.

Even though the court’s decision is final, both parents must remember that their primary concern should always be their child’s welfare. By working together and putting their child’s needs first, parents can ensure that the custody arrangements put in place by the court are successful and beneficial for everyone involved.

#3 Family Court of Australia

305 William Street Melbourne

This is also a Commonwealth Court having the same jurisdiction as the Federal Magistrates’ Court detailed above plus exclusive jurisdiction to hear Nullity of Marriage or Validity of Marriage cases.  It also hears Appeals from the Federal Magistrates’ Court.

The choice of which of Melbourne Family Law Courts is most appropriate to decide your case is important.  There are different procedures which apply in the different courts.  Melbourne Family Lawyers can advise as to which Court is best suited for your particular circumstances.  

The Federal Circuit and Family Court of Australia has stated an increase of reported risk factors in parenting matters from 2021 to 2022.

Key Points:

1. There has been a large uptake of parenting matters where parties are claiming either themselves or their children are at risk.
2. The Courts initiatives to finalise matters faster has been working.
3. Despite this, the influx of reported domestic violence is still on the incline.

The data provided is a shocking revelation showing that there has been a significant increase in the number of parties in the Federal Circuit and Family Court of Australia who allege that there is at least one risk factor present in their case, from 2020-2021 to 2021-2022.

The risk factors present can include child abuse, family violence, drug, alcohol or substance misuse, mental health issues, risk of abduction, and recent threats to harm a child or other person relevant to the proceedings.

From 2020-2021, 79% of parties alleged that there is at least one risk factor present in their case, but in 2021-2022, the percentage of parties alleging the presence of risk factors has increased to 89%.

The percentage of parties alleging two or more risk factors present also increased from 67% in 2020-2021 to 84% in 2021-2022.

Even more concerning is that the percentage of parties alleging three or more risk factors present increased from 58% in 2020-2021 to 77% in 2021-2022 and the percentage of parties alleging four or more risk factors present increased from 44% in 2020-2021 to 66% in 2021-2022

This could be due to an increase in the awareness and reporting of risk factors or an actual increase in the number of cases that involve risk factors. This data is only reflective of the number of parties who allege the presence of risk factors, and not a confirmation of the actual presence of these risk factors.

Domestic violence is a significant issue in Australia, affecting a large number of individuals every year. According to recent statistics, 1 in 6 women has experienced physical or sexual violence by a current or former partner. 1 in 16 men has experienced similar violence.

Additionally, most victims of domestic violence report the perpetrator as being male. 75% of victims report male perpetrators, while 25% report female perpetrators.

The issue of sexual violence is also prevalent in Australia. Overall, 1 in 5 women and 1 in 20 men have reported experiencing sexual violence.

The severity of domestic violence in Australia is further highlighted by the fact that on average, 1 woman a week and 1 man a month is killed by a current or former partner. These numbers demonstrate the urgent need for action to address domestic violence in Australia and support those who have been affected by this issue.

The Federal Circuit and Family Court of Australia have various initiatives in place that is assisting victims of domestic violence. The Court, which was notoriously slow in its process and releasing of judgments, is making progress in reducing its pending caseload and increasing efficiency.

In the past year, the number of final order applications has decreased by 17% or over 3,600 cases.

Judges in Division 2 have also seen a significant reduction in their workload, with docket sizes decreasing by more than 60% from an average of 330 cases in early 2021 to 135 cases at the end of June 2022.

This progress is thanks to increased support from registrars, who have taken on more responsibilities to help the judges focus on the most complex and serious cases.

As a result, judges are now able to spend more time on trials and writing judgments.

The immense focus on dispute resolution prior to a final hearing has been successful, and the numbers are impressive. Since September 2021, registrars have also successfully resolved more than 4,000 disputes through dispute resolution events, with a 55% settlement rate, including many long-pending and entrenched cases.

In 2020-2021, an impressive 80% of matters were resolved prior to trial, meaning that out of all the cases that came before the court, a majority were able to be resolved without the need for a trial. That’s a great result, showing that the court and parties involved were working hard to resolve disputes and get people out of the court system before expensive and time-consuming trials.

But that’s not all, the court has been able to improve even more in 2021-2022 with an even more impressive 84% of matters being resolved prior to trial.

This is a 4% increase from the previous year, which is a great indicator that the court and parties involved are finding even more effective ways to resolve disputes and avoid trials.

It’s an important achievement that helps to minimize the emotional, financial and time cost for the parties involved and helps to reduce the backlog of cases and the pressure on the court system.

The state of Divorce in Australia

In 2021, there were 56,244 divorces granted in Australia.

There were 89,164 marriages across Australia.

The median duration from marriage to divorce was 12.2 years, which means that half of the divorces granted in 2021 were for marriages that lasted less than 12.2 years.

The median duration to separation was 8.4 years, which means that half of the couples that divorced in 2021 separated after 8.4 years of marriage.

This suggests that, on average, couples in Australia are separating relatively soon after their marriages.

It’s important to note that the divorce rate, which is the number of divorces per 1,000 people, has been steadily falling over time. The average divorce rate in 2001 was 2.9 divorces per 1,000 people and it decreased to 1.9 in 2020. However, in 2021, the rate increased slightly to 2.2 divorces per 1,000 people. This could be due to the impact of the COVID-19 pandemic and the associated stress, financial strains and isolation, which could have had a negative impact on relationships and marriages.

It’s also worth noting that the data provided only reflects the number of divorces granted by the court and not the number of couples who are separated or living apart. The number of couples living separately without going through the formal process of divorce could be much higher, and it’s important to take that into consideration when analyzing the data.

While the divorce rate has been decreasing over time, it’s important to note that the data for 2021 suggests that the pandemic may have had an impact on the number of marriages that ended in divorce. It’s important to continue monitoring the data over time to understand the full impact of the pandemic on marriages and divorces in Australia.