Family Law: Civil or Criminal?
Australian law may be separated into two broad categories, civil law and criminal law. Generally speaking, civil law deals with disputes between private parties in which the plaintiff (the party bringing the suit) is seeking financial compensation or a court injunction for the defendant to commit to, or refrain from, some action. Criminal law is concerned with cases brought by the State, on behalf of the community, against private individuals which can result in a fine or imprisonment.
The specifics of Family Law
Family law, which is principally enshrined in the federal Family Law Act 1975, is a complex area that broadly deals with factors arising from the dissolution of a marriage or de facto partnership. This includes divorce proceedings, property settlement, child maintenance and spousal and de facto maintenance among other things. Given that family law arbitrates disputes between individuals in the aftermath of a relationship breakdown, it is technically a branch of civil law. However, a distinction is often made between family law and other areas of civil law given that family law proceedings utilise specific procedures.
The family law system has its own specialist superior court in the Family Court and Federal Circuit Court of Australia. This court has the jurisdiction to oversee most family law matters and operates according to its own procedures as outlined in the Rules of the Court. Other federal civil law issues fall under the jurisdiction of the Federal Court of Australia.
The end of our two family courts
Historically, the Family Court of Australia and the Federal Circuit Court of Australia were the two principal institutions involved in the adjudication of family law matters. The Family Court of Australia was the superior of the two and heard cases concerning more complex issues of family law, though it sits less frequently. Disputes relevant to the Family Court could include jurisdictional issues, the international abduction of a child, serious cases of physical or sexual abuse of a child, affairs involving complex financial arrangements and other cases with difficult legal considerations.
The Federal Circuit Court of Australia, on the other hand, has taken care of less complex legal issues and handled the majority of family law cases. The Federal Circuit Court was solely responsible for handling divorce applications and will also hear cases involving settlement of property, spousal maintenance, child support and other straightforward legal questions.
Going to court will still be a lengthy process
From 1 September 2021 the Family Court of Australia and Federal Circuit Court of Australia merge into the one Court – the Family Court and Federal Circuit Court of Australia. They are now one consolidated set of rules and documents to assist parties to navigate the family law system. Whilst the intention of the new Court system will be to streamline the Court process for parties the journey through the court system can still be long and drawn out. With the right legal representation and support from family and friends, you will move through efficiently and with the best support possible.
If you need any assistance with your family law matter, book a free 15-minute discovery call to learn how we can assist you.