Court jurisdiction is the legal authority of a court to hear a case. It is important because it ensures that cases are decided by courts that are best equipped to do so. Moreover, it is important for:
- Ensuring fairness. If a court without jurisdiction for a matter presides over it, the parties may not have equal access to justice. For example, a court in one State or Territory may not be familiar with the laws of another state. Or it may not have the resources to hear a complex case.
- Promoting efficiency. Lack of court jurisdiction can lead to delays and inefficiencies. For example, suppose a party files a case in a court that does not have jurisdiction. Then the case may have to be transferred to another court, which can take time and resources.
- Ensuring uniformity of law. If different courts with different jurisdictions preside over matters, it can lead to inconsistencies in the law. For example, if two difference courts preside over a case involving the same issue, the courts may reach different conclusions. This can be confusing and unfair to the parties involved.
This article will discuss sections 69K to 69N of the Family Law Act 1975. These set out the rules on court jurisdiction in cases concerning children (Part VII of the Act).
Section 69K: Territory Court Does Not Have Jurisdiction Unless a Party Is Ordinarily Resident in the Territory
This Section states that a court of a Territory must not hear or determine proceedings unless at least one of the parties to the proceedings is ordinarily a resident in the Territory. This must be the case when courts institute or transfer the proceedings.
Section 69K requires the condition that for a court to validly hear a case, a party to such case must be a resident of the Territory where the court is, and where it conducts the hearing. Such fact of residence of a party establishes the court’s jurisdiction over the case.
Section 69L and 69M: Transferred and Additional Jurisdiction
Another rule is that if proceedings in relation to a matter arising under a law of the Commonwealth are transferred to a court that has jurisdiction conferred on or invested in it the Family Law Act 1975, the jurisdiction so conferred on or invested in the court includes jurisdiction in relation to that matter.
Section 69M allows a court to acquire other types of jurisdiction. This rule states that a court may also have other types of jurisdiction in addition to the authority that this Section grants or invests in it.
Section 69N: Transfer of Proceedings From Courts of Summary Jurisdiction in Certain Cases
The application of the rules under this section depends on the following circumstances:
- If the proceedings for a parenting order (other than a child maintenance order) are instituted in or transferred to a court of summary jurisdiction (other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia).
- If the respondent, in answer to the application by which the proceedings were instituted, seeks an order different from that sought in the application.
What Is a Summary Jurisdiction?
Summary jurisdiction is the power of a court of summary jurisdiction to hear and determine certain types of family law matters. These matters are generally less complex than those that the Family Court of Australia can hear, and the court has a more limited range of powers.
Moreover, this section provides that before hearing and determining the proceedings, the court must inform the parties that each of them must give consent to the court to hear and determine the proceedings.
If not, the court must transfer the proceedings to:
- The Federal Circuit and Family Court of Australia (Division 2).
- The Family Court of a State.
- The Supreme Court of the Northern Territory.
In the event that the parties do not give their consent to the court to hear and determine the case, the standard operating procedure for the court is to transfer the proceedings to any of the courts enumerated above.
Another instance when a court transfers the proceedings to another is if the court subsequently gives leave to a party to object to the proceedings that court hears or determines.
Moreover, before such a court transfers the proceedings, the court may make such orders as it considers necessary pending the disposal of the proceedings by the court to which they are transferred.
Thus, when a court has transferred such proceedings to another, they must deal with the proceedings as if they had been instituted in the court.
What Is the Effect if the Parties Give Their Consent?
If the parties consent to the court hearing and determining the proceedings:
- a party has no entitlement, without leave of the court, subsequently to object to the proceedings that the court determines or hears; but
- the court may, on its own initiative, transfer the proceedings to the courts listed earlier.
Need a Family Lawyer?
If you are facing a court jurisdiction issue, it is important to speak to a family lawyer as soon as possible. Family lawyers are experts in:
- Determining whether a court has jurisdiction. Lawyers have a deep understanding of the law. They can help you determine whether a court has jurisdiction over your case. They can review the facts of your case and the applicable law to determine which court is the best to file your case.
- Challenging the jurisdiction of a court. Do you believe that a court does not have jurisdiction over your case? Your lawyer can file a motion to dismiss the case. This motion will ask the court to rule that it does not have the authority to hear your case.