Family Law Act. Australia

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СКАЧАТЬ The court shall not grant leave under subsection (3) or (3A) unless it is satisfied: (a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or (b) in the case of proceedings in relation to the maintenance of a party to a marriage — that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.

      (5) Subject to subsection (6), a party to a de facto relationship may apply for: (a) an order under section 90SE, 90SG or 90SM; or (b) a declaration under section 90SL; only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).

      (6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that: (a) hardship would be caused to the party or a child if leave were not granted; or (b) in the case of an application for an order for the maintenance of the party — the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

      44A Proceedings for divorce order The regulations may provide that proceedings for a divorce order may not be instituted in, or transferred to, a court of summary jurisdiction other than a prescribed court.

      45 Stay and transfer of proceedings (1) Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that other proceedings that have been so instituted or are being so continued in relation to the same marriage or void marriage or the same matter are pending in another court, the first‑mentioned court may stay the first‑mentioned proceedings for such time as it considers appropriate or may dismiss the proceedings.

      (1A) For the purposes of subsection (1), if the bankruptcy trustee of a bankrupt party to a marriage applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act, proceedings relating to that application are taken to be proceedings under this Act in relation to the marriage.

      (1B) For the purposes of subsection (1): (a) a de facto financial cause instituted in relation to a de facto relationship; and (b) proceedings relating to an application, by the bankruptcy trustee of one of the parties to the de facto relationship, under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act; are taken to be proceedings under this Act in relation to the same matter.

      (1C) For the purposes of subsection (1), the first proceedings set out in each item of following table, and the second proceedings set out in that item, are taken to relate to the same matter if one of the parties to each marriage, void marriage or de facto relationship referred to in that item is the same.

      Proceedings relating to the same matter Item First proceedings Second proceedings1 a matrimonial cause instituted in relation to a marriage (or void marriage) a de facto financial cause instituted in relation to a de facto relationship2 a de facto financial cause instituted in relation to a de facto relationship a de facto financial cause instituted in relation to a de facto relationship (2) Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court. However, this subsection does not apply to particular proceedings if: (a) the first‑mentioned court is the Family Court and the other court is the Federal Circuit Court of Australia; or (b) the first‑mentioned court is the Federal Circuit Court of Australia and the other court is the Family Court.

      Note 1: For transfers from the Family Court to the Federal Circuit Court of Australia, see section 33B.

      Note 2: For transfers from the Federal Circuit Court of Australia to the Family Court, see section 39 of the Federal Circuit Court of Australia Act 1999.

      (3) A transfer under subsection (2) may be made on the application of any party to the proceedings.

      (4) A transfer under subsection (2) may be made on the transferring court’s own initiative if the transfer is: (a) from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or (b) from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State.

      46 Transfer of proceedings from court of summary jurisdiction in certain cases (1) Where proceedings are instituted in or transferred to a court of summary jurisdiction in relation to property of a total value exceeding $20,000 and the respondent, in answer to the application by which the proceedings were instituted, seeks an order different from that sought in the application: (a) the court must, before proceeding to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to: (i) the Family Court; or (ia) a Family Court of a State; or (ii) the Supreme Court of a State or Territory; or (iii) the Federal Circuit Court of Australia; and (b) unless the parties consent to the court hearing and determining the proceedings — the court must transfer the proceedings to: (i) the Family Court; or (ia) a Family Court of a State; or (ii) the Supreme Court of a State or Territory; or (iii) the Federal Circuit Court of Australia.

      (1AA) Subsection (1) does not apply if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

      (1A) A reference in subsection (1) to proceedings with respect to property does not include a reference to proceedings with respect to arrears of maintenance.

      (1AB) In determining the value of any property for the purposes of subsection (1), any mortgage, lien, charge or other security over the property is to be disregarded.

      (1B) Subject to subsection (1C), if: (a) proceedings referred to in subsection (1) are instituted in or transferred to a court of summary jurisdiction; and (b) the parties consent to the proceedings being heard and determined by that court; a party is not entitled subsequently to object to the proceedings being so heard and determined.

      (1C) If the court subsequently gives leave to a party to object to the proceedings being so heard and determined, the court must transfer the proceedings to: (a) the Family Court; or (aa) a Family Court of a State; or (b) the Supreme Court of a State or Territory; or (c) the Federal Circuit Court of Australia.

      (2) Where proceedings referred to in subsection (1) are before it, the court may transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the court to hear and determine the proceedings.

      (2A) If: (a) proceedings for a divorce order have been instituted in or transferred to a court of summary jurisdiction; and (b) the proceedings are defended; the court is required to transfer the proceedings to: (c) the Family Court; or (ca) a Family Court of a State; or (d) the Supreme Court of a State or Territory; or (e) the Federal Circuit Court of Australia.

      (2B) Subsection (2A) does not apply if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

      (3) Before transferring proceedings under subsection (1) or (2A), the court may make such orders as it considers necessary pending the disposal of the proceedings by the court to which they are to be transferred.

      (3A) СКАЧАТЬ