(1) This section
applies —
(a) if
—
(i)
the Magistrates Court (the court ) is dealing with
proceedings in which a parenting order (other than a child maintenance order)
or an order relating to the welfare of a child is sought; and
(ii)
the respondent, in answer to the application by which the
proceedings are instituted, seeks an order different from that sought in the
application; and
(iii)
the court is not constituted by a family law magistrate;
or
(b) if
—
(i)
the Magistrates Court (the court ) is dealing with
proceedings that concern property of a total value exceeding the ceiling
amount; and
(ii)
the respondent, in answer to the application by which the
proceedings are instituted, seeks an order different from that sought in the
application.
(2) The court must,
before going on 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 the Court.
(3) If the parties do
not consent to the court hearing and determining the proceedings, the court
must transfer the proceedings accordingly.
(4) If the parties
consent to the court hearing and determining the proceedings —
(a) a
party is not entitled, without leave of the court, subsequently to object to
the proceedings being heard and determined by the court; but
(b) the
court may, on its own initiative, transfer the proceedings to the Court.
(4a) A reference in
subsection (1)(b) to proceedings in respect of property does not include a
reference to proceedings with respect to arrears of maintenance.
(4b) In determining
the value of any property for the purposes of subsection (1)(b), any mortgage,
lien, charge or other security over the property is to be disregarded.
(5) If the court
subsequently gives leave to a party to object to the proceedings being heard
and determined by the court, the court must transfer the proceedings to the
Court.
(6) The Court must
deal with the proceedings transferred to it as if the proceedings had been
instituted in the Court.
(7) Failure by the
Magistrates Court to comply with this section in relation to proceedings does
not invalidate any order made by the court in the proceedings.
(8) Subsection (7)
does not affect the duty of the Magistrates Court to comply with this section.
(9) In this section
—
ceiling amount has the same meaning as in
section 46(1AA) of the Family Law Act unless otherwise prescribed in the
regulations.
[Section 43 amended: No. 25 of 2002 s. 34; No. 59
of 2004 s. 93 and 95; No. 35 of 2006 s. 36.]