Western Australian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

FAMILY COURT ACT 1997 - SECT 43

43 .         Transfer of proceedings from courts of summary jurisdiction in certain cases — FLA s. 69N

        (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.]



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback