Division 3 — Other provisions
40 Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts (1) The regulations may provide that, from a date specified in the regulations (not being a date before the regulations are registered under the Legislative Instruments Act 2003), the jurisdiction of the Family Court under this Act in relation to all proceedings, or a specified class of proceedings, must not be exercised in a specified State or Territory, or in 2 or more specified States and Territories.
(3) The Governor‑General may, by Proclamation, fix a date as the date on and after which matrimonial causes, and other proceedings, referred to in subsection 39(5) may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the Proclamation, or may be so instituted or transferred only where specified conditions are complied with, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes and may be expressed to apply only to the institution of proceedings in, or the transfer of proceedings to, a particular Registry or Registries of a Supreme Court referred to in the Proclamation.
(4) The Supreme Court of a State or Territory shall not hear and determine proceedings under this Act instituted in or transferred to that Court otherwise than in accordance with any Proclamation in force under subsection (3), but nothing in this section invalidates a decree made by such a Supreme Court.
(4A) The Governor‑General may, by Proclamation, declare that a Proclamation made under subsection (3) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (3)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.
(5) Proclamations under subsection (3) may be made from time to time.
(6) A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this subsection, have been instituted in the Family Court, may apply to the Family Court for an order transferring the proceedings to the Family Court, and the Court may order accordingly.
(7) The standard Rules of Court may make provision in relation to matters arising in or in connexion with the transfer of proceedings in accordance with an order under subsection (6).
(8) This section does not apply in relation to proceedings under Part VII or in relation to jurisdiction conferred on a federal court or a court of a Territory, or invested in a court of a State, by regulations made for the purposes of section 111C.
40A Exercise of jurisdiction of Federal Circuit Court in certain States and Territories The jurisdiction of the Federal Circuit Court of Australia under this Act must not be exercised in respect of a particular proceeding in a particular State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory.
41 Establishment of State Family Courts (1) As soon as practicable after the commencement of this Act, the Commonwealth Government shall take steps with a view to the making of agreements with the governments of the States providing for the creation of State courts to be known as Family Courts, being agreements under which the Commonwealth Government will provide the necessary funds for the establishment and administration of those courts (including the provision of counselling facilities for those courts).
(2) Where, whether before or after the commencement of this Act, a State has created a court known as a Family Court, the Governor‑General may, by Proclamation, declare that, on and after a date specified in the Proclamation, this section applies to that court.
(3) Where, by virtue of a Proclamation under subsection (2), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation, and in relation to proceedings so instituted and proceedings transferred to that court in accordance with this Act, as if references in sections 39, 46, 94 and 96 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly.
(3A) Notwithstanding the issue of a Proclamation under subsection (2) and the provisions of subsection (3): (a) proceedings by way of cross‑proceedings in relation to proceedings for principal relief that were pending in the Supreme Court of the State concerned immediately before the date fixed by the Proclamation; or (b) proceedings of a kind referred to in any of paragraphs (c) to (f) of the definition of matrimonial cause in subsection 4(1) that: (i) relate to proceedings for principal relief that were pending in the Supreme Court of the State concerned immediately before the date fixed by the Proclamation; or (ii) are between parties between whom proceedings of a kind referred to in any of paragraphs (c) to (f) of that definition were so pending immediately before that date; may be instituted, heard and determined in that Supreme Court on or after the date fixed by the Proclamation.
(4) The Governor‑General shall not make a Proclamation under this section in respect of a court unless the Governor‑General is satisfied that: (a) arrangements have been made under which Judges will not be appointed to that court except with the approval of the Attorney‑General of the Commonwealth; (b) Judges appointed to that court are by reason of training, experience and personality, suitable persons to deal with matters of family law and cannot hold office beyond the age of 70 years; and (c) appropriate family counselling and family dispute resolution services, and family consultants, will be available to that court.
(4A) A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this subsection, have been instituted in a Family Court of a State, may apply to a Family Court of a State for an order transferring the proceedings to that Court, and the Court may order accordingly.
(5) References in this Act or the standard Rules of Court to a court of summary jurisdiction shall not be read as including references to a court to which this section applies.
42 Law to be applied (1) The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.
(2) Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a State or Territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place.
Note: Subdivision D of Division 4 of Part XIIIAA (Applicable law) may affect the law to be applied by a court.
43 Principles to be applied by courts (1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure protection from family violence; and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
(2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.
44 Institution of proceedings (1) Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.
(1A) Proceedings under this Act for: (a) a divorce order in relation to a marriage; or (b) a decree of nullity of marriage; may