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) If proceedings instituted under this Act, or continued under section 9, are pending in a court of summary jurisdiction, each of the following Courts: (a) the Family Court; (aa) a Family Court of a State; (b) the Supreme Court of a State or Territory; (c) the Federal Circuit Court of Australia; may, on the application of a party or of its own motion, order that the proceedings be removed to that Court.
(4) Where proceedings are transferred or removed to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally instituted in that court.
(5) Without prejudice to the duty of a court of summary jurisdiction to comply with this section, failure by such a court so to comply does not invalidate any order of the court in the proceedings.
47 Courts to act in aid of each other All courts having jurisdiction under this Act shall severally act in aid of and be auxiliary to each other in all matters under this Act.
Part VI — Divorce and nullity of marriage
48 Divorce (1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
49 Meaning of separation (1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
50 Effect of resumption of cohabitation (1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.
(2) For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.
51 Nullity of marriage An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
52 Court not to make divorce order where application for decree of nullity before it Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage.
53 Circumstances occurring before commencement of Act or outside Australia A