In a family law matter, it’s not uncommon for there to be overlap with other areas of the law.
Sometimes, it’s more convenient for those issues to be determined alongside, rather than separate to, a family law matter.
Accrued jurisdiction
Accrued jurisdiction refers to the power held by federal courts over state matters.
This means that other federal courts, including the Federal Circuit and Family Court of Australia (“FCFCOA”) have jurisdiction which can extend to non-federal matters, where the decision forms part of the overall resolution. This can therefore help avoid multiple proceedings.
The essential element for the FCFCOA to exercise its accrued jurisdiction (which is a discretionary power) is whether there’s a sufficiently close connection between the two issues.
When considering whether to exercise that discretion, the Court will consider factors such as:
- what the parties have done
- the relationship between or among them
- laws which give rights or liabilities to their conduct and relationship
- whether the claims are part of a single issue and whether they are connected, rather than separate or unrelated.
An example of the FCFCOA exercising accrued jurisdiction is where there’s a dispute (a state matter) which has a close connection to married or de-facto parties in a property proceeding where it would be in the interests of justice to determine those matters together. For example, it may relate to a party’s parent claiming they hold an interest in a property which is subject to the family law proceedings. The FCFCOA has the power to determine that issue at the same time.
The Court can exercise accrued jurisdiction irrespective of whether there are separate proceedings (such as in the Supreme Court) that have begun – although in that case it’s instead known as cross-vested jurisdiction.
Cross-vested jurisdiction
This is effectively the same as accrued jurisdiction except it applies when proceedings have already started in another court.
Those proceedings can be transferred to the FCFCOA and heard alongside a family law matter, if it’s in the interests of justice to do so.
How we can help
Jurisdictional overlap can complicate family law proceedings. Our Family Law team can help streamline the process, resolve related issues together, and give you a clear path forward.
