46Transfer of proceedings from court of summary jurisdiction in certain cases

#### 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 a State or Territory, in relation to property of a total value exceeding the amount referred to in section 46A, 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 Federal Circuit and Family Court of Australia (Division 2); or (ii) a Family Court of a State; or (iii) the Supreme Court of a State or Territory; and (b) unless the parties consent to the court hearing and determining the proceedings—the court must transfer the proceedings to: (i) the Federal Circuit and Family Court of Australia (Division 2); or (ii) a Family Court of a State; or (iii) the Supreme Court of a State or Territory. (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 Federal Circuit and Family Court of Australia (Division 2); or (b) a Family Court of a State; or (c) the Supreme Court of a State or Territory. (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 Federal Circuit and Family Court of Australia (Division 2); or (d) a Family Court of a State; or (e) the Supreme Court of a State or Territory. (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 are pending in a court of summary jurisdiction, each of the following Courts: (a) the Federal Circuit and Family Court of Australia (Division 2); (b) a Family Court of a State; (c) the Supreme Court of a State or Territory; 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.