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Published online by Cambridge University Press: 24 January 2025
Considerable confusion and difference of opinion exists as to the precise boundaries of jurisdiction in custody matters between Federal and State courts. This Article examines the main cases in which the scope of the Family Court's custody jurisdiction has been in issue, and reviews suggestions made to remedy the problems resulting from the division of jurisdiction. The authors argue for an interpretation of the relevant provisions of the Family Law Act 1975 (Cth) which is consistent with the trend of High Court authority as to the scope of the marriage power (section 51(xxi) of the Constitution), and which would remove much of the uncertainty concerning the Family Court's jurisdiction.
1 As reported in the Sydney Morning Herald, 13 February 1981, 10.
2 Clarke v. Mcinnes [1978] 1 N.S.W.L.R. 598.
3 These remarks, made by his Honour after judgment, are reproduced in an Editor's Note at (1978) 52 A.L.J. 467. Cf. the remarks of Powell J. in Meyer v. Meyer (1978] 2 N.S.W.L.R. 36, 37, 40.
4 Russell v. Russell; Farrelly v. Farrelly (1976) 134 C.L.R. 495; (1976) 50 A.L.J.R. 594.
5 E.g. Russell v. Russell (1976) 134 C.L.R. 495, 507-512 per Barwick C.J., S37-541 per Mason J., 547-550 per Jacobs J.
6 Id. 512 per Barwick C.J.; 525-527 per Gibbs J.
7 Id. 538-540 per Mason J.; 550 per Jacobs J. Stephen J. agreed with Mason J. on this point (at 529).
8 Id. 549-550.
9 Id. 542-543; 555.
10 Id. 556-557.
11 Id. 557.
12 Act No. 63 of 1976.
13 The wider definition was retained only for the purposes of s. 63, which allows the Court to prevent a decree nisi for dissolution becoming absolute if it is not satisfied that proper arrangements have been made for the welfare of the “children of the marriage”-s. 5(2).
14 (1976) 134 C.L.R. 495, 557.
15 (1978) 143 C.L.R. 410.
16 Aickin J. dissented. In his view, the effect of the decision in Russell v. Russell was that “jurisdiction to decide questions of custody of the children of a marriage in a dispute not between the parties to the marriage cannot under the Constitution be validly conferred” (id. 436). The Family Court, therefore, could not be given jurisdiction to hear proceedings of the kind contemplated by s. 61(4). Further, since the proceedings arose out of the new situation brought about by the wife's death, they were not “in relation to” the earlier proceedings (id. 436-437).
17 Id. 428.
18 Id. 427.
19 Id. 425.
20 Id. 418.
21 Id. 418-419.
22 Supra text n. 11.
23 (1978) 143 C.L.R. 410, 427.
24 Id. 431.
25 Id. 419.
26 Id. 416.
27 [1978} 1 N.S.W.L.R. 598; (1978) 34 F.L.R. 197.
28 Act No. 23 of 1979.
29 (1981) 55 A.L.J.R. 192.
30 See s. 8 of the Act.
31 (1981) 55 A.L.J.R. 192, 197.
32 Id. 197-200.
33 Id. 206-208 per Aickin J., 208-209 per Wilson J.
34 Id. 208.
35 Id. 210.
36 Murphy J. was also in the majority. He argued briefly that the marriage power extended to authorise laws dealing with the consequences of marriage, including the custody and guardianship of children. The amended form of s. 61(4) was clearly within constitutional power,id. 205-206 per Murphy J.
37 Id. 203.
38 Id. 202; a possible exception noted by Gibbs J. is where the surviving spouse cannot be joined because his or her whereabouts are unknown.
39 Id. 203.
40 Vitzdamm-Jones v. Vitzdamm-Jones (1981) 55 A.L.J.R. 192.
41 Id. 194-197 per Barwick C.J., 208 per Aickin J., 208 per Wilson J.
42 Id. 199.
43 Id. 207.
44 Id. 209.
45 Id. 204-205.
46 Id. 205.
47 Id. 200-203.
48 Id. 205.
49 Ibid.
50 Id. 202.
51 Supra text nn. 23-25.
52 Unfortunately, the point was not fully considered in the judgments, and in particular Stephen J. does not attempt to reconcile it with his apparently different position in Dowal v. Murray supra n. 25.
53 (1981) 55 A.L.J.R. 192, 209-210 per Wilson J., cf. per Barwick C.J. 199-200 and 207-208 per Aickin J.
54 (1980) F.L.C. (CCH) 90-904, 75,686.
55 Id. 75,691.
56 Id. 15,692.
57 Id. 75,688 per Barwick C.J.; 75,702-75,703 per Aickin J.; and 75,711-75,712 per Wilson J.
58 Id. 15,693-15,695 per Stephen J.; 75,697-75,698 per Mason J.; and 75,701 per Murphy J.
59 (1979) 5 Fam. L.R. 244.
60 Id. 258 per Asche S.J., agreeing with Strauss J.; 249 per Pawley S.J., and 276 per Strauss J.
61 Id. 276-278.
62 Id. 277.
63 Id. 278.
64 Pawley S.J., in dissent, argued that the phrase “other proceedings” in the para. (f) definition must be taken to mean proceedings other than custody proceedings, which were dealt with specifically in para. (c) (ii), and were thus limited to proceedings between the parties to the marriage. (Id. 250). This argument appears to be inconsistent with the views of the majority of the High Court in Dowal v. Murray. It is difficult to characterise s. 61(4) proceedings as anything other than “custody” proceedings, and four judges in that case had no difficulty in holding such proceedings to be authorised by para. (f).
65 (1980) F.L.C. (CCH) 90-904, 75,691.
66 (1978) 143 C.L.R. 410.
67 (1981) 55 A.L.J. 192 and see supra text n. 29.
68 (1980) F.L.C. (CCH) 90-831, 75,261.
69 Id. 75,264-75,265.
70 Supra text n. 19.
71 (1980) F.L.C. (CCH) 90-831, 75,264.
72 Supra n. 55.
73 Supra n. 19.
74 As Gibbs J. has said in several cases, including Dowal v. Murray: “a law is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage ... “ (1978) 143 C.L.R. 410, 418-419.
75 (1978) 4 Fam. L.R. 482.
76 Id. 483.
77 Id. 484.
78 Id. 486. The reference to Re W. [1978] Qd. R. 406, appears at 487.
79 (1978) F.L.C. (CCH) 90-528, 77,799.
80 Id. 77,800.
81 [1978] Qd. R. 406, 409-410.
82 Supra text n. 22.
83 (1980) F.L.C. (CCH) 90-831, 75,261.
84 Supra text n. 71.
85 (1980) 29 A.L.R. 657.
86 His Honour took a similar view in the earlier case of Clarke v. Mcinnes [1978] 1 N.S.W.L.R. 598, 602.
87 (1980) 29 A.L.R. 657, 661-662.
88 Supra n. 40.
89 [1978] 2 N.S.W.L.R. 36.
90 Id. 39.
91 Id. 38-39.
92 As Needham J. pointed out in Thompson [1980] 1 N.S.W.L.R. 180, 181 and again in Lloyd (1980) F.L.C. (CCH) 90-816, the views of Powell J. are only applicable if there are or have been proceedings of the type defined in para. (c)(ii). It may be noted that the reasoning of Powell J. was accepted by Frederico J. of the. Family Court in Kosmidis and Kalogaropoulos (1980) F.L.C. (CCH) 90-849.
93 (1979) 4 Fam. L.R, 776.
94 Id. 780-781.
95 Id. 782.
96 Supra text nn. 89-91.
97 (1979) 4 Fam. L.R. 776, 782.
98 The problem would be further complicated if the declaration of paternity had immediate legal consequences under State law relating, e.g., to guardianship of ex-nuptial children (see e.g. G. v. P. [1977] V.R. 44, cf. s. 6 Children (Equality of Status) Act 1976 (N.S.W.)): here, the meaning of “inconsistency” and the operation of s. 109 of the Commonwealth Constitution would need to be considered. See also Harris v. Harris [1979] 2 N.S.W.L.R. 252. See now Lawson v. Youngman [1981] 1 N.S.W.L.R. 439.
99 (1980) F.L.C. (CCH) 90-904, 75,691.
1 Supra text n. 37.
2 (1978) 143 C.L.R. 410, 417-418.
3 Supra n. 29.
4 Supra n. 40.
5 Sees. 4(1) of the Act, as amended by Act No. 63 of 1976.
6 Re Ross-Jones; ex parte Beaumont (1979) 53 A.L.J.R. 259, 261. See also Tansell and Tansell (1911) F.L.C. (CCH) 90-307. The decision of the High Court in Lansell v. Lansell (1964) 110 C.L.R. 353 is discussed in Sackville, and Howard, , “The Constitutional Power of the Commonwealth to Regulate Family Relationships” (1970) 4 F.L.Rev. 30, 53-59Google Scholar.
7 (1979) 5 Fam. L.R. 244. See also the recent case of Chalker (1981) F.L.C. (CCH) 91-017.
8 (1980) F.L.C. (CCH) 90-831, 75,261.
9 (1978) 4 Fam. L.R. 482.
10 (1978) F.L.C. (CCH) 90-528.
11 (1980) 29 A.L.R. 657.
12 Supra n. 38.
13 Supra text nn. 37-38. The nature of the exception noted by Gibbs J. (supra n. 38) suggests that he was there more concerned with considerations of justice to the surviving spouse than with the limits of constitutional power.
14 (1976) 134 C.L.R. 495, 541.
15 (1978] 2 N.S.W.L.R. 36.
16 Id. 39. See discussion supra n. 92.
17 Family Law in Australia (Report of the Joint Select Committee on the Family Law Act), 2 Vols A.G.P.S. Canberra 1980 (hereafter referred to as the “Report”).
18 Id. Vol. 1, 16.
19 Id. Vol. 1, 16-17, 24.
20 As reported in The Australian, 12 December 1980. Cf. Report, Vol. 1, 19.
21 Cf. s. 41 Family Law Act 1975 (Cth).
22 Report, Vol. 1, 17, 19-20. Arguments as to the supposed disadvantages of State Family Courts make reference to the more flexible use of resources (judges and counsellors) within the Family Court, the benefits of the Family Court counselling service, and the special expertise of Family Court judges, on the one hand, and the supposed difficulties in a State Family Court system of service of process, the dangers of variation between courts of different States in administration and interpretation of the Act, and confusion as to appellate jurisdiction, on the other.
23 Id. Vol.1, 17-18.
24 Id. Vol. 1, 62.
25 Id. Vol. 1, 21. See now Family Law Amendment Bill 1981, Clause 4.
26 See now s. 5 (1) of the Family Law Act and supra p. 283 n. 13.
27 S. 6.
28 Report, Vol. 1, 61.
29 (1979) 5 Fam. L.R. 244.
30 A proposal to amend the Act along these lines was announced by the Commonwealth Attorney-General on 11 December 1980. Cf. para. (cb) of definition of “matrimonial cause” in s. 4(1) of the Act, relating to maintenance proceedings against one or both spouses “by or on behalf of a child of the marriage”. See now Family Law Amendment Bill 1981, Clause 3(d).
31 (1976) 134 C.L.R. 495, 541.
32 [1978] 2 N.S.W.L.R. 36. Report, Vol. 1, 49. This would enable the Family Court to make appropriate orders in situations such as that in In Re D. [1976] 2 W.L.R. 279.
33 Report, Vol. 1, 61-62.