¹ Secretary, Department of Health and Community Services v JMB and SMB (1992) 15 Fam LR 392, on appeal from a decision of the Full Court of the Family Court in Re Marion (1990) 14 Fam LR 427 (hereafter “Marion's case”).

² Since this paper deals with the relationship between the Family Court of Australia and State court systems, no mention is made of procedures in Western Australia, which has a State Family CourL

³ Dickey, A, Family Law (2nd ed 1990) 25Google Scholar

⁴ “(I]n contrast to the former Matrimonial Causes Act 1959 (Cth) which dealt with the questions of guardianship and custody of children only in the context of what might be called traditional matrimonial causes, the Family Law Act 1975 goes much further and intrudes into the area of guardianship and custody of children in cases in which no traditional matrimonial cause has been or is intended to be instituted”: Meyer v Meyer (1978) FLC 90-465, 77,379 per Powell J.

⁵ An alternative source is a reference of powers by some or all of the States; see infra 18.

⁶ The limitations inherent in the marriage power are reflected in the defmition of a child of a marriage contained ins 60A of the Family Law Act 1975 (Cth). For a discussion of some of the issues raised by the problem of defining what is meant by a child of a marriage, see 0 Jessep and Chisholm, R, “Children, the Constitution and the Family Court” (1985) 8 UNSWU 152Google Scholar.

⁷ (1962) 107 CU S29, S43 and 560.

⁸ Russell v Russell (1976) 134 CLR 495,538 per Mason J.

⁹ Ibid S24-525.

¹⁰ (1984) 156 CLR 170, 11S-176 per Gibbs CJ.

¹¹ (1976) 134 CLR 495. See also Re F; ex parte F (1986) 161 CLR 376, 387 per Mason and Deane JJ.

¹² R v Demack; ex parte Plummer (l911) 137 CLR 40, 53 per Mason I. See also Dowal v Murray (1978) 143 CLR 410; Vilzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383; and FounJain v Alexander (1982) 150 CI..R 615.

¹³ (1981) 148 CLR 383. The provision was s 61(4) of the Family Law Act.

¹⁴ (1980) 146 CLR 447.

¹⁵ Ibid 458. See also the judgments of Barwick CJ, Aiclcin and Wilson JJ; Stephen, Mason and Murphy IJ dissented.

¹⁶ (1977) 137 CLR 40, 46. See also, eg R v Lambert; u parte Plummer (1980) 146 CLR 447, 457 and Fountain v Alexander (1982) 150 CLR 615,627.

¹⁷ (1980) 146 CLR 447,474.

¹⁸ lbid 456.

¹⁹ Ibid 451. Then: have been some variations in the formulation of the test. In two decisions, Gibbs CJ merml to the need for a “sufficiently close” connexion between a law and the marriage relationship (Gazzo v Comptroller of Stamps (Vict.) (1981) 149 CLR 227,234 and Fisher v Fisher (1986) 161 CLR 438,447) and in a third he required them to be “sufficiently connected” (Fountain v Alexander (1982) 150 CLR 615, 627). Stephen J settled for a “reasonable” connexion (Gazzo v Comptroller of Stamps (Vict.) (1981) 149 CLR 227, 244) and Mason J preferml the term “sufficient”:"The word close is perhaps too limiting, suggesting too strict a nexus.” (Gazzo v Comptroller of Stamps (Vict.) (1981) 149 CLR 227,248.) There have been criticisms of these tests. Dawson I described the “sufficiently close connexion” test as “unhelpful” (V v V (1984) 156 CLR 228, 240) and in Fisher v Fisher, Mason and Deane JJ remarked that in some cases “it is a mistake to insist on a 'close' connexion, as if this were some immutable dictate proceeding from the Constitution itself.” ((1986) 161 CLR 438, 453). See also the suggestion that in some of the decisions insufficient attention has been paid to the distinction between a Jaw which directly affects marriage “and a law the validity of which under s 51(21) depends upon the identification of some more indin:ct <XlOllexion with marriage “ (Re F; ex parte F (1986) 161 CLR 376, 391 per Mason and Deane JJ.)

²⁰ (1980) 146 CLR 447, 47S.

²¹ (1976) 137 CLR 40, 46.

²² (1980) 146 CLR 447,491.

²³ (1980) 146 CLR 447, 472. See also Mason J at 4<,6,

²⁴ Supra 2. See also Attomey-General (Vict) v Commonwealth (1962) 107 CLR 529, 580, where Windeyer J stated that the suppon and care of children “are duties that are commonly considered to be inherent in the institution of matrimony.” Similarly, Jacobs J remarked that, with respect to children, each parent has social rights and duties “which arise from and are pan of the marriage relationship”: Russell v Russell (1976) 134 CLR 495, 550.

²⁵ (1984) 156 CLR 228,237.

²⁶ (1982) 150 CLR 615,627.

²⁷ (1976) 134 CLR 495, SSO.

²⁸ In this and the later discussion of s 64(1), the subsection is treated as a source of jurisdiction. This is not strictly accurate, as was made clear in the joint judgment of Mason CT and Dawson, Toohey and Gaudron JJ in Marion's case. The subsection “presupposes” jurisdiction, which seems to be conferred by s 63(1) ((1992) 15 Fam LR 392, 415). In the same case, Brennan J referred to the “unsatisfactory drafting” of the provisions relating to the Family Court's jurisdiction under Part VII of the Act (ibid 435).

²⁹ These provisions, which were inserted by the Family Law Amendment Act 1983, reflected the adoption of recommendations contained in Family Law Council, Watson Committee Report (Wardship, Guardianship, Custody, Access, Change of Name) (1982), 5-7 (hereafter Watson Committee Report).

³⁰ (1978) FLC 90-510, 77,672. This case was decided before the enactment of s 63E(l) and(2).

³¹ Note, however, the view of Mason J, who commented thats 64(1) seemed “to be speaking of proceedings in which the applicant is seeking an order by which rights, duties and obligations in relation to guardianship, custody or access are to be vested in someone.” Fountainain v Alexandir (1982) 150 CI..R 615, 634 (emphasis added).

³² A Dickey, :supra n 3, 330.

³³ (1978) FLC 90-510, 77,673. See also In the Marriage of Bishop (1981) 6 Fam LR 882,885, where Treyvaud J stated that the Family Coon is empowered “to exercise a far-seeing and over-seeing jurisdiction over children, even when orders for custody are made”.

³⁴ In the Marriage of Newbery (1977) 27 FI..R 246.

³⁵ (1978) FLC 90-510, 77,673.

³⁶ In the Marriage of Chapman and Palmer (1978) FLC 90-510, In the Marriage of Skrabl and Leach (1988) 13 Fam LR 83, In re Skipworth (1989) 13 Fam LR 137 (surname); In the Marriage of Bishop (1981) 6 Fam LR 882 (education); In the Marriage of R and R (1984) FLC 91-571 (residence).

³⁷ (1982) 150 CLR 615,635.

³⁸ (1985) 156 CLR 228. The question arose as a result of a grandmother's application for access to the children of a marriage; there had been no previous matrimonial proceedings between the parties to the marriage. The most important of the relevant provisions was s 4(1)(ce) - since repealed - which allowed the Family Court to exercise jurisdiction in proceedings with respect to “the custody, guardianship or maintenance of, or access to, a child of a marriage”.

³⁹ Citing In the Marriage of Cormick (1984) 156 CLR 170, 175-176. The full passage is set out supra 2.

⁴⁰ (1985) 156 CLR 228,233.

⁴¹ Supra 6.

⁴² Dowal v Murray (1978) 143 CLR 410; Vitzdamm Jones v Vitzdamm Jones (1981) 148 CLR 383; Fountain v Alexander (1982) 150 CLR 615.

⁴³ (1984) 156 CLR 228,237, and see at 239 and 246.

⁴⁴ Watson Committee Report, 9.

⁴⁵ In re N (infants) (1967] Ch 512,531 per Stamp J.

⁴⁶ In re Jane (1989) FLC 92-007,77,256 per Nicholson CJ. See also: Carseldine v Director of the Department of Children's Services (1974) 133 CLR 345,367 per Mason J (Barwick CJ and Stephen J concurring), Director-General of Social Welfare v J (1976] VR 89, 96. See also Inre L (An Infant) [1968] P 119, 156.

⁴⁷ Watson Committee Report, 8-9.

⁴⁸ Re S [1967] 1 All ER 202,209 per Cross J.

⁴⁹ Marion's case, (1992) 15 Fam LR 392, 414 per Mason CJ and Dawson, Toohey and Gaudron JI (joint judgment). See also Deane J, who said of the 1983 amendment:"[T]he jurisdiction so conferred upon the Family Court corresponds with the welfare jurisdiction of the old Chancery Court (so far as it relates to minors) freed from the preliminary requirement of a wardship order ...”: ibid 442. McHugh J agreed with the majority that the “welfare” amendment conferred a jurisdiction “similar to the parens patriae jurisdiction”: ibid 459.

⁵⁰ Ibid 415 and 416. See also the views of members of the Full Court of the Family Court. In the view of Strauss J, the welfare jurisdiction includes:"all powers formerly possessed in England by the Courts of Chancery and in Australia by superior courts of unlimited general jurisdiction in proceedings relating to the welfare of a child.” ((1990) 14 Fam LR 427,453). Nicholson CJ stated:"[T]he word “welfare” appearing in s 64(l)(a) was intended to encompass not only the wardship and parens patriae powers of the Supreme Court but to extend the court's control over all aspects of the welfare of children subject to its jurisdiction.” Ibid 434.

⁵¹ In the Marriage of Egan and Egan (1984) FLC 91-(,()8,79,937.

⁵² (1982) 150 CLR 615.

⁵³ lbid 627.

⁵⁴ (1984) 156 CLR 228,237. Supra 6.

⁵⁵ Watson Committee Report, 9. The probable meaning of these words was indicated by the Commonwealth Attorney-General in his second reading speech on the Family Law Amendment Bill 1983. He said that the Bill provided that “proceedings concerning the welfare of a child of a marriage that involve at least one of the parties to the marriage are a matter ... for the Family Coun.” Sen Deb 1983, Vol 98, 1098.

⁵⁶ Australian Family Law (General Editor: R Chisholm) Vol I, 1311.5: “There may be room for doubt about the validity of the 'welfare' power, at least in its application to matters not having a close connection with custody, guardianship or access.”

⁵⁷ (1992) 15 Fam LR 392, 415 per Mason CJ and Dawson, Toohey and Gaudron JJ (joint judgment). There had been four other cases in which the Family Coun had dealt with the sterilisation of mentally incompetent girls. In none of these was the question of jurisdiction fully resolved. In In re a Teenager (1989) FLC 92-006 and In re S (1990) FLC 92-124, it seems to have been held that the Family Court’s power to hear the matter was based on s 70C(l ). This subsection covers the granting of injunctions and it is questionable whether it should be treated as a separate source of jurisdiction. In In re Jane (1989) FLC 92-007, 77,241, the Coun accepted that one source of power was the cross-vested parens patriae jurisdiction, “together with any other powers which may be conferred upon [the Coun) by the Family Law Act.” It was also suggested that the necessary jurisdiction had been conferred by the reference of powers legislation. No firm conclusion was reached in In re Elizabeth (1989) FLC 92-023.

⁵⁸ Marion's case, (1992) 15 Fam LR 392, 418. Confusingly, however, they went on to suggest that a decision as to sterilisation is an aspect of custody or guardianship. H this is so, there should have been no need to invoke the welfare jurisdiction. Infra 14-17.

⁵⁹ (1982) 150 CLR 615, 627-628 (per Gibbs CJ), 634-635 (per Mason J) and 641 (per Wilson J). These comments seem to close off the argument that there is no real difference between the custody and guardianship jurisdiction and the wardship jurisdiction and that, as the former is exercisable by the Family Coon, there is no place for the latter. These issues were discussed in a series of cases: TroUlbeck v Fisher (1974) 24 FLR 212; Meyer v Meyer (1978) FLC 90-465; Kirkland v Kirkland (1979) FLC 90-660; Thompson v Thompson (1980)FLC 90-81S; and Lloyd v Lloyd (1980) FLC 90-816. For an examination of these cases, see Kovacs, D, “Wardship: A Crisis in Jurisdiction” (1981) 7 Monash ULR 205Google Scholar.

⁶⁰ At 627 (per Gibbs CJ), 63S (per Mason J) and 641 (per Wilson J). This view had earlier been clearly expressed by Asche SJ in In the Marriage of Lamb (No 1) (1977) FLC 90- 22S,76,183:[The Family Court] “is a statutory Court and has not, by reason of its statutory birth, inherited those powers wllich stemmed from the Courts of equity exercising the Sovereign's power of parens patriae in wardship proceedings and vested by lawful succession in the Supreme Courts of the States.”

⁶¹ Quoting Lord Denning in In re X (A Minor)(Wardship: Restriction on Publication) [197S] 1 All ER 697, 703. Cited (1982) 150 CLR 615, 633.

⁶² See, eg, R v Gyngall [1893] 2 QB 232, 242-243. This attitude is changing. See Hall, JC, “The Waning of Parental Rights” (1972) 31 CU 248Google Scholar.

⁶³ (1992) 1S Fam LR 392, 43S.

⁶⁴ Unfortunately, the majority judgment did not deal clearly with this issue. Having accepted that the welfare power was the source of the Family Court's jurisdiction in the case before it, the majority later commented that “the sterilisation of a child arises from the custody or guardianship of a child.” (1992) 15 Fam LR 392,418.

⁶⁵ [1982] 150 CLR 615,636.

⁶⁶ Rolands v Rolands (1983) 9 Fam LR 320.

⁶⁷ L v Dalton (1988) 12 Fam LR 701.

⁶⁸ (1992) 15 Fam LR 392,416. A similar view was expressed by Deane J, ibid 447.

⁶⁹ (1969] 3 All ER 578, 584-585.

⁷⁰ In relaM (1989) FLC 92-007, 77),56.

⁷¹ (1992) 15 Fam LR 392, 433-434.

⁷² (1992) 15 Fam LR 392, 447. For a similar analysis in relation to Re R (A Minor) (Wardship: Medical Treatment) [1991] 4 All ER 177, see S Parker's casenote [1992] J Social Welfare and Family Law 143, 148.

⁷³ In re X (A Minor) (Wardship: Restriction on Publication) [1975] 1 All ER 697.

⁷⁴ B(BR) v B(J) [1968] P 466.

⁷⁵ Re F (An Infant) [1971) QWN 37.

⁷⁶ For a full discussion of this reference of powers, see Chisholm, R, “Children and the Family Law Act: The 1988 Changes” (1988) UNSWIJ (Vol 11, No 2) 153Google Scholar.

⁷⁷ In the Marriage of Cormick (1984) 156 CLR 170; R v Cook; ex parte C (1985) 156 CLR 249; F; ex parte F (1986) 161 CLR 376.

⁷⁸ Commonwealth Powers (Family Law - Children) 1986 (NSW and Vic), Commonwealth Powers (Family Law) Acts 1986 (SA) and 1987 (fas), Commonwealth Powers (Family Law - Children) Act 1990 (Qld).

⁷⁹ The expanded jurisdiction was also exercisable in respect of the Territories: s 60E(3).

⁸⁰ See NSWPD (3rd series) 1986, Vol 193, 6757-6758, Vol 194, 7866-7867; Tas PD (Fortieth Parliament - Second Session 1987), 334-335 (LC), 565-567 (HA); Vic PD 1986, Vol 383 (LC), 152, Vol 383 (LA). 998; SAPD 1986-1987, Vol 1,913, Vol 2, 1264-1268, 1505, 1718-1719; Qld PD,1990-1991, Vol 315, 1856-1857.

⁸¹ See Re Demacfc; ex parte Plummer (1977) 137 CLR 40 and R v Lambert; ex parte Plummer (1980) 146 CLR 447.

⁸² Infra 20-22.

⁸³ Section 60E(5) limits the reach of the s 60E(l) and (2) by indicating that they extend to a referring State “only in so far as” they makes provision for matters referred by the State legislation or incidental matters. This is reinforced by s 60F(2), the effect of which is to require s 64 to be read as applying to children of a marriage, except to the extent that powers over ex-nuptial children have been specifically referred. Thus the Commonwealth has been careful to ensure that s 64 will be given an interpretation consistent with the limitations inherent in the marriage power.

⁸⁴ (1990) 14 Fam LR 427, 430 (per Nicholson CJ) and 453 (per Strauss J).

⁸⁵ Supra 7-10.

⁸⁶ The term “child weHare law” is defined in the legislation; it includes all laws governing the treatment of young offenders and children in need of care. For the purposes of this paper, the most important of the child weHare laws are: Children (Care and Protection) Act 1987 (NSW), Child WcHare Act 1960 (Tas), Children and Young Persons Act 1989 (Vic), Children's Services Act 1965 (Qld), Children's Protection and Young Offenders Act 1979 (SA), Community WcHare Act 1983 (N1), and Children's Services Act 1986 (ACT). See Family Law Regulations, regulation 12B and Schedule 5.

⁸⁷ This provision is virtually identical to those enacted by Victoria, South Austalia and Queensland. In all States the Acts specified are the relevant child welfare statutes. The Tasmanian provision uses the word “affects” rather than “would prevent or interfere with” and not only excludes matters affecting the acquisition by welfare officials of custody, guardianship, care, or control, but also the “instituting and conducting, or intervening in, proceedings under a law of the State in respect of the custody, guardianship, care, or control of children”.

⁸⁸ Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and corresponding State Acts passed in the same year.

⁸⁹ Eg, Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4(2). The subsection refers to “State matters”, defined ins 3(1).

⁹⁰ Infra 32-45.

⁹¹ Supra 11-17.

⁹² For a discussion of the history of the acquisition of the equitable jurisdiction by colonial and State Supreme Courts, see Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (2nd ed 1984) 10-22 and 43-44. After the early laws conferring the Chancellor's powers, there were subsequent reforms reflecting the adoption of the English Judicature Act 1873. This Act produced a fusion of the courts which administered the systems of law and equity.

⁹³ (1982) 150 CLR 615, 628 and 636. Mason J expressed his opinion in terms of doubts about the existence of a residual jurisdiction capable of being exercised in a case such as In re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326. This was a sterilisation case and it is not clear whether the view expressed was intended to apply to all wardship matters.

⁹⁴ Supra 14-17.

⁹⁵ Watson Committee Report, 9.

⁹⁶ Sen Deb 1983, Vol 98, 1098.

⁹⁷ Supra 12-13.

⁹⁸ Commonwealth Powers (Family Law - Children) Act 1986 (NSW and Vic), s 3(2)(c), and Commonwealth Powers (Family Law) Act 1987 (l'as), s 3(2)(c).

⁹⁹ Infra 26-27.

¹⁰⁰ Commonwealth Powers (Family Law - Children) Act 1990 (Qld), s 3(2)(c).

^l0l Commonwealth Powers (Family Law) Act 1986 (SA), s 3(2)(c).

¹⁰² Minister for the Interior v Neyens (1964) 113 CLR 411,419.

¹⁰³ Marion's case, (1992) 15 Fam LR 392, 435-436.

¹⁰⁴ Minister for the Interior v Neyens (1964) 113 CLR 411; Carseldine v Director of the DepartrMnt of Children's Services (1974) 133 CLR 345; Johnson v Director-General of Social Welfare (Victoria) (1976) 135 CLR 92.

¹⁰⁵ (1964) 113 CLR 411,419.

¹⁰⁶ Johnson v Director-General of Social Welfare (Victoria) (1976) 135 CLR 92, 97.

¹⁰⁷ (1964) 113 CLR 411,422.

¹⁰⁸ Ibid 423.

¹⁰⁹ (1974) 133 Cl.R 345,366. Barwick CJ and Stephen J agreed with the judgment of Mason J.

¹¹⁰ Ibid 353.

¹¹¹ Ibid 357.

¹¹² (1976) 135 Cl.R 92, 97.

¹¹³ An exception was made in cases in which the order was made in proceedings to which the consent of an appropriate child welfare official had first been obtained.

¹¹⁴ Supra 20-22.

¹¹⁵ Supra 7-10.

¹¹⁶ Chisholm, R (ed), Australian Family Law Vol I, 1294Google Scholar.

¹¹⁷ Re J (1990) 14 Fam LR 584. For examples of decisions emphasising the need strictly to intetpret the predecessor of s 60H(l) (s 10), see In the Matter of Sargent (1986) FLC 91- 718 and In the Marriage of Lane (1986) FLC 91-734.

¹¹⁸ Supra 21-22.

¹¹⁹ Australian Law Reform Commission, Child Welfare (Report No 18, 1981) 218-221; Victorian Child Welfare Practice and Legislation Review, Report (1984), 158.

¹²⁰ Child Welfare Act 1960 (“I'as), s 33; Children's Services Act 1965 (Qld), s 60; Children's Protection and Young Offenders Act 1979 (SA), s 12. (The procedure is also available in Western Australia, although this is not relevant here: Child Welfare Act 1947 (WA), s 32).

¹²¹ This seems to be the case for the purposes of custody, guardianship or access proceedings:s 63F(l)-(3). Presumably the same age would apply to welfare proceedings, although the Act fails to make this clear.

¹²² See definitions of “child”: Child Welfare Act 1960 (“I'as), s 3; Children and Young Persons Act 1989 (Vic), s 3; Children's Services Act 1965 (Qld), s 8.

¹²³ Children (Care and Protection) Act 1987 (NSW), s 57; Children and Young Persons Act 1989 (Vic), ss 64 and 70; Children's Services Act 1965 (Qld), ss 49 and 61; Children's Protection and Young Offenders Act 1979 (SA), s 12; Children's Services Act 1986 (AC'I), s 78 {but sees 87); Community Welfare Act 1983 (N'I), s 35(1) (but sees 35(2)).

¹²⁴ Zwillinger v Schulof (1963] VR 407,411 where Gowans J stated:"[11he proposition that the applicant for an order that an infant be made a ward of coun ... needs to show any panicular stabls or any particular quality of interest in the custody or welfare of the infant, once it appears that he is not a mere stranger, is not a proposition that I am prepared to accept.”

¹²⁵ [1970] AC 668,681.

¹²⁶ The Law Commission, Family Law - Review of Child Law, Wardr of Court (Working Paper No 101, 1987) and Lowe, N V, “The Role of Wardship in Child Care Cases” [1989] Fam Law 38Google Scholar. English practices must be viewed in the light of the special statutory provisions which have no counterpart in Australia. (See Re H (A Minor) (Wardrhip: Jurisdiction) (1978) 2 All ER 903, 906 for a concise discussion of these provisions.) Further, they gave rise to concern which led to restrictions being placed on the use of the inherent jurisdiction to deal with child welfare matters. Children Act 1989 (UK), s 100.

¹²⁷ Sections 708A, 7088, 708C.

¹²⁸ Section 64(5).

¹²⁹ [1982] AC 363.

¹³⁰ In England local authorities fulfil the functions performed in Australia by State welfare depanments.

¹³¹ (1982) AC 363, 372. Lords Diplock, Fraser and Keith agreed with the judgment of Lord Wilberforce.

¹³² Ibid 3TI.

¹³³ Supra 26-27.

¹³⁴ A v Liverpool CiJy C01111cil (1982) AC 363, 372-373.

¹³⁵ Ibid 373.

¹³⁶ Ibid 379.

¹³⁷ (1982) 1 NSWLR 311.

¹³⁸ See also L v Dalton (1988) 12 Fam LR 701; here the New South Wales Supreme Court asserted, but did not exercise, a jurisdiction to make a decision which the statutory guardian had declined to make.

¹³⁹ (1982) 1 NSWLR 311,325.

¹⁴⁰ Ibid 323.

¹⁴¹ [1983] VR 739.

¹⁴² Ibid 749.

¹⁴³ (1981) 29 SASR 179.

¹⁴⁴ (1983) 34 SASR 520.

¹⁴⁵ In these two cases, the applicants had invoked both the statutory jurisdiction of the Supreme Court under the Guardianship of Infants Act 1940 and the inherent jurisdiction. At this stage attention will be focused on the latter jurisdiction. Some aspects of the guardianship of infants legislation are examined later in the paper, infra 37-38.

¹⁴⁶ (1981) 29 SASR 179,190 per Jacobs J. King CJ and Zelling J concurred.

¹⁴⁷ (1983) 34 SASR 520, 530 per Zelling J; 544 per Bollen J. Wells J expressed a similar opinion (at 534), although without citing this passage from Roberts v Bilney.

¹⁴⁸ (1985) 3 NSWLR 270.

¹⁴⁹ Ibid 273.

¹⁵⁰ (1984) VR 357.

¹⁵¹ (1936) 37 SR(NSW) 17.

¹⁵² [1982) 2 NSWLR 731.

¹⁵³ Ibid 733.

¹⁵⁴ Eg, in Carseldine v Director of Children's Services (1974) 133 CLR 345,363 per Mason J and The Minister of Community Welfare v Broughton, (1983) 34 SASR 520, 544-545 per BollenJ.

¹⁵⁵ Eg, Children (Care and Protection) Act 1987 (NSW), s 14; Community Welfare Act 1972 (SA), s 27; Children's Services Act 1965 (Qld), s 47; Children's Services Act 1986 (ACT), s94.

¹⁵⁶ The children had been admitted to care under s 47 of the Children's Services Act 1965 (Qld).

¹⁵⁷ (1974) 133 CLR 345, 365-366.

¹⁵⁸ This led Thomas J, in the Queensland Supreme Court, to suggest that the distinction was “quite immaterial”. He added: “The fact that the Director's rights derive from a curial order (such as that of the Children's Court) is not of particular importance unless one can discern a legislative intent to make the jurisdiction of that court exclusive.” Re Billington and Children's Services Act 1965-1980 (1986) 10 Fam LR 845 and 846.

¹⁵⁹ (1983) 34 SASR 520, 530. See also Wells J (533-534). The same approach had been taken by Jacobs Jin Roberts v Bilney (1981) 29 SASR 179, 190.

¹⁶⁰ (1976) 135 CLR 92, 97.

¹⁶¹ Ibid 100.

¹⁶² Supra 33.

¹⁶³ (1976) 135 CLR 92, 97.

¹⁶⁴ lbid 99.

¹⁶⁵ The way that this principle has been expressed has varied. In Re Weir, McLelland J suggested that “very strong reasons” were needed before the supervisory jurisdiction should be exercised ((1953) 70 WN 78, 80) and in Ping v Van Der Kroft, the same Judge referred to the need for “special or wholly exceptional circumstances” ((1982] 2 NSWLR 731, 736). The latter test was rejected by Powell J in T v H; he felt that it was enough if there was some feature of the case which made it “out of the ordinary”. ((1985) 3 NSWR 270, 274). In K v Minister for Yolllh and Commllllity Services, Helsham CJ in Eq spoke of the need to avoid “unnecessary” interference in the way that the Minister exercised his powers and noted that the occasions for court intervention would be “rare” ((1982] l NSWLR 311, 326).

¹⁶⁶ (1974) 133 CLR 345, 366.

¹⁶⁷ Ibid 364.

¹⁶⁸ (1983) 34 SASR 520, 541.

¹⁶⁹ Two interesting examples of the parens patriae jurisdiction being invoked in respect of children in care were Re B (A Minor) (Wardship: Child in Care) [1975) Fam 36 (proceedings to prevent a specified person from contacting the child) and Re M (An Infant) [1986) 1 Qd R 422 (order declaring mother's consent to adoption ineffective because she was not in a fit condition to make the decision).

¹⁷⁰ Supra 35.

¹⁷¹ Supra 19-20.

¹⁷² Supra 31.

¹⁷³ See The Law Commission, Family Law-Review of Child Law, Wards of Court (Working Paper No 101, 1987), 13.

¹⁷⁴ Wardship procedures are expressly provided for in the Supreme Court Act 1986 (Vic), s.102(2), the Victorian Supreme Court Rules, II 0.19 and The Rules of the Supreme Court (Qld), 0.76, r.1.

¹⁷⁵ Eg, Webb v Johns (1983) VR 739; Millra v Keyte (1984) VR 357 (Victoria); Zwillinger v Schulof [1963J VR 407 (Victoria and Tasmania); T v H, (1985) 3 NSWR 270; Lloyd v Lloyd (1980) FLC 90-816; Brown v Kalal (1986) 7 NSWLR 423 (New South Wales); and Carseldine v Director of Children's Services (1974) 133 CLR 345 (where Queensland practice is discussed at 357 and 367).

¹⁷⁶ In the Marriage of S (unreported decision of Buckley, J, Brisbane Family Court, 12 April 1990)Google Scholar.

¹⁷⁷ Chisholm, R, “Cross-Vesting and Family Law: A Review of Developments” (1991) Australian Family Lawyer (Vol 7 No 2) 15Google Scholar.

¹⁷⁸ (1989) 13 Fam LR 179.

¹⁷⁹ Chisholm, R, supra n 177, 18Google Scholar.

¹⁸⁰ This view accords with that expressed by Wallace:"It seems unduly restrictive to limit the circumstances in which the invested jurisdiction should be exercised to those cases only involving jurisdictional uncertainties or where the circumstances are such that a number of proceedings should be tried together in the one court.” A E Wallace, “Conflict of Laws”, in R Baxt and Kewley, G (eds), An Annual Survey of Australian Law 1990 (1991) 323,324Google Scholar.

¹⁸¹ Eg, Re Chapman and Jansen (1990) 13 Fam LR 853.

¹⁸² The Family Court's power to transfer proceedings to a Supreme Court is conferred bys 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). It should be noted that when what have been described as “free-standing” proceedings are involved, the only test is whether the transfer of pending Family Court proceedings is “in the interests of justice”.

¹⁸³ Indications that Supreme Court Judges are likely to conclude that the Family Court is better suited to dealing with custody matters raised by way of wardship proceedings are to be found in Mulhall v Hartnell (1988) 12 Fam LR 361, Berry v Wakley and Black (1988) 12 Fam LR 451 and Henstra v Gonzalez (1989) 13 Fam LR 619.

¹⁸⁴ For examples of judicial review in children's matters, see H v The Children's Court (1988) 12 Fam LR 285 and S v T (1989) 13 Fam LR 267.

¹⁸⁵ For examples of habeas corpus proceedings relating to children, see R v Waters [1912] VUl372 and Green v MinisterforChildWelfare [1972] 1 NSWLR 314.

¹⁸⁶ Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112.

¹⁸⁷ In Marion's case, Brennan J stated that the Family Court may “exercise under the crossvesting legislation the equitable jurisdiction to make a declaration as to whether Marion's sterilisation would be justified as therapeutic “ (1992) 15 Fam LR 392,437.

¹⁸⁸ Supra 5. For a reassertion of the view that Commonwealth family law is concerned with “private law”, while State child welfare law is an aspect of “public law”. see Final Report of the Constitutional Commission, (1988) Vol 2,681. The Report also suggested that the system of family law deals with disputes when families break down and contrasted this with the protective function of child welfare laws. It saw these laws as “interventionist” and Children's Courts as having “an investigative rather than rather than adjudicative role”: id.