#8553 - Constitutional Aspects - Family Law

FL – (1) Constitutional Aspects 1

Commonwealth power: constitutional provisions s 51(xxi) and (Xxii) and state referral of power (eg Commonwealth Powers (Family Law – Children) Act 1986 (NSW) s 3). 1

Jurisdiction of FLA 2

FLC jurisdiction for state issues of law: 2

“Matrimonial cause” as defined in s 4 FLA 3

FLA exclusive jurisdiction under s 8 5

Vol 1 – pp 19-40

• s 51(xxi) and (xxii) now reads:

  • (xxi): marriage

  • (xxii): divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants.

• State referral of power to Govt: Commonwealth Powers (family Law – Children) Act 1986) (NSW) – such that under s 51(xxxvii) the Commonwealth would have power to make laws with respect to these referred matters.

  • Note that NSW, Victoria, SA, Qld and Tasmania have all referred power to the Govt over

  • ‘Children’ includes orphans, and ex-nuptial kids.

• Note that under s 69ZK FLA, incorporation of Lambert’s Case such that FC can only make an order regarding rights between parents over their child, which will not affect

Cases:

• s 51(xxi) marriage power extends to regulating the form and requisite of a valid marriage but also rights duties and obligations arising out of the relationship: Marriage Act case

  • example: provisions within para(xxi) are those which provide for the legitimation of children by subsequent inter-marriage of parents, for children of void marriages to be deemed legitimate and for offence of bigamy.

• Cases examining these powers: Russell and Lambert

• Examples of constitutionally invalid general provisions about marriage:

  • “Proceedings with respect to maintenance of one of the parties to a marriage” invalid (instead of proceedings between the parties to a marriage) – as the former can be instituted by persons who aren’t a party to the marriage: Russell (Mason J)

  • “Proceedings with respect to the property of the parties to a marriage or of either of them” invalid – has to be read down to grant ancillary relief in proceedings for annulment or dissolution of marriage: Russell

  • “Proceedings with respect to the custody, guardianship or maintenance of or access to a child of a marriage” invalid – has to be proceedings between the parties to a marriage with respect to this: Russell

  • Binding third parties: “s 10 of FLA which purported to confer upon FL Jurisdiction to hear and determine an application by a party to a marriage for the custody of a child of the marriage when the child is in the care and control of the Director under the provisions of the Children’s Services Act 1965 (Qld)” --> invalid (no difference between a law regulating juvenile offenders and children who need protection. The former law is too tenuous to be with respect to marriage): Lambert’s Case

    • hence – a law that affects the rights of third parties

• Valid provisions:

  • “Proceedings arising out of the marital relationship” valid – s 4(ca)(i) FLA : Fischer (1986)

• High Court in Re Wakim held that the state to federal gift of jurisdiction was constitutionally invalid. No problem with Cth govt giving fed jurisdiction to state courts. It is the state to federal aspects that were invalidated.

• Accrued jurisdiction [40]. If you have a dispute that arises under federal law but there are elements of state law integrally connected in that dispute so that it is part of the same justiciable dispute, the federal court can deal with that all at once. Has to be a closely connected issue, same set of facts, single justiciable issue.

• Why mentioning this? Sometimes there can be a case where family court proceedings can take place of larger dispute.

• So sometimes if issue of property law arises – family law court can resolve issue of ownership of property, and then the family law court can know who much property there is left

1. Divorce order is (a)(i), nullity decree a(ii): proceedings between the parties to a marriage, or by the parties to a marriage, for:

   1. a divorce order in relation to the marriage; or

   2. a decree of nullity of marriage; or

2. Declaration of validity of marriage ((b)(i))/divorce/annulment: proceedings for a declaration as to the validity of:

   1. a marriage; or

   2. a divorce; or

   3. the annulment of a marriage;

by decree or otherwise; or

3. Maintenace is para (c): proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or

(caa) proceedings between:

1. a party to a marriage; and

2. the bankruptcy trustee of a bankrupt party to the marriage;

with respect to the maintenance of the first‑mentioned party; or

(ca) Property is (ca): proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

1. arising out of the marital relationship;

2. in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

3. in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section104; or

(cb) proceedings between:

1. a party to a marriage; and

2. the bankruptcy trustee of a bankrupt party to the marriage;

with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:

1. arising out of the marital relationship; or

2. in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or

3. in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section104; or

4. Approval/revocation/registration of maintenance agreement: proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or

5. Injunctions: proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section114AB); or

(ea) Enforcement of maintenance: proceedings between:

1. the parties to a marriage; or

2. if one of the parties to a marriage has died—the other party to the marriage and the legal personal representative of the deceased party to the marriage;

being proceedings:

3. for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section87 and the approval of which has not been revoked;

4. in...