Someone recently bought our

students are currently browsing our notes.

X

Constitutional Aspects Notes

Law Notes > Family Law Notes

This is an extract of our Constitutional Aspects document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1 of 5

FL 1 Constitutional Aspects

FL - (1) Constitutional Aspects Table of Contents

Vol 1 - pp 1940

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).

*

*

*

s 51(xxi) and (xxii) now reads: o (xxi): marriage o (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. o Note that NSW, Victoria, SA, Qld and Tasmania have all referred power to the Govt over o '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 o 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: o "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)

1 of 5

FL 1 Constitutional Aspects

Buy the full version of these notes or essay plans and more in our Family Law Notes.