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Published online by Cambridge University Press: 24 January 2025
1 (1976) 50 A.L.J.R. 594.
2 Constitution, s. 51(:xxi).
3 Id. s. 51 (xxii).
4 Under s. 77(iii) of the Constitution.
5 Supreme Courts.
6 Magistrates Courts.
7 E.g. adoption.
8 E.g. the County Court of Victoria.
9 Under s. 161 of the Marriage Act 1958 (Vic.), as amended by the Marriage (Property) Act 1962 (Vic.).
10 Sanders v. Sanders (1967) 116 C.L.R. 366. See also Sackville, “The Emerging Australian Law of Matrimonial Property” (1970) 7 Melbourne University Law Review 353.
11 Sackville, op. cit.; Finlay, “The Broken Marriage and the Courts” (1970) 7 University of Queensland Law Journal 23; Finlay, “Jactitation and Restitution of Conjugal Rights: An Epitaph” (1974) 11 University of Western Australia Law Review 264.
12 Sackville and Howard, “The Constitutional Power of the Commonwealth to Regulate Family Relationships” (1970) 4 F.L.Rev. 30.
13 Argued for by Sackville and Howard, op. cit.
14 Cf. the various Status of Children Acts of the States.
15 (1976) 50 A.L.J.R. 594.
16 Cf. definition of “matrimonial cause” (c), Family Law Act 1975, s. 4(1) (Cth) as amended by the Family Law Amendment Act 1976, s. 3 (Cth).
17 Id. definition of “matrimonial cause” (e).
18 Id. definition of “matrimonial cause” (f).
19 Id. definition of “matrimonial cause” (c) (ii).
20 Family Law Act 1975, s. 5(1) (Cth).
21 Family Law Amendment Act 1976, s. 4 (Cth).
22 Attorney-General (Vic.) v. Commonwealth (1961) 107 C.L.R. 529.
23 Constitution, s. 51(xxi).
24 Cf. e.g. (1976) 50 A.L.J.R. 594, 600 per Barwick C.J., 611-612 per Mason J., 616-617 per Jacobs J.
25 Id. 613 per Mason J.; see also (1976) 50 A.L.J. 360.
26 Family Law Act 1975, s. 21 (Cth).
27 That is not to say that the Family Court of Australia is not to function as a judicial tribunal in the traditional sense, acting upon recognised principles of adjudication. A suggestion, for instance, that proceedings under the Family Law Act were not adversary proceedings but of an inquisitorial nature was firmly rejected by the High Court in Ex rel. Watson, ex parte Armstrong (1976) 50 A.L.J.R. 778.
28 Family Law Handbook (1975) 3; cf. Family Law Act 1975, s. 14(2A),14(5) (Cth).
29 E.g. Family Law Act 1975, ss. 14(5), 62, 63 (Cth).
30 E.g. Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973).
31 E.g. Commonwealth Powers (Air Transport) Act 1952 (Tas.).
32 Cf. Graham v. Paterson (1950) 81 C.L.R. 1.
33 Id., especially at 25, per Webb J.
34 Jbid.
35 Family Law Act 1975, s. 41 (Cth).
36 S. Deb. 1974, Vol. 62, 2769-2771.
37 Family Law Act 1975, s. 41(3) (Cth).
38 Id. s. 41(4)(c).
39 Id. s. 94(1).
40 Ct. Family Court Act 1975, s. 33 (W.A.).
41 Id. s.6(1).
42 Id. s.24.
43 Id. s. 26.
44 Family Court of Western Australia Regulations 1976, reg. 24.
45 Id. reg. 26.
46 Family Law Act 1975, s. 39(2), (6) (Cth).
47 Family Court Act 1975, s. 29 (W.A.).
48 ld. s. 30.
49 Waterside Workers' Federation of Australia v. J.W. Alexander Ltd (1918) 25 C.L.R. 434.
50 Cf. S. Deb. 1974, Vol. 62, 2774, per Senator Button.
51 Family Court Act 1975, s. 20 (W.A.). Cf. Family Law Act 1975, s. 22(2A) and (2B) (Cth).
52 Constitution, s. 51(xxxix).
53 S. 51(xxiv).
54 Some other recent random examples of attempted interstitial legislation may be seen in the Superior Court of Australia Bill 1973, cl. 19(1); the National Compensation Bill 1974, cl. 16(2) and the Legal Aid Bill 1975, cl. 6(3).
55 Adoption in the federal territories is already included, s. 31.
56 E.g. Adoption of Children Act 1964, s. 10 (Vic.).
57 Some additional interstices could be suggested in order to round off the federal power under this head. Thus adoption of, or by, aborigines could be included under s. 51(xxvi) of the Constitution so long, at least, as it seems appropriate to make special legislation concerning particular racial groups. The adoption of overseas orphans would presumably be covered by the external affairs power. Other, more far-fetched extensions could be suggested involving, for instance, members of the defence forces or of the federal public service, but there seems to be little merit in pursuing them. (See the passage quoted from the judgment of Windeyer J. in the Marriage Act case, infra, n. 70.)
58 [1965] P. 440. The judgment was reversed in the Court of Appeal, reported at [1965] P. 450, but his Lordship's observations on this particular matter were not dissented from.
59 Id., 447 (italics added).
60 Kitto, Taylor, Menzies and Owen JJ.
61 Attorney-General (Vic.) v. Commonwealth (1962) 107 C.L.R. 529.
62 “Child of the marriage” rather than “child of the family” is the expression used in the Matrimonial Causes Act 1959 (Cth) and the Family Law Act 1975 (Cth)-no doubt so as to annex this concept firmly to the marriage power in the Constitution.
63 [1965] P. 440, 447-448.
64 Matrimonial Causes Act 1959, s. 6 (Cth).
65 Family Law Act 1975, s. 5 (Cth).
66 Attorney-General (Vic.) v. Commonwealth (1962) 107 C.L.R. 529.
67 It was the view of Quick and Garran that under the Constitution, civil rights generally had been reserved to the States (Annotated Constitution of the Australian Commonwealth (1901) 608). Rights and obligations arising out of marriage, however, impinge on the principal grant of power (ibid.) and parental and other rights derived from the marriage relationship, and the adjustment of those rights consequent upon divorce, are necessarily incidental to the powers respecting marriage and divorce respectively (id., 611). The power of the Commonwealth to deal with these rights and obligations must therefore be regarded as an exception to the general principle that private rights are matters for the States.
68 The expression was used, with some hesitation, by Dixon C.J. (1962) 107 C.L.R. 529, 547, but the argument, put forward by counsel for the Commonwealth, Sir Kenneth Bailey, at 538, was more kindly received by the majority, see e.g. Taylor J. at 564.
69 Some discussion of relevance to the present argument may be found in Sackville and Howard, op. cit., and also Finlay, “Commonwealth Family Courts: Some Legal and Constitutional Implications” (1971) 4 F.L.Rev. 287.
70 Attorney-General (Vic.) v. Commonwealth (1962) 107 C.L.R. 529, 587-588.
71 Pidoto v. Victoria (1943) 68 C.L.R. 87, 109, per Latham C.J. In that case, Latham C.J. was discussing a suggested interpretation of the Acts Interpretation Act 1901 (Cth) with respect to a hypothetical attempt by the Commonwealth to legislate generally as to larceny. Larceny itself is not within Commonwealth power, but different situations involving larceny could be covered under a Commonwealth law, by relying on a process of interstitial legislation, e.g. in relation to territories, postal and customs officers, inter-state and overseas trade, and so on. Such a law would be perfectly valid, and the provisions of the Crimes Act 1914 (Cth) are themselves an example of such an approach. The point in Pidoto's case was that in the absence of express legislation creating this kind of jurisdictional patchwork, the court ought not to imply such a distributive, and necessarily incomplete, legislative intent. Dealing with adoption laws in the way here contended, should be sufficient to show the required legislative intent.