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Published online by Cambridge University Press: 24 January 2025
When a marriage breaks down if the parties are unable to agree as to how their assets are to be divided their disputes may currently be heard in two different court hierarchies applying two disparate sets of legal principles. Inevitably this position leads to forum shopping and to the proliferation of legal proceedings which are not directed at resolving the substantive issue between the parties. It produces uncertainty, duplication, expense and delay. Although the problems associated with dual jurisdiction in matrimonial property disputes arise both before and after divorce, neither the Family Court nor the Supreme Courts have yet, it seems, formulated policies which ought to be pursued. Nor have they been consistent in their choice or application of the legal mechanisms that they enlist to break the deadlock. It is suggested here that both the federal and state courts should aspire to the centralisation of matrimonial property disputes, so far as is constitutionally feasible, within the Family Court. With that objective in mind the various legal devices currently invoked to resolve disputes about jurisdiction are critically reviewed. Some techniques are suggested to overcome problems which recur in the case law and a general approach is proposed which, it is hoped, will achieve consistency in the aims and in the legal principles adhered to by the courts in the future.
1 The Magistrates' Courts also have property jurisdiction under the Act but where the property exceeds $1,000 in value the respondent may have the proceedings transferred to the Family Court under s46(1). For convenience only the Family Court will be referred to in the text.
2 S 31 Family Law Act, which is an exercise of the power of the Commonwealth Parliament conferred by s 77(i) of the Constitution to define the jurisdiction of a federal court in regard to the matter ins 76(ii).
3 S 109 Commonwealth Constitution.
4 S 79 Family Law Act.
5 Eg In the marriage of Elias (1977) 3 Fam LR 11,496.
6 S 4(1) (c)(ii) as originally drafted in the Family Law Act 1975.
7 (1976) 134 CLR 495.
8 S4(1)(ca).
9 S48.
10 Ascot Investments v Harper and Harper (1981) PLC 91-000.
11 S8.
12 By proclamation dated December 11, 1975. The Commonwealth Parliamen,t's power to confer exclusive federal jurisdiction in matrimonial causes on the Family Court derives from s 77(ii) Constitution.
13 Eg Bak and Bak (1980) FLC 90-877.
14 See below p 215.
15 Re Ross Jones; Ex parte Beaumont (1979) FLC 90-606.
16 Eg as in Hayes and Hayes (1982) FLC 91-205.
17 (1964) 110 CLR 353.
18 (1978) FLC 90-515.
19 (1977) FLC 90-280.
20 (1976) FLC 90-079.
21 (1980) FLC 90-877.
22 (1930) 43 CLR 472, 483.
23 See those suggested by Rumble, G A, “The Nature of Inconsistency under s 109 of the Constitution” (1980) 11 FL Rev 40Google Scholar.
24 See Butler, J's deft evasion in Wingate and Towns (1979) PLC 90-624.Google Scholar
25 (1979) PLC 90-728.
26 (1978) PLC 90-502, 77,630.
27 (1977) PLC 90-280, 76,506.
28 Ibid 76,493. Bray CJ based his decision on Victoria v Commonwealth (1937) 58 CLR 618.
29 (1982) 44 ALR 225; (1982) 57 ALJR 144; (1982) PLC 91-274. See below pp 206-207.
30 Ibid.
31 Ibid.
32 The majority viewed the plaintiff's Supreme Court applications for (i) a declaration as to paternity; (ii) a direction that the defendant submit to blood tests to establish that he was not the father; and (iii) custody of the child in question, as a whole. All the proceedings were in essence custody proceedings (a matrimonial cause), ie beyond the jurisdiction of the Supreme Court. Dawson J dissented, holding that while the custody application was a matrimonial cause the paternity and blood test applications could stand on their own (eg they could be relevant to succession) and not being a matrimonial cause could be heard by the Supreme Court. The Court also divided on whether the threshold enquiry into the facts of the child's paternity was itself a matrimonial cause.
33 For a fuller consideration seen 32.
34 Mason, Murphy, Wilson, Brennan and Deane JJ.
35 Gibbs CJ held that jurisdiction was technically not lost but that as a practical matter the Supreme Court was unable to exercise it. The Hon Sir Richard Eggleston, in private conversations with the writer points out that as Mrs W married Mr H before applying to the Supreme Court, on her own version of the facts K was a child of that marriage. Accordingly only the Family Court would have jurisdiction: there was a matrimonial cause, s4(1)(c)(ii).
36 (1982) 44 ALR 225, 232.
37 See above pp 204-205.
38 This is .referrable to the matrimonial causes in s 4(1) (e) and s 4(1) (f) Stowe and Stowe (1981) FLC 91-027.
39 See below pp 210-211.
40 Referrable to s 4(1) (ca).
41 Jbid.
42 See generally Carter and Carter (1981) FLC 91-061.
43 Wardman and Hudson (1978) FLC 90-466.
44 Tuck and Tuck (1981) FLC 91-021.
45 S 4(1) (ca) see above p 202.
46 S 48.
47 S 113 ands 4(1) (b).
48 S 51 ands 4(1) (a)(ii).
49 Part III Marriage Act 1961 (Cth).
50 Read and Read (1977) FLC 90-201.
51 (1977) FLC 90-307.
52 See Nygh J's comments in relation to declarations of validity re foreign divorces in Baba and Jarvinen below p 222.
53 Treyvaud J was prepared to hear a property application based on dismissed proceedings for a dissolution on the grounds of a separation under the one roof in Thompson and Thompson (1980) (unreported).
54 Farr and Farr (1976) FLC 90-133.
55 (1977) FLC 90-200.
56 (1979) FLC 90-627.
57 The main issue to be resolved by the Full Court was whether in the circumstances it was proper to allow the wife to proceed ex parte.
58 Badcock and Badcock (1979) FLC 90-723; Cullen and Cullen (1980) FLC 90-899; Craven and Craven (1980) FLC 90-802.
59 Eg Hogan J dubitante in Craven ibid.
60 By Nygh J in Esmore and Esmore (1979) FLC 90-711, and Gee J in, Macvean and Macvean (1980) FLC 90-912.
61 (1981) FLC 91-027.
62 (1981) FLC 91-114.
63 This enquiry concerns the law of interlocutory injunctions as expressed in American Cyanamid Co v Ethicon Ltd [1975] AC 396 (House of Lords).
64 Property litigation must be completed before the death of a party or the Family Court's jurisdiction is lost: Schmidt and Schmidt (1980) FLC 90-873 and Sims and Sims (1981) FLC 91-072.
65 Rieck and Rieck (1981) FLC 91-067.
66 Eg Martiniello and Martiniello (1981) FLC 91-050.
67 Baba and Jarvinen (1980) FLC 90-882.
68 A similar problem arises after divorce due to s 44(3). See below pp 220-221.
69 See below p 220.
70 (1982) PLC 91-274.
71 (1979) FLC 90-637.
72 (1979) FLC 90-728.
73 (1979) FLC 90-640.
74 (1977) FLC 90-307.
75 (1979) FLC 90-637.
76 See below p 226.
77 Unreported.
78 (1979) PLC 90-728.
79 (1977) FLC 90-280.
80 She also brought proceedings for a declaration as to the validity of the marriage under s 113 (see above p 209).
81 See above p 205.
82 (1977) FLC 90-280, 76,507.
83 (1964) 110 CLR 353.
84 S 86 Matrimonial Causes Act 1959 (Cth) utilised the same formula ass 4(1) (ca) Family Law Act.
85 See below pp 223-225.
86 See below pp 220-221.
87 (1978) PLC 90-515.
88 (1979) PLC 90-624.
89 In Whitford and Whitford (1979) PLC 90-612 and Hall and Hall (1979) PLC 90-679.
90 (1981) FLC 91-087.
91 (1981) FLC 91-089.
92 (1981) FLC 91-054.
93 (1980) FLC 90-856.
94 (1981) FLC 91-114.
95 See Kovacs, D, “The Jurisdiction of the Family Court with respect to Family Companies” (1982) 8 Adelaide Law Review 163Google Scholar.
96 (1981) FLC 91-087.
97 (1981) FLC 91-089.
98 (1981) PLC 91-087, 76,598.
99 Eg Perkins and Perkins (1979) FLC 90-600; Mackenzie and Mackenzie (1978) FLC 90-496; Kercher and Kercher (1981) FLC 91-040; Cox and Cox (1981) FLC 91-068.
100 (1982) FLC 91-276. Her Honour did this on the basis that the State court might find it had no jurisdiction because the matter was a matrimonial cause. If leave were refused then no court would hear the case.
101 Peters and Peters (1982) FLC 91-202; Savage and Hodgson (1982) FLC 91-281.
102 (1980) PLC 90-882.
103 The Full Court declined to comment on this device in Peters and Peters (1982) PLC 91-202, where the Australian divorce application was withdrawn prior to the hearing. The Full Court held that a withdrawn application for dissolution was not a “completed proceeding” within s 4(1) (ca) .
104 (1982) PLC 91-281.
105 Eg Baba and Jarvinen.
100 Eg Savage and Hodgson.
107 Per Savage and Hodgson.
108 (1982) PLC 91-205. A s 87 agreement excludes the future jurisdiction of the Court in relation to the financial matters dealt with in the agreement.
109 Re Ross Jones Ex parte Beaumont (1979) FLC 90-606.
110 Eg Bak and Bak (1980) FLC 90-877; Elias and Elias (1977) FLC 90-267; Potthoff and Potthoff (1978) FLC 90-475; Hayne and Hayne (1977) FLC 90-265.
111 (1979) FLC 90-637 and unreported respectively. See above pp 214-215.
112 (1979) PLC 90-728.
113 (1979) PLC 90-683.
114 (1979) PLC 90-640.
115 Referred to in Lambert J's judgment in the Family Court (1981) PLC 91-089.
116 See above pp 210-211.
117 (1979) 5 Fam LR 406.
118 [1980] 2 NSWLR 655.
119 (1979) 5 Fam LR 406.
120 (1982) FLC 91-266.
121 Following Ellinas v Ellinas (1979) FLC 90-649.
122 Following Carew and Carew (1979) FLC 90-698.
123 Penberthy and Penberthy (1977) FLC 90-255; Lakajev and Lakajev (1978) FLC 90-448; Gipps and Gipps (1978) FLC 90-523.
124 This is due to s 87(10) Family Law Act.