Australian Family Law: The Twilight Zone

Publication Date01 Mar 1976
AuthorH. A. Finlay
DOI10.1177/0067205X7600800105
SubjectArticle
AUSTRALIAN FAMILY LAW:
THE
TWILIGHT ZONE
By H. A.
FINLAY*
The title of this comment
is
not intended to evoke visions of science
fictional heroes roaming the nebulae
or
probing the depths of outer
space, but merely to focus upon some areas of family law which have
been left outside the ambit of the Family Law Act 1975 (Cth) (herein-
after referred to as the Family Law
Act).
Although the machinery
provisions of the Act offer some admirable beginnings in the creation
of amodern and enlightened example of social engineering, the scope
of its coverage for constitutional reasons unfortunately remains incom-
plete.
It
is
even more incomplete now than when the Act was first
enacted, as aresult of the decision of the High Court in Russell
v.
Russell; Farrelly
v.
Farrelly.! This article seeks out those areas, and
discusses the possible options that may be available to make good the
deficiency.
When the Family Law Act came into operation on 5January 1976,
it continued adevelopment that had begun fifteen years earlier with
the commencement of the Matrimonial Causes Act 1959
(Cth)
on
1February 1961. This was the assumption by the Commonwealth
of
jurisdiction over "marriage"2 and "divorce and matrimonial causes;
and in relation thereto, parental rights, and the custody and guardian-
ship of infants"3 with which it had been invested
at
its inception in
1901, but which for some sixty years it had refrained from exercising.
On this occasion, the Commonwealth contented itself with only a
part
of the power, leaving sizeable and important areas of family law in the
hands of the States. The areas into which
it
entered were those
concerning the formation and the dissolution of marriage, whether for
nullity (both void and voidable),
or
by way of divorce, and ancillary
matters concerning the custody of children, maintenance and property.
However, the administration of all these matters was vested in state
courts4where of course they had been all along, while under state
jurisdiction.
At
the time, this made good sense, for three reasons.
It
avoided the proliferation of judicial offices, it left the judicial work in
experienced hands, and it promoted the continuing development of
expertise in family matters, both federal and state, by not fragmenting
jurisdiction into separate channels of jurisdictional competence.
Yet this meant that the previously existing fragmentation was to
continue. The most important form which that fragmentation took was
*B.A. (Lond.), LL.B. (Tas.); Barrister-at-Law, Victoria; Associate Professor
of Law, Monash University.
1(1976) 50 A.L.J.R. 594.
2Constitution,
s.
51
(xxi).
sId.
s.
51
(xxii).
4Under
s.
77
(iii)
of
the Constitution.
77

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