Commonwealth Family Courts: Some Legal and Constitutional Implications
| DOI | 10.1177/0067205X7100400205 |
| Date | 01 June 1971 |
| Published date | 01 June 1971 |
| Subject Matter | Article |
COMMONWEALTH FAMILY COURTS:
SOME LEGAL AND CONSTITUTIONAL
IMPLICATIONS
By H. A.
FINLAY·
I.-Family
Courts and the Matrimonial Causes Power 0/ the
Commonwealth .
The
announcement by the former Attorney-General,
Mr.
T.
E.
F.
Hughes,
at
ameeting of Attorneys-General
on
July
9,
1970
that
.
the
Commonwealth Government was investigating the possibility of intro-
ducing asystem of family courts into Australia1
and
that
asenior officer
of
his Department would visit overseas countries
to
study
the
operation
of such courts has raised anumber of questions as
to
the possible form
that
they would
be
likely to take. Since then,
the
officer concemed
has made his investigation and returned, and there
has
been
achange
in
the occupancy of the office
of
Attorney-General.
Apart
from
that
slender factual background there
can
be
only speculation.
From
specula-
tion one turns
to
aconsideration
of
the legal
and
constitutional frame-
work within which the Commonwealth's power to manoeuvre is
to
be
found.
It
is the existence of that framework
and
the limitations
it
brings with
it
that
distinguishes Australia's position from
that
of
most
overseas countries.
That
circumstance alone will
of
necessity- influence
any
action the Commonwealth may
be
minded
to
take
in
the
direction
of
family courts.
The
power ·of the Commonwealth
to
deal
with
matters
of
family
law derives
in
the main from two
of
the
placita
of
section
51
of
the
Constitution, namely
(xxi.)
and (xxii.).2
The
ambit
of
that power
was
discussed in arecent issue.
of
this ReviewS and the present discussion
in asense begins where the other left off.
The
learned authors
of
that article came
to
the conclusion
that
the Commonwealth,
in
the
field of marriage and matrimonial causes as
in
other
fields,
had
been
*B.A.
(Land.),
LL.B.
(Tas.);
Barrister-at-Law; Senior Lecturer in Law,
Monash University.
1
The
Age,
July 10, 1970. . .
2The Constitution provides in
s.
S1
that
the
Parliament' shall, subject
to
the
Constitution, have power to make laws
for
the
..
peace, order, and good
government
of
the Commonwealth ''with respect to: . . . (xxi.) marriage;
(xxii.) divorce and matrimonial causes; and in relation thereto, parental rights,
and the custody
and
guardianship
of
infants."
3R. Sackville and C. Howard: "The Constitutional Power
of
the Common-
wealth
to
Regulate Family Relationships" (1970) 4F.L. Rev. 30.
287
./
288 Federal
Law
Review
[VOLU~E
4
reluctant
to
"utilize its legislative powers
to
the full".4After characteris-
ing
as
unsatisfactory the continuing division .of family law into State
and
Commonwealth spheres5
and
as
wasteful
and
costly the manoeuvering
that
the
existing division
into
two jurisdictions, State
and
federal, brings
about,6
the
paper
examines
the
limits
of
the
powers
of
the
Common-
wealth in this area.
The
authors
point
out'l
that
in
addition
to
the
powers
underplacita
(xxi.)
and
(xxii.),
other powers
are
available
that
"can
be
used
to
affect
family
law".
For
examples, they
point
to
the territories power,8
to
the power
under
placitum (xxv.) relating
to
the recognition of interstate laws and judicial proceedings, and to
the
po\ver
to
invest State
courts
with federal jurisdiction.9
The
·effect
of
these powers
upon
family law, however,
cannot
be
anything
but
incidental
or
marginal-a
view evidently shared by
the
authors them-
selves.
It
is submitted
that
any
extension of Commonwealth legislation
into
additional areas
in
reliance solely
upon
such
marginal powers
cannot
result
in
acomprehensive coverage
of
the
field
of
family law
as
such
and
that
they
~re
t1?-erefore
of
insufficient· practical significance
in the present context to
warrant
extensive discussion.
In
their article,
the
learned authors advocate the view
that
the
Commonwealth
both
can
and
should step boldly
into
peripheral
areas
such as the enforcement
of
foreign maintenance orders, settlement
of
matrimonial property disputes
and
maintenance
of
illegitimate children.
"State"
maintenance
of
wives
and
cbildren10 is another. Such
an
extension, it seems, would
have
the
support
of
Windeyer
J.,11
while
both
Kitto'J.u
and
Taylor
J.13
have referred
to
the
widening conception
of
the
matrimonial causes power.
The·leamed
authors argue,
by
analogy
with existing extensions
that
have
been
recognised
in
relation
to
the
marriage power,
that
there
is,
or
may be, apower
in
the
Commonwealth
"to
create
amatrimonial settlement jurisdiction anterior
to
the institution
of
proceedings for adecree
of
dissolution, nullity
or
judicial·~
separa-
tion."!'"
"'Ibid.
ald.,
36.
Old., 38.
'lId.,
39~n.
31.
8Constitution s. 122.
9Constitution s.
77
(iii.
).
10
That
is, arising otherwise
than
in
the
course
of
amatrimonial cause and
depending therefore,
if
within
power
at all,
on
placitum (xxi.)
rather
than
on
placitum
(xxii.).
11
Attorney-General for Victoria v. Commonwealth (Marriage
Act
case)
(1962)
107
C.L.R. 529, 580-581.
12
Lansell
v.
Lansell (1964) 110 C.L.R. 353, 363.
131d.,366.
14
(1970)
4P.L. Rev.
30~
S8.
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