Proceedings in Relation to Children in the Post Cross-Vesting Era
| Author | Dorothy Kovacs |
| DOI | 10.22145/flr.28.1.5 |
| Published date | 01 March 2000 |
| Date | 01 March 2000 |
| Subject Matter | Article |
PROCEEDINGS
IN
RELATION TO CHILDREN
IN
THE
POST CROSS-VESTING ERA
Dorothy
Kovacs*
INTRODUCTION
Since its
creation
by
the
Family
Law
Act in 1975 the Family
Court
of Australia
has
relied
on
various
measures
which
have
been
implemented
from time to time to
overcome
the deficits in its
jurisdiction
in
relation
to
children.
These
deficits
emanate
from insufficiencies in constitutional
power.
Those
measures
include
the
addition
in
1983 of the jurisdiction in relation to
the
welfare
of
achild
by
the Family
Law
(/\mendment)
Act 1983 (Cth)
and
the reference by the
Australian
States,
between
1986
and
1990, of
substantial
powers
by the
Commonwealth
Powers
(Family
Law
Children)
Acts.1These
substantially
extended
the jurisdiction of
the
Family
Court
in respect of
ex-nuptial
children.
Remaining
gaps
in
jurisdiction
were
filled by
the
enactment
of
the
State
and
Federal Jurisdiction of
Courts
(Cross-Vesting) Acts 1987
which
conferred
on
the
Court
the jurisdiction
of
the State
Supreme
Courts.
The
Court
has
thus
been
in
the
happy
position since 1987
of
hearing
State
matters
in association
with
children's issues
which
were
instituted
in the Family Court;
and
it has received
and
heard
State
matters
involving
State law
which
were
transferred
to
it
by
State
Supreme
Courts.2
The Family
Court
benefited
substantially
by
cross-vesting
and
for
more
than
a
decade
it
exercised
broad
non-federal
powers
in relation to
children.
The
Court
made
orders
for the
custody
of a
child
who
was
under
the
guardianship
of aState
authority
in Director-General
of
ComJllunity Services (Vic)
t'
Hallinan'"
by exercising the parclls
patriac jurisdiction
of
the
Supreme
Court
of Victoria to
override
adecision of
the
Director-General of
Community
Services. The Family
Court
has been able to exercise
the
power
of the
Supreme
Court
to
make
declarations as
to
paternity
of
children
by
resorting to the cross-vested jurisdiction,
despite
the absence of aspecific
declaration
pOvver
in the Family Law Act.
Indeed,
it utilised the occasion
where
child matters \..-ere
before the
court
to
hear
other
proceedings
between
the parties. In Lall/bcrt v
DCtllle-l
the
2
3
-l
LLB
(tv'lelb) LLM (Mon)
PhD
(Man), Associate Professor
of
Lay", l'vlonash
Uni\ersity,
Barrister, Victorian Bar.
Commonwealth
Poyvers (Family
Law-Children)
.-\cts 1986 (NSW); 1990 (Qld); 1986 (5.-\);
1986 (Vic);
Commonwealth
Powers
(Family Law Act) 1987 (Tas);
Western
Australia
did
not
refer
the
power.
Bcn~1
alld
Berry Ii V\/aklcy
alld
Black
(1988) FLC
91-
0
72;
;\fullzall vHal'tndi (1988) FLC
91-
0
-t7
and
Mattock v
t\i!attock
(1989) FLC 92-038.
(1992) FLC 92-295.
(1989)
12-,
FamLR 285; (1989) FLC 92-037.
106 Federal Law Review
Volume
28
Supreme
Court
of
New
South
Wales
transferred
proceedings for severance
of
a
joint
tenancy
to
the
Family
Court
where
the
property
in
question
might
have
become
relevant
to
proceedings
for
the
maintenance
of
achild
who
was
the
subject
of
a
custody
dispute
in
the
Family Court.
In
Mattock v
MattocP
the
Supreme
Court
of
New
South
Wales
transferred
to
the
Family
Court
proceedings, initiated
by
the
children
of
the
husband's
former marriage,
in
which
they
were
asserting
an
interest
in
property
which
was
now
the
subject of
property
proceedings
under
s
79
of
the
Family
Law
Act
in
the
Family
Court
between
the
husband
and
his
second
wife.
The
Family
Court
enjoyed a
robust
jurisdiction to
determine
property
disputes
between
de
facto
partners
where
issues
involving
achild
of
the
relationship
were
before
the
Court.6
The
Court
has
entertained
civil actions for
assault
brought
against
a
parent
by
children
of
a
marriage
in
Re
r!?
and
by
children
of
adefacto relationship
in
McKean and
Page.
8
The
Family
Court
no
longer
has
cross-vested non-federal jurisdiction.
In
Re Wakim;
Ex parte McNally9 amajority
of
the
High
Court
decided
that
the
legislation
which
purported
to
confer
State
jurisdiction
on
Federal
courts
was
invalid.
The
High
Court
held
that
the
States
had
no
power,
with
or
without
the
consent
of
the
Commonwealth
Parliament,
to
invest
State jurisdiction
or
judicial
power
in
Federal
courts.
The
consequence
of
the
decision is
that
the
Family
Court
cannot
determine
matters
arising
under
State
law
in
respect
of
children
to
the
extent
that
its jurisdiction derives
from
the
cross-vesting legislation.
However,
the
cross-vesting
laws
are
not
impugned
in
so
far
as
Commonwealth
legislation confers Federal jurisdiction
on
State
courts
so
that
the
State
Supreme
Courts
may
continue
to exercise original jurisdiction
in
matters
of
Federal
law.
The
Family
Court
of
Western
Australia,
having
been
created
under
State
law,
remains
unaffected
by
the
decision
in
Re Wakim.
The
cross-vesting
of
jurisdiction
between
the
State
Supreme
Courts
is likewise unaffected.
The
loss
of
the
cross-vested jurisdiction constitutes aserious
blow
for
the
powers
of
the
Family
Court
when
it
exercises jurisdiction
in
relation to children.
It
is
the
aim
of
this article
to
consider
whether
there
are
any
other
sources
of
jurisdiction
which
can
be
invoked
in
order
to
regain
some
of
the
powers
lost to
the
Family
Court
as a
consequence
of
Re Wakim.
It
will
be
argued
that
some
small
gains
may
be
made
by
using
the
existing
power
to settle
property
on
children
under
s
79
of
the
Family
Law
Act
and
by
resorting
to
the
accrued
jurisdiction of
the
Family Court.
In
addition
the
statutory
welfare
power
of
the
Family
Court
will
be
considered
to
determine
whether
that
power
might
be
pressed
into
service
with
rather
more
imagination
than
has
been
required
in
the
past. Finally,
and
perhaps
ironically,
given
the
objective
of
the
cross-
vesting
scheme
to
centralise issues
in
respect
of
children
in
the
Family
Court,
the
possibility
of
combining
proceedings
in
relation to
children
with
other
proceedings
in
the
State
Supreme
Courts
which
remains
as aconsequence of
the
survival
of
the
vestiges
of
cross-vesting after Re Wakim will
be
considered.
5
6
7
8
9
(1989)
13
FamLR
288; (1989) FLC 92-038.
Re Broman-Clarke (1990) 13
FamLR
676; (1990) FLC 92-115; Hallinan v
Witynski
(1999) FLC
92-219; DvL(1990)
14
FamLR
482; King vKemp (1995) FLC 92-672
and
Griffiths vBrodigan
(1996)
DFC
95-177; 20 FamLR 822.
(1995) (FLC) 92-565.
(1999)
DFC
95-218.
(1999) 163 ALR 270.
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