Russell v. Russell; Farrelly v. Farrelly1
| Author | H. R. Penfold |
| Published date | 01 March 1976 |
| Date | 01 March 1976 |
| DOI | 10.1177/0067205X7600800106 |
| Subject Matter | Case Note |
CASE NOTE
RUSSELL
v.
RUSSELL;
FARRELLYv.
FARRELLyt
Constitutional law (Cth) -Marriage power -Divorce and matri-
monial causes power -Interpretation -State courts invested with
federal jurisdiction -Validity
of
Family
Law
Act
1975 (Cth).
Russell
v.
Russell involved apetition for divorce and ancillary relief
under the Matrimonial Causes Act 1959 which was pending when the
Family Law Act 1975 came into operation in January 1976.
At
the
respondent's request and pursuant to
s.
9
(2)
of the Family Law Act
1975 the case was to be heard as if the proceedings had been instituted
under the Family Law Act 1975, whereupon the Act was challenged
on constitutional grounds. The case was then removed to the High
Court.
In
Farrelly
v.
Farrelly acustody application under the South Aus-
tralian Guardianship of Infants
Act
1940 was pending in January 1976,
and
s.9(4)
of the Family Law
Act
1975, read with
s.
8(1)(b)
and
paragraph
(c)
(iii) of the definition of "matrimonial cause" in
s.
4(1 )
of the same Act, required such
an
action to be dealt with under
that
Act. Again it was suggested that there might be obstacles to the
validity of the Act, and the case was removed into the High Court.
The two cases were heard together.
In
the latter case the issue arose directly of the validity of the Act
in
so
far as it purported, by the extended definition of "matrimonial
cause" in
s.
4(
1),
to deal with custody, maintenance
or
property
disputes in the absence of apetition for principal relief, namely a
decree of dissolution or nullity of marriage. This issue was also argued
in Russell, (although there was in that case an application for principal
relief), on the grounds that if these provisions were invalid the whole
Act
might fall.
In
Russell there was also achallenge to
s.
97
of the Family Law Act
1975. This section lays down certain rules to be followed by all courts
exercising jurisdiction under the Family Law Act 1975. Section
97(1)
requires that proceedings under the Act be heard in closed court, while
s.
97
(4)
provides that in such proceedings neither Judges
nor
counsel
should robe. While the validity of these provisions in their application
to the Family Court was not in question, their purported application to
State courts which had been invested with federal jurisdiction under
s.
39 of the Family Law
Act
1975 raised difficulties.
The power of the Commonwealth Parliament to invest State courts
with federal jurisdiction
is
found in
s.
77(iii) of the Constitution. The
scope of this power was asubject of disagreement.
t(1976) 50 A.L.J.R. 594; (1976) 9A.L.R. 103. High
Court
of
Australia;
Barwick C.J., Gibbs, Stephen, Mason
and
Jacobs JJ.
92
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