Introduction

Constitutional &
Jurisdictional Issues in
Family Law
 Division of Legislative
Powers
 Australian Constitution 1901 – Section 51sets out the
subject matter of Commonwealth legislative power

 Residual Powers of the States – all subject matter

that does not fall within section 51

 Territories Power – section 122 – allows the

Commonwealth to make laws applicable to the
Territories in relation to any subject matter

 Inconsistency between Commonwealth and State

legislation – section 109
 Commonwealth Powers
 Express Powers:

• Marriage Power – section 51(xxi)

• Divorce and Matrimonial Causes, and in relation
thereto, parental rights and the custody and
guardianship of children – section 51 (xxii)

 Incidental Powers:

• Express Incidental Power – section 51(xxxix).

• Implied Incidental Power. See Gazzo v Comptroller of
Stamps (1981)
The Family Law Act
1975 (Cth)
The Family Law Act 1975 (Cth)
 Features:

• Sets out principle rights, duties, powers and

liabilities between spouses (including de facto),
parents/children
• Provides for determination and alterations of
duties, powers and liabilities and property
interests
• Sets out the current requirements for divorce
• Establishes the Family Court of Australia and
provides for the creation of State Family Courts
(eg WA)
 The Family Law Act cont.
 Threshold provisions for the institution of proceedings
under the Act (exclusivity):

• If proceedings can be instituted under Part VII

(children’s issues), they must be (except
proceedings under Child Support (Assessment) Act
1989) – section 69B(1)
• If proceedings constitute a matrimonial cause (as
defined by the Act), they must be instituted under
the Act – section 8(1)(a)

 If a proceeding falls within the above criteria, such

proceedings must not be commenced under another
Act.
 The Family Law Act cont.
 For proceedings to be instituted under the Act, there
must be a sufficient nexus between parties to, or
subject of, the proceedings and Australia

 Matrimonial cause proceedings:

• Divorce – either party must be an Aus citizen or

domiciled in Aus or ordinarily resident for past 12
months
• Other between parties to a marriage – either party
must be Aus citizen, ordinarily resident or present in
Aus
• Other – any party must be Aus citizen, ordinarily
resident or present in Aus
 The Family Law Act cont.

 Child proceedings:

• Either the child, a parent, or a party to the

proceedings must be an Aus citizen, ordinarily
resident in Aus or present in Aus
 Court Overview
Family Court v Federal Circuit Court (DV/CP
Courts)
Family Law Courts
 Family Court of Australia –
◦ Court of superior jurisdiction.
◦ Appeal jurisdiction (single Judge & Full Court)
◦ Family Law Rules 2004.

 Federal Circuit Court of Australia

◦ Lower Court – introduced in 2001. Designed to be
quicker and simpler.
◦ Federal Circuit Court Rules 2001.
◦ Exercises other Federal jurisdiction (bankruptcy,
migration).
Family Law Courts
 Where to file?
 Family Court of Australia

◦ Consent Orders
◦ Magellan matters
◦ International relocation
◦ Matters of sufficient complexity (>3-4 days trial).
 Federal Circuit Court of Australia
◦ Divorce applications
◦ Child support proceedings
◦ ‘Simple’ parenting & property (<3-4 days trial)
Domestic Violence Courts/Child
Protection Courts
 State jurisdiction -Administered by Local Court.
 Different legislation in each state – Domestic &
Family Violence Act (NT) – Care & Protection of
Children Act (NT).
 Domestic Violence Orders:
◦ S12 Order (taken by Police).
◦ Interim Orders
◦ Final Orders – by consent (without admission) & contested.
◦ Undertakings
 Child Protection Orders:
◦ Interim Orders (taken by Territory Families)
◦ 12 mth/2 year Orders
◦ Until 18 Orders
Marriage
Divorce & Matrimonial Causes
Power – s 51(xxii)
 Divorce: ‘ending of an otherwise valid marriage’

 Matrimonial Causes:

• broad meaning, but does not include any

proceeding between spouses
• Proceedings must have clear connection with
marriage relationship
• Family Law Act 1975 (Cth), section 4(1) –
defines ‘matrimonial cause for the purposes of
the Act ONLY – does not affect the scope of
section 51(xxii) of the Constitution
Marriage Power – s 51(xxi)

 Attorney-General (Vic) v Cth (1962) - Power to

legislate in relation to:

• formation of marriage
• status that marriage involves – mutual rights
and duties between spouses
• the relationship between spouses
• children of the marital relationship
Divorce & Matrimonial Causes
Power – s 51(xxii) cont.

 Parental Rights, Custody and Guardianship of

Infants:

• Commonwealth can make laws about these

things provided it is in ‘relation to’ divorce and
matrimonial causes
 Marriage Power – s 51(xxi)
cont.
 Courts are able to determine rights, duties and
obligations as between spouses and their children
in proceedings unconnected with Divorce or other
forms of Matrimonial relief (contrast with
limitations of section 51(xxii)

 See Russell v Russell; Farrelly v Farrelly (1976)

 Marriage Power – s 51(xxi)
cont.
 Courts can determine rights, duties and
obligations in proceedings unconnected with
Divorce or other forms of Matrimonial relief - See
Russell v Russell; Farrelly v Farrelly (1976)

 Test of validity: ‘whether the legislation creates,

defines or declares rights or duties that arise out
of, or have a close connection with, the marriage
relationship’ – R v Lambert; Ex parte Plummer
(1980)
 Marriage Power – s 51(xxi)
cont.
 Children: The marriage power only supports laws
in relation to natural children of the husband and
wife or children adopted by them – Marriage of
Cormick (1984); R v Cook (1985); and Re F (1986)

 Subsequent referrals of State powers (except WA)

in relation to children has granted to the
Commonwealth a virtually unlimited legislative
power

 Note exclusions from referrals: Adoption and

Child Protection subject matter
 Cross-Vesting
 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and
mirror Acts of the States: permitted federal courts to
exercise jurisdiction of State Courts

 Re Wakim; Ex parte McNally (1999): held cross-vesting

legislation invalid

 Federal courts (including FCA) cannot exercise

jurisdiction of State courts

 State courts can exercise limited jurisdiction of federal

courts (eg Family Court Act 1975 (WA))
 Cross-vesting of jurisdiction between federal courts is
permitted
Formation of Marriage
 Legal Definition of
Marriage
 “...the voluntary union for life of one man
and one woman, to the exclusion of all
others” - Hyde v Hyde and Woodmansee
(1866) LR 1 P&D 130

 See also ss 5 (1) and 48 (1) Marriage Act

1961 (Cth)

 See also s 43 (a) of the Family Law Act

1975 (Cth)
 ‘Voluntarily Entered Into for
Life’
 A valid marriage requires consent of both
parties – s 23(B)(1) Marriage Act

 ‘for life’: “It is a statement of the

traditional concept of marriage in Australia
– a voluntary monogamous, heterosexual
relationship entered into for an indefinite
duration, hopefully for life” - Marriage of S
(1980) 5 Fam LR 831
‘Two People’ – Same Sex
Couples
 Section 2A – inserted
by Marriage Amendment (Definition and
Religious Freedoms) Act 2017.
 Enabled same-sex couples to marry.
 The essential change was the substitution

of “2 people” for “a man and a woman” in

the definition of marriage
 ‘Exclusion of All Others’
 It is not possible for a person to have more than
one legal spouse at the same time.

 However, s 6 Family Law Act provides that: “...a

union in the nature of a marriage which is, or has
at any time been, polygamous, being the union
entered into in a place outside of Australia shall
be deemed to be a marriage”.
 Marriageable Age
 The parties must be of a marriageable age.
 The marriageable age for males and females is
18 years – s 11 Marriage Act

 Where either party is not of marriageable age,

the purported marriage is void – ss 23(1)(e) and
23(B)(1)(e) Marriage Act.

 A person between 16 and 18 years can apply for

an order authorising marriage – s 12(1) Marriage
Act and Re Z (1970) 15 FLR 420
 Marriageable Age cont.
 The phrase “so exceptional and unusual” means
“sufficiently” as opposed to ‘very’ or ‘extremely’ - Ex parte
Willis (1997) 21 Fam LR 479

 Pregnancy of itself is not an exceptional or unusual

circumstance - Re Z (1970) 15 FLR 420

 Relevant to consider the parties maturity, suitability

financial position and family support - Re Z (1970).
 The minor must obtain consent from the parent or guardian
– s 13(1) Marriage Act

 The court can dispense with consent if impractical or

refusal is unreasonable – ss 15-16 Marriage Act
 Formalities
 The marriage must be solemnised by or in the presence of
an authorised celebrant – ss 5(1), 40-41

 A written notice of intention to marry must be provided to

the celebrant - s 42(1)(a)

 The parties must make a declaration confirming single

status and belief that there is no legal impediment - s 42(1)
(c)

 A marriage ceremony can take place at any time on any

day anywhere in Australia – s 43

 Immediately after solemnisation the parties and witnesses

must sign a marriage certificate - ss 50(1) and (2).
 Formalities cont.
 An unauthorised celebrant who purports to solemnise a
marriage is liable to a fine or imprisonment – ss 99(1) and
100 Marriage Act
 Ministers of religion who refuse to celebrate same-
sex marriage on the basis of their religious views are
protected
 See also Sections 96 and 104
 A marriage solemnised otherwise than in accordance with
the Act is not a valid marriage – s 48(1). Note however s
48(2) exceptions
 If the celebrant is not authorised and both parties are
aware, the marriage will be void – s 48(3).
Divorce
 No Fault Divorce
 There is only one ground for divorce under the
Family Law Act - that the marriage has ‘broken
down irretrievably’ – s 48(1)

 The underlying cause of the marriage breakdown

is irrelevant for the purposes of a divorce under
the Family Law Act – s 49(1)
 Eligibility to Seek Divorce
 A proceeding for divorce falls within the definition of
‘matrimonial cause’ in s 4(1) Family Law Act

 The application can only be based on the ground that

the marriage has broken down irretrievably – s 48(1)

 The parties must have been separated for a

continuous period for not less than 12 – s 48(2).

 If the court is satisfied of reasonable likelihood of

reconciliation and co-habitation an order cannot be
made – d 48(3)
 Section 48(2) – ‘Separation’
 ‘Separation’ means the effect of the breakdown of the
matrimonial relationship - it does not necessarily mean
physical separation – see s 49(2) and Marriage of Falk
(1977) 3 Fam LR 11

 Parties living under the same roof must provide the court
with an explanation – see Marriage of Pavey (1976) 1
Fam LR 11

 Physical separation of itself does not establish separation

– see Marriage of Clarke (1986) 11 Fam LR 364

 “Separation can only occur...when one or both of the

spouses form the intention to severe...and act on that
intention...” - Marriage of Todd (2) (1976) 1 Fam LR 11
Section 48(2) – Communication
of Separation
 “The attitudes and intentions of the parties may
be spoken or unspoken...” - Marriage of Falk
(1977) 3 Fam LR 11

 “The test of whether there has been effective

communication of the intention to separate is
almost certainly objective...unequivocal conduct
is sufficient notwithstanding any delusions on the
part of the other spouse” - Marriage of Layne
(1976) 1 Fam LR 11
 Section 48(2) – Overt
Separation?
 “To comply with the Act there must be some overt
separation, some evidence that there are two households,
not one...” - Marriage of Fenech (1976) 1 Fam LR 11

 “The test that has to be applied is whether or not the

parties have in fact established separate households albeit
that the same roof covers both” - Marriage of Wiggins
(1976) 1 Fam LR 11

 However, see Marriage of McLeod (1976) 1 Fam LR 11-

“there was benefit to both the parties in the arrangement
whereby, to outsiders and the community ...it should
appear that their marriage was stable...”
 Section 50(1) - Resumption of
Co-Habitation
 Separated spouses may resume co-habitation for a period
of up to 3 months without the prior period of separation
being annulled – s 50(1)

 4 conditions must be met:

◦ Initial separation
◦ Cohabitation on not more than one occasion;
◦ Further separation within 3 months
◦ No further period of cohabitation

 The resumption must be recognisable as a matrimonial

relationship – see Marriage of Clarke (1986) 11 Fam LR

 Cohabitation after filing is relevant only to s 48(3) – does

not affect s 50(1) – see Marriage of Thompson (1977) 2 Fam
 Section 48(3) – Likelihood of
Resumption of Co-Habitation
 ‘A divorce shall not be made if the court is satisfied
that there is a reasonable likelihood of cohabitation
being resumed – s 48(3)

 there need not be a bi-lateral intention to resume

cohabitation - a judge must consider the whole of the
evidence and give full weight to the words ‘reasonable
likelihood’ - Marriage of Bates and Sawyer (No.2)
(1977) 3 Fam LN 10
 Requirement for Marriage
Counselling
 If the parties have been married for less than 2 years,
they must ordinarily undertake counselling - s 44(1B)

 Parties must not file an application for divorce without

leave of the court unless the parties have a certificate

 Leave of the court may be granted where there are

special circumstances – ss 44(1B) and 44 (1C) - where
the other party has disappeared, or is unable to
consider reconciliation simply refuses to consider
reconciliation - see Marriage of Malyszko (1979) 5 Fam
LN 7
 Proper Arrangements for
Children Under 18
 A divorce order does not become absolute unless the
court is satisfied that proper arrangements have been
made for the care, welfare and development of children
of the marriage who have not attained 18 years of age
– s 55A; Marriage of Maunder (1999) 25 Fam LR 579

 Section 55A(3) includes any child who was treated by

the husband and wife as a child of their marriage at the
relevant time

 “The test of the welfare of the child has to be

determined having regard to the contemporary social
standards...it cannot be a totally subjective test based
upon the views or standards of the individual parent...”
- Marriage of Horman (1976) 5 FLR 796
 Proper Arrangements for
Children Under 18
 A divorce order does not become absolute unless the
court is satisfied that proper arrangements have been
made for the care, welfare and development of children
of the marriage who have not attained 18 years of age
– s 55A; Marriage of Maunder (1999) 25 Fam LR 579

 Section 55A(3) includes any child who was treated by

the husband and wife as a child of their marriage at the
relevant time

 “The test of the welfare of the child has to be

determined having regard to the contemporary social
standards...it cannot be a totally subjective test based
upon the views or standards of the individual parent...”
- Marriage of Horman (1976) 5 FLR 796
Practical Considerations
 All Applications must be accompanied by
copy of marriage certificate.
 Filed through the Commonwealth Courts

Portal.
 If an Applicant is an Aus Citizen by grant –

Citizenship certificate
 Joint Application v Sole Application.
Practical Considerations
(cont.)
 Joint Application
◦ Requires both parties to sign in front of qualified
witness.
◦ No requirement to attend hearing.
◦ No requirement to serve.
 Sole Application
◦ Only requires signature of one party.
◦ Must be served on other party (personal service)
and an affidavit of service must be filed.
◦ If child U18 must attend hearing.
Nullity
 Decree of Nullity
 A decree of nullity is a declaration that there was never a valid
marriage at all.

 Proceedings for a decree of nullity are made under that Act – s

4(1) - one party to the marriage must be either an Australian
citizen, ordinarily resident in Australia or present in Australia.

 A marriage is void only where – s 23B(1) of the Marriage Act:

◦ Either of the parties is married to some other person;

◦ The parties are in a prohibited relationship;
◦ The marriage is not a valid marriage due to lack of formalities;
◦ The consent of either of the parties is not a real consent
 Bigamy – s 23B(1)(a)
 Section 23B(1)(a) corresponds with traditional definition
of marriage – ‘to the exclusion of all others’

 Supported by s 94 concerning offence of bigamy

 It is irrelevant whether a party was of honest belief that

the first marriage had ended, how little delay after the
second marriage in bringing the application and that one
of the parries to the first marriage has died after the
second ceremony - Weekes v Weekes [2009] FamCA 699

 See also s 113 Marriage Act re: second marriages

 Prohibited Relationships –
s 23B(1)(b)
 Marriages between a person and an ancestor or
descendent of the person or between a brother
and a sister are prohibited

 The relationship between an adopted person and

each of his or her adoptive parents is treated as if
it were a natural relationship

 An adopted child retains his or her natural

relationship with his or her natural parents and
the natural parents’ other children
Lack of Essential Formalities – s
23B(1)(c)
 A marriage which does not comply with the
essential formalities is void

 Note however the large number of exceptions

contained in section 48(2) Marriage Act in relation
to non-compliance with formalities

 Practically speaking, the only situation that gives

rise to a void marriage is where both parties are
aware that the celebrant is not authorised -
Marriage of Rewal (1991) 103 FLR 384.
 Lack of Essential Formalities
cont. – Overseas Marriages
 Overseas ceremonies are recognised as valid in Australia
if valid under the local law – ss 88C(1)(a) and 88D(1)
Marriage Act

 The issue turns on the availability of evidence of the

formal requirements

 Marriage certificates issued under the law in force in a

particular country or prescribed authority is prima facie
evidence of the validity of the marriage – s 88G(1)

 A marriage performed overseas in accordance with the

Marriage Act is valid and recognised in Australia – s 73
 Lack of Essential Formalities
cont. – Polygamous Marriages
 For the purposes of proceedings under the Family
Law Act, a polygamous marriage entered into
outside Australia is deemed to be a marriage – s
6
 However, polygamous marriages contracted in
Australia are void – s 23(1)(a) and 23B(1)(a)
Marriage Act
 A polygamous marriage contracted overseas will
not be recognised as valid if either of the parties
was a party to another marriage recognised in
Australia as valid – s 88D(2)(a).
Lack of Consent – s 23B(1)(d)
 Evidence of one’s state of mind at the time of the
ceremony is critical and “in this, evidence about
the ceremony, and events occurring during and
immediately before or after it can be extremely
important” - Marriage of Teves III and
Campomayor (1994) 18 Fam LR 844

 The onus is on the party seeking the decree to

prove that a party to the purported marriage
lacked consent to marry - AK v NC [2004] FLC 93.
Lack of Consent cont. - Duress
 To be forced to enter into marriage through fear or coercion renders
the marriage invalid - Di Mento v Visalli (1973) 1 ALR 351

 “There can be no consent to marry if a party is in such a state of

mental incompetence...that he or she is unable to resist pressure
improperly brought to bear” - Scott v Sebright (1886) PD 2

 “A sense of mental oppression can be generated by causes other

than fear or terror...this is so, how so ever the oppression arises
and irrespective of the motivation or proprietary of any person
solely or partially responsible for the oppression” - Marriage of S
(1980) 5 Fam LR 831

 “[I]t is duress at the time of the marriage ceremony that is critical”

- Marriage of Teves III and Campomayor
Lack of Consent cont. - Fraud
 Fraudulent misrepresentations which induced consent is not
sufficient - Moss v Moss [1897] P 263

 The behaviour constituting fraud must have “...gone to the

root of the marriage contract” - Marriage of Deniz (1977) 31
FLR 114

 ‘Fraud’ does not include a situation where one party has

mental reservations about the future of the marriage -
Marriage of Otway (1986) 11 Fam LR 99

 “[T]he term...has a fairly limited scope. Its concern is...not as

to the motive of a party entering into a marriage” - Marriage
of Hosking (1994) 18 Fam LR 581
Lack of Consent cont. - Mistake
 Mistake ‘as to the identity of the other party or as
to the nature of the ceremony performed’ – see
Marriage of C and D (falsely called C) (1979) 5
Fam LR 636; Marriage of Najjarin and Houlayce
(1991) 14 Fam LR 889

 Mistakes resulting from a deception as to the

other party’s name, background, personal
qualities or motivations surrounding the wedding
are not regarded as sufficient
Lack of Consent cont. – Mental
Incapacity
 “[W]hile no great degree of intelligence[is]
required to understand the ‘contract of
marriage’ a mere comprehension of the words,
of the promises exchanged is not sufficient” -
Durham and Durham (1885) 10 PD 80

 It will be relevant for the court to consider the

habits and mental state of the party throughout
the period prior to the marriage ceremony -
Estate of Park; Park v Park [1954] P 112.
Lack of Consent cont. – Lack of
Marriageable Age
 The issue of a void marriage arises in
circumstances where persons below the
marriageable age purport to be married

 In determinations as to the validity of a marriage,

it is relevant to consider the circumstances which
have been found by the court to justify an order
under s 12 Family Law Act in relation to
marriages between persons below marriageable
age. see Willis and Re Z
RESOURCES:

 Dickey, A, Family Law (6th ed)

 Mills, E and Ebejer, M, Family Law (7th ed)