Constitutional framework

Introduction

2.42 The constitutional framework provides the critical backdrop in this Inquiry, underpinning some of the potential for gaps in the system and contributing to problems in providing safety for those experiencing family violence. This section describes the division of power between the Commonwealth and the states and territories with respect to relevant areas of law. It then considers the range of courts potentially involved in the various issues under the banner of ‘family violence’.

The federal system

2.43 Australia has a federal system of government in which legislative power is divided between the Commonwealth and the states and territories. In the area of family law, neither the Commonwealth nor the states and territories have exclusive legislative competence.[54] It has been remarked that ‘[i]f family law is viewed as an integral and homogeneous subject area on which it is appropriate to legislate, containing within it subject matters requiring a uniform approach, the conferral of legislative power has been incomplete’.[55]

2.44 The Australian Constitution gives the Commonwealth the power to make laws with respect to: ‘marriage’;[56] and ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’.[57] It also has the power to legislate with respect to ‘matters incidental to the execution of any power vested by this Constitution in the Parliament’.[58]

2.45 The power of the states to legislate in relation to family law is not limited in the same way, but where a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails to the extent of the inconsistency.[59]

2.46 Federal Magistrate Geoff Monahan and Associate Professor Lisa Young comment—with respect to this division between the Commonwealth and the states—that ‘as a general principle, private rights were regarded as more appropriately a matter for the states than for the Commonwealth’. However, questions of status—marriage and divorce—needed uniformity across Australia and hence were more appropriate for allocation to federal power:[60]

what was chiefly in the minds of the framers of the Constitution was the need to ensure the recognition of such a basic institution as marriage in the different parts of the new Commonwealth and beyond its borders, throughout what was then known as the British Empire. Legislation for marriage necessarily also implied legislation for its dissolution, since the recognition of a person’s status as a divorced person was a necessary precondition to the capacity to remarry.[61]

Commonwealth laws

2.47 The Commonwealth Parliament did not race into the field of family law. The first Commonwealth legislation was the Matrimonial Causes Act 1959 (Cth), followed two years later by the Marriage Act 1961 (Cth). These laws superseded the laws of the states and provided a uniform Commonwealth law on marriage and divorce.

2.48 The Family Law Act and the establishment of the Family Court of Australia ushered in the current framework of federal family law. The new regime reflected the intention ‘to exercise as plenary a power as the Constitution permitted the Commonwealth to take’, and was subject to a series of constitutional challenges.[62]

2.49 The federal framework was later expanded by the referral of legislative power from the states to the Commonwealth.[63] Section 51(xxxvii) of the Constitution gives the Commonwealth Parliament power to make laws with respect to:

matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

Referral of powers

2.50 Dr Anthony Dickey has noted that the referral of powers has been ‘the practical way in which problems resulting from the division of State and Commonwealth powers have most often been overcome’.[64]

2.51 A major addition to federal power was the referral to the Commonwealth of the power to make laws with respect to the children of unmarried parents—‘ex-nuptial children’.[65] Between 1986 and 1990, all states (with the exception of Western Australia) referred state powers with respect to ‘guardianship, custody, maintenance and access’ in relation to ex-nuptial children to the Commonwealth.[66] The states did not, however, refer to the Commonwealth their power to legislate with respect to child protection and adoption.[67] As a consequence, in 1996, the Family Law Act was amended to include a ‘welfare power’ in relation to children,[68] although this was narrower than ‘child welfare’ as reflected in state child welfare legislation.

2.52 A further referral of power led to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). This was necessary to fill a remaining gap in relation to federal power. After the 1996 extension of the Family Law Act to ex-nuptial children, but prior to the referral that lay behind the 2008 Act, unmarried couples had to seek the resolution of issues arising from the breakdown of their relationship in two different courts: the state system, for property and partner maintenance disputes; and the federal system for parenting disputes and child support issues.[69] The remaining relationship gaps concern same-sex couples and other non-marital domestic relationships.

2.53 The effect of these referrals is that the federal parliament has jurisdiction over marriage, divorce, parenting and family property on separation. The states retain jurisdiction over adoption and child welfare. Of particular relevance is that the states have power to legislate in relation to criminal law. Further, as a matter of practical reality, many of the family law disputes that are litigated—as opposed to resolved without a court hearing—involve child welfare concerns, including involvement of state child welfare agencies and sometimes children’s courts. These interactions and overlaps are discussed below.

Western Australia

2.54 Western Australia took a different approach from the other states by availing itself of the opportunity provided in the Family Law Act for the creation of a state family court exercising both federal and state jurisdiction.[70] The reasons for doing so were explained in the Second Reading Speech to the Family Court Act 1975 (WA):

(1) to provide a single court of unified jurisdiction, administering matters of family law, both federal and state;

(2) to enable the state to continue to exercise jurisdiction in family law matters which would otherwise have been removed into the Family Court of Australia, with the opportunity of retaining complementary action with other responsibilities in the areas of welfare and counselling services;

(3) in the public interest to keep the administration of justice as close as possible to the people it is designed to serve;

(4) to obviate the creation of a further Commonwealth court in the state.[71]

2.55 When the states referred power in relation to parenting disputes involving parents who are not married to each other, Western Australia again enacted similar laws at a state level, in the Family Court Act 1997 (WA). That Act reaffirmed the separate state Family Court in Western Australia and its expanded jurisdiction on the basis that

the Western Australian Family Court allows us in Western Australia—the tyranny of distance is always a problem with legislation—to be responsive to local demands and needs for the benefit of people using the Family Court.[72]

2.56 The court also has power to exercise jurisdiction under the Children and Community Services Act 2004 (WA) and so, unlike the federal family courts, it may issue care or protection orders in relation to children.

2.57 The effect of the establishment and expansion of the Family Court of Western Australia has been described as follows:

As it happens, however, Western Australia has followed the federal law closely and its Family Court has administered the [Family Law Act] in conformity with guidelines set out by the Full Court of the Federal Court and by the High Court. There has been full interchange of judges between that court and the Family Court and, to all intents and purposes, the existence of a separate Family Court has not affected the administration of the law under the federal Act.[73]

2.58 Given that Western Australia has kept family law matters within the state, it provides, in some respects, a ‘control jurisdiction’ for a consideration of some of the issues generated by the fragmentation between state and federal jurisdiction in the other states and territories. As remarked by the Family Law Council,

Western Australia is uniquely placed, as the only State Family Court in Australia with a single court for family law matters, to be the first State in Australia to develop and implement a unified Family Law/Child Protection Court to manage all cases involving the welfare of children with the same judicial officers able to determine both public [child protection] and private [parental responsibility and the care arrangements for children] family law matters.[74]

Cross-vesting

One of the most creative and effective schemes for addressing some of the unsatisfactory issues arising out of the constitutional limitations of power between the Commonwealth and the states was the cross-vesting scheme.[75]

2.59 The scheme for cross-vesting was introduced in 1987 by uniform legislation enacted by the Commonwealth together with all the states and territories.[76] The purpose of the uniform scheme—‘as ingenious as it was simple’[77]—was evident in the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth):

WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable—

(a) to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;

(b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and

(c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.

2.60 The Explanatory Memorandum accompanying the federal Bill articulated the hope ‘that no action will fail in a court through lack of jurisdiction, and that as far as possible no court will have to determine the boundaries between federal, state and territory jurisdiction’.[78] State and territory Supreme Courts were vested with federal jurisdiction; federal courts were vested with the full jurisdiction of state and territory Supreme Courts; and from 1988–1999, the scheme ‘overcame constitutional deadlocks that used to bedevil the Family Court’s jurisdiction’.[79]

2.61 The scheme was ‘revolutionary (yet ultimately flawed)’,[80] and did not withstand constitutional challenge—at least in the direction of the attempt to vest state jurisdiction in federal courts. In Re Wakim; Ex parte McNally, the High Court held that Ch III of the Australian Constitution exhaustively defined the ‘matters’ that may be the subject of the judicial power of the Commonwealth—and this did not include exercising the jurisdiction of the states.[81] That part of the scheme that enabled federal courts to hear state matters—such as the Family Court determining a claim under state based de facto relationships legislation or family provision legislation—was unconstitutional.

2.62 Re Wakim struck down the cross-vesting scheme in one direction, but not the other. While it held invalid the purported vesting in federal courts of state judicial power, cross-vesting remains valid from the Commonwealth to the states, pursuant to s 77(iii) of the Australian Constitution. In addition, a vesting of jurisdiction between the Commonwealth and the territories is still permissible.[82] Young and Monahan describe the impact of the failure of the cross-vesting scheme:

In addition to its impact on corporate law … the partial demise of the cross-vesting scheme had an immediate effect on Australian family law. While the former was swiftly remedied by a reference of powers by the states to the Commonwealth, the latter has proved more difficult to solve. Many family law matters now needed to be resolved in both a federal and state court. Of immediate relevance was the reality that cross-vesting had allowed de facto families to seek orders in the Family Court to resolve both parenting disputes (federal jurisdiction) and property disputes (state jurisdiction). This problem was, of course, resolved by a state reference of powers over de facto relationships that resulted in amendments to the [Family Law Act] (by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) … Nevertheless, many other procedural benefits that cross-vesting provided to family law litigants have now been lost.[83]

2.63 In consequence, any expansion of Commonwealth power not already covered in the heads of power in the Constitution has to be achieved through the mechanism of referral of power pursuant to s 51(xxxvii). In this case the Australian Government may make laws—as federal laws—within the additional heads of power. It does not give the Australian Government, or federal courts, authority to act under state laws—this was the flaw in the cross-vesting scheme.

Dual judicial appointments

2.64 Because of the challenges posed by the constitutional division of power between the Commonwealth and the states, another strategy has been mooted—in the form of dual commissions—with a judicial officer holding, simultaneously, state and federal judicial appointments. On 23 October 2009, the Australian Government Attorney-General, the Hon Robert McClelland MP and the Victorian Attorney-General, Rob Hulls MP, in a joint press release announced their intention to make the first judicial federal-state appointment. The Hon Justice Julie Dodds-Streeton was appointed to the Federal Court and it was proposed that she be offered reappointment to the Victorian State Supreme Court.[84] As remarked by Attorney-General McClelland:

The appointment follows initiatives being pursued through the Standing Committee of Attorneys-General (SCAG) to create a national judiciary to promote greater consistency and uniformity in the provision of judicial services in Australia.[85]

2.65 Attorney-General Hulls considered that such an arrangement ‘would allow both the Commonwealth and Victoria to jointly utilise the experience and expertise of appointees across jurisdictions’.[86] New South Wales Attorney-General, the Hon John Hatzistergos MLC, also indicated his intention to facilitate similar appointments in that state by legislative amendment.[87]

2.66 At a judges’ conference on 25 January 2010, the Attorney-General reiterated the aspiration expressed on the appointment of Dodds-Streeton J to the Federal Court, in saying that the initiative of dual commissions ‘is another means of promoting nationally consistent standards of judicial decision-making’, complementing ‘the work SCAG has been doing on judicial exchange’:

These initiatives provide greater scope for the sharing of expertise across jurisdictions, will encourage a dynamic judiciary, and will provide for greater uniformity and consistency in the application of laws that have national significance.[88]

2.67 While the Attorney-General was ‘enthusiastic about the opportunity ... for progressing dual commissions’, he acknowledged that there are ‘a number of practical challenges’ before a dual commission could be implemented:

no judge can be forced to accept a commission from another jurisdiction. Similarly, no Government can be forced to appoint a judicial officer from another jurisdiction. I expect that, once appointed, working arrangements for the holders of a dual commission would be the subject of discussion and arrangement between heads of jurisdictions.[89]

2.68 The Commissions acknowledge the potential of dual commissions to meet some of the problems created by the division of power, in that holders of such commissions would be able to exercise, as a Federal Court judge, jurisdiction under federal laws, and, as a state Supreme Court judge, jurisdiction under state laws. However, at the time of writing this Report, no such dual appointment has been made and the constitutional validity of such appointments also remains untested. Moreover, in the context of recommendations for reform of legal frameworks to improve safety for victims of family violence, a concurrent appointment of a judge to a federal court, namely a federal family court, and a state Supreme Court, would not necessarily overcome the particular problems of division of power, as the principal judicial work in relation to family violence—as considered in the next section of this chapter—takes place in state and territory magistrates courts, and dual appointments to a federal court and a magistrates court has not yet been proposed.

[54] Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000) provides a useful discussion of the constitutional context of family law in Australia: ch 2.

[55] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.3].

[56]Australian Constitution s 51(xxi).

[57] Ibid s 51(xxii).

[58] Ibid s 51(xxxix).

[59] Section 109 of the Australian Constitution provides that: ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. This provision may operate in two ways: it may directly invalidate state law where it is impossible to obey both the state law and the federal law; or it may indirectly invalidate state law where the Australian Parliament’s legislative intent is to ‘cover the field’ in relation to a particular matter.

[60] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.6].

[61] Ibid, [3.7]. Dickey notes that it would appear that members of the Constitutional Convention of
1897–1898 were averse to repeating the United States experience where the law of divorce varies with the law of the different states: A Dickey, Family Law (5th ed, 2007), 13–14. Sir Garfield Barwick suggested another reason—Queen Victoria, who proved reluctant to assent to colonial Bills which liberalised divorce, her approval being necessary for such Bills: G Barwick, ‘Some Aspects of the New Matrimonial Causes Act’ (1961) 3 Sydney Law Review 409, 410.

[62] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.30] ff discusses the various constitutional challenges.

[63] A referral of power to the Commonwealth is not required from the ACT, the Northern Territory and Norfolk Island because s 122 of the Australian Constitution assigns to the Commonwealth plenary power to ‘make laws for the government’ of the territories.

[64] A Dickey, Family Law (5th ed, 2007), 40.

[65] There was an attempt in 1983 to extend the categories of children covered by the Family Law Act but this was held to be constitutionally invalid, necessitating the referral of power: Ibid, 32. In Re Cormick (1984) 156 CLR 170 it was held that the marriage power could not extend to a child who is neither a natural child of both the husband and wife, nor a child adopted by them.

[66] See Commonwealth Powers (Family Law—Children) Act 1986 (NSW); Commonwealth Powers (Family Law—Children) Act 1986 (Vic); Commonwealth Powers (Family Law—Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas).

[67]Commonwealth Powers (Family Law—Children) Act 1986 (NSW) s 3(2); Commonwealth Powers (Family Law—Children) Act 1986 (Vic) s 3(2); Commonwealth Powers (Family Law—Children) Act 1990 (Qld) s (3)(2); Commonwealth Powers (Family Law) Act 1986 (SA) s 3(2); Commonwealth Powers (Family Law) Act 1987 (Tas) s 3(2).

[68]Family Law Reform Act 1995 (Cth), introducing a new pt VII. The relationship between the Family Law Act and the child welfare legislation of the states and territories is considered in Ch 19.

[69] For a summary see B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 34–35.

[70]Family Court Act 1975 (WA), replaced by Family Court Act 1997 (WA).

[71] Western Australia, Parliamentary Debates, Legislative Assembly, 21 October 1975, 3606
(D O’Neill—Minister for Works).

[72] Western Australia, Parliamentary Debates, Legislative Assembly, 25 November 1997, 8534
(J van de Klashorst—Parliamentary Secretary).

[73] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.86].

[74] Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), 1.

[75] T Altobelli, Family Law in Australia: Principles and Practice (2003), 56.

[76] For a consideration of the scheme see, eg, K Mason and J Crawford, ‘The Cross-Vesting Scheme’ (1988) 62 Australian Law Journal 328; C Baker, ‘Cross-Vesting of Jurisdiction between State and Federal Courts’ (1987) 14(2) University of Queensland Law Journal 118; R Chisholm, ‘Cross-vesting and Family Law: A Review of Recent Developments’ (1991) 7 Australian Family Lawyer 15.

[77] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.96].

[78] Explanatory Memorandum, Jurisdiction of Courts (Cross-Vesting) Bill 1987 (Cth).

[79] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.96].

[80] Ibid, [3.87].

[81]Re Wakim; Ex parte McNally (1999) 198 CLR 511.

[82]Australian Constitution s 122. An example is Falconio v Conchita [2009] FamCA, noted in ‘Court grants first adoption’ (2010) (6) Family Court Bulletin 1.

[83] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.100].

[84] R McClelland (Federal Attorney-General) and R Hulls (Victorian Attorney-General), ‘Sharing Expertise in the Judiciary’ (Press Release, 23 October 2009).

[85] Ibid.

[86] Ibid

[87] Ibid.

[88] R McClelland (Attorney-General), Address at Supreme and Federal Court Judges’ Conference (2010) <http://www.ag.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2010_25January2010-SupremeandFederalCourtJudgesConference> at 24 September 2010.

[89] Ibid.