High Court of Australia
High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Russell and Russell [1976] HCA 23
ORDER Russell v. Russell The questions referred to the Full Court are answered as follows:
1.
Is
(i) section 97 in so far as it deals with courts other than the Family Court
(ii) section 9(4)
(iii) section 39
(iv) section 64
(v) section 74
(vi) section 78
of the Family Law Act 1975 a Law of the Commonwealth validly enacted pursuant to the powers conferred by pars (xxi.), (xxii.) and (xxxix.) of s. 51, s. 77 (iii.) or any other provision of the Constitution?
Answer:
(i)
No, in relation to sub-s. (1).
Yes, in relation to sub-s. (4).
(ii) Yes, but only to the same extent as s. 39.
(iii) Yes, s. 39 is a valid law of the Commonwealth in so far as the jurisdiction conferred relates to the following paragraphs of the definition of matrimonial cause contained in s. 4:
(1) Paragraphs (a), (b) and (d).
(2) Paragraphs (c) (i) and (e) but only in so far as they relate to proceedings between the parties to a marriage.
(3) Paragraph (c) (ii) but only to the extent to which it relates to proceedings for ancillary relief in relation to proceedings of the kinds referred to in pars (a) and (b) of the definition.
(4) Paragraph (c) (iii) but only in so far as it relates to proceedings between the parties to a marriage with respect to the custody, guardianship or maintenance of, or access to, the natural and adopted children of the parties to the marriage.
(5) Paragraph (f) but only to such extent as is consequential upon the validity of s. 39 in relation to pars (a), (b), (c), (d), and (e) of the definition of "matrimonial cause".
(iv) Yes, but only to the extent to which it relates to proceedings between the parties to a marriage with respect to the natural and adopted children of the parties to the marriage.
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