R v Dovey; Ex parte Ross [1979] HCA 14

High Court of Australia Barwick C.J. Gibbs and Mason JJ. R v Dovey; Ex parte Ross [1979] HCA 14

ORDER Application for writ of prohibition dismissed. Prosecutor to pay the respondent's costs, including the costs of the chamber application.

Cur. adv. vult.

The following written judgments were delivered:—

April 3 Barwick C.J.

In this application, I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I agree that the application for a writ of prohibition should be dismissed.

In my opinion, the Family Court had jurisdiction to make the order the subject of these proceedings. Like my brother Gibbs, I say nothing as to whether or not it ought properly to have been made in point of discretion.

The relevant jurisdiction of the Family Court was that given by a combination of the definition of matrimonial cause in s. 4 (c) and ss. 31 (1) (a) and 114 (3) of the Family Law Act, 1975 Cth, for here there was an application for maintenance. The grant of an interlocutory injunction to maintain an existing situation pending the determination of the maintenance proceedings was clearly enough in aid of the jurisdiction to grant maintenance.

If par. (e) of the definition of matrimonial cause in s. 4 is read so as to do no more than make an application for an injunction a matter of principal relief in situations in which some circumstance, otherwise attracting jurisdiction, is seen to exist, the Family Court's jurisdiction in relation to the present case might, in my opinion, be placed upon par. (e) of the definition. However, for my own part, I am content to find the jurisdiction in the instant case in par. (c) of the definition. I find no need to attempt an exposition of the nature and limits of the jurisdiction which par. (e) of the definition purports to give. Its language is lacking in precision and its ambit a matter of some doubt in my mind.