Cominos v Cominos [1972] HCA 54

High Court of Australia McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ. Cominos v Cominos [1972] HCA 54

ORDER The question whether ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959-1966 Cth are invalid is answered: No. Order that the cause be remitted to the Supreme Court of South Australia and that the petitioner's costs of and incidental to the determination of the said question be paid by the respondent to the petitioner.

Cur. adv. vult.

The following judgments were delivered:—

Oct. 30 McTiernan and Menzies JJ.

This matter is in this Court by by virtue of s. 40A of the Judiciary Act. A suit for divorce and other relief, including permanent maintenance, the settlement of property, and costs, was commenced by the petitioner against the respondent in the Supreme Court of South Australia. In that Court, the respondent challenged the validity of certain sections of the Matrimonial Causes Act 1959-1966 Cth—the Act—namely, ss. 84, 86, 87 (1) and 125. Accordingly, a question arose as to the limits inter se of the powers of the Commonwealth and the States. The cause was accordingly removed to this Court. It came on for hearing before the Full Court, and the question having been raised concerning argument of the cause before the Full Court, an application was made under s. 18 of the Judiciary Act to a single Justice to direct that the inter se question involved be argued before the Full Court. This direction was given by McTiernan J. and, accordingly, the question for the Full Court is the validity of ss. 84, 86, 87 (1) and 125 of the Act.

These sections all operate to confer powers upon the Supreme Courts of the States. The Supreme Court of each State is invested with jurisdiction to hear and to determine matrimonial causes instituted under the Act, s. 23. The sections in question confer ancilliary powers upon a Supreme Court of a State in the hearing of a matrimonial cause: Lansell v. Lansell [4] ; Sanders v. Sanders [5] .