W v W [1982] HCA 73

W v W [1982] HCA 73

The Supreme Court proceedings were properly construed as essentially an application for custody, with the claims for paternity declaration and blood test direction appurtenant to that custody claim. Because an unvaried Family Court order had already awarded care and control of K.J.W. on the basis that she was a child of the marriage, the Supreme Court proceedings necessarily attacked both the foundation and effect of that order. While the Family Court order stood, the exclusive jurisdiction provisions of the Family Law Act 1975 Cth precluded another court from adjudicating on K.J.W.'s status or custody. The stated question was therefore answered No.

Jurisdiction
Australia
Procedural Posture
Case Stated Concerning Jurisdiction in Family Law Proceedings / High Court Answer to Question Stated After Part of the Cause Was Removed Into the High Court
Outcome
Question in the case stated answered in the negative.
Legal Topics
['family Court Exclusive Jurisdiction' 'matrimonial Cause' 'custody of a Child' 'child of the Marriage' 'declaration of Paternity' 'blood Test Direction' 'collateral Challenge to Federal Court Order']
['family Law' 'constitutional Law' 'jurisdiction'] ['family Court Exclusive Jurisdiction' 'matrimonial Cause' 'custody of a Child' 'child of the Marriage' 'declaration of Paternity' 'blood Test Direction' 'collateral Challenge to Federal Court Order']

Case Brief

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Procedural Posture

Case Stated Concerning Jurisdiction in Family Law Proceedings / High Court Answer to Question Stated After Part of the Cause Was Removed Into the High Court

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales had jurisdiction to entertain proceedings seeking a declaration of paternity, a blood test direction and custody of K.J.W.' "Whether an existing interim Family Court order for care and control of K.J.W. precluded another court from adjudicating on the child's status or custody." 'Whether the proceedings were a matrimonial cause within the meaning of the Family Law Act 1975 Cth.']

Ratio Decidendi

The Supreme Court proceedings were properly construed as essentially an application for custody, with the claims for paternity declaration and blood test direction appurtenant to that custody claim. Because an unvaried Family Court order had already awarded care and control of K.J.W. on the basis that she was a child of the marriage, the Supreme Court proceedings necessarily attacked both the foundation and effect of that order. While the Family Court order stood, the exclusive jurisdiction provisions of the Family Law Act 1975 Cth precluded another court from adjudicating on K.J.W.'s status or custody. The stated question was therefore answered No.

Court Disposition

Question in the case stated answered in the negative.

Orders

  • ['Order that the question asked in the case stated be answered as follows: Question: Has the Supreme Court of New South Wales jurisdiction to entertain the proceedings in that Court and to make the declarations sought in proceedings No. 4292 of 1981? Answer: No.']