Re F; Ex parte F [1986] HCA 41

Re F; Ex parte F [1986] HCA 41

Section 5(1)(e)(i) of the Family Law Act 1975 Cth, insofar as it purports to confer jurisdiction on the Family Court for custody of ex-nuptial children not children of the marriage by birth, legitimation, or adoption, is invalid as beyond the powers given by s. 51(xxi) or s. 51(xxii) of the Constitution. The Family Court lacks jurisdiction over such children, and statutory deeming provisions cannot create such jurisdiction absent the necessary connection to the marriage.

Jurisdiction
Australia
Procedural Posture
Constitutional Application for Prerogative Relief (prohibition and Certiorari) / Final Judgment and Orders
Outcome
Order nisi for writs of prohibition and certiorari made absolute against Cook J.; Attorney-General for Commonwealth ordered to pay prosecutrix' costs.
Legal Topics
['jurisdiction of Family Court' 'validity of Statutory Deeming of Child of Marriage' 'federal Legislative Power on Marriage/divorce' 'custody and Access Orders']
['constitutional Law' 'family Law'] ['jurisdiction of Family Court' 'validity of Statutory Deeming of Child of Marriage' 'federal Legislative Power on Marriage/divorce' 'custody and Access Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Constitutional Application for Prerogative Relief (prohibition and Certiorari) / Final Judgment and Orders

Legal Issues

  1. 1 ["Does s. 5(1)(e)(i) of the Family Law Act 1975 Cth validly extend the definition of 'child of the marriage' to ex-nuptial children for custody jurisdiction under constitutional powers?" 'Does the Family Court have jurisdiction to determine custody/access disputes regarding ex-nuptial children in proceedings between husband and wife?' "Can federal Parliament expand jurisdiction by deeming ex-nuptial children as 'children of the marriage'?"]

Ratio Decidendi

Section 5(1)(e)(i) of the Family Law Act 1975 Cth, insofar as it purports to confer jurisdiction on the Family Court for custody of ex-nuptial children not children of the marriage by birth, legitimation, or adoption, is invalid as beyond the powers given by s. 51(xxi) or s. 51(xxii) of the Constitution. The Family Court lacks jurisdiction over such children, and statutory deeming provisions cannot create such jurisdiction absent the necessary connection to the marriage.

Court Disposition

Order nisi for writs of prohibition and certiorari made absolute against Cook J.; Attorney-General for Commonwealth ordered to pay prosecutrix' costs.

Orders

  • ['Order nisi for writs of prohibition and certiorari made absolute against the Honourable Adrian George Hingston Cook, prohibiting him from proceeding further in Matter No. S.6574 of 1983 in the Family Court of Australia.' 'All current orders made by that Court relating to the custody of or access to the child Y.F....