Cominos v Cominos [1972] HCA 54

Cominos v Cominos [1972] HCA 54

Sections 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959-1966 Cth are valid because the powers they confer on State Supreme Courts to make maintenance, property settlement, ancillary and costs orders in matrimonial causes are judicial powers, or powers ancillary or incidental to the validly invested jurisdiction to hear and determine matrimonial causes. The discretions conferred are not arbitrary: they are exercised in a curial process between parties, by reference to relevant circumstances, accepted principle, and the requirements of justice or what is just and equitable in the matrimonial cause.

Jurisdiction
Australia
Procedural Posture
Matrimonial Cause; Petition for Dissolution of Marriage and Ancillary Relief With Constitutional Validity Question / Cause Removed to the High Court Under S. 40 a of the Judiciary Act; Full Court Determination of Validity of Ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959 1966 Cth
Outcome
The validity question was answered No; the challenged provisions are not invalid.
Legal Topics
['judicial Power' 'investment of State Courts With Federal Jurisdiction' 'validity of Commonwealth Matrimonial Causes Legislation' 'maintenance' 'settlement of Property' 'costs']
['constitutional Law' 'family Law' 'federal Jurisdiction'] ['judicial Power' 'investment of State Courts With Federal Jurisdiction' 'validity of Commonwealth Matrimonial Causes Legislation' 'maintenance' 'settlement of Property' 'costs']

Case Brief

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Procedural Posture

Matrimonial Cause; Petition for Dissolution of Marriage and Ancillary Relief With Constitutional Validity Question / Cause Removed to the High Court Under S. 40 a of the Judiciary Act; Full Court Determination of Validity of Ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959 1966 Cth

Legal Issues

  1. 1 ['Whether ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959-1966 Cth are invalid because they purport to confer non-judicial powers or functions on State Supreme Courts.' 'Whether the powers to order maintenance, settlement of property, ancillary orders and costs in matrimonial causes are judicial powers capable of being invested in State courts under s. 77 (iii.) of the Constitution.']

Ratio Decidendi

Sections 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959-1966 Cth are valid because the powers they confer on State Supreme Courts to make maintenance, property settlement, ancillary and costs orders in matrimonial causes are judicial powers, or powers ancillary or incidental to the validly invested jurisdiction to hear and determine matrimonial causes. The discretions conferred are not arbitrary: they are exercised in a curial process between parties, by reference to relevant circumstances, accepted principle, and the requirements of justice or what is just and equitable in the matrimonial cause.

Court Disposition

The validity question was answered No; the challenged provisions are not invalid.

Orders

  • ['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.' "Order that the petitioner's costs of and incidental to the determination of the said question be paid by the...