P v P [1994] HCA 20

P v P [1994] HCA 20

The Family Law Act 1975 (Cth) confers on the Family Court of Australia jurisdiction (welfare of a child of a marriage) sufficient to authorise medical treatment, including sterilisation, of an intellectually disabled child. Where the Family Court makes such an order, s.109 of the Constitution operates to invalidate State law (here s.35(1) Guardianship Act 1987 (NSW)) to the extent it would prohibit or penalise the treatment authorised by the Family Court. Such conferral is consistent with the Constitution and a valid exercise of power under ss.51(xxi), (xxii).

Jurisdiction
Australia
Procedural Posture
Case Stated / Reserved Questions of Law in Proceedings Removed From Family Court of Australia to High Court by Order Under S.40(1) Judiciary Act 1903 (cth)
Outcome
Reserved questions answered as stated; majority in favour of affirmative answers to questions 1 through 5; minority (Brennan, Dawson JJ) dissenting.
Legal Topics
['sterilisation of Intellectually Disabled Minors' 'welfare Jurisdiction of Family Court' 'inconsistency Between Commonwealth and State Laws' 'validity and Operation of Family Law Act 1975 (cth)' 'operation of S.109 Constitution' 'state Guardianship Laws and Federal Courts']
['family Law' 'constitutional Law' 'health Law'] ['sterilisation of Intellectually Disabled Minors' 'welfare Jurisdiction of Family Court' 'inconsistency Between Commonwealth and State Laws' 'validity and Operation of Family Law Act 1975 (cth)' 'operation of S.109 Constitution' 'state Guardianship Laws and Federal Courts']

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

Case Stated / Reserved Questions of Law in Proceedings Removed From Family Court of Australia to High Court by Order Under S.40(1) Judiciary Act 1903 (cth)

Legal Issues

  1. 1 ['Does the Family Law Act 1975 (Cth) empower the Family Court to authorise medical treatment (including sterilisation) for a child of a marriage in NSW contrary to the Guardianship Act 1987 (NSW)?' 'Is such a conferral of power consistent with Chapter III of the Constitution?' 'Is it a valid exercise of Commonwealth legislative power?' 'Does s.109 of the Constitution invalidate the relevant State law to the extent of inconsistency?' 'Will Family Court orders operate to authorise medical practitioners to carry out the procedure in NSW?']

Ratio Decidendi

The Family Law Act 1975 (Cth) confers on the Family Court of Australia jurisdiction (welfare of a child of a marriage) sufficient to authorise medical treatment, including sterilisation, of an intellectually disabled child. Where the Family Court makes such an order, s.109 of the Constitution operates to invalidate State law (here s.35(1) Guardianship Act 1987 (NSW)) to the extent it would prohibit or penalise the treatment authorised by the Family Court. Such conferral is consistent with the Constitution and a valid exercise of power under ss.51(xxi), (xxii).

Court Disposition

Reserved questions answered as stated; majority in favour of affirmative answers to questions 1 through 5; minority (Brennan, Dawson JJ) dissenting.

Orders

  • ['Yes, the Family Law Act 1975 (Cth) purports to confer such power on the Family Court.' 'Yes, such conferral is consistent with Chapter III of the Constitution.' 'Yes, it is a valid exercise of the Commonwealth legislative power.' 'Yes, by virtue of s.109 of the Constitution, the Family Law Act 1975 (Cth)...