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Can the Family Court decide matters of State law? And does it matter?

Introduction

The romantics amongst us have sat in a field picking flowers and asked ourselves the most important question in life, "She / he loves me? She / he loves me not?"

"What on earth has this scenario got to do with the Family Court?" I already hear you abruptly asking. Let me explain.

Whether the Family Court can decide matters of State law has long been a hotly debated topic in the Family Court. Ordinarily the Family Court can only decide Federal matters, for example, matters arising under the Family Law Act (this is referred to as the ‘original jurisdiction’ of the Family Court). Sometimes, however, the Family Court is faced with a case that involves a mix of Federal and State issues.

The question of whether the Family Court can decide matters of State law in circumstances such as this is one of ‘accrued jurisdiction’. Does the Family Court have jurisdiction above and beyond its original jurisdiction to decide matters of State law that are integrally bound up in the Family Court proceedings?

The answer from the courts so far has been, "Yes we do have accrued jurisdiction." "No we don’t have accrued jurisdiction." In short the issue has not been conclusively determined by the High Court of Australia.

The Original Jurisdiction of the Family Court

Section 31 of the Family Law Act 1975 (Cth) gives the Family Court the following jurisdiction:

In matters arising under the Family Law Act (FLA) or under the repealed Act in respect of which matrimonial causes are instituted or continued under the FLA;

In matters arising under the Marriage Act 1961 (Cth) in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act;

In matters arising under a law of a Territory (other than the Northern Territory) concerning:

the adoption of children;
the property of the parties to a marriage or either of them, being matters arising between those parties other than matters referred to in the definition of matrimonial cause in subsection 4(1); or
the rights and status of a person who is an ex-nuptial child, and the relationship of such a person to his parents; and

In matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under the FLA or any other Act.

Subject to such restrictions and conditions (if any) as are contained in the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.

The Accrued Jurisdiction of the Family Court

The concept of accrued jurisdiction was considered in Stack v Coast Securities (No 9) Pty Ltd (1983) 57 ALJR 731. Generally the law of accrued jurisdiction in Australia is that when a court has federal jurisdiction, it also has the power to determine State aspects of any case which involves the exercise of its federal jurisdiction. This accrued power can be exercised where the State aspects of the controversy form an integral part of the federal issue.

It is very important to note that, although it appears that the Family Court does have accrued jurisdiction, there has never been a conclusive High Court determination of this issue (the above case was not directly concerned with the jurisdiction of the Family Court). Furthermore the Family Court has not come to one view on this issue. Over the years various Family Court judges have differed on this issue in many cases.

So what?

After reading about accrued jurisdiction you’re entitled to say, "So what?" Well here’s what-the following is a real life case study of the relevance of accrued jurisdiction.

Last year the Family Court heard a case involving three people: a husband and wife, and another person (‘Mr X’). The husband and Mr X owned a property together. In other words the wife was not one of the legal owners of the property. However on the break up of her marriage she was entitled to a beneficial interest in the property. So the Family Court was faced with the issue - what do we do about Mr X? What do we do about someone who isn’t married to either of the other two parties to the case?

In this particular case the Family Court decided that it had the accrued jurisdiction to deal with Mr X; the Family Court was no different from, say, the Federal Court which has accrued jurisdiction.

The end result of the case was that to exercise the jurisdiction of the court regarding marriage and do justice to the wife, then the status of Mr X’s interest had to be determined. The court decided that the husband and Mr X owned the property in equal shares. This meant that the wife’s share of the proceeds of the sale of the house came out of her former husband’s 50% interest in the property.

March, 2002

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