JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DUNNE (A PSEUDONYM) -v- LLOYD (A PSEUDONYM) [2025] WASCA 119
CORAM: THOMSON P
MITCHELL JA
HALL JA
HEARD: 1 AUGUST 2025
DELIVERED : 11 AUGUST 2025
FILE NO/S: CACV 50 of 2025
BETWEEN: DUNNE (A PSEUDONYM)
Appellant
AND
LLOYD (A PSEUDONYM)
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: JONES J
Citation: [LLOYD (A PSEUDONYM)] and [DUNNE (A PSEUDONYM)] [2025] FCWA 120
File Number : PTW 5273 of 2021
Catchwords:
Family law - Federal jurisdiction - Appeal from parenting orders of the Family Court of Western Australia in relation to an ex-nuptial child made in the exercise of federal jurisdiction in a matter between residents of different States - Whether appeal from those orders to the Court of Appeal division of the Supreme Court of Western Australia is competent - Whether the Court of Appeal has jurisdiction to determine the appeal - Whether the Court of Appeal is required to transfer the appeal proceeding to the Federal Circuit and Family Court of Australia (Division 1)
Legislation:
Commonwealth Constitution, s 75, s 76, s 77
Family Court Act 1997 (WA), s 35, s 36, s 210, s 211
Family Law Act 1975 (Cth), s 61B, s 61C, s 64B, s 65D, s 69H, s 69ZE, s 69ZG, s 69ZH, s 69ZJ
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 26(1)(da)(i)
Judiciary Act 1903 (Cth), s 39, s 79
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4(1), s 7
Result:
Determination that the appeal is competent
Category: A
Representation:
Counsel:
| Appellant | : | M Kearney SC and P J Hannan |
| Respondent | : | P Giles SC and C Huntly |
| Intervener | : | C S Bydder SC and S Walsh |
Solicitors:
| Appellant | : | Bannerman Solicitors |
| Respondent | : | Gillian Marks & Company |
| Intervener | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Ah Yick v Lehmert [1905] HCA 22; (1905) 2 CLR 593
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; (2013) 86 NSWLR 115
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216
Commonwealth v Dalton [1924] HCA 3; (1924) 33 CLR 452
Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570
Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528
Grace v Grace [2014] NSWCA 86; (2014) 85 NSWLR 688
Guan v Li [2022] NSWCA 173; (2022) 371 FLR 531
HBSY Pty Ltd v Lewis [2024] HCA 35; (2024) 98 ALJR 1211
I v Y [2017] WASCA 75
In re Judiciary and Navigation Acts [1921] HCA…
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- AGLC
- Dunne (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119
- Case
- [2025] WASCA 119
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the Court of Appeal had the competence to entertain the appeal from the Family Court's parenting orders and if it was necessary to transfer the appeal to the Federal Circuit and Family Court of Australia under section 69ZJ of the Family Law Act. This required an examination of the interplay between federal and state jurisdictions in family law matters and the implications of section 109 of the Constitution, which deals with the paramountcy of federal laws over state laws.
The court found that section 69ZJ of the Family Law Act does indeed confer federal jurisdiction upon the Family Court and, by extension, upon the Court of Appeal division of the Supreme Court of Western Australia. The court noted that the term 'parental responsibility' in the Act is defined broadly to encompass all duties, powers, responsibilities, and authority parents have in relation to children. Therefore, the jurisdiction conferred by section 69ZJ is not limited to specific powers like those under section 64B(2)(c). The court also held that the potential interaction with state child welfare laws is sufficiently addressed by section 69ZK. Consequently, the appeal should not be transferred to the Federal Circuit and Family Court of Australia but rather be heard by the Court of Appeal, as long as it exercises the federal jurisdiction conferred by section 69ZJ.
The court concluded that if federal jurisdiction is validly conferred upon the Court of Appeal, then under section 109 of the Constitution, there is no room for the exercise of state jurisdiction in the same matter. Therefore, the Court of Appeal was deemed competent to hear the appeal from the Family Court's parenting orders. The appeal was thus allowed, affirming the jurisdiction of the Court of Appeal in such federal matters.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It has been noted that s 69ZJ enlivens the diversity jurisdiction in Minister for Immigration and Multicultural and Indigenous Affairs v B.[6] The above analysis is consistent with the outline of provisions provided in this case.[7][6] Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 [100].[7] Particularly see Minister for Immigration and Multicultural and Indigenous Affairs v B [2]. A further submission was made that the jurisdiction described in s 69ZJ is not as extensive as that conferred for children of a marriage. It was suggested that the conferral of jurisdiction in respect of a matter concerned with the 'parental responsibility in relation to children' was limited to particular powers, such as the power to allocate parental responsibility for a child under s 64B(2)(c). In my view, that is not so. The term 'parental responsibility' is defined widely in s 61B to mean 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. I can discern no particular policy reason why the grant of jurisdiction by s 69ZJ should be limited. It was suggested that the interaction with State child welfare laws might be one reason, but this is adequately adjusted by s 69ZK. For these reasons, I consider that the FCWA is invested with federal jurisdiction in respect of parenting matters between interstate residents by s 69ZJ of the FLA. There have been a number of judicial statements about what occurs when both Federal and State Parliaments confer jurisdiction upon a court to do the same thing.[8] These comments have been made in response to an argument based upon Lorenzo v Carey,[9] where the court accepted that a State court may be invested with federal and non‑federal jurisdiction and, at the election of a litigant, the State court may exercise non‑federal jurisdiction as an alternative to deciding a matter in federal jurisdiction. Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ said:[10]When Federal jurisdiction is given to a State Court and the jurisdiction which belongs to it is not taken away, we see no difficulty in that Court exercising either jurisdiction at the instance of a litigant. [8] See generally LeemingM, Cowen and Zines's Federal Jurisdiction in Australia (5th ed, 2025) 308 ‑ 310.[9] Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243, 252.[10] Lorenzo v Carey (252). In Ffrost v Stevenson,[11] Dixon J said:It has always appeared to me that, once the conclusion was reached that Federal jurisdiction was validly conferred [upon a State court], then under sec 109 it was impossible to hold valid a State law conferring jurisdiction to do the same thing, whether subject to no appeal or subject to appeal in a different manner or to a different tribunal or tribunals, or otherwise producing different consequences.[11] Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 573. Similar comments were made by Walsh J in Felton v Mulligan,[12] with whom Barwick CJ concurred,[13] and by Windeyer J.[14] Barwick CJ summarised the position by saying:[15][I]f federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had. In my opinion, s 109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court.[12] Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 411 ‑ 413.[13] Felton v Mulligan (373).[14] Felton v Mulligan (392 - 394).[15] Felton v Mulligan (373).