Dunne (a pseudonym) v Lloyd (a pseudonym)
[2025] WASCA 119
•11 AUGUST 2025
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
Gao v Perry [2020] NSWCA 15
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 20; (1921) 29 CLR 257
[Lloyd (a pseudonym)] and [Dunne (a pseudonym)] [2025] FCWA 120
Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243
Macleod v Australian Securities and Investment Commission [2002] HCA 37; (2002) 211 CLR 287
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365
Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457
MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601
OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141
R v Whitfeld; Ex parte Quon Tat [1913] HCA 7; (1913) 15 CLR 689
Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533
THOMSON P:
This case raises an important question of principle concerning the jurisdiction of this court in respect of appeals from a single judge of the Family Court of Western Australia (FCWA) relating to a parenting matter between unmarried parents. The question concerns proceedings in that court between residents of different States which are, for that reason, in the diversity jurisdiction of the FCWA. Should such an appeal be made to this court or to the Full Court of the Federal Circuit and Family Court of Australia (Division 1) (Full Family Court)?
In my view, the answer is that an appeal should be made to this court, and cannot be made to the Full Family Court.
Background
This is an appeal from orders made in parenting proceedings in the FCWA. The matter was tried between 30 September 2024 and 11 October 2024. Judgment was delivered on 29 May 2025.
The proceedings concern the parenting of William (a pseudonym). He was born in 2020 and is just about to have his fifth birthday. William's parents were in a de facto relationship, but his parents separated before his birth. At the time of trial, his mother (the appellant) lived in Perth, Western Australia, while his father (the respondent) resided in rural South Australia.
Prior to trial, William lived with his mother, and his father was provided with certain access entitlements pursuant to orders of the FCWA. As a result of the proceedings, the trial judge made 'reversal of care' orders which provided for William to commence residing with his father in rural South Australia, and for his father to have sole parental responsibility. The orders provided for some limited access by William's mother.
When the trial judge gave his decision, he expressed the view that the respondent had invoked the non‑federal jurisdiction of the FCWA. He said:[1]
In my view, [the father] regularly invoked the non‑federal jurisdiction of this Court when he commenced proceedings on 24 June 2021 because at all material times [William] has been present in Western Australia and [the mother] has been resident in Western Australia in accordance with s 36(3) of the Family Court Act 1997 (WA) and the law to be applied is that Act because [William] is not a child of a marriage.
[1] [Lloyd (a pseudonym)] and [Dunne (a pseudonym)] [2025] FCWA 120 [24].
By an appeal notice dated 13 June 2025, but filed on 16 June 2025, the mother appealed against the orders made by the trial judge to the Court of Appeal. By an application in the appeal, dated 18 June 2025, almost three weeks after the trial judge made the 'reversal of care' orders and after these had been carried into effect, the mother applied for an order staying the execution of the trial judge's orders made on 29 May 2025.
By the date of this application, William had already commenced residence with his father in South Australia. Consequently, the mother's application also seeks a mandatory injunction requiring the father to return William to Western Australia. The application also seeks an order staying the proceedings in the FCWA pending the disposition of the appeal.
After making orders on the papers for submissions as to how the matter should proceed, it was brought on for an urgent directions hearing on 2 July 2025 before myself and Hall JA. As a result, the stay application was listed for hearing on 1 August 2025.
After the directions hearing on 2 July 2025, and despite it not being raised by either party, the court became concerned about the operation of s 26(1)(da)(i) and s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA), and the operation of s 7(5) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) (JCCVA). The court is always obliged to consider the question of its jurisdiction, and satisfy itself that it exists. See I v Y;[2] Boensch v Pascoe.[3]
[2] I v Y [2017] WASCA 75 [8].
[3] Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 [10].
As a result, the court directed the parties to file submissions about its jurisdiction to hear and determine the stay application and the appeal. It listed the question of whether the appeal notice ought to be struck out, or whether the court should transfer the proceedings to the Full Family Court, for hearing on 1 August 2025, on the same day as the stay application. Given the nature of the arguments, the court required notices pursuant to s 78B of the Judiciary Act 1903 (Cth) to be issued to the Attorneys‑General of the Commonwealth and of the States by the appellant. It was satisfied that this had occurred, by reason of an affidavit filed on behalf of the appellant.
Diversity jurisdiction in the FCWA
The Commonwealth's constitutional power to legislate in respect of parenting children derives from s 51(xxi) and s 51(xxii) of the Commonwealth Constitution, which confers power upon the Commonwealth Parliament to pass laws with respect to marriage; and with respect to divorce and matrimonial causes, including in relation thereto parental rights and the custody and guardianship of infants. As well, all States apart from Western Australia have generally referred their legislative powers in respect of parenting children to the Commonwealth, pursuant to s 51(xxxvii) of the Constitution.[4] This enables Part VII of the Family Law Act 1975 (Cth) (FLA) to provide for parenting in respect of both marital and ex‑nuptial children, except in Western Australia.
[4] Commonwealth Powers (Family Law ‑ Children) Act 1986 (NSW), Commonwealth Powers (Family Law ‑ Children) Act 1986 (Vic), Commonwealth Powers (Family Law) Act 1986 (SA), Commonwealth Powers (Family Law) Act 1987 (Tas), Commonwealth Powers (Family Law ‑ Children) Act 1990 (Qld).
In Western Australia, the Family Court Act 1997 (WA) (FCA) provides for the FCWA, and other State courts, to exercise federal jurisdiction invested in them, essentially in respect of married couples, by or under the FLA. It also provides for the FCWA, and other State courts, to exercise non‑federal jurisdiction conferred on them by or under the FCA. See s 3 of the FCA. Section 35 of the FCA provides that the FCWA has, throughout the State, the 'federal jurisdiction' with which it is invested by or under the FLA or any other Commonwealth Act and any subsidiary legislation in force under such an Act.
Section 39 of the Judiciary Act has the effect that all diversity jurisdiction is federal.[5] This has come about in two stages.
[5] See Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020) 220; LeemingM, Cowen and Zines's Federal Jurisdiction in Australia (5th ed, 2025) 128 ‑ 131.
The first stage depends upon the operation of s 39(1) of the Judiciary Act. This declares as follows:
The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.
Section 75(iv) of the Constitution provides that the High Court has diversity jurisdiction:
In all matters:
…
(iv)[b]etween States, or between residents of different States, or between a State and a resident of another State;
…
the High Court shall have original jurisdiction.
As s 75(iv) of the Constitution provides that the High Court has diversity jurisdiction, and this is not affected by s 38 of the Judiciary Act, the effect of s 39(1) is to make that diversity jurisdiction exclusive of State courts.
The second stage of ensuring all diversity jurisdiction is federal involves the operation of s 39(2) of the JudiciaryAct, which provides:
The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject‑matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:
(a)A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
Special leave to appeal from decisions of State Courts through State law prohibits appeal
(c)The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.
The effect of s 39(2) is that it conditionally re‑invests the exclusively federal jurisdiction referred to in s 39(1) (including federal diversity jurisdiction) back into State courts, but upon the terms set out in paragraphs (a) and (c).
That general conferral of diversity jurisdiction by the operation of s 39(2) of the Judiciary Act is necessarily itself subject to any subsequent federal law specifically conferring federal jurisdiction, such as s 69ZJ of the FLA.
By s 69ZJ of the FLA, federal jurisdiction is invested in the FCWA in respect of the children of interstate partners. This section provides:
In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters between residents of different States, being matters with respect to:
(a)the maintenance of children and the payment of expenses in relation to children or child bearing; or
(b)parental responsibility in relation to children.
This provision confers additional jurisdiction on a court which is already invested with jurisdiction under Part VII of the FLA. The FCWA is such a court. Section 69H(2) of the FLA invests federal jurisdiction in the FCWA in relation to matters arising under Part VII of the FLA.
The appellant suggested that there was no conferral of jurisdiction by virtue of s 69ZJ, but accepted that the adjudication of disputes between interstate residents by the FCWA involved federal jurisdiction. The appellant submitted that this was due to federal jurisdiction being conferred upon the FCWA by s 39(2) of the Judiciary Act.
The basis for this submission was that s 69ZE(1) provides that Part VII of the FLA only extends to States which have referred their legislative powers in respect of children to the Commonwealth, which does not include Western Australia. However, s 69ZH gives effect to Part VII, at least in respect of children of a marriage, in all parts of Australia. As a corollary, s 69H(2) therefore operates to invest federal jurisdiction in the FCWA in relation to matters arising under Part VII concerning children of a marriage. Hence, the FCWA has jurisdiction invested in it or conferred on it under Part VII. That means that s 69ZJ then operates to confer jurisdiction on it as well, in matters between interstate residents with respect to child maintenance and expenses, and parental responsibility for children.
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.
Conferral of State and federal jurisdiction upon a court
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).
Gibbs J, who was also a member of the court in Felton v Mulligan but who did not need to decide the issue, also subsequently endorsed the observations of Walsh J in Moorgate Tobacco Co Ltd v Philip Morris Ltd.[16] The position of Barwick CJ in Felton v Mulligan was also endorsed by Gleeson CJ, Gaudron and Gummow JJ in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd.[17]
[16] Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457, 471 ‑ 472.
[17] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [7].
The matter was then put beyond doubt, at least in respect of matters within the High Court's original jurisdiction, in MZXOT v Minister for Immigration and Citizenship.[18] Gleeson CJ, Gummow and Hayne JJ said:[19]
So long as ss 38 and 39(1) of the Judiciary Act stand unrepealed then, with respect to matters falling within the jurisdiction of the High Court, and in the words of Isaacs J, 'no State jurisdiction can exist'. (footnotes omitted)
[18] MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601.
[19] MZXOT [23].
In the same case, Heydon, Crennan and Kiefel JJ said:[20]
Once a State Supreme Court is validly invested with federal jurisdiction, pursuant to s 77(iii), then under s 109 of the Constitution a State law conferring jurisdiction to do the same thing is no longer valid or is inoperative. Section 39(1) of the Judiciary Act operates to remove the jurisdiction of State Supreme Courts in all nine matters enumerated in ss 75 and 76 in which this Court has original jurisdiction, and additional jurisdiction conferred by Parliament, and then invests jurisdiction in those State courts in some, but not all, of those enumerated matters. Thereafter the jurisdiction of this Court (except as otherwise provided by s 39) is exclusive of that of State courts. (footnotes omitted)
[20] MZXOT [180].
In the present circumstances, where the jurisdiction exercised by the trial judge is based upon federal statute law, the appeal provisions of the FCFCA apply, and the FCA expressly does not apply. This is by reason of s 210 of the FCA, which states:
In respect of the federal jurisdiction of the Family Court of Western Australia, and of the courts of summary jurisdiction referred to in section 38, the appeal provisions of the Family Law Act, the Federal Circuit and Family Court of Australia Act 2021 (Commonwealth) and the Bankruptcy Act apply.
Ultimately, no party submitted that there was any inconsistency between the conferral of diversity jurisdiction upon the FCWA by s 69ZJ of the FLA and the provisions of the FCA (particularly s 36). Specifically, it was accepted that s 210 of the FCA provided that various federal statutes should apply to any appeal from a decision of the FCWA in respect of its federal jurisdiction. It was also agreed that s 211 of the FCA should govern any appeals in respect of the non‑federal jurisdictions of the FCWA. The Solicitor General of WA, intervening on behalf of the Attorney General of WA, accepted that s 211 (in relation to matters in non‑federal jurisdictions) must be read as subject to s 210 (in respect of matters in federal jurisdiction) in any appeals from a matter in the FCWA.
Law to be applied in federal jurisdiction
Conferral of federal jurisdiction does not dictate what law should be applied to adjudicating a matter within federal jurisdiction. In the absence of any relevant federal law, the law which should be applied is the applicable State law. To the extent that this law concerns the manner of the exercise of jurisdiction, the State law is applied by s 79 of the Judiciary Act. Otherwise, to the extent that the State law defines the substantive rights and duties of a person, as opposed to the manner of exercise of jurisdiction, a court exercising federal jurisdiction simply applies the relevant State law. See Masson v Parsons;[21] Rizeq v Western Australia.[22]
[21] Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 [30].
[22] Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1 [103], [105].
In Rizeq, Bell, Gageler, Keane, Nettle and Gordon JJ said:[23]
[I]t is commonplace that resolution of a matter within federal jurisdiction may involve application both of Commonwealth law and of State law. Indeed it can happen that a matter in federal jurisdiction is resolved entirely through the application of State law.
[23] Rizeq [55].
Whether there is any relevant federal law which should be applied in the present case is a matter which may generate different views. The alternatives were described by Dr Dickey in his note 'Applicable law in child matters involving residents of different States' (2002) 76 ALJ 288, which was considered by the trial judge.
The parties have proceeded upon the basis that there is no relevant federal law which governs the exercise of the jurisdiction conferred by s 69ZJ, given that there has not been any referral of power in respect of ex‑nuptial children by the State of Western Australia. This is consistent with the course adopted by the trial judge. I will adopt that approach, in the absence of any party identifying any relevant federal law.
On this basis, the applicable State law is contained in Part 5 of the FCA. Part 5 prescribes the State law where there is a child of unmarried parents, the child is present in the State and one parent is resident in the State: s 36(2) and (3) of the FCA. These conditions were all met in this case at the time of the trial. It follows that, in hearing and determining this case, the trial judge was exercising federal jurisdiction, but applying State statute law in the exercise of that jurisdiction.
While s 36 states that it defines 'non‑federal jurisdictions', this is expressly subject to the FLA and to the operation of the FCA. As explained, s 69ZJ of the FLA confers federal jurisdiction upon the FCWA in the circumstances of the present case, but the question then becomes what State law applies. Taking the course adopted by the trial judge, the answer is supplied by Part 5 of the FCA, as indicated by s 36(2) and (3).
Appeal provisions
Section 26(1)(da)(i) of the FCFCA provides that the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine appeals from a judgment of the FCWA 'exercising original or appellate jurisdiction under' the FLA (other than Part VIIIC). This appellate jurisdiction is to be exercised by a Full Court of the Federal Circuit and Family Court of Australia (Division 1): s 32(1)(b) of the FCFCA.
A particular point should be observed about the way in which s 26(1)(da)(i) is expressed. It relates to appeals from the FCWA exercising 'original or appellate jurisdiction' under the FLA and other specified legislation, rather than appeals from the FCWA 'in a matter arising under' the FLA or other specified legislation. I consider that the difference in phraseology is significant.
As explained, the FCWA may be exercising federal jurisdiction when it decides a matter, but that matter may involve the application of Western Australian statute law such as the FCA. In those circumstances, the matter may 'arise under' the FCA, in the sense that the term 'arise under' has been used for the purposes of s 76(ii) of the Constitution. This is discussed further below. However, the matter may involve the exercise of jurisdiction under the FLA.
The FCA could not, and does not, prescribe any direct right of appeal from the FCWA to this court relating to a situation where the FCWA has exercised federal jurisdiction. That is because a State Parliament may not confer federal jurisdiction on a State court. However, notwithstanding that there is no direct right of appeal to the Court of Appeal from the exercise of federal jurisdiction by the FCWA, this court is cross‑vested with jurisdiction to entertain an appeal from Jones J in the exercise of federal jurisdiction (subject always to the limits imposed by the JCCVA) following the course of reasoning set out in OHB v MTM.[24] This is based upon s 4(1) of the JCCVA.
[24] OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95 [10] ‑ [14].
Section 4(1) of the JCCVA provides:
Where:
(a)… the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter … ; and
(b)the Supreme Court of a State … would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c)in the case of a Supreme Court of a State … ‑ that court is invested with federal jurisdiction with respect to that matter.
As explained in OHB v MTM:[25]
In the present case, the condition in s 4(1)(a) is satisfied because the [Federal Circuit and Family Court of Australia (Division 1)] has jurisdiction to make orders in relation to this child, and the Full Court of the [Federal Circuit and Family Court of Australia (Division 1)] has jurisdiction to entertain an appeal from the decision of a single Judge of that Court or a single Judge of the Family Court of Western Australia in relation to this child. The condition in s 4(1)(b) is also satisfied, in the present case, because the Supreme Court of this State 'would not, apart from this section, have jurisdiction' to entertain the appeal, for the reasons mentioned above. This is a civil matter and therefore s 4(1) invests jurisdiction in the Supreme Court.
[25] OHB v MTM [12].
The effect of this analysis is to provide cross‑vested appellate jurisdiction to this court. However, the exercise of this jurisdiction by this court is regulated by provisions contained in s 7 of the JCCVA.[26]
[26] Generally see Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020) 171 ‑ 172.
Section 7(3) states:
Where it appears that the only matters for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory are matters other than matters arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by, the Full Court of the Supreme Court of that State or Territory. (emphasis added)
Section 7(5) provides:
Subject to subsections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory (not being a proceeding to which subsection (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by:
(a)the Full Court of the Federal Court or of the Federal Circuit and Family Court of Australia (Division 1), as the case requires; or
(b)with special leave of the High Court, the High Court.
(emphasis added)
Section 7(7) is in the following terms:
Where:
(a)the Full Court of the Supreme Court of a State or Territory commences to hear a proceeding by way of an appeal; and
(b)before the Court determines the proceeding, it appears to the Court that the proceeding is a proceeding to which subsection (5) applies;
the Court shall, unless the interests of justice require that the Court proceed to determine the proceeding, transfer the proceeding to the Full Court of the Federal Court or of the Federal Circuit and Family Court of Australia (Division 1), as the case requires.
For the sake of completeness, s 7(8) states:
Where the Full Court of the Supreme Court of a State or Territory:
(a)determines a proceeding to which subsection (5) applies as mentioned in subsection (7); or
(b)through inadvertence, determines a proceeding to which subsection (5) applies;
nothing in this section invalidates the decision of that court.
For the purposes of s 7(3) and s 7(5), the present case involves a proceeding by way of an appeal from 'a decision of a single judge of the Supreme Court of a State', having regard to the fact that s 3(2) provides that a reference to the Supreme Court of a State includes, if there is a State Family Court of that State, a reference to that State Family Court.
In setting out s 7(3) and s 7(5), I have emphasised that the operation of each of these provisions depends upon whether there is a 'matter arising under an Act specified in the Schedule'. The Schedule to the JCCVA prescribes 13 Commonwealth laws. Generally, these are significant pieces of Commonwealth legislation such as the FLA, the Bankruptcy Act 1966 (Cth) and various pieces of intellectual property legislation (such as the Copyright Act 1968, the Designs Act 2003, the Patents Act 1990 and the Trade Marks Act 1955).
Where there is a matter arising under one of these laws, s 7(5) and s 7(7) of the JCCVA operate to ensure, as far as possible, that the matter will be determined by a federal court. This will ensure a consistent approach to interpretation of the statutes referred to in the Schedule. Conversely, where an appeal does not involve any matter arising under one of the pieces of legislation mentioned in the Schedule, s 7(3) of the JCCVA requires the proceeding to be determined by a State or Territory court.
In HBSY Pty Ltd v Lewis,[27] the High Court confirmed that s 7(5) of the JCCVA applies wherever a matter arising for determination in an appeal is a matter arising under one of the Scheduled Acts, irrespective of the source of the State court's original jurisdiction.
[27] HBSY Pty Ltd v Lewis [2024] HCA 35; (2024) 98 ALJR 1211 [106], [157].
As well, in HBSY, the plurality observed that the phrase 'matter arising under' an Act adopts the language of s 76(ii) of the Constitution.[28] Section 76(ii) refers to laws conferring original jurisdiction on the High Court in 'any matter … [a]rising under' the laws made by the Commonwealth Parliament.
[28] HBSY [106]. See also [157] (Jagot J). See also Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; (2013) 86 NSWLR 115 [5]; Grace v Grace [2014] NSWCA 86; (2014) 85 NSWLR 688 [16]; Guan v Li [2022] NSWCA 173; (2022) 371 FLR 531 [42].
Whether there is a matter 'arising under' a Commonwealth law is a question which has been considered many times for the purposes of s 76(ii). In Citta Hobart Pty Ltd v Cawthorn,[29] the plurality said:
Amongst the circumstances in which a justiciable controversy answers the description in s 76(ii) of a matter 'arising under' a law made by the Commonwealth Parliament is where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy. … [T]he assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn. (footnotes omitted)
[29] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 [31].
Taking the view that the expression 'arising under' in s 7(5) of the JCCVA is to be given the same meaning as in Chapter III of the Constitution is appropriate where the question concerns whether a matter is in federal jurisdiction as a result of the nature of the dispute or its subject matter. It means that the exclusive appellate jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) relates to the operation of the 13 prescribed federal statutes. As explained, that court may ensure that these statutes are interpreted consistently.
However, there is a complexity in the present case. As explained, the FCWA was invested with federal jurisdiction to determine this case by reason of s 69ZJ of the FLA. As set out above, it follows that there is a right of appeal from a judgment of the FCWA to the Full Family Court by reason of s 26(1)(da)(i) of the FCFCA. The jurisdiction of the Full Family Court is then cross‑vested to the WA Court of Appeal by the operation of s 4(1) of the JCCVA. By this route, federal legislation confers a right of appeal from the decision of a single judge of the FCWA to this court in federal jurisdiction, where the State Parliament could not have done so. Moreover, that right of appeal is exclusive to this court for the following reason.
As the FCWA applied WA statute law in the exercise of federal jurisdiction, the matter in this case does not involve a situation, to the use the words from Citta quoted above, 'where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy'. On that basis, the matter is not one which is 'arising under' an Act specified in the Schedule to the JCCVA ‑ as that expression is understood for the purposes of s 76(ii) of the Constitution. In that circumstance, s 7(3) of the JCCVA provides that the appeal must be brought to the WA Court of Appeal.
This operation of the applicable statutory provisions has the consequence that an appeal from a matter in federal diversity jurisdiction heard by the FCWA, but applying State statute law, must be heard and determined by this court.
Taking a step back, that is an appropriate outcome, because it means that this court is responsible for the interpretation and application of State statute law. That outcome does not in any way impinge upon the aim of the JCCVA in ensuring that the interpretation
of the 13 federal statutes listed in the Schedule to the JCCVA is carried out consistently by a federal court.
I should address one further matter. It might be thought that a parenting dispute which the FCWA hears and determines pursuant to federal jurisdiction conferred upon it by s 69ZJ of the FLA is a 'matter arising under' the FLA. That would mean that s 7(3) of the JCCVA does not apply to an appeal to this court, and that this court would be obliged to comply with s 7(5) and s 7(7) in relation to an appeal made to it in its cross‑vested appellate jurisdiction.
While I was initially attracted to this view, on reflection I do not think it to be correct. The difficulty is that s 69ZJ confers jurisdiction, or authority to decide, a matter. The matter exists separately from the authority to decide it. Accordingly, a matter may arise under a law, where the law shapes or informs the nature of the dispute which comprises the matter. The authority to decide that dispute cannot itself inform the nature of the dispute.
Moreover, the consequences of the view I now prefer mean that a State court is responsible for appeals which involve the interpretation and application of State law, and a federal court is responsible for the interpretation and application of federal law. That seems to me a sensible outcome, and one which accords with the intention of the JCCVA.
Conclusion
For these reasons, the present appeal is competent and could only have been pursued in this court.
MITCHELL JA:
Summary
The following questions arise in this appeal from parenting orders made in relation to a child of unmarried parents by the Family Court of Western Australia (Family Court) in the exercise of that court's federal jurisdiction in matters between residents of different States:
1.Is the appeal to this court competent?
2.Does this court have jurisdiction and power to determine this appeal?
3.Is this court required to transfer the appeal proceedings to the Federal Circuit and Family Court of Australia (Division 1) (Full Family Court)?
In my view the present appeal is competent, this court has jurisdiction and power to determine the appeal, and this court is not required to transfer the appeal proceedings to the Full Family Court.
Background
The present appeal is from parenting orders made by the trial judge in the Family Court on 29 May 2025 in relation to a child it is convenient to refer to by the pseudonym 'William'. William is the child of the appellant mother and the respondent father. William was born in 2020 and was 4 years 9 months old at the date the primary orders were made. The relationship between the mother and father began in 2019 and ended in December 2020. They were never married. At all material times, the mother has resided in Western Australia and the father has resided in South Australia.
In June 2021, the father commenced the primary proceedings in the Family Court. At that time, and up until the primary orders were made on 29 May 2025, William lived with the mother and had varying degrees of contact with the father and members of the paternal family. The mother and father have a highly conflictual relationship and have been largely unable to agree upon arrangements for William's care.
A trial of the question of the final parenting orders which should be made in the primary proceedings was conducted before the trial judge over 10 days from 30 September 2024 to 11 October 2024. Judgment was reserved. Judgment was delivered and reasons for decision were published by the trial judge on 29 May 2025. The primary orders made on 29 May 2025 provided for the father to have sole parental responsibility for William and for William to live with the father. The primary orders also provided that, until further order, the mother would spend time with William and have electronic communication with him 'as agreed between the [mother and father] failing which [the mother] shall have liberty to apply to the court'. The trial judge proposed in his reasons that he would case manage William's transition and contact with the mother.
On 16 June 2025, the mother instituted an appeal to this court from the primary orders made on 29 May 2025. By application in the appeal filed on 18 June 2025 (stay application), the mother seeks:
(a)a stay of the primary orders pending disposition of the appeal;
(b)a mandatory injunction requiring the father to return William to Western Australia; and
(c)an order staying the primary proceedings pending disposition of the appeal.
On 2 July 2025, Thomson P and Hall JA made an urgent appeal order and programmed the appeal for a hearing on 10 September 2025. They also programmed the stay application for a hearing on 23 July 2025. The latter hearing date was subsequently vacated to allow certain matters to be attended to. A Registrar's Notice to Attend listed the appeal for hearing on 1 August 2025 for the court to consider the mother's stay application and:
Whether the appeal notice should be struck out as incompetent or whether the proceedings should be transferred to the [Full Family Court], having regard to the Court's jurisdiction.
The passage just quoted concerns the conundrum which is presented by the fact that the mother is, and has at all material times been, a resident of Western Australia and the father is, and has at all material times been, a resident of South Australia. As such, the primary proceedings necessarily involved the exercise of federal jurisdiction in a matter between residents of different States within the meaning of s 75(iv) of the Commonwealth Constitution. This significantly complicates the identification of the mother's right of appeal and this court's jurisdiction to determine the appeal and raises a question of whether the appeal should be transferred to the Full Family Court.
Resolving those issues requires consideration of complex intertwined provisions of the Constitution, the Judiciary Act 1903 (Cth), the Family Law Act 1975 (Cth), the Family Court Act 1997 (WA), the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act), and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act).
No doubt the mother and father would prefer this court to focus its attention on the substantive question of the parenting orders which should apply to William. However, this court is required to satisfy itself of its own jurisdiction and the competence of the appeal, and to comply with any statutory directive to transfer the proceedings. It is therefore necessary to trace through the relevant provisions before this court can commence consideration of the substantive merits of the case.
The matter which is the subject of these proceedings
An appropriate starting point is to identify the 'matter' which is the subject of the current proceedings. It is established that the references to a 'matter' in ch III of the Constitution are not to a legal proceeding, but rather are to the subject matter for determination in a legal proceeding.[30] A 'matter' is a justiciable controversy, identifiable independently of the proceedings which are brought for its determination, and encompasses all claims made within the scope of the controversy.[31] The conferral of federal jurisdiction in a matter is the conferral of judicial power to determine the whole of the controversy.
[30] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265.
[31] Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570, 603.
In this case the relevant matter is the justiciable controversy between the mother and the father as to the parenting orders which should be made in relation to William.
As the mother is a resident of Western Australia and the father is a resident of South Australia, the matter is to be characterised as a matter between residents of different States within the meaning of s 75(iv) of the Constitution. That provision confers original jurisdiction on the High Court of Australia in those matters. Section 77(i) empowers the Commonwealth Parliament to define the jurisdiction of any federal court other than the High Court with respect to those matters. Section 77(iii) empowers the Commonwealth Parliament to invest any court of a State with federal jurisdiction with respect to those matters.
Section 39(1) of the Judiciary Act most relevantly provides for the jurisdiction of the High Court in matters between residents of different States to be exclusive of the jurisdiction of any court of a State except as provided in s 39 of that Act. Therefore, the authority of a State court to adjudicate upon a controversy constituting a matter between residents of different States can only be conferred by a Commonwealth statute investing the State court with federal jurisdiction in the matter.
Applicable substantive law
I turn now to identify the substantive law which will govern the resolution of the controversy constituting the matter.
Both pt 5 of the Family Court Act and pt VII of the Family Law Act provide for parenting orders in relation to a child. The provisions generally mirror each other.[32]
[32] Amendments to the Family Law Act were made by the Family Law Amendment Act 2023 (Cth) and came into operation on 6 May 2024. At least broadly equivalent amendments were made to the Family Court Act by the Family Court Amendment (Commonwealth Reforms) Act 2024 (WA). However, those State amendments did not come into force until 10 February 2025. Therefore, between 6 May 2024 and 10 February 2025 (ie at the time of trial of the primary proceedings but not at the time the primary orders were made) there was a substantive difference in the State and Commonwealth provisions dealing with the making of parenting orders.
Both pt 5 of the Family Court Act and pt VII of the Family Law Act are expressed as applying to children generally.
For example, s 61C of the Family Law Act provides that each of the parents of a child who is not 18 has parental responsibility for the child subject to any order of a court for the time being in force. Section 61B of that Act defines 'parental responsibility' in the following terms:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61D of the Family Law Act provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child. Section 64B of the Family Law Act defines a parenting order to be an order under pt VII of that Act dealing with matters mentioned in s 64B(2), which include:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
…
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child[.]
Leaving aside orders for the maintenance of a child (for which special provision is made):
1.Section 65C of the Family Law Act provides for the persons who may apply for a parenting order, which includes either or both of the child's parents.
2.Section 65D of the Family Law Act provides for the court to make such parenting order as it thinks proper.
However, s 69ZE, s 69ZG and s 69ZH of the Family Law Act provide for the extent of operation of the provisions of pt VII of that Act in Australian States and territories. The effect of s 69ZE and s 69ZG is that pt VII applies on its terms in all States and mainland territories other than Western Australia, which has not referred legislative power to the Commonwealth Parliament or adopted pt VII of the Family Law Act. In Western Australia, under s 69ZH(2), most of the provisions of pt VII have the effect that they would have if:
(a)each reference to a child were confined to a child of a marriage; and
(b)each reference to the parents of a child were confined to the parties to the marriage.
Further, under s 69ZH(3), those provisions of pt VII only have effect so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage.
So far as they concern the parental responsibility of the parties to a marriage for a child of the marriage, the equivalent provisions of the Family Court Act might be inoperative under s 109 of the Constitution for inconsistency with the Family Law Act. It is unnecessary to finally resolve any inconsistency question in this case. However, the provisions of pt 5 of the Family Court Act equivalent to those identified above clearly can apply in Western Australia in relation to a child who is not a child of a marriage (in respect of whom the relevant provisions of pt VII of the Family Law Act do not apply in Western Australia). As William is not a child of a marriage, pt VII of the Family Law Act did not apply in Western Australia to authorise the making of a parenting order in relation to him under that Act.
Section 36(3) of the Family Court Act provides for the Family Court to make a parenting order, other than a child maintenance order, in relation to a child who is then present in Western Australia where the applicant or respondent in the proceedings in which the order is sought is resident in Western Australia. In the present case, at the time the primary orders were made, William was present in Western Australia and the mother was resident in Western Australia.
As discussed in Rizeq v The State of Western Australia,[33] the substantive provisions of State law apply to govern the rights of the parties even when the court is exercising federal jurisdiction. However, a State law cannot govern the exercise by a court of federal jurisdiction, including as to the powers that a court has in the exercise of federal jurisdiction and how or in what circumstances those powers are to be exercised.[34] To the extent that the provisions of the Family Court Act dealing with the making of parenting orders bear the latter character, they will depend on s 79 of the Judiciary Act for their application in a matter between residents of different States.
[33] Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1.
[34] Rizeq [103].
That is, at the time the primary orders were made, the substantive rights, duties and liabilities of the mother and father in relation to William were governed by the provisions of the Family Court Act either applying of their own force as State law or applied under s 79 of the Judiciary Act. They were not governed by the provisions of pt VII of the Family Law Act. Nor did they depend on the provisions of the Family Law Act for their enforcement.
Family Court's federal jurisdiction to determine the matter
For the above reasons, although the power to make a parenting order in relation to William was conferred by the Family Court Act provisions, the justiciable controversy about what parenting orders should be made in relation to William is a matter in federal jurisdiction. It is a matter in federal jurisdiction because it is a matter between residents of different States within the meaning of s 75(iv) of the Constitution. The Family Court's authority to determine that controversy must therefore be located within federal law.
The Family Court's federal jurisdiction in the present matter was conferred by both of the following Commonwealth statutory provisions:
1.Section 39(2) of the Judiciary Act, which relevantly provides, subject to presently immaterial exceptions and conditions, that the 'several Courts of the States shall within the limits of their several jurisdictions … be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it'. This invests the Family Court, as a State court, with federal jurisdiction in relation to parental responsibility for a child of unmarried parents (a matter within the limits of that court's jurisdiction) in matters between residents of different States.
2.Section 69ZJ of the Family Law Act, which relevantly provides:
In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters between residents of different States, being matters with respect to:
(a) the maintenance of children and the payment of expenses in relation to children or child bearing; or
(b) parental responsibility in relation to children.
Section 69ZJ applies to a court which, apart from that section, has federal jurisdiction invested in it or conferred upon it under pt VII of the Family Law Act. Section 69H(2), in pt VII, invests the Family Court with federal jurisdiction in relation to matters arising under pt VII of the Family Law Act. The Family Court is therefore a court to which s 69ZJ applies. Section 69ZJ relevantly operates to invest the Family Court with additional federal jurisdiction in matters between residents of different States with respect to parental responsibility in relation to children.
I do not accept the submission of senior counsel for the mother to the effect that s 69ZJ can only operate in Western Australia in a case to which s 69ZH would apply. Section 69ZH does not confer jurisdiction, which in this context is the authority to adjudicate,[35] on any court. Rather, s 69ZH modifies the operation of substantive provisions of pt VII of the Family Law Act in Western Australia. If s 69ZJ operated only in cases where there was a child of a marriage to whom pt VII applied, it would not confer any additional jurisdiction. That is because the courts to which s 69ZJ might apply would have authority under s 69H to adjudicate in the matter in any event.
[35] Rizeq [50], [52].
Senior counsel for the mother submitted that, on the above construction which I have preferred, s 69ZJ would not confer any federal jurisdiction on the Family Court beyond that which is already conferred by s 39(2) of the Judiciary Act. While that is true in the case of the Family Court, s 69ZJ also operates in relation to the Federal Circuit and Family Court of Australia which is not otherwise invested with diversity jurisdiction. Further, s 69ZJ operates with the appeal provisions in the FCFCA Act discussed below in relation to courts including the Family Court. On the construction I have adopted, s 69ZJ is not a provision without any purpose.
In the present case the primary orders, in general terms, confer and regulate the exercise of parental responsibility, including by:
(a)providing for where William is to live and the time he is to spend with the mother; and
(b)requiring the mother and father to do certain things, or restraining the mother and father from doing certain things, in relation to William.
Contrary to the submission of senior counsel for the mother, all of the primary orders concerned the duties, powers, responsibilities and authority of the mother and father in relation to William. All of the primary orders were therefore orders in respect of parental responsibility as defined in s 61B of the Family Law Act. In making the primary orders, the Family Court was exercising its federal jurisdiction in matters between residents of different States with respect to parental responsibility in relation to children that was conferred on that court by s 69ZJ of the Family Law Act.
Right of appeal from the primary orders
It is next necessary to identify the provision which confers a right of appeal from the primary orders. As the plurality observed in HBSY Pty Ltd v Lewis:[36]
An appeal is a statutory right to obtain relief from a superior court, usually to redress error in the court below. Accordingly, statutory authority is required to found a proceeding by way of appeal. The appellate jurisdiction of the Federal Court is statutory and is created by legislation passed under s 77(i) of the Constitution. Consequently, an appeal depends upon the existence of both a right to bring the appeal and the appellate court's jurisdiction to decide the appeal.
In some cases, a statutory provision by which a right of appeal is conferred may impliedly grant jurisdiction to hear the appeal. In other cases, a statutory provision by which jurisdiction is granted to hear an appeal impliedly confers a right to appeal.
(citations omitted)
[36] HBSY Pty Ltd v Lewis [2024] HCA 35; (2024) 98 ALJR 1211 [96] - [97].
In the present case, s 26(1)(da) of the FCFCA Act provides, subject to certain presently immaterial exceptions, that the Full Family Court has jurisdiction to hear and determine appeals from a judgment of the Family Court exercising original or appellate jurisdiction under the Family Law Act. This provision confers a right of appeal from a judgment of the Family Court exercising jurisdiction under the Family Law Act and invests the Full Family Court with jurisdiction to decide that appeal. The appeal provided for in s 26(1)(da) is from a judgment of the Family Court exercising jurisdiction under the Family Law Act, rather than a judgment of that court exercising jurisdiction in a matter arising under the Family Law Act. The criterion is whether the Family Court's authority to adjudicate in the matter is conferred by the Family Law Act. The criterion is not whether the parental responsibilities determined or claimed in the Family Court proceedings owe their existence to the Family Law Act, or depend on the provisions of that Act for their enforcement. Therefore, s 26(1)(da) of the FCFCA Act confers a right of appeal in the present case where the Family Court was exercising federal jurisdiction in a matter between residents of different States invested in it by s 69ZJ of the Family Law Act.
The Family Court Act does not confer any right of appeal from a judgment of the Family Court exercising federal jurisdiction. Section 211(3) of the Family Court Act provides for an appeal from a decree from the Family Court to this court but only in 'respect of the non-federal jurisdictions' of the Family Court. Section 210 of the Family Court Act relevantly provides that, in respect of the federal jurisdiction of the Family Court, the appeal provisions of the FCFCA Act apply. Section 210 recognises the operation of s 26(1)(da) of the FCFCA Act. Therefore, there is no question of inconsistency between the appeal provisions of the Family Court Act and the FCFCA Act which operate in entirely distinct fields.
Jurisdiction of this court to determine the appeal
It is then necessary to consider whether this court has jurisdiction to determine an appeal provided for in s 26(1)(da) of the FCFCA Act notwithstanding that the right of appeal is expressed to be to the Full Family Court rather than to this court.
Section 39(2) of the Judiciary Act invests this court with federal jurisdiction to determine matters between residents of different States. That jurisdiction is conferred 'within the limits of' this court's jurisdiction 'whether such limits are as to locality, subject matter, or otherwise'.
In Macleod v Australian Securities and Investment Commission,[37] the High Court observed that the investment of this court with federal jurisdiction under s 39(2) of the Judiciary Act includes appellate jurisdiction 'within the provisions made for it by the relevant State judicial system'. The court cited two early decisions of the High Court as authority for that proposition: Ah Yick v Lehmert,[38] and R v Whitfeld; Ex parte Quon Tat.[39]
[37] Macleod v Australian Securities and Investment Commission [2002] HCA 37; (2002) 211 CLR 287 [9].
[38] Ah Yick v Lehmert [1905] HCA 22; (1905) 2 CLR 593.
[39] R v Whitfeld; Ex parte Quon Tat [1913] HCA 7; (1913) 15 CLR 689.
Both Ah Yick and Whitfeld concerned the question of whether a State court had jurisdiction to hear an appeal from a lower State court convicting a person of a federal offence. In Ah Yick, where an appeal would lie to the Victorian Court of General Sessions if the person had been convicted of a State offence, s 39(2) was held to confer federal jurisdiction on that court to hear an appeal from a conviction of a federal offence. In so holding, Griffith CJ said:[40]
In my judgment, s 39 confers authority on each State Court to exercise the judicial power of the Commonwealth in the enumerated classes of cases, as to all such matters as are in other respects within the limits of its jurisdiction as defined by the State laws by which it is established. And I think that that authority is conferred to the same extent, and for the same purposes, and is to be exercised in the same manner, as if the Court had been established as a federal Court with jurisdiction to exercise the federal judicial power to the extent, and for the purposes, for which it was actually established. That being so, it appears to me that, on the plain words of s 39, the Court of General Sessions had authority to exercise its appellate jurisdiction, and to hear the appeal from a Police Magistrate, with regard to an offence against the Immigration Restriction Act 1901.
[40] Ah Yick (605).
Barton J agreed and reached the following conclusion as to the operation of s 39(2) of the Judiciary Act:[41]
I conclude that it was the intention of s 39(2) to invest the State Courts with federal jurisdiction, not only as to locality and subject-matter, but also as to quality. I am of opinion that the words 'federal jurisdiction' as there used include appellate or original jurisdiction or both, as the case may be, wherever, under the laws of the State, such jurisdiction is already exercised by any of the State Courts.
[41] Ah Yick (614).
In Whitfeld, it was held that Tasmanian Courts of General Session did not have jurisdiction to hear an appeal against conviction of a federal offence. In that case, Griffith CJ (Barton and Isaacs JJ agreeing) expressed the conclusion in the following terms after referring to s 39(2) of the Judiciary Act:[42]
The question then arises: What are the limits of the appellate jurisdiction of Courts of General Sessions in Tasmania? Appellate jurisdiction must be conferred by Statute, and Courts of General Sessions have only such appellate jurisdiction as is expressly conferred on them. But we find that they have no general appellate jurisdiction, but only jurisdiction in particular cases, conferred by particular Statutes which do not cover the present case.
It is clear, therefore, that they have no appellate jurisdiction in this case.
[42] Whitfeld (691).
In Commonwealth v Dalton,[43] Isaacs and Rich JJ observed:
To find the limits of the jurisdiction of a State Court, we have to examine its constitution, which determines its character, the subject matter with which it is authorised to deal, the locality within which it may act or in respect of which it may adjudicate, the persons over whom its authority extends, and any other prescribed regulations limiting its exercise of judicial power. The totality of these provisions mark out the area of curial jurisdiction, and therefore define the limits of the jurisdiction as adopted by the Federal Parliament for the purposes of Federal jurisdiction. The Federal jurisdiction conferred by s 39(2) automatically covers the area occupied by State jurisdiction so adopted, and does not exceed those limits.
[43] Commonwealth v Dalton [1924] HCA 3; (1924) 33 CLR 452, 456.
As noted above, s 210 and s 211 of the Family Court Act confine this court's appellate jurisdiction under that Act to decrees made in the exercise of the Family Court's non-federal jurisdiction. A question arises as to whether that express confinement of this court's appellate jurisdiction under the Family Court Act represents a limit of this court's jurisdiction for the purposes of s 39(2) of the Judiciary Act?
However, it is unnecessary to resolve that question in this case. To any extent that s 39(2) of the Judiciary Act does not confer jurisdiction on this court to decide an appeal under s 26(1)(da) of the FCFCA Act, that gap is filled by s 4(1) of the Cross-vesting Act. Section 4(1) relevantly provides:
Where:
(a) the … Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b) the Supreme Court of a State … would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c) in the case of the Supreme Court of a State … - that court is invested with federal jurisdiction with respect to that matter[.]
Therefore, in the present case this court has jurisdiction to determine the current appeal under s 4(1) of the Cross-vesting Act to any extent that jurisdiction is not conferred by s 39(2) of the Judiciary Act. The conclusion that s 4(1) can confer the relevant jurisdiction is consistent with the approach of this court, considering similar appeal provisions, in OHB v MTM.[44]
[44] OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95 [12].
Competence of the appeal
For the above reasons, federal jurisdiction in relation to an appeal provided for in s 26(1)(da)(i) of the FCFCA Act is conferred both on the Full Family Court (by s 26(1)(da)(i) itself) and on this court (by s 39(2) of the Judiciary Act or s 4(1) of the Cross-vesting Act).
Operation of s 7(3) and s 7(5) of the Cross-vesting Act
However, the exercise of that federal jurisdiction is regulated by s 7(3) and s 7(5) of the Cross-vesting Act. Each of those subsections provide that the appeal proceedings to which they apply 'shall be instituted only in, and shall be determined only by', specified courts.
Both s 7(3) and s 7(5) of the Cross-vesting Act relevantly apply to an appeal from a decision of a single judge of the Supreme Court of a State. Under s 3(2) of the Cross-vesting Act, the reference to the Supreme Court of a State in s 7(3) and s 7(5) includes a State Family Court.
Whether s 7(3) or s 7(5) apply in the present case depends on whether it appears that a matter for determination in this appeal is a 'matter arising under an Act specified in the Schedule' (here, the Family Law Act). Subject to certain exceptions and qualifications, s 7(5) relevantly requires that, if it appears that a matter for determination in this appeal is a matter arising under the Family Law Act, the appeal shall be instituted only in, and shall be determined only by, the Full Family Court. Section 7(3) relevantly requires that, if it appears that the only matters for determination in this appeal are matters other than matters arising under the Family Law Act and the other scheduled Acts, then the appeal shall be instituted only in, and shall be determined only by, this court.[45]
[45] Under s 3(1) of that Act, references to the 'Full Court', in relation to a Supreme Court of a State, includes any court of the State to which appeals lie from a single judge of that Supreme Court.
The following features of the operation of s 7 of the Cross-vesting Act were explained by the plurality in HBSY:
1.The language of 'matter arising under' an Act in s 7(5) adopts the language of s 76(ii) of the Constitution. A 'matter arises under' a law if the right or duty in question in the matter owes its existence to that law or depends upon that law for its enforcement.[46]
2.Section 7(3) and s 7(5) assume the federal appellate jurisdiction of the specified courts in matters arising under the scheduled Acts. Section 7(5) operates to regulate the exercise of power within existing federal appellate jurisdiction, by channelling the exercise of power in particular types of appeals from a Supreme Court decision to particular courts. The focus of s 7(5) is upon the exclusive exercise of power rather than the existence of jurisdiction.[47]
3.Section 7(5) does not operate as an implied repeal of jurisdiction otherwise vested in this court.[48]
4.Section 7(3) operates to prevent a federal court from exercising appellate power on an appeal from a State Supreme Court concerning a matter that arises entirely outside the scheduled Acts.[49]
5.Thus, subject to limited exceptions in s 7(7) and s 7(8), s 7(3) and s 7(5) bifurcate appeals from single judges of State Supreme Courts exercising federal jurisdiction according to whether the appeal involves a matter for determination arising under any of the scheduled Acts.[50]
As noted above, references in s 7(3) and s 7(5) to an appeal from a State Supreme Court expressly include an appeal from the Family Court.
[46] HBSY [106].
[47] HBSY [107].
[48] HBSY [108].
[49] HBSY [109].
[50] HBSY [109].
Therefore, there is no inconsistency between s 7(3) and s 7(5) of the Cross-vesting Act and the conferral of appellate jurisdiction:
(a)on the Full Family Court by s 26(1)(da)(i) of the FCFCA Act; or
(b)on this court by s 39(2) of the Judiciary Act or s 4(1) of the Cross-vesting Act.
Operation of s 7(3) and s 7(5) in this case
Section 26(1)(da)(i) creates the right of appeal in this case and confers federal jurisdiction in relation to the appeal on the Full Family Court. Section 39(2) of the Judiciary Act or s 4(1) of the Cross-vesting Act confer federal jurisdiction on this court in an appeal for which s 26(1)(da)(i) provides. Therefore, both this court and the Full Family Court have jurisdiction in relation to this appeal. If it appears that the only matters for determination in this appeal are matters other than matters arising under the Family Law Act or another scheduled Act, then s 7(3) will prevent the Full Family Court from exercising appellate power and require this court to exercise the power. If it appears that a matter for determination in this appeal is a matter arising under the Family Law Act, then, unless the limited exceptions in s 7(7) and s 7(8) apply, s 7(5) will prevent this court from exercising appellate power and require the Full Family Court to exercise the power.
In oral submissions all counsel accepted that this court, which has so far only made procedural directions and heard arguments on the jurisdictional question, has not yet commenced to hear the current appeal proceedings for the purposes of s 7(7) of the Cross-vesting Act.[51] That condition for the existence of this court's power and obligation to transfer the appeal proceeding to the Full Family Court under s 7(7) is not satisfied. Therefore, the exception in s 7(8)(a) of that Act cannot apply. It is unnecessary to determine whether this court will commence to hear the appeal proceedings for the purposes of s 7(7)(a) of the Cross-vesting Act when it begins to hear submissions on the stay application. As the matter has been raised, the court could not determine the appeal proceeding through inadvertence, so as to engage the exception in s 7(8)(b) of the Cross-vesting Act.
[51] As to which, see the discussion in Gao v Perry [2020] NSWCA 15 [23] ‑ [33] and Guan v Li [2022] NSWCA 173; (2022) 371 FLR 531 [34].
In these circumstances, the competence of the present appeal to this court, and the power of this court to determine the appeal, turn on whether it appears that a matter for determination in the appeal proceeding is a matter arising under the Family Law Act, within the meaning of s 76(ii) of the Constitution and s 7(5) of the Cross-vesting Act.
Whether a matter for determination arises under the Family Law Act
Section 76(ii) of the Constitution provides that the Commonwealth Parliament may confer original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. As was noted by the plurality in HBSY, the phrase 'matter arising under any laws made by the Parliament' has the meaning explained by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett:[52]
[A] matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.
[52] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, 154.
The rights and duties of the mother and father in respect of William in the present case arose under the Family Court Act. The primary judge applied the provisions of the Family Court Act rather than the Family Law Act in making the parenting orders.
I note that part of his Honour's reasons suggested that, prior to the commencement of the trial, counsel for the mother might have contended that the provisions of the Family Law Act should be applied to determine the controversy. The trial judge held that the provisions of the Family Court Act applied.[53] However, an examination of the relevant transcript shows that the mother did not actually advance a claim for parenting orders under the Family Law Act.[54] Rather, junior counsel for the mother at trial (who did not appear in the appeal) indicated that he felt ethically obliged to raise a concern expressed by a third party about whether the Family Law Act provisions applied in diversity jurisdiction. Counsel for all parties contended, and the trial judge accepted, that the applicable provisions were those of the Family Court Act.
[53] See [Lloyd (a pseudonym)] and [Dunne (a pseudonym)] [2025] FCWA 120 [11] - [24].
[54] See trial ts 25.05.24 at pages 8 - 16.
In order for the controversy between the mother and father to be characterised as a matter arising under the Family Law Act, it is not necessary that the substantive provisions of that Act actually applied to govern the resolution of the controversy. As the plurality noted in Citta Hobart Pty Ltd v Cawthorn:[55]
[F]or a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in … s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
[55] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 [35].
A genuine controversy, not incapable on its face of legal argument, about whether parenting orders should be made in relation to a child under the Family Law Act would, for that reason, be a matter arising under that Act. That would be so even where, as a matter of law, the provisions of the Family Law Act do not actually operate in relation to the child concerned. However, as explained above, no claim for parenting orders under the Family Law Act was made in the primary proceedings. The grounds of appeal to this court do not contend that the substantive provisions of the Family Law Act applied. Before this court, all counsel appeared to accept that the applicable provisions were those of pt 5 of the Family Court Act.
Nor did the parenting orders made under the Family Court Act depend on the provisions of the Family Law Act for their enforcement. Provisions for the enforcement of orders made under the Family Court Act are made in pt 9 to pt 11 of that Act, and do not depend on the Family Law Act for their operation.[56]
Attorney General's submissions
[56] For examples of cases where the relevant right depended on federal law for its enforcement see TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 [2], [52] and PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1 [55].
I acknowledge the considerable assistance this court obtained from the erudite submissions advanced by counsel for the Attorney General, intervening, on short notice. However, I am unable to accept the Attorney General's submission, adopted by the father, that the matter before the Family Court was a matter arising under the Family Law Act because that court's authority to adjudicate in the matter derived from s 69ZJ of that Act.
As noted above, a 'matter' is a justiciable controversy identifiable independently of the proceedings which are brought for its determination. In my view, a controversy cannot derive the character of a matter arising under a Commonwealth Act merely from the fact that a Commonwealth Act confers authority to adjudicate in the matter. Otherwise, a Commonwealth law conferring jurisdiction in any matter would confer jurisdiction in a matter arising under that Commonwealth law. Such a circular operation of s 76(ii) would be inconsistent with the structure of s 75 - s 77 of the Constitution, which carefully delineate the matters which may be the subject of a conferral of federal jurisdiction.
The Attorney General contended that the rights and duties created by the Family Court Act on residents of different States depended on a conferral of federal jurisdiction for their enforcement, because no parenting order could be made without a conferral of federal jurisdiction by federal law. Therefore, in the Attorney General's submission, where the provision conferring federal jurisdiction is s 69ZJ of the Family Law Act, the rights and duties of the parties depend on that federal law for their enforcement.
The submission summarised in the previous paragraph does not take adequate account of the conferral of federal jurisdiction on the Family Court in matters between residents of different States by s 39(2) of the Judiciary Act. Given that conferral, the Family Court's power to make parenting orders under the Family Court Act in the present case did not depend upon the conferral of authority to adjudicate by s 69ZJ of the Family Law Act. The Family Court already has that authority conferred by s 39(2) of the Judiciary Act. I also note that the appellate jurisdiction of this court in this appeal is conferred by s 39(2) of the Judiciary Act, or s 4(1) of the Cross-vesting Act, read with s 26(1)(da) of the FCFCA Act, rather than by any provision of the Family Law Act.
Moreover, the authority of any court other than the High Court to adjudicate in any matter specified in s 75 or s 76(i) and s 76(iii) - (iv) of the Constitution must be conferred by federal law. In my view, that is not sufficient to characterise all of those matters as matters arising under laws made by the Parliament within the meaning of s 76(ii) of the Constitution.
The appeal is competent and can be determined by this court
In my view the present controversy, which is only about whether, in Western Australia, parenting orders should be made under the Family Court Act in relation to a child other than a child of a marriage, is not a matter arising under the Family Law Act. The only basis on which federal jurisdiction is engaged in the present case is that the matter is between residents of different States.
Therefore, it does not appear that a matter for determination in these appeal proceedings is a matter arising under the Family Law Act for the purposes of s 7(5) of the Cross-vesting Act. Section 7(5) did not prevent the mother from instituting the appeal in this court and does not prevent this court from determining the appeal. Section 7(7) of the Cross-vesting Act does not require this court to transfer the appeal to the Full Family Court.
Conclusion
For the above reasons, in my view the present appeal is competent, this court has jurisdiction and power to determine the appeal, and this court is not required to transfer the appeal proceedings to the Full Family Court.
It is not necessary for this court to make any orders to give effect to the above conclusions at this stage. It should now proceed to hear the stay application. It can also hear the appeal on the currently listed date of 10 September 2025. Any party dissatisfied with the conclusions reached in these reasons can, subject to the grant of special leave to appeal, challenge them in an appeal against orders which dispose of the stay application or the appeal.
HALL JA:
I have had the considerable benefit of reading in draft the reasons of Thomson P and the separate reasons of Mitchell JA. I agree, generally for the reasons their Honours have given, that this appeal is competent.
It is beyond doubt that the primary judge, in determining a matter between residents of different States, was exercising federal jurisdiction. That jurisdiction was invested in the Family Court of Western Australia by s 39(2) of the Judiciary Act1903 (Cth) and s 69ZJ of the Family Law Act 1975 (Cth).However, as the child in this case is not a child of a marriage, the substantive law to be applied was that contained in the Family Court Act 1997 (WA).
This court has jurisdiction to hear this appeal because it is invested with that jurisdiction under s 4 of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) (JCCVA). The only matters arising for determination on the appeal are matters arising under the Family Court Act. The fact that those matters involve the exercise of federal jurisdiction does not alter that characterisation. It is important to distinguish between the matters falling for determination and the authority to determine those matters. Accordingly, this appeal was required to be instituted in, and can only be determined by, this court: s 7(3) of the JCCVA.
That outcome also has the benefit of being in harmony with the intent of the family law scheme in this State that property and custody disputes arising from de facto relationships will generally be dealt with in the State courts, including on appeal to this court.[57]
[57] With some exceptions that are presently immaterial, see OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DC
Associate to the Honourable President Thomson
11 AUGUST 2025
31
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