In the Marriage of Cormick

The High Court of Australia considered applications by Janice Brenda Cormick concerning the custody of an ex-nuptial child. The dispute arose in the context of the Family Court of Australia's jurisdiction.

The central legal issue before the High Court was whether the Family Court of Australia possessed the constitutional and legislative power to entertain applications for the custody of an ex-nuptial child, specifically when those applications were brought by grandparents. This question engaged the interpretation of section 51(xxi) of the Commonwealth Constitution, which grants Parliament power to make laws with respect to "marriage," and section 5(1)(f) of the *Family Law Act 1975* (Cth).

The Court reasoned that the power conferred by section 51(xxi) of the Constitution is limited to matters concerning "marriage" and does not extend to the custody of ex-nuptial children. Consequently, the *Family Law Act 1975*, in purporting to grant the Family Court jurisdiction over such matters, exceeded the scope of the Commonwealth Parliament's constitutional authority. The Court found that the applications brought by the grandparents were therefore outside the jurisdiction of the Family Court.

The High Court declared that the Family Court of Australia had no jurisdiction to entertain the applications of Janice Brenda Cormick and ordered that these applications be refused as incompetent. The costs of the proceedings in the High Court were ordered to be paid by the Commonwealth.