Constitutional Law (Cth)—Powers of Commonwealth Parliament Marriage—Custody and guardianship of infants—Inconsistency between Commonwealth and State laws—Child of marriage—Family Court of Australia—Jurisdiction—Court order—Law of the Commonwealth—The Constitution (63 and 64 Vict. c. 12), ss. 51(xxi), (xxii), Ch. III, ss. 109, 118—Judiciary Act 1903 (Cth), s. 79—Family Law Act 1975 (Cth), ss. 60H, 63(1), 64(1)—Guardianship Act 1987 (N.S.W.), s. 35. Family Law—Family Court of Australia—Jurisdiction—Welfare Parens patriae—Intellectually disabled child—Sterilization—Power of Court to authorize operation where prohibited by State law Construction of statute—Family Law Act 1975 (Cth), ss. 60H, 63(1), 64(1)—Guardianship Act 1987 (N.S.W), ss. 33(1), (2), 34(1), 35, 36, 37(1), (2), 42(1), 44(1), 45(1), (2), (3), 46(1), 49, 76.
Orders
Answer the questions reserved for the consideration of the Court as follows: 1. Does the Family Law Act 1975 (C'th) purport to confer on the Family Court of Australia the power to make an order authorising a person to carry out on a child of a marriage medical treatment in New South Wales that is intended, or is reasonably likely, to have the effect of rendering the child permanently infertile, in circumstances where the carrying out of the treatment would otherwise be contrary to the Guardianship Act 1987 (NSW)? Answer: Yes.
2. If yes to 1, is such purported conferral of power on the Family Court of Australia consistent with Chapter III of the Commonwealth Constitution? Answer: Yes.
3. If yes to 2, is such purported conferral of power on the Family Court of Australia a valid exercise of the legislative power of the Commonwealth Parliament? Answer: Yes.
4. If yes to 3, except in cases to which section 60H(2)(e) of the Family Law Act 1975 (C'th) applies, does that Act, by virtue of s.109 of the Constitution, invalidate the Guardianship Act 1987 (NSW) to the extent that the latter Act purports to prohibit or authorise a medical procedure to be carried out on a child of a marriage that is intended, or is likely, to have the effect of rendering the child permanently infertile? Answer: Yes. But only to the extent that s,35(1) of the Guardianship Act 1986 (NSW) would prohibit medical or dental treatment authorised by a competent order of the Family Court of Australia.
5. If yes to 4, will orders by the Family Court as sought by the applicant in this case provide a valid authority to a medical practitioner in New South Wales to carry out the procedure refered to? Answer: Yes.
Decisions
MASON CJ, DEANE, TOOHEY AND GAUDRON JJ This is a case stated by the Chief Justice in proceedings instituted in the Family Court of Australia and removed into this Court by an order made pursuant to s.40(1) of the Judiciary Act 1903 (Cth) on the application of the Attorney-General for New South Wales.
Facts
2.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
P v P [1994] HCA 20
Case
[1994] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning the interpretation of section 79 of the *Judiciary Act 1903* (Cth) in a dispute between P and P. The core of the disagreement related to the application of state laws in federal proceedings.
The central legal issue before the High Court was whether section 79 of the *Judiciary Act* mandated the application of the substantive law of the Australian Capital Territory in a proceeding before the Supreme Court of the Australian Capital Territory, or if it permitted the Supreme Court to apply the substantive law of New South Wales, as it had done. This involved determining the scope and effect of section 79 in circumstances where a federal court or a court exercising federal jurisdiction is sitting in a territory.
The Court reasoned that section 79 of the *Judiciary Act* requires federal courts and courts exercising federal jurisdiction to apply the laws of the state or territory in which they are sitting, unless a contrary intention appears in a federal law. In this instance, the Court found that the Supreme Court of the Australian Capital Territory, when exercising federal jurisdiction, was bound to apply the substantive law of the Australian Capital Territory. The Court clarified that section 79 is a general provision that incorporates the relevant state or territory law, and that the Supreme Court of the Australian Capital Territory had erred in applying the law of New South Wales.
The High Court allowed the appeal, setting aside the orders of the Supreme Court of the Australian Capital Territory and remitting the matter to that Court for determination in accordance with the substantive law of the Australian Capital Territory.