Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Family Court of Australia—Jurisdiction—Matrimonial cause—Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage—Child in custody of State social welfare authority—Power to invest jurisdiction to make custody order affecting custody by State authority—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi)—Family Law Act 1975 (amended by Family Law Amendment Act (No. 2) 1976 (Cth), ss. 4 (1) "Matrimonial Cause", 10, 31)—Children's Services Act, 1965-1979 (Q.), ss. 49, 64.

Decisions

December 12.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs in this matter. (at p450)

2. I agree with his conclusion that s. 10 of the Family Law Act, 1975 (Cth), as amended, in so far as it would authorize the Family Court by its order to interfere with the custody or possession of a child in respect of whom an order has been made under s. 49 of the Children's Services Act, 1965-1979 (Q.) is invalid as not being a law with respect to marriage and thus beyond the constitutional competence of the Commonwealth Parliament. I agree with my brother's reasons for so concluding. I would add that, whilst I would not think the Court should reconsider its decision in Russell v. Russell (1976) 134 CLR 495 , I am of opinion that that decision should be strictly confined and not used as a base for any extension of what is comprised within the concept of a law with respect to marriage. I regard that case as deciding no more than that the Family Court can make an order operative and enforceable as between husband and wife as to the custody between themselves of a child of the marriage, even though no proceedings for principal relief under that Act are current. (at p451)

3. Provision for the making of such an order may be regarded as a law with respect to marriage: but, in my opinion, it clearly approaches the outer margins of the power. Certainly a law authorizing interference with the lawful possession by a State official of a child committed to his care and custody exceeds that margin. (at p451)

4. Regarding the order here under challenge as no more than an order inter parties binding only husband and wife as to their respective rights vis-a-vis custody of the child, there would be no ground for prohibition, but, agreeing with my brother Gibbs, it should be declared that the order is not enforceable against the prosecutor. (at p451)

GIBBS J. In Reg v. Demack; Ex parte Plummer (1977) 137 CLR 40 , the Director of the Department of Children's Services of the State of Queensland ("the Director") sought to establish that s. 10 of the Family…

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.

Continue reading R v Lambert; Ex parte Plummer

Details

AGLC: R v Lambert; Ex parte Plummer [1980] HCA 52
Case: [1980] HCA 52
Decision Date: 12 December 1980

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in *R v Lambert; Ex parte Plummer*. The applicant, Plummer, sought to prohibit the respondent, Lambert, a magistrate, from proceeding with a committal hearing against him on charges of conspiracy to defraud and conspiracy to obtain financial advantage by deception. The dispute centred on whether the evidence presented by the prosecution was sufficient to establish a prima facie case, thereby justifying the committal.

The central legal issue before the High Court was whether the evidence adduced by the prosecution at the committal hearing was capable of establishing a prima facie case against the applicant, Plummer, for the offences of conspiracy to defraud and conspiracy to obtain financial advantage by deception. This required the Court to consider the nature and sufficiency of evidence needed to commit an accused for trial, particularly in the context of conspiracy charges.

The Court, in a joint judgment, held that the evidence presented by the prosecution was insufficient to establish a prima facie case. Their Honours reasoned that while the evidence might suggest the applicant was aware of or involved in certain transactions, it did not demonstrate beyond reasonable doubt that he had entered into an agreement with any other person to commit the alleged conspiracies. The mere presence at meetings or knowledge of fraudulent activities was not, in itself, proof of participation in a conspiracy. The Court emphasised that a committal hearing requires evidence that, if uncontradicted and unexplained, could lead a jury to convict, and this threshold had not been met.

Consequently, the High Court made absolute the order nisi for a writ of prohibition, directing that the committal proceedings against the applicant be stayed.

Orders