Re JDP and Anor; Ex parte The Attorney General for New South Wales

The applicant, the Attorney-General for New South Wales, sought the removal of proceedings from the Family Court of Australia to the High Court of Australia pursuant to section 40(1) of the Judiciary Act 1903 (Cth). The proceedings below concerned an application for an order that a separate representative be appointed to represent a child. The Attorney-General sought the removal of the cause to the High Court to determine the validity of Commonwealth legislation that purportedly provided authority to the Family Court to make such orders, and to consider the interaction of this legislation with New South Wales law.

The primary legal issue before the High Court was whether the Commonwealth legislation, specifically as it related to the Family Court's jurisdiction, was valid and could authorise the orders sought in the Family Court. This involved considering the extent to which the marriage power in the Commonwealth Constitution supported such legislation and how it interacted with state laws, particularly in light of the High Court's previous decision in *P v P* (also known as *Marion's Case*). The Court was also required to consider whether the specific New South Wales legislation presented a material difference to the circumstances considered in *Marion's Case*, given that the present matter concerned children over 16, whereas the legislation discussed in *Marion's Case* related to children under 16.

The Court was presented with arguments concerning the scope of the marriage power and its ability to support the Family Court's jurisdiction in matters concerning children, even when those matters might otherwise fall within state legislative competence. The applicant contended that the Commonwealth legislation did not provide the necessary authority for the Family Court to make the orders sought, and that the situation in New South Wales, with its specific statutory prohibitions, differed from that considered in *Marion's Case*. The Court noted the potential relevance of section 60(h) of the Family Law Act and its interaction with state statutes, as discussed in the joint judgment in *Marion's Case*, but also acknowledged that the specific New South Wales statute under consideration in the present matter was different from the one addressed in that earlier decision.

The proceedings were at the stage of an application for removal of the cause. The Court indicated its intention to consider the matter further, potentially through a case stated, and to address the pending application for the appointment of a separate representative for the child once the question of removal and the validity of the Commonwealth legislation had been determined.