Federal Court rejects challenges against family law system’s efficacy

By Bernise Carolino | Australasian Lawyer

Declaratory relief sought on Family Law Act 1975’s constitutional validity

Australia’s Federal Court said it could not entertain complaints regarding the operation of Australia’s federal system of family law upon determining beyond any real doubt that the intended case was abusive of the judicial process, frivolous, or vexatious. 

In Smith v Birchall, [2025] FCA 1256, the applicant tried to bring an originating application dated 17 December 2024, alongside a sworn affidavit. She was concerned with the federal family law system’s efficacy and treatment of children and parents. 

The applicant wanted to file an application against the office of the Commonwealth Attorney-General to obtain declaratory relief and challenge the constitutional validity of the Family Law Act 1975 (Cth) (FL Act). She alleged that parts or the entirety of the FL Act breached the constitution, contravened the rule of law, and impermissibly burdened rights and freedoms. 

The respondent, a court registrar, rejected the documents for filing on 20 December 2024. 

The applicant filed an originating application dated 31 December 2024 against the respondent. She moved for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). 

Application denied

The Federal Court of Australia dismissed the originating application under the ADJR Act and decided not to exercise its discretion under s 16 of the statute to issue relief relating to the filing refusal. 

The court declined to invalidate part or all of the FL Act for exceeding the Commonwealth Parliament’s constitutional mandate. The court found no apparent basis to consider the FL Act’s democratic passage and the independent judiciary’s enforcement against the rule of law. 

The court saw no prospects of success in the applicant’s arguments: 

• that the FL Act wholly or partly impermissibly burdened implied constitutional rights and freedoms 
• citing the reference to the ‘peace, order, and good government of the Commonwealth’ in s 51 of the Constitution 

The court did not entertain the applicant’s suggestion that the FL Act was not an enactment about any of the subjects that s 51 reserved for the Commonwealth Parliament. The court held that the Commonwealth Parliament could make laws regarding marriage, divorce and matrimonial causes, parental rights, and infant custody and guardianship. 

Lastly, the court saw no remotely arguable case that the FL Act was entirely or partly unconstitutional for contravening international law.

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