Family Law Act 1975 s 40(3) - Proclamation (27/5/1976)

The proclamation deploys a small set of legal concepts and reference points that determine its effect. First, it is an exercise of power “IN pursuance of sub‑section 40 (3) of the Family Law Act 1975.” That identifies a statutory head of authority as the enabling mechanism. Second, the operative prohibition is framed in negative terms: the proceedings of the listed classes “may not be instituted in or transferred to” certain Supreme Courts on or after 1 June 1976. Two procedural actions are therefore expressly addressed: institution (starting a new proceeding) and transfer (moving an existing proceeding into those courts).

Third, the instrument does not define the classes directly; rather it delegates to the Schedule, which itself refers back to “the definition of ‘matrimonial cause’ in sub‑section 4 (1) of that Act.” The Schedule elaborates which parts of paragraphs (a)-(f) of that definition are caught and which exceptions apply. That creates an interpretative dependency: whether a particular application is captured depends on the statutory meaning of those paragraphs in s 4(1), as the proclamation repeatedly uses the exact wording “Proceedings of a kind referred to in paragraph (a) of the definition of ‘matrimonial cause’ in sub‑section 4 (1) of that Act” and the like.

Fourth, the Schedule contains exceptions designed to preserve continuity for proceedings that were already before a Supreme Court immediately before the cut‑off date. The exceptions are particular: cross‑proceedings that arise “in the course of proceedings of such a kind where those last‑mentioned proceedings were pending in the Supreme Court … immediately before 1 June 1976” are excluded from the prohibition; likewise, proceedings that “relate to proceedings for principal relief pending in the Supreme Court … immediately before 1 June 1976” and proceedings between parties between whom such matters were pending are preserved. These exceptions employ temporal and relational qualifiers , “pending … immediately before 1 June 1976” and “between parties between whom proceedings … were so pending” , which are factual predicates that will determine application.

Fifth, the proclamation is jurisdiction‑specific. It lists the Supreme Courts of New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory and Norfolk Island as the courts to which the prohibition applies. It does not purport to affect other courts or tribunals; nor does it itself create a substitute forum. The instrument therefore operates as a direction removing certain institutional options from litigants in the named courts while preserving a narrow set of continuing matters that predate the date fixed.

Finally, the proclamation is a formal executive act bearing the Governor‑General’s authority and the Attorney‑General’s attestation. That identifies who decided and who certified the act. The proclamation contains no penalty clause, procedural rules, fee arrangements, nor transitional funding or administrative instructions; its scope is confined to specifying a date and classes of proceedings and to preserving certain pending matters as exceptions.

The proclamation affects three pools of actors directly: litigants (and their lawyers) with matrimonial causes, the Supreme Courts named in the instrument, and the Commonwealth executive actors who made and attested the proclamation. The text fixes the operative date and the classes of proceedings; parties contemplating institution or transfer of proceedings of the kinds described in the Schedule are the immediate subjects whose options are constrained because, from 1 June 1976, those matters “may not be instituted in or transferred to” the named Supreme Courts.

Litigants: Individuals or entities seeking to commence proceedings that fall within the kinds identified by reference to paragraphs (a)-(f) of the definition of “matrimonial cause” in sub‑section 4(1) of the Family Law Act 1975 cannot, after the fixed date, choose to start or move those proceedings into the Supreme Courts listed. The Schedule’s exceptions preserve some incidents of litigation that were already before those Courts before the cut‑off date: cross‑proceedings in the course of pending matters, proceedings that “relate to proceedings for principal relief” which were pending, and proceedings between the same parties where the principal relief proceedings were pending. Therefore, litigants with matters already in those Courts immediately before 1 June 1976 retain access in the specific forms preserved.

Supreme Courts: The prescribed effect is to remove particular kinds of matrimonial jurisdiction from the institutional portfolio of the Supreme Courts named. The instrument instructs, by prohibition, that those Courts are not a lawful venue for new or transferred actions of the specified classes after the date. The proclamation does not, however, set out how the courts should administer the prohibition, what internal registry adjustments are required, or how to process matters that may be borderline in character. Administrative action within each court,cabineting, notice to practitioners, refusal to accept filings or transfers,would be necessary in practice, but none of that implementation detail appears in the proclamation itself.

Commonwealth executive: The Governor‑General executed the proclamation “acting with the advice of the Federal Executive Council,” and it is attested by the Attorney‑General. Those facts identify the decisionmakers and the formal channel used to change the venue rule. The proclamation therefore affects how executive power reshapes institutional jurisdictional options. It does not, within the text, assign administrative duties to registrars or create a scheme for disputes over classification.

Indirectly, other actors including practitioners, registrars, expert witnesses, mediators, family law advisers, and litigants’ commercial advisors will be affected because venue restrictions alter where proceedings may be heard and therefore affect procedural practice, potential filing costs and the choice of forum. The proclamation does not specify alternate courts or mechanisms, so the precise redistribution of case‑flow is left to parties and courts to determine consistent with the Act and other legal arrangements.

The proclamation imposes negative duties and preserves certain rights. The central duty it creates is a prohibition: after 1 June 1976, parties must not institute or transfer proceedings of the classes specified to the named Supreme Courts. The wording is directive: proceedings “may not be instituted in or transferred to the Supreme Courts” of the listed jurisdictions. That is a duty of omission by parties and an effective duty on those courts and registrars to refuse or not accept institution or transfer of those classes on or after the date.

Rights preserved by the instrument are expressly temporal and narrow. The Schedule carves out exceptions which create substantive rights to continue specified litigation that was already in the relevant Supreme Court immediately before the fixed date. These rights include:

• A right of cross‑proceedings to continue if they arise “in the course of proceedings of such a kind where those last‑mentioned proceedings were pending in the Supreme Court … immediately before 1 June 1976.” That recognises that litigants engaged in a proceeding already before the Court retain the right to bring related cross‑claims within that proceeding.

• A right to continue proceedings “that relate to proceedings for principal relief pending in the Supreme Court … immediately before 1 June 1976.” That preserves auxiliary or ancillary proceedings that have a direct relation to principal relief that was already before the Court.

• A right to continue proceedings “between parties between whom proceedings of a kind referred to in paragraph (c), (d), (e) or (f) … were so pending immediately before that date.” That preserves litigation among the same parties connected to matters already before the Court.

The proclamation therefore creates a regime of closed doors for new or incoming matters of certain classes while safeguarding continuity for matters already in train. The duties are immediate , tied to the date fixed in the proclamation , and the rights are conditional on the factual predicates set out in the Schedule (for example, pendency “immediately before 1 June 1976”).

The proclamation does not set out procedural mechanisms for enforcing the prohibition, such as a statutory penalty for attempting to institute or transfer a prohibited proceeding, nor does it set out a process for determining whether a specific matter falls within the classes. It also does not specify alternative fora or how parties should proceed when barred from institution or transfer to the listed Supreme Courts. Consequently, the practical duties that follow , such as identifying the correct forum and documenting the pendency date to invoke an exception , are implicit rather than spelled out.

Finally, the declaration of authority and the attestation by the Attorney‑General indicate that the executive has exercised a statutory prerogative to alter institutional access; the proclamation thus confers the formal right on the executive to make that kind of jurisdictional change, and correspondingly imposes the compliance duty on parties and the affected courts.

The proclamation does not include an express penalty provision or a detailed enforcement mechanism. Its operative statement is that proceedings of the identified classes “may not be instituted in or transferred to” the named Supreme Courts on or after the fixed date. The text itself prescribes neither sanctions nor remedies for breach; it announces a prohibition without specifying statutory consequences within the proclamation.

Enforcement therefore will operate through judicial and administrative practice rather than through criminal or civil penalty clauses within this instrument. The immediate, practical enforcement mechanism implied by the wording is institutional: if a party attempts to institute or transfer a prohibited proceeding in or to a listed Supreme Court after 1 June 1976, the appropriate registry or judicial officer would be expected not to accept or to dismiss the attempted institution or transfer as inconsistent with the proclamation and the statutory authority it invokes. The proclamation does not state procedural steps for registrars in such situations, nor does it set out how to resolve disputes about whether a particular proceeding falls within the listed classes.

The Schedule’s exceptions preserve certain pending matters, which creates evidentiary consequences: parties seeking to rely on an exception must demonstrate the factual predicates , e.g., that the relevant principal relief proceedings were “pending in the Supreme Court … immediately before 1 June 1976” , in order to avoid the practical bar. The absence of a penalty clause means that the burden of proof and the vehicle for enforcement will be litigation and court practice: registry officials could refuse filings or transfers, and litigants could litigate competing claims about jurisdictional classification. The proclamation itself is silent about appeal routes, declaratory relief, or costs consequences arising from mistaken institutions.

Because the instrument is made under s 40(3) of the Family Law Act 1975, any enforcement question will likely be informed by the Act and by the courts’ interpretation of what the proclamation authorises, but that interpretive labour is external to this document. The proclamation’s silence about sanctions, interim measures, or transitional funding implies that administrative and judicial choices will shape enforcement in practice. If parties or courts dispute the meaning of phrases such as “relate to” or “pending immediately before,” those disputes will need to be resolved through the normal adjudicative channels. The instrument also does not specify notice obligations to practitioners or litigants; failure of parties or registries to be aware of the date and restrictions could produce contested filings that the courts would need to determine on the textual and evidentiary record.

The proclamation is explicitly made under the authority of a provision of the Family Law Act 1975 and therefore operates in a statutory framework. It references sub‑section 40 (3) as its enabling power and repeatedly refers back to the definition of “matrimonial cause” in sub‑section 4 (1) of the Act to specify the classes of proceedings affected. That establishes a direct textual relationship: the proclamation does not attempt to restate or redefine the substantive categories; it imports them by reference and relies on the Act’s definitions to determine scope.

By its terms, the proclamation modifies the institutional venues available for certain causes without altering the substantive law that defines those causes. The Schedule ties the prohibition to the types of proceedings “referred to in paragraph (a) … paragraph (b) … paragraph (c), (d), (e) or (f)” of the definition in s 4(1). The proclamation therefore interacts with the Act primarily through that definitional cross‑reference: determining whether a matter is covered will require looking to the Act’s definitions and any procedural or jurisdictional rules the Act provides.

The instrument does not purport to repeal or amend other statutes, nor does it purport to oust jurisdiction of other courts; it specifically targets institution in and transfers to the listed Supreme Courts. Because the proclamation is silent as to alternative fora or transfer destinations, it leaves room for other courts or tribunals to accept jurisdiction over matters of the named classes consistent with their statutory powers and procedural rules. The proclamation’s effect therefore is to narrow the institutional options available under other laws without changing the substantive rights and obligations those laws create.

The Schedule’s preservation of pending matters creates a temporal interplay between the proclamation and litigation already under way in the named Supreme Courts: the proclamation recognises and defers to continuance of certain matters that were pending in those courts immediately before 1 June 1976. That introduces a transitional relationship between the proclamation and the pre‑existing judicial process: the proclamation’s restrictions apply prospectively while leaving existing judicial acts intact in the limited cases described.

The proclamation does not address conflicts of laws, choice of law, interstate transfer rules, or appellate jurisdiction. It does not contain savings clauses beyond the narrow exceptions in the Schedule. Consequently, its interaction with rules governing transfer, jurisdiction, or forum non conveniens in other statutes or judicial practice will be driven by those instruments and by the courts’ interpretation of the logical consequences of the prohibition. For example, if another statute or rule allowed for a transfer into one of the named Supreme Courts, the proclamation would create a textual obstacle to such transfers for the covered classes; resolving that tension would likely require reference to the enabling Act and to judicial interpretation, but the proclamation itself simply states the prohibition without mapping all possible cross‑statutory consequences.

The text supplied contains a single dated proclamation and does not itself record any subsequent amendments, revocations, or modifications. The instrument bears the date “GIVEN under my Hand and the Great Seal (L.S.) of Australia on 27 May 1976” and fixes 1 June 1976 as the operative date. The only formal attestations within the document are the Governor‑General’s signature block naming “JOHN R. KERR” and the attestation “By His Excellency’s Command, R. ELLICOTT Attorney‑General.”

There is no amendment clause within the proclamation, nor any administrative schedule for review, expiry, or sunset. The proclamation does not provide for later variation by reference to subsequent executive acts; it is a single executive instrument that effects the stated prohibition from the day specified. The absence of internal amendment history means any modification or repeal would have to occur by subsequent proclamation or by legislative amendment under the enabling statute (sub‑section 40 (3) of the Family Law Act 1975), but those subsequent instruments are not part of the text provided.

Because no amendment record is included, users of this document must treat it as the original promulgation dated 27 May 1976 with the effective date 1 June 1976. The Schedule and exceptions are part of the original instrument and form the operative content. There is no indication within the supplied text of any past alterations, and no transitional or savings provisions beyond the exceptions stated. Any history of subsequent changes, revocations, or interpretative pronouncements would need to be established from other documentary sources; the supplied proclamation does not record such material.

The proclamation text supplied contains no record of litigation, judicial determination, or appellate history concerning its meaning, application, or validity. There are no references to cases, judicial interpretations, declaratory relief, or disputes in the document. The text is a formal executive proclamation that sets an operative date and limits institutional access; it does not summarise or record any challenges, nor does it note judicial decisions interpreting the Schedule’s exceptions or the boundaries of the classes defined by reference to sub‑section 4(1) of the Act.

Given the absence of any litigation record in the text, one cannot draw conclusions about how courts have applied the phrases used in the Schedule , for example, how a court would determine whether a particular proceeding “relates to” principal relief pending before 1 June 1976, or whether a cross‑proceeding is properly characterised as arising “in the course of” a pending proceeding. The proclamation itself provides the substantive terminology that would be litigated, but the supplied instrument does not contain any indication of subsequent judicial rulings resolving those potential interpretative issues.

Readers requiring judicial interpretations, case law applying the proclamation, or appellate treatment of disputes about the boundaries of the exceptions must consult judicial databases, law reports or subsequent statutory materials; none of those appear in the document presented. The proclamation therefore must be read as the raw legal text standing alone, without recorded litigation history within the supplied source.

The proclamation contains several textual features that can generate practical and interpretative risks for practitioners, registrars, litigants and courts.

1. Reference by incorporation. The Schedule does not itself define what the listed classes mean; it repeatedly refers to “the definition of ‘matrimonial cause’ in sub‑section 4 (1) of that Act” and to paragraphs (a)-(f) of that definition. A “gotcha” is that a practitioner who fails to consult sub‑section 4(1) risks misclassifying a matter. The proclamation’s prohibition applies only to proceedings of the kinds so described, so correct classification is essential; the proclamation contains no checklist or examples.

2. Temporal predicate “immediately before 1 June 1976.” The Schedule’s exceptions hinge on whether proceedings were “pending in the Supreme Court … immediately before 1 June 1976.” Determining the precise moment of pendency (for example, whether service, filing, or other steps constitute the relevant pendency) may be contested. Parties who rely on the exception must be able to establish the factual predicate, and registries may require documentary proof.

3. The phrase “relate to proceedings for principal relief.” The Schedule carves out proceedings that “relate to proceedings for principal relief pending” immediately before the date. That language invites disputes about the scope of “relate to.” Is a collateral application “related” if it affects property rights or costs? The proclamation does not define the term, so litigants and courts will need to interpret the relational test.

4. Cross‑proceedings exception. Cross‑proceedings in the course of pending matters are excluded from the prohibition, but only where those “last‑mentioned proceedings were pending … immediately before 1 June 1976.” This creates a dependency: a cross‑claim that arises after the date may be shorn of access if the principal proceeding was not pending before the cut‑off date.

5. Geographical scope and omissions. The instrument lists particular Supreme Courts including Norfolk Island and the Australian Capital Territory. A “gotcha” is assuming it affects other tribunals or lower courts; the proclamation is explicit about the named Supreme Courts and does not purport to affect other forums. Practitioners must therefore consider which courts remain available for institution and transfers, but the proclamation itself does not identify alternatives.

6. No procedural guidance. The proclamation contains no guidance to registrars on how to handle attempted institutions or transfers that may be prohibited, nor does it provide rules for documenting pendency or resolving disputes about classification. That creates implementation friction and the potential for administrative error, contested filings, and costs orders in follow‑on proceedings.

7. No penalties specified. Because the instrument contains no penalty clause, parties may mistakenly attempt to institute or transfer matters and then face rejection or litigation over costs and jurisdiction. The practical risk is wasted time and expense for litigants who do not verify the date and the classification.

8. Reliance on the enabling provision. The proclamation is “IN pursuance of sub‑section 40 (3) of the Family Law Act 1975.” If a party questions whether the proclamation’s scope falls within the enabling power, that question is litigable. The proclamation’s text does not discuss the outer limits of the power or provide a rationale that could assist courts in resolving challenges.

9. Documentary proof burdens. The exceptions obligate parties to demonstrate that a qualifying proceeding was “pending … immediately before” the cut‑off. That requires documentary records, which for older matters may be lost, increasing the evidentiary burden and potential disputes about admissibility of old filings or registrar notes.

10. Narrow operation, broad consequences. The proclamation’s text is compact, but its effect is to close off certain institutional choices. Parties and practitioners who are not attentive to the date and the Schedule could find their strategic litigation choices compromised. The document’s terseness increases the risk of procedural missteps.

Compliance requires attention to three concrete tasks: classification, temporal verification, and venue selection. The proclamation’s operative command is simple but fact‑dependent: do not institute or transfer proceedings of the classes listed in the Schedule into the Supreme Courts named on or after 1 June 1976, unless a narrow exception applies because the matter was pending in those Courts immediately before that date.

1. Classify the proceeding. Determine whether the proposed matter is of the kind “referred to in paragraph (a) … paragraph (b) … paragraph (c), (d), (e) or (f) of the definition of ‘matrimonial cause’ in sub‑section 4 (1) of” the Act. This requires consulting sub‑section 4(1) and mapping the factual elements of the client’s case to the statutory paragraphs. The proclamation’s Schedule repeatedly ties its coverage to those specific paragraphs; correct classification is the first compliance step.

2. Verify pendency date for exceptions. If the proceeding could be a cross‑proceeding or an ancillary matter, confirm whether a qualifying principal proceeding was “pending in the Supreme Court … immediately before 1 June 1976.” Collect and certify contemporaneous filings, registry receipts, service affidavits, cause lists or other court records establishing the date when the principal proceeding was pending. Where the Schedule preserves cross‑proceedings and proceedings “that relate to” principal relief, ensure documentary proof is ready to demonstrate that the factual predicates are met.

3. Do not institute or seek transfer into named Supreme Courts post‑date. If the matter is captured by the Schedule and no exception applies, do not file or attempt to transfer the case into the Supreme Courts of New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory or Norfolk Island on or after 1 June 1976. The proclamation’s language is absolute: such matters “may not be instituted in or transferred to” those Courts. Filing or transfer attempts should instead be directed to an appropriate alternative forum, consistent with the Act and other enabling instruments; the proclamation does not itself name alternatives, so identify the correct forum from statutory sources and court rules.

4. Prepare evidence for registry interactions. Because the proclamation depends on factual predicates like “pending … immediately before 1 June 1976” and relational tests like “relate to,” prepare a bundle of documents proving the relevant dates and relationships. Use sworn affidavits, registry stamps and filing numbers to establish pendency, and be ready to deliver those documents to registries when seeking to rely on an exception.

5. Alert clients and update practice protocols. Inform clients with matrimonial disputes about the date restriction and its practical consequences for venue choice. Update internal checklists and client intake forms to require classification against sub‑section 4(1) and to capture the date of any pending matter. Train registrars and practice staff to flag matters that might be captured by the proclamation and to escalate classification questions to counsel.

6. Preserve costs and interlocutory remedies. Because the instrument does not specify how attempted prohibited filings will be treated procedurally, plan for possible costs or interlocutory disputes if a filing is rejected or contested. Where a filing was attempted in error, document the steps taken and seek directions from courts or alternative fora on costs recovery where appropriate.

7. Anticipate disputes about wording. Be prepared to litigate or otherwise resolve close questions of interpretation , for example, whether an application “relates to” principal relief or whether a cross‑proceeding arises “in the course of” a pending matter. Collect contemporaneous evidence of the factual nexus and be ready to argue the relational test with reference to the specific wording in the Schedule.

8. Maintain record of executive instrument. Keep a certified copy of the proclamation, including the signature and attestation lines showing it was made “IN pursuance of sub‑section 40 (3) of the Family Law Act 1975” and given under the Great Seal on “27 May 1976.” That is the document that registries and courts will consult to verify the restriction and the exceptions described in the Schedule.

Following these steps implements the negative command in the proclamation while preserving access where the Schedule’s narrow exceptions apply. The document does not offer administrative guidance or alternative venue prescriptions, so compliance requires proactive identification of the appropriate court or tribunal under the Act and related instruments and careful documentation of the factual predicates relied upon.