Under the Constitution, the Commonwealth Government has the jurisdiction to make laws in relation to divorce and matrimonial causes, including parental rights and custody issues.  Because the Constitution did not expressly give the Commonwealth Government jurisdiction over de facto relationships and exnuptial children, under the Constitution these matters would fall within the jurisdiction of state governments.

Most states have chosen to refer some or all of their jurisdiction over de facto relationships and exnuptial children to the Commonwealth government.  Western Australia has retained its law making authority with respect to de facto relationships and exnuptial children.
 
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