V v V [1985] HCA 45; (1985) 156 CLR 228 (11 July 1985)

HIGH COURT OF AUSTRALIA

V. and ANOR. v. V. [1985] HCA 45; (1985) 156 CLR 228

Constitutional Law (Cth)

High Court of Australia
Gibbs C.J.(1), Mason(1), Wilson(1), Brennan(1), Deane(1) and Dawson(2) JJ.

CATCHWORDS

Constitutional Law (Cth) - Powers of the Commonwealth Parliament - Marriage - Access to children - Applications - Application by grandmother - No proceedings between parents with respect to children - Family Court of Australia - Jurisdiction - Matrimonial cause - The Constitution (63 & 64 Vict. c. 12), s. 51(xxi) - Family Law Act 1975 (Cth), s. 4(1)(ce).

HEARING

Canberra, 1985, June 13;
Brisbane, 1985, July 11. 11:7:1985
CAUSE removed pursuant to the Judiciary Act 1903 (Cth), s. 40(1).

DECISION

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE JJ.: The question for decision in this case is whether the Family Court has jurisdiction to entertain an application for access to the children of a marriage when the application is made by the grandmother of the children and there have been no previous proceedings between the parties to the marriage. The children in the present case had been adopted by the parties to the marriage and it is not contested that they are deemed to be children of the marriage by s.5(1)(a) of the Family Law Act 1975 (Cth), as amended ("the Act"). The validity of that paragraph of s.5(1) has not been called into question - understandably, in the light of In the Marriage of Cormick [1984] HCA 79; (1984) 59 A.L.J.R. 151, at pp.153, 155; [1984] HCA 79; 56 A.L.R. 245, at pp.248, 253.

2. In the present case, an application was made to the Family Court seeking an order for access to two children, aged five and three respectively, who were in the custody of their adoptive parents, who are husband and wife. The application was made by the mother of one of the adoptive parents. There have been no proceedings under the Act or under the Matrimonial Causes Act 1959 (Cth), as amended, between the parties to the marriage (the parents) with respect to the custody of the children or at all. On the application of the parents, the matter has been removed into this Court for the purpose of deciding the question whether the Family Court has jurisdiction to entertain the application.

3. The jurisdiction of the Family Court includes jurisdiction with respect to matrimonial causes: see ss.8(1), 31(1)(a), 39(1) of the Act. The expression "matrimonial cause" is defined by s.4(1) to include:

"(ce) proceedings with respect to the custody,
guardianship or maintenance of, or access
to, a child of a marriage, being
proceedings to which one party to the
marriage is a party (whether or not the
other party to the marriage is also a
party to the proceedings), other than
proceedings for the making of an order,
or the taking of any other action, of the
kind referred to in sub-section 10(2)".
1983 (Cth) and its validity has not previously been considered. Section 10(2) preserves the jurisdiction of courts and the power of authorities under certain laws of a State or a Territory with respect to child welfare; its provisions are not presently material. By s.61(1) of the Act, it is provided as follows:

"Subject to any order of a court for the time
being in force, each of the parties to a marriage
is a guardian of any child of the marriage who has
not attained the age of 18 years and those parties
have the joint custody of the child."

By s.64(2) the court is given power, in proceedings with respect to the custody, guardianship or welfare of, or access to, a child of a marriage, to make, inter alia:

"(c) an order granting to any person (whether or
not that person is a party to the marriage)
rights of access to the child".

It is clear that if these provisions of the Act are valid the Family Court has jurisdiction in the present case.

4. The submission on behalf of the parents, supported by the State of Queensland, is that the enactment of the provisions of par.(ce) of the definition of "matrimonial cause" in s.4(1) of the Act was beyond the power of the Commonwealth. Clearly the only power which would support the enactment is that conferred by s.51(xxi) - the power to make laws with respect to "Marriage". The effect of par.(ce), in conjunction with ss.31(1)(a), 39(1) and 64(2)(c) is to give the Family Court jurisdiction in proceedings brought by a stranger to a marriage for access to a child of the marriage and to make an order in favour of the stranger in those proceedings. It was submitted that such a law does not have the character of a law with respect to marriage, even if one or both of the parties to the marriage are parties to the proceedings. Such a law, it is said, is not sufficiently connected with marriage; the fact that the law has some operation with respect to access to a child of a marriage does not mean that it is a law with respect to marriage. It is submitted that the necessary connexion may, however, exist if a previous order has been made by a court in relation to access to or the custody of a child, as was the case in St. Clair v. Nicholson, reported as Vitzdamm-Jones v. Vitzdamm-Jones (1981) 148 CLR 383 and Fountain v. Alexander [1982] HCA 16; (1982) 150 CLR 615.

5. Recently, in In the Marriage of Cormick, at p 152; p 247 of A.L.R., it was accepted by six members of this Court that the following principles were established by the earlier cases:

"It is now well settled that 'marriage' in
s.51(xxi) includes the relationship or institution
of marriage and, since the protection and nurture
of the children of the marriage is at the very
heart of the relationship, that the power to make
laws with respect to marriage enables the
Parliament to define and enforce the rights of a
party to the marriage with respect to the custody
and guardianship of a child of the marriage. The
rights and duties of the parties to a marriage,
with respect to the children of the marriage, arise
directly out of the marriage relationship, and a
law defining, regulating or modifying the incidents
of the marriage relationship is a law with respect
to marriage. This is so, although the law defines
the rights of the parties to the marriage to the
custody and guardianship of a child of the
marriage, not only as between themselves, or
between them and the child, but also as against
other persons."

These principles are decisive of the present case. The power of the Parliament to define and make provision for the enforcement of the rights of the parties to a marriage with respect to the custody of, or access to, a child of the marriage is not restricted to the definition and enforcement of the rights of the parties to the marriage between themselves: see Reg. v. Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR 447, at p 456. It is not limited to confirming and protecting the rights of the parties to the marriage, or of one of those parties. It extends to allow the Parliament to provide that the rights of the parties to the marriage, which arose from the marital relationship, may be defeated or diminished, e.g. by an order granting custody or access to a stranger. A law which provides for the adjudication of conflicting claims by a party to a marriage and a stranger to the custody of or access to a child of the marriage is a valid exercise of the marriage power, because such a law provides for the regulation of rights and duties (declared in the first instance by s.61(1)) that arise out of the marriage relationship. This has already been expressly recognized in Vitzdamm-Jones v. Vitzdamm-Jones, at p 414 and Fountain v. Alexander, at pp 625-626, 631-632 and 646-647. In those cases, importance was attached to the fact that there had been previous proceedings, but that was because the "matrimonial cause" in each case fell within par.(f) of the definition, which required the necessary connexion with the marriage to be found in the previous proceedings rather than in the fact that a party to the marriage was a party to the matrimonial cause. The fact that there have been previous proceedings cannot possibly be a necessary condition of the constitutional validity of a law made under the marriage power.

6. It has previously been pointed out that the Parliament cannot, in the exercise of the marriage power, make provision for the adjudication of contending claims by strangers to the marriage to the custody of a child of the marriage when the making of that provision has nothing to do with the adjustment or termination of the rights of a party to the marriage: see Vitzdamm-Jones v. Vitzdamm-Jones, at pp 414-415; Fountain v. Alexander, at p 631. However, par.(ce) of the definition requires that a party to the marriage should be a party to the proceedings, which must necessarily involve a right or claim of a party to the marriage.

7. It was submitted that the consequences of allowing a stranger to a marriage to invoke the jurisdiction of the Family Court seeking access to the child of a marriage would be inconvenient. That circumstance, if true, would be irrelevant. The provisions of the Act are unambiguous; the question is not one of construction, but of constitutional validity. The scope of a provision conferring legislative power is not to be reduced because it is feared that the power may be exercised in a manner that will cause inconvenience.

8. The proceedings described in par.(ce) are proceedings with respect to rights and duties which arose directly out of the marital relationship. Paragraph (ce), in its operation in conjunction with the substantive provisions of the Act, is a valid exercise of the marriage power.

9. It follows that the Family Court has jurisdiction in the present case and that the matter should be remitted to the Family Court.

DAWSON J.: In In the Marriage of Cormick [1984] HCA 79; (1984) 59 ALJR 151; (1984) 56 ALR 245 I agreed with the judgment of the Chief Justice. I am prompted by this case to reflect that perhaps I should have made explicit the basis of my agreement with one passage which appears at p.152 of ALJR and p.247 of ALR of that judgment. The passage is as follows:

"The rights and duties of the parties to a
marriage, with respect to the children of the
marriage, arise directly out of the marriage
relationship, and a law defining, regulating or
modifying the incidents of the marriage
relationship is a law with respect to marriage.
This is so, although the law defines the rights of
the parties to the marriage to the custody and
guardianship of a child of the marriage, not only
as between themselves, or between them and the
child, but also as against other persons. These
principles have been fully discussed in the cases,
particularly in Dowal v. Murray [1978] HCA 53; (1978) 143 CLR
410; R. v. Lambert; Ex parte Plummer (1980) 146
CLR 447; Vitzdamm-Jones v. Vitzdamm-Jones [1981] HCA 8; (1981)
148 CLR 383; and Fountain v. Alexander [1982] HCA 16; (1982)
150 CLR 615."

2. The statement that a law defining the rights of the parties to a marriage to the custody and guardianship of a child of the marriage as against persons who are not parties to the marriage is a law with respect to marriage is, of course, qualified by the reference to the cases cited. I am apprehensive, however, that the relevant sentence may be read without this qualification and as a general statement it is, in my view, too wide. Perhaps, as I have said, I should have made this clear in In the Marriage of Cormick, but I shall attempt to repair the omission in a moment. First, I should explain why I regard the cases cited in the passage from the Chief Justice's judgment as a necessary qualification of the statement to which they are appended.

3. In Dowal v. Murray the Court was concerned with the validity of s.61(4) of the Family Law Act 1975 (Cth) which then provided:

"On the death of a party to a marriage in whose
favour a custody order has been made in respect of
a child of the marriage, the other party to the
marriage is entitled to the custody of the child
only if the court so orders on application by that
other party and, upon such an application, any
other person who had the care and control of the
child at the time of the application is entitled to
be a party to the proceedings."

It was held by a majority that s.61(4) was a valid law with respect to marriage pursuant to s.51(xxi.) of the Constitution, but not because of any general proposition that the marriage power extends beyond the regulation of the rights and obligations inter se of the parties to a marriage to the regulation of the rights and obligations of third parties. On the contrary, the case was decided upon the limited basis that the jurisdiction otherwise conferred upon the Family Court with respect to custody had been validly extended to a situation created by the death of a party to a marriage in whose favour an order for custody of a child of the marriage had been made. It was, as Stephen J. pointed out at p.423, a position closely analogous to that of a subsequent variation of an order made in some original proceedings because of a later change in circumstances. The jurisdiction defined by s.61(4) was, therefore, held to be incidental to the jurisdiction conferred upon the Court by the Act to make orders for custody in proceedings between the parties to a marriage. That is as far as Dowal v. Murray went and it is a long way short of justifying any general proposition that the marriage power extends beyond the regulation of the rights and duties inter se of the parties to a marriage to the regulation of the rights and duties of third parties in relation to the custody of a child of the marriage. See also Gibbs A.C.J. at p.418.

4. By the time Vitzdamm-Jones v. Vitzdamm-Jones was decided, s.61(4) of the Family Law Act had been expanded to provide for an application for custody to be made not only by the surviving party to a marriage but also by a stranger to the marriage. In its amended form it was as follows:

"On the death of a party to a marriage in whose
favour a custody order has been made in respect of
a child of the marriage -

(a) the other party to the marriage is entitled to
the custody of the child only if the court so
orders;

(b) the other party to the marriage or any other
person may make an application to the court
for an order placing the child in the custody
of the applicant; and

(c) in an application under paragraph (b) by a
person who does not, at the time of the
application, have the care and control of the
child, any person who, at that time, has the
care and control of the child is entitled to
be a party to the proceedings."

5. By a majority of four to three this Court upheld the validity of the new s.61(4). The only difference in substance between it and the previous sub-section is that a stranger to the marriage may make application for the custody of a child of the marriage. The power to make an order in favour of a stranger had previously been there. The basis upon which the validity of the sub-section was upheld was the same as in Dowal v. Murray, namely, that it goes no further than to confer jurisdiction to readjust the right to custody of a child of a marriage when a previous order has ceased to operate because of the death of the party to the marriage in whose favour it was made. Although a minority thought that in this situation there was an insufficient connexion between the marriage and any custody order, the majority was prepared in these limited and somewhat special circumstances to see a connexion and to uphold the jurisdiction of the Family Court to determine an application for the custody of the child of a marriage made by a stranger to the marriage.

6. In Fountain v. Alexander the same reasoning was applied to uphold the validity of s.4(1)(f) of the Family Law Act to the extent that it brought within the definition of "matrimonial cause" an application by a third party to disturb a prior grant of custody to a party to a marriage of a child of the marriage. By s.31(1)(a) of the Act, the Family Court has jurisdiction in matrimonial causes instituted under the Act and, by s.39(1), a matrimonial cause may be instituted under the Act in the Family Court. Section 4(1) sets out those proceedings which constitute a matrimonial cause and par.(f) was as follows:

"any other proceedings (including proceedings with
respect to the enforcement of a decree or the
service of process) in relation to concurrent,
pending or completed proceedings of a kind referred
to in any of paragraphs (a) to (e), including
proceedings of such a kind pending at, or completed
before, the commencement of this Act."

It was because there had been an order for custody of the child of the marriage in favour of the wife upon the dissolution of the marriage that the application in Fountain v. Alexander was held validly to fall within par.(f) of the definition of matrimonial cause. It was because of that order, which established the rights of the parties to the marriage to custody of the child, that jurisdiction over the subsequent application, which amounted to an application for custody, was held to have been validly conferred upon the Family Court under the marriage power. The connexion between those proceedings and the marriage was, as Gibbs C.J. put it at pp.624-625, the fact that the second proceedings sought to undo the effect of the order made in the first proceedings. In other words, the view was taken that, as in Dowal v. Murray, the order sought would, if granted, effect a reordering of the state of affairs brought about by an order made between the parties to the marriage and hence was itself sufficiently connected with the marriage to bring the jurisdiction to grant the order within the marriage power. That was the way in which the application in Fountain v. Alexander was viewed, but it should be noted at this point that, for reasons which will appear later, it by no means follows that the custody of a child of a marriage must for all purposes fall within "marriage" as a head of legislative power so that a general jurisdiction can be conferred upon the Family Court in relation to it. Custody, even of a child of a marriage, extends beyond marriage as a subject-matter and a law may be a law with respect to custody without being a law with respect to marriage. It is sometimes said that the protection and nurture of the children of a marriage is at the very heart of the relationship: see, e.g., In the Marriage of Cormick, per Gibbs C.J. at p.152 of A.L.J.R.; p.247 of A.L.R. If I may say so with respect, such a statement contains more rhetoric than meaning. The protection and nurture of children is basically a function of parenthood rather than marriage and, in any event, covers a much broader field than marriage. Whilst the marriage relationship and the regulation of that relationship may have an undeniable bearing upon the welfare of children of the marriage, the subject of children's welfare is different from the subject of marriage. I shall return to this by way of elaboration in a moment.

7. It is important to recognize that in the cases to which I have referred, being cases in which an order for custody was being sought in relation to the child of a marriage in favour of a stranger to the marriage, the fact that the order was being sought against a party to the marriage was not, of itself, held to be a sufficient basis for jurisdiction to be validly conferred upon the Family Court. Something more was needed in order to connect the order sought with the marriage and it was found in the effect which the order sought would have upon the existing situation - the ordered regimen for custody as Stephen J. called it in Dowal v. Murray - which existed by reason of an order made governing the custody rights of the parties to a marriage inter se. Thus the jurisdiction of the Family Court in these cases was founded upon prior proceedings between the husband and wife.

8. It is in this light that it is necessary to view the somewhat broad statements made from time to time in the cases that the marriage power is not restricted to the regulation of the rights inter se of the parties to a marriage in relation to the custody of a child of the marriage. The broadest of these statements is, perhaps, that made by Mason J. in Reg. v. Demack; Ex parte Plummer [1977] HCA 37; (1977) 137 CLR 40, at p 53, where he said:

"The exercise of the power cannot be restricted to
a definition of, or to making provision for the
enforcement of, the custodial rights of the parents
inter se. It follows that the Parliament may in
the exercise of the marriage power enact a law
providing that the custodial rights of the parent
of a child shall be paramount and that they shall
prevail over the rights of any other person,
whether he be a Minister or officer of the State or
not. So also the Parliament may in the exercise of
the power authorize a court to make an order for
custody of a child in favour of a parent to the
exclusion of the rights of any other person,
including a Minister or officer of a State. So to
define the rights of the parents is not to derogate
from the character of the law as one which defines
the rights of the parties to the marriage; it is
merely to define the rights in such way as to give
them a paramount and exclusive operation."

These remarks were made in a case dealing with the jurisdiction of the Family Court to make an order for the custody of the child of a marriage who had been committed to the care and control of the Director of the Department of Children's Services in Queensland under s.61(4)(a)(iii) of the Children's Services Act 1965 (Q.). They were obiter because it was held by the whole Court that by reason of s.10 of the Family Law Act the Court had no power to affect the rights of the Director. However, in a subsequent decision, Reg. v. Lambert; Ex parte Plummer, the majority of the Court rejected the views which are contained in the passage which I have set out. Reg. v. Lambert; Ex parte Plummer was also concerned with the jurisdiction of the Family Court to affect the custody of the child of a marriage admitted to the care and protection of the Director of the Department of Children's Services in Queensland. Section 10 of the Family Law Act had by this time been amended so that it purported to authorize the Family Court by its order to interfere with the custody or possession of a child in respect of whom an order had been made under s.49 of the Children's Services Act. Section 10 in this form was held to be beyond Commonwealth legislative power.

9. It is quite clear that in Reg. v. Lambert; Ex parte Plummer the majority of the Court took the view that a law governing the right to custody of a child - even of a child of a marriage - was not ipso facto a law with respect to marriage. Gibbs J., with whom Barwick C.J. agreed, reiterated, at p.457, what he had said in the earlier case of Reg. v. Demack; Ex parte Plummer, namely, that an enactment is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of the marriage or with respect to married persons. He agreed with a concession made on behalf of the Attorney-General for New South Wales that a law which provided that a parent in whose favour an order for the custody of a child had been made might give effect to that order by procuring the child's release from prison, or from a mental hospital or a hospital for infectious diseases, would not be a law with respect to marriage. Aickin J. pointed, at p.474, to the necessity to bear constantly in mind that the legislative power is one to make laws with respect to marriage and not one to make laws with respect to the children of marriages. He went on to observe, at p.475, that laws concerned with the welfare and development of children generally, notwithstanding that they impose duties upon parents in relation to their children, do not touch the marriage relationship at all. Wilson J., at p.491, recognized the distinction between the personal and private world of relationships with which marriage is concerned and the area of general law. That distinction meant, in his view, that a child of a marriage may by the operation of a law of a State come under the guardianship of a Minister or officer of the State, with the result that during the period of guardianship it ceases to be directly subject to the private world of that marriage relationship to which it belongs.

10. Now the point which I set out to make was that the statement that a law which defines the rights of the parties to a marriage to the custody and guardianship of a child of the marriage as against persons who are not parties to the marriage, is a law with respect to marriage, is confined by the cases to which I have just made reference. Reg. v. Lambert; Ex parte Plummer makes it quite clear that without qualification such a statement does not accurately represent the law. Dowal v. Murray, Vitzdamm-Jones v. Vitzdamm-Jones and Fountain v. Alexander show that to the extent it is correct, it is confined to the special situation where rights granted to a stranger to the marriage would effect the variation of circumstances produced by an order made in prior proceedings between the parties to a marriage in relation to the custody or guardianship of a child of the marriage. Notwithstanding the division of opinion in those cases, they stand as authority for the proposition that in that special situation it is correct to say that a law which defines the rights of the parties to a marriage to the custody and guardianship of a child of a marriage as against persons who are not parties to the marriage is a law with respect to marriage.

11. That is sufficient to make the immediate point which I wished to make, but it is necessary to go on and recognize that in the cases to which I have referred there are observations which would appear to expand the concept of a law with respect to marriage beyond that of a law dealing with the rights and obligations of husband and wife between themselves to that of a law which deals with rights and obligations between married persons and strangers to the marriage. See, e.g., Reg. v. Lambert; Ex parte Plummer, at pp 455-456 and 489; Vitzdamm-Jones v. Vitzdamm-Jones, at p 414. Of course, it is not suggested that any law of the latter kind would be a law with respect to marriage and the limit is said to be provided by the degree of connexion with the marriage relationship. See Reg. v. Lambert; Ex parte Plummer, at pp 457 and 489. In other words, a law dealing with the rights and obligations of strangers towards the partners to a marriage will only be a law with respect to marriage if there is a sufficiently close connexion between the law and the marriage relationship. In my respectful view this is an unhelpful approach and one which is apt to mislead because it is unnecessarily imprecise and obscures the nature of the marriage power which contains within itself its own limitations. Nevertheless, it is an approach which, if properly applied and taken to its full extent, will lead to the same result as the view which regards marriage as being confined to the rights of husband and wife between themselves. I shall attempt to explain why.

12. Marriage is a relationship which governs the rights and obligations of the partners to the marriage. They are mutual rights and obligations which exist between the marriage partners. Marriage does not give rise to obligations towards strangers to the marriage nor does it give rise to any obligations on the part of strangers. Thus, as was observed by Taylor J. in Attorney-General (Vict.) v. The Commonwealth [1962] HCA 37; (1962) 107 CLR 529, at p 560, the power to make laws with respect to marriage "extends not only to laws prescribing the form and requisites of a valid marriage but also to laws defining and regulating the respective rights duties and obligations of the parties inter se." But the rights of the parties which are defined or regulated will almost certainly, perhaps invariably, be part of the general framework of the law within which married persons, no less than unmarried persons, must lead their lives. Laws with respect to property, for example, or laws with respect to the custody or welfare of children, do not arise out of marriage nor are they dependent upon marriage for their operation. If a law with respect to marriage has an application to property or custody or guardianship, it will, to use the words of Kitto J., join with other laws "to fix the bounds of the legal changes which marrying is to bring about": Attorney-General (Vict.) v. The Commonwealth, at p 554.

13. A law which, other than in an incidental way, purports to define or regulate, not the marriage relationship, which exists between the parties inter se, but the relationship between the marriage partners and strangers to the marriage, may be a law with respect to married persons but it will not be a law with respect to marriage.

14. To say then that a law which deals with rights and obligations between married persons and strangers to the marriage will be a law with respect to marriage, provided there is a sufficiently close connexion with the marriage relationship is, to my mind, to state the position with unnecessary imprecision. To lay down a test requiring close connexion is to speak largely in terms of impression. To recognize, on the other hand, that a law, in order to be a law with respect to marriage, must in some way regulate or define the rights or obligations inter se of the partners to a marriage and that a law will otherwise only have a connexion with the marriage relationship if it is incidental to such a regulation or definition of rights, is to view the matter in its true perspective. Seen in such a way, cases such as Dowal v. Murray, Vitzdamm-Jones v. Vitzdamm-Jones and Fountain v. Alexander, are cases in which the law in question was incidental to the regulation of the rights of the marriage partners in previous proceedings and for that reason, rather than any mere connexion with the marriage relationship, however close, the law was upheld.

15. So also viewed in that light Reg. v. Lambert; Ex parte Plummer may be seen as a case in which the law in question sought to regulate the rights of a stranger to the marriage - in that case the Director of the Department of Children's Services in Queensland - in a way which was not incidental to the regulation of the rights of the partners to the marriage and so was not a law with respect to marriage. The rights of the parents to the custody of the child of the marriage between themselves as partners to the marriage were not affected by the order made under the Children's Services Act admitting the child of the marriage to the care and protection of the Director. The rights of the parents inter se arising out of the marriage relationship did not exhaust the subject of custody of the child but they remained to regulate that relationship with respect to custody when any questions with respect to custody arose between the parents, as it might if the order made in favour of the Director ceased to have effect for any reason.

16. Further emphasis is given to the distinction which I have been seeking to make by the redirection which the Court has given to those cases dealing with the enforcement of orders of the Family Court. Since a law with respect to marriage may only validly operate within the area of rights and obligations of the marriage partners inter se, so a law which goes beyond the enforcement of those rights inter se and attempts to enforce them against third parties will go beyond a law with respect to marriage, unless in some way the extension of enforcement measures to third parties may be said to be incidental to the enforcement of rights between the partners inter se. As Wilson J. and I explained in Re Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 59 ALJR 132, at pp 142-143; [1984] HCA 82; (1984) 56 ALR 609, at pp 627-628:

"Those cases which may have been thought to suggest
wider powers, either under the Family Law Act or
its predecessor, the Matrimonial Causes Act 1959
(Cth), have been explained in Ascot Investments Pty
Ltd v. Harper to be cases in which, upon closer
examination, the rights of third parties were not
really affected, either because of the limited
nature of the relief granted (Sanders v.
Sanders [1967] HCA 33; (1967) 116 C.L.R. 366) or because the
transaction giving rise to the so-called rights of
the third parties was a sham (Antonarkis v.
Delly (1976) 51 A.L.J.R. 21) or because the third
party was a company which was no more than the
alter ego of one of the parties to the marriage: R.
v. Dovey; Ex parte Ross at 526."

17. In Gazzo v. Comptroller of Stamps (Vict.) [1981] HCA 73; (1981) 149 CLR 227 this Court held that s.90 of the Family Law Act was invalid to the extent that it attempted to exempt from State stamp duty a transfer of land executed by a person in accordance with an order of a Family Court. For the purpose of testing the validity of the law, members of the majority drew a distinction between matters closely connected with marriage and matters incidental to a law with respect to marriage, although the distinction, as the result to my mind indicates, is merely a matter of words. See per Gibbs C.J. at p.234 and Aickin J. at p.264. This, I think, was recognized by Stephen J., at p.244, where he said:

"The extent of implied incidental power will
depend upon the particular head of power which is
in question; matters of history and of long usage
play their part in the case of some powers, as with
the forfeiture and seizure provisions of customs
legislation - Burton v. Honan [1952] HCA 30; (1952) 86 CLR 169,
at p 179, per Dixon C.J. But, as the Chief Justice
remarked in that case, the extent of an incidental
power is a matter of degree (at p.178). A
reasonable connexion must be shown before a law can
be sustained as incidental to the relevant power
(at p.179). Here there is, in my view, no such
connexion. Apart from all else, the fact that s.90
operates, at best, as between a party to the
marriage and a third party, being the State revenue
authorities, itself serves to distance it from the
relevant heads of power. I say, 'at best' because
it may be that the person liable to duty will not
himself be any party to a marriage or to the
divorce proceedings or other matrimonial cause."

To my mind, putting on one side the ceremony of marriage and the requirements of a valid marriage, a law will only be a law with respect to marriage if it deals with the regulation or definition of the rights of the partners to the marriage inter se. That is the extent of the marriage power although, as with other powers, there are included within the power matters incidental to that subject-matter. Matters will not be incidental unless they are closely connected with the subject-matter of the power, but to erect a separate test of close connexion is unnecessary and likely to lead to an extension of the subject-matter of the power beyond its proper scope.

18. As Gibbs C.J. observed in Gazzo v. Comptroller of Stamps (Vict.), at p 238, although the power to make laws with respect to marriage and the power to make laws with respect to divorce and matrimonial causes enable the Parliament to legislate for the creation, variation and enforcement of rights to property which one party to a marriage has against the other, that does not mean that Parliament can, as incidental to that power, legislate with regard to the law of property generally in its application to married persons. So it is that Parliament cannot under either of those powers legislate generally with respect to the custody or welfare of children, neither of those matters being exhausted by the subject of marriage or divorce or matrimonial causes.

19. No doubt any order made by the Family Court with respect to the custody of a child of a marriage will be effective to determine the right to custody of the child in favour of one or both of the parties to the marriage as between themselves. But that is not the same thing as determining their right to custody against all the world, as Reg. v. Lambert; Ex parte Plummer shows. Rights to custody are primarily parental rights and may, if the parents are married, be regulated or defined between the parents by a law with respect to marriage or an order made pursuant to such a law. That is not to exclude a law operating directly upon the child so as to remove him or her from the operation of a law with respect to marriage. Just as an order of the Family Court cannot have a valid operation with respect to property except in relation to the rights which the parties to a marriage have over it, neither can an order of that Court validly operate to displace the custody of a child of a marriage which does not reside in the parties to the marriage. To use the examples given in the cases, an order for the custody of a child made in favour of the parties to a marriage or one of them, whilst it may be effective to regulate the right to custody as between themselves, cannot operate to release that child from prison, or from a mental hospital or a hospital for infectious diseases.

20. It is, perhaps, a truism to say that the power to make laws with respect to marriage is not a power to make laws with respect to the children of a marriage or (despite the tendentious title of the Family Law Act) the family. Nevertheless, the broad terms in which some provisions of the Act are couched may suggest the contrary. One such provision is s.61(1), which provides that:

"Subject to any order of a court for the time being
in force, each of the parties to a marriage is a
guardian of any child of the marriage who has not
attained the age of 18 years and those parties have
the joint custody of the child."

Counsel for the Commonwealth, which intervened in this case, conceded, rightly in my view, that s.61(1), given its ordinary meaning, extends to circumstances which lie beyond the power to make laws with respect to marriage and may need to be read down. Since counsel for the respondent in this case based his argument upon s.61(1), it is convenient to turn to the facts of this case before discussing the ambit of that sub-section.

21. The matter was removed from the Family Court where the respondent made application for access to two young children who have been adopted by the applicants. The applicants are married and it is conceded that, by reason of the adoption, the children are children of the marriage. See s.5(1)(a). It is convenient to refer to the respondent, who is the mother of the male parent, as the grandmother. The parents by adoption oppose the grandmother's application and dispute the jurisdiction of the Family Court to entertain it.

22. Jurisdiction is conferred on the Family Court by ss.31(1)(a) and 39(1) of the Act with respect to matrimonial causes instituted under the Act. "Matrimonial cause" is defined by s.4(1) and by par.(ce) of that sub-section extends to:

"proceedings with respect to the custody,
guardianship or maintenance of, or access to, a
child of a marriage, being proceedings to which one
party to the marriage is a party (whether or not
the other party to the marriage is also a party to
the proceedings), other than proceedings for the
making of an order, or the taking of any other
action, of the kind referred to in sub-section
10(2)".

Paragraph (ce) was inserted in the Family Law Act by Act No. 72 of 1983 and may be contrasted with par.(cb) which includes within the definition of "matrimonial cause":

"proceedings between the parties to a marriage with
respect to the custody, guardianship or maintenance
of, or access to, a child of the marriage".

The reference in par.(ce) to s.10(2) of the Act is a reference to a provision which, speaking broadly, excepts from the jurisdiction of the Family Court, save in special circumstances, the power to make orders affecting the exercise of jurisdiction under State laws with respect to the welfare of children.

23. The basis upon which counsel for the respondent (the grandmother) sought to justify the jurisdiction of the Family Court to entertain her application was that the rights of guardianship and custody of the children in question, which would embrace rights of access, were governed by s.61(1) of the Act and that the application by the grandmother for access, although she was a stranger to the marriage, was an application to alter or modify the otherwise existing rights and obligations of the parties to the marriage in relation to the children of the marriage. Indeed, s.64(2)(c) of the Act purports to give power to the Court, in proceedings with respect to the custody, guardianship or welfare of, or access to, a child of the marriage, to make an order granting to a person who is not a party to the marriage, rights of access to the child. It is unnecessary to consider separately the effect of this latter provision since the same considerations must govern the validity of both it and s.4(1)(ce).

24. The submission made on behalf of the respondent would be well founded if the effect of s.61(1) were to provide exhaustively for the custody and guardianship of the children, subject to any order of a court (defined in s.4(1) to mean a court exercising jurisdiction in proceedings by virtue of the Act). But as I have already pointed out, the power to make laws with respect to marriage does not include the power to make laws with respect to the right to guardianship or custody of children of the marriage save as between the parties to the marriage and s.61(1) cannot be read as validly providing for the existing rights and obligations of the parties to the marriage in relation to the children of the marriage save as between themselves. The application made by the grandmother is not an application to vary the rights or obligations inter se of the parties to the marriage, nor, if it were granted, would it do so. It could not be said, in my view, that it was incidental to the subject of marriage to provide for the rights of strangers to the marriage with respect to children of the marriage save to the extent that those rights would affect the marriage relationship. The application by the grandmother is to establish rights, which, if they exist at all, must be based upon something outside the marriage relationship, such as the welfare of the child. Any stranger acting upon this basis (and the right to move to protect the welfare of a child is not confined to the State authorities referred to in the exception contained in s.10(2)) is not seeking to disturb the marriage relationship, but is acting outside that relationship.

25. If the application of the grandmother were successful, the rights of the parents between themselves with respect to the children of the marriage would remain undisturbed. What would be disturbed would be the rights of the parents as against third parties but that, as Reg. v. Lambert; Ex parte Plummer shows, is not an aspect of the marriage relationship. The power to make laws with respect to marriage stops short of a power to make laws with respect to the welfare of the children of a marriage and this necessarily admits the feasibility of rights affecting the custody of children of a marriage which exist upon a basis other than marriage.

26. I have already explained the limits of Dowal v. Murray, Vitzdamm-Jones v. Vitzdamm-Jones and Fountain v. Alexander. Those cases are based upon the existence of previous proceedings between the parties to a marriage and establish no more than that jurisdiction may be conferred upon the court to deal with what those cases regard as unfinished business of the court between the parties to a marriage with respect to the child of the marriage. They afford no warrant for an expansion of the marriage power beyond its proper limits to support a view of s.61(1) of the Act which would enable it to cover the whole of the subject of custody and guardianship of a child of a marriage whether or not the rights of the parties to a marriage or the rights of strangers were involved.

27. That being so, it is my view that par.(ce) of the definition of "matrimonial cause" purports to confer upon the Family Court via ss.31(1)(a) and 39(1) a jurisdiction which it is beyond the power of the Commonwealth Parliament to confer. Since it is common ground that the Family Court has no jurisdiction to entertain the respondent's application other than by way of par.(ce), that application should be dismissed.

28. I would only add that I have in what I have written spoken almost entirely of the marriage power (s.51(xxi.) of the Constitution) in disregard of the power to make laws with respect to divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants (s.51(xxii.)). I have done so because quite clearly in this case there is no divorce or other matrimonial cause and the relevant legislative provision could not be supported by reference to the latter paragraph. The comment, however, remains that notwithstanding the overlap between pars (xxi.) and (xxii.) which must be accepted, at least since the decision in Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495, it would be in defiance of all the accepted canons of construction to regard par.(xxii.) as no longer having any practical effect in the proper interpretation of par.(xxi.). If, as I believe to be the case, the task of interpreting the Constitution still involves ascertaining the intention to which the words of that document give expression, it would be a curious result to say the least if par.(xxi.) were to receive an interpretation which meant that it not only covered the ground also covered by par.(xxii.), but also proceeded upon a basis which was entirely inconsistent with the limitation so carefully placed by the latter paragraph upon the power to make laws with respect to the custody and guardianship of infants. It is, to my mind, an affront to reason to suggest that that limitation was imposed with the intention that, nevertheless, the Parliament should have power under the preceding paragraph to make laws with respect to custody of children in a way that extends beyond an adjustment of the marriage relationship. I do not regard s.51(xxii.) as having ceased to have any significance and it plainly points against any extension of the marriage power in relation to the custody or guardianship of infants beyond the rights inter se of the parties to the marriage.

ORDER

Declare that the Family Court of Australia has jurisdiction to entertain the application of the respondent in Application No. M5481 of 1984.

Remit the matter to the Family Court of Australia.