The Family Court has jurisdiction to determine custody as between parents even where a child is in State care, but any order made cannot affect the State authority's existing custody rights under s 10(2) of the Family Law Act 1975.
Later decisions that cite R v Demack; Ex parte Plummer
Decisions cited by R v Demack; Ex parte Plummer
THE QUEEN v. DEMACK; Ex parte PLUMMER [1977] HCA 37; (1977) 137 CLR 40
Constitutional Law (Cth) - Infants and Children
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5) and Murphy(6) JJ.
CATCHWORDS
Constitutional Law (Cth) - Powers of the Commonwealth Parliament - Marriage - Family Court of Australia - Jurisdiction - Matrimonial cause - Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage - Child in custody of State social welfare authority - Power to invest jurisdiction to make custody order affecting custody of State authority - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxi.) - Family Law Act 1975 (as amended by Family Law Amendment Act 1976) (Cth), ss. 4 (1), 10, 31 - Children's Services Act of 1965 (Q.), s. 64.Infants and Children - Family Court of Australia - Jurisdiction - Powers - Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage - Scope - Whether limited to proceedings between parties to marriage - Order of State court placing child in custody of State social welfare authority - Order of Family Court forbidden to affect order of State court placing child under control of State authority - Family Law Act 1975 (as amended by Family Law Amendment Act 1976) (Cth), ss. 4 (1), 10, 31.
HEARING
Sydney, 1976, August 26. 1977, June 27. 27:6:1977DECISION
1977, June 27.
2. The Court in Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495 gave a wide
construction to s. 51 (xxi.) of the Constitution. In my reasons for judgment
in those cases, I expressed my dissent from the view espoused by the majority
of the Court. But, whilst
maintaining myself the view there expressed, I have
come to the conclusion that, conformably to the reasons given by the majority
in those decisions, ss. 10 and 31 of the Act can be held validly to operate
according to their terms except that the jurisdiction
derived from them
should, by construction,
be limited to proceedings between the parents of the
child whose custody or guardianship
is in question. As I have formed that
opinion, its application to the facts and circumstances of this case, which
may be found
in the reasons for judgment of my brother
Mason, means that the
order nisi ought to be discharged. The proceedings in the Family
Court are in
substance, if not in form,
proceedings to which both parents are contesting
parties. Because of the provisions of
s. 10 (3), the interest of the
prosecutor cannot be affected by the result of these proceedings - a matter to
which I shall later
advert.
Having had the advantage of reading those reasons,
I find myself, bearing in mind the Court's decisions on the validity
of the
Act, in general agreement with the reasons he expresses for concluding, on the
premises adopted by the majority, that a
writ of
prohibition for want of
jurisdiction should be refused. I agree that the amendments made in the Act
after the commencement
of the
proceedings in the Family Court have no
consequence in the resolution of this case. (at p43)
3. The result of the case, having regard to the terms of s. 10 (2) of the
Act, cannot be said to be satisfactory. That section
creates the absurdity of
two antithetical orders for custody of
the same child being valid and
operative at the same time. But
that circumstance, absurd as it is, was
evidently intended by the
Parliament. Consequently, it affords no reason for
denying the
Family Court jurisdiction under ss. 10 (3) and 31 to make the
order sought in this case. (at p44)
4. In my opinion, the order nisi should be discharged. (at p44)
GIBBS J. The mother of a girl then aged fourteen made application to the
Family Court of Australia for an order for her custody.
The application was
filed on 2nd March 1976. The respondent to the proceedings, the father of the
child, was the husband of the
applicant. In his affidavit filed in the Family
Court, the husband asked the Court to place the child in his care and custody.
The child had on the 11th November 1974 been committed by an order of a
Children's Court to the care and control of the Director,
Department of
Children's Services of the State of Queensland. The effect of the order was to
make the Director the guardian of
the child, and to authorize the Director to
take the child into his custody: s. 64 of the Children's Services Act of 1965
(Q.),
as amended. Acting in pursuance of his powers under that Act, the
Director had on 28th January 1976 placed the child with the mother,
subject to
certain requirements of supervision, and the child was living with the mother
at the date of the application. The Director
now seeks a writ of prohibition
directed to the Family Court and to the parties to the proceedings on the
ground that the Family
Law Act 1975 (Cth) is ultra vires and invalid to the
extent to which it purports to confer upon the Family Court jurisdiction to
hear and determine
an application by a party to a marriage for the custody of
a child of the marriage when the child is in the
care and control of
the
Director under the provisions of the Children's Services Act. (at p44)
2. The proceedings brought by the applicant in the Family Court were not
ancillary to any "proceedings for principal relief" within
the meaning of the
Family Law Act 1975. It is not necessary, in order that the Family Court
should have jurisdiction in custody
proceedings, that those proceedings should
be ancillary to "proceedings for principal relief". It was held in Russell v.
Russell
[1976] HCA 23; (1976) 134 CLR 495 , by a majority, that the relevant provisions of
the Family Law Act 1975 which conferred jurisdiction
in proceedings
for
custody were validly enacted in so far as they related to proceedings between
the
parties to a marriage with
respect to the
custody of the natural and
adopted children of the parties to the marriage. In accordance
with that
decision it
was necessary to
read down the provisions of the Family Law Act
1975 in order to render them valid, but the Family Law Amendment
Act 1976 has
since
amended the definition of "matrimonial cause" in s. 4 (1) of the Family
Law Act 1975, and proceedings for the
custody of a child
of a marriage now
come within that definition only if
they are proceedings between the parties
to the marriage.
What was formerly
achieved by limiting the law by
construction is now
brought about by express provision. It was submitted on
behalf
of the Director
that the present proceedings were not proceedings
between the parties to the marriage, and so not within the jurisdiction
of the
Family Court, because the Director either was, or
was required to be, a party
to them. When the proceedings came before
the Family
Court, the Director
submitted that the Court did
not have jurisdiction to hear and determine them.
It does not appear
from the
material before us in what capacity the Director
appeared and made this submission. If he had been granted leave to intervene,
he would, unless the Court otherwise ordered, be deemed
to be a party to the
proceedings: s. 92 (3) of the Family Law Act. However
it is unnecessary to
consider the procedural aspects of the matter. It is immaterial whether the
Director became, or was
deemed
to have become, or should have become, a party.
In any case the proceedings were between the parties to the marriage; they
were
brought by a wife against a husband with a cross claim by the husband
against the wife. They were proceedings with respect
to the
custody of a
natural child of the marriage. If the rights and powers of the Director could
not be affected by any order
the Court
might make, the mere fact that he was,
or was deemed to have been, or ought to have been, a party, did not prevent
the
proceedings
from being proceedings between the parties to the marriage,
and so within the jurisdiction which the Family Law Act conferred, and
as the
majority of this Court has held, validly conferred, on the Family Court. (at
p45)
3. The main argument on behalf of the Director was that s. 10 of the Family
Law Act on its proper construction empowers the Family
Court to make an order
which is binding on the Director and under which a child committed by a
Children's Court to the care and
control of the Director pursuant to the
Children's Services Act may be removed from that care and control, and that so
construed
the section is beyond the power of the Parliament. If s. 10 did have
the effect which the Director suggested, I would gravely doubt
its validity.
The provisions of the Family Law Act enabling the Court to make orders for the
custody of a child, when the relief
sought is not ancillary to any matrimonial
cause,
are said to be enacted under the power to make laws with respect to
marriage
(Constitution: s. 51 (xxi.)). It seems to me that a law is not a law
with respect to marriage simply because it has some operation
with respect to
the
custody of a child of a marriage. For example, it would not in my opinion
be within the power of the Parliament
to authorize the
Family Court to release
the child of a marriage from a prison to which he had been committed by the
sentence of
a State Court,
notwithstanding that the purpose of the order of
the Family Court was to place the child in the custody of one of
his parents.
However this question need not be further discussed, since in my opinion s. 10
does not have the effect suggested.
(at p46)
4. Section 10 of the Family Law Act in its original form referred to "a child
who, under the law of a State, is a ward of the
State or a State child or is
under the
care and control of a Minister of State of the State". By amendment
made by the Family Law
Amendment Act 1976 the section now applies in relation
to:
"a child who, under the law of a State, is a ward of theI need not decide whether, as was submitted on behalf of the Director, a child who has been placed by a Children's Court under the care and control of the Director is a ward of the State or a State child within the meaning of s. 10. It is also unnecessary to decide whether the amendment made to s. 10 in 1976, which took effect after the present proceedings were commenced, would have had any operation in relation to those proceedings. If the child in the present case was not within the scope of s. 10 in its original or in its amended form, whichever is applicable, that is the end of the argument based on that section. However even if the section does apply in relation to the child, it does not in my opinion have the effect for which the Director contended. (at p46)
State or a State child or is under the guardianship, or the care
and control, of -
(i) a Minister of the Crown of the State;
(ii) an officer of the State; or
(iii) an officer of an adoption agency approved under a law
of the State".
5. The provisions of s. 10 are framed in a somewhat roundabout way, but their
meaning, upon examination, appears to me to be plain
enough. It is unnecessary
for me to set out the words of the section in full. For convenience, I shall
refer to the operation of
s. 10 only in so far as it is relevant to the
circumstances of the present case, and on the assumption that a child who has
been
placed
under the care and control of the Director does come within the
scope of the section (which is undoubtedly the case if the
section
in its
amended form applies). The section, although divided into three sub-sections,
has a twofold effect. In the first
place,
sub-ss. (1) and (3) , read together,
empower the Family Court to make an order for the custody of a child who has
been placed
under
the care and control of the Director, but only if the Court
is satisfied that there are special circumstances that justify
the making
of
the order. Secondly, the effect of sub-s. (2), which is the governing
provision, is that no decree which the Family
Court may
make affects any order
made by a court under the Children's Services Act whereby a child was placed
under the care and
control
of the Director, or the operation of the Children's
Services Act in relation to the child. In other words under s. 10 the
Family
Court has jurisdiction to make an order for the custody of a child who has
been committed to the care and control of the
Director,
if it is satisfied
that there are special circumstances that justify the making of the order, and
an order so made will
be binding
as between the parties to the marriage, but
will not affect the order that the child be committed to the care and control
of the
Director, or the rights or powers of the Director under the Children's
Services Act. It was not contended on behalf of the
Director
that if s. 10
were construed in this way it would be invalid. (at p47)
6. In some cases it might be thought to be futile, or even perhaps officious,
for the Family Court to make an order for the custody
of a child who had been
committed to the care and control of the Director, particularly when the order
was not ancillary to any
application for principal relief. However the Family
Court may only make such an order if it is satisfied that there are special
circumstances that justify the making of it and in the present case the Family
Court has not proceeded to consider whether those
special circumstances exist.
We are concerned only with the question whether the Family Court had
jurisdiction in the present case.
For the reasons that I have given I am of
the opinion that it did have jurisdiction, and that no ground has been made
out for the
issue of a writ of prohibition. (at p47)
7. I would accordingly discharge the order nisi. (at p47)
STEPHEN J. In March 1976 Mrs. Beckman applied to the Family Court of
Australia at Brisbane for an order that she be granted custody
of her daughter
Yvonne, then aged fourteen. Mrs. Beckman had for some time been living apart
from her husband but no proceedings
for dissolution of marriage had been
commenced. Her application was opposed by her estranged husband who himself
sought custody
of Yvonne. (at p48)
2. In November 1974 a Queensland Children's Court had committed Yvonne to the
care and control of the Director of the Queensland
Department of Children's
Services pursuant to s. 61 of the Children's Services Act of 1965 (Q.). The
Director thereupon became
Yvonne's guardian (s. 64) and as such had the sole
right to custody of her (Johnson v. Director-General of Social Welfare (1976)
[1976] HCA 19; 135 CLR 92, at p 97 ). Then, in January 1976, in exercise of his powers under
s. 65 of the Queensland Act and without
in any way
affecting his continued
custody of her, the Director placed Yvonne with her mother, with whom she is
still residing.
(at p48)
3. It was in those circumstances that notice of Mrs. Beckman's application to
the Family Court came to be served on the Director.
At the hearing of the
application counsel appeared on his behalf and submitted that the Family Court
lacked jurisdiction to entertain
Mrs. Beckman's application. When this
submission was rejected the Director obtained in this Court an order nisi for
prohibition,
of which this is the return. (at p48)
4. The ground of prohibition is that the Family Law Act is ultra vires in so
far as it purports to confer jurisdiction upon the
Family Court to hear and
determine an application by a
party to a marriage for custody of a child of
that marriage in circumstances
in which a third party, here the Director, has
lawful
custody of the child. The Director contends that s. 10 (3) of the
Family
Law Act 1975 purports to confer jurisdiction in such circumstances and
that in doing so the legislation travels outside the legislative
head
of power
conferred by s. 51 (xxi.) of the Constitution, the marriage power; instead of
jurisdiction being confined to questions relating to the rights of the parties
to the marriage
it is extended so as to affect the existing custody rights of
a third party, thereby travelling outside the marriage power. (at
p48)
5. In my view these proceedings raise no such constitutional issue and this
because the first, and essential, step in the Director's
argument fails. Upon
its true meaning s. 10 of the Family Law Act does not confer the width of
jurisdiction which he claims for
it. While it confers, quite validly,
jurisdiction to make an order
determining, as between the parties to the
marriage, their rival
claims to the custody of a child of the marriage whose
existing
custody resides in one who, for convenience, may be described as
a
State custodial officer, it is careful, at the same time, to
ensure that any
such order will leave unaffected that custodial
officer's right to custody. It
follows that s. 10 does not travel
beyond the bounds of the marriage power
and, accordingly, that
no question of ultra vires arises. (at p49)
6. The terms of s. 10 are set out in full in other judgments. Its effect is
the more easily appreciated if its last sub-section,
sub-s. (3), be read
first, followed by the qualifying provision of sub-s. (1) and finally the
quite distinct provisions of sub-s.
(2). Sub-section (3) is the operative,
empowering provision; it confers jurisdiction "in special circumstances" to
make orders
for maintenance, custody or guardianship under those Parts of the
Act concerned with such orders in the case of children in the
custody of State
custodial officers. Then sub-s. (1) in effect qualifies this power by
prohibiting the making of such orders but
always "subject to sub-section (3)".
So far so good for the first step in the Director's argument; it is upon
sub-s. (2) that it
founders. That sub-section preserves in unambiguous terms a
variety of matters from being in any way affected by anything in the
Act or by
any decree under the Act. One such matter, that described in par. (b) of the
sub-section, is any order made or action
taken in respect of a child placed in
the custody of a State custodial officer and the operation, in respect of such
a child, of
the law under which the order was made or the action taken. (at
p49)
7. It follows that the proceedings which Mrs. Beckman has instituted in the
Family Court are incapable of affecting in any way
the Director's rights to
the custody of Yvonne; there would seem to have been no occasion for the
Director to have been notified
of those proceedings nor for him to have
intervened in them. The Family Court's exercise of jurisdiction under s. 10
will be confined
to a determination of custodial rights as between husband and
wife; that determination will necessarily be subject to the Director's
prior
right to custody and will only have operative effect if Yvonne should at any
time cease to be in the custody of the Director.
Hence, no doubt, the reason
for the requirement, in s. 10 (3) of the Act, that a Court should only
exercise its jurisdiction to
make such an order if it is "satisfied that there
are special circumstances that justify the making of the order". I should add
that the view which I take of the effect of s. 10 of the Act would not be
affected by the amendments made by Act No. 63 of 1976
even if, contrary to my
opinion, those amendments were applicable in the present case. (at p49)
8. What I have said involves the adoption of the arguments urged on behalf of
the intervenor State of Victoria and means that
in this case there arise no
questions of constitutional ultra vires which call for decision. It also means
that the Family Court
may, if satisfied of the existence of the requisite
special circumstances, proceed with the hearing of the present application in
exercise of the limited jurisdiction which is conferred upon it by s. 10. I
would discharge the order nisi with costs. (at p50)
MASON J. Yvonne Gaye Beckman is the daughter of Lyall Heinrich Beckman and
June Yvonne Marie Beckman. She is now aged fifteen
years. On 11th November
1974 Mr. R. T. Matthews, a magistrate sitting in the Children's Court at
Brisbane, made an order under
s. 60 (c) and s. 61 (4) (a) (iii) of the
Children's Services Acts, 1965-1974 (Q.) ("the Acts"), committing her to the
care and
control of the Director, Department of Children's Services, on the
ground that she was or appeared to be uncontrollable. (at p50)
2. By virtue of this order the guardianship of Yvonne Gaye Beckman vested in
the prosecutor as Director of the Department of Children's
Services in
accordance with the provisions of s. 64 (1) of the Acts. By virtue of the
same section the guardianship remains in
the prosecutor until such time as the
order continues in force. In the normal course of events the order will
continue in force
until the child attains the age of eighteen. The vesting of
guardianship in the prosecutor carries the right to custody of the child
(see
Johnson v. Director-General of Social Welfare [1976] HCA 19; (1976) 135 CLR 92 ; Carseldine
v. Director of the Department
of Children's Services
(1974) 133 CLR at p
365-366 ). (at p50)
3. On 28th January 1976 the Director placed the child with Mrs. Beckman
subject to a condition which I need not specify. The Director
took this action
pursuant to s. 65 of the Acts which states that it is the duty of the Director
to utilize his powers so as to
further the best interests of the child and
that in the performance of that duty he may, amongst other things, make use of
such
facilities and services as may be available or be made available by a
parent of the child. (at p50)
4. Whilst the child was placed with the mother, the mother made an
application to the Family Court of Australia for an order that
she be granted
custody, care and control of her two children, including the child Yvonne
Gaye. The application was dated 2nd March
1976. It was not ancillary to any
application for principal relief in relation to the marriage of the parents.
The father then
filed an affidavit in the proceedings in the Family Court in
which he asserted that the marriage had broken down and requested the
Court to
make an order placing Yvonne in his care and custody. (at p50)
5. The matter came on for hearing in the Family Court on 8th April 1976 and
26th May 1976 when the parties were represented, as
was the prosecutor. The
prosecutor was not named as a respondent to the application made by the
mother, but he was served with
the papers and it seems that he was treated as
a party to the proceedings although not so named. (at p51)
6. Counsel for the prosecutor submitted that the Family Court did not have
jurisdiction to entertain the application relating
to the child Yvonne. Demack
J. rejected this submission, holding that s. 10 (3) of the Family Law Act 1975
was a valid exercise
of the marriage power within s. 51 of the Constitution.
His Honour then went on to hold that s. 10 (3) protected the rights of the
prosecutor, although it is not altogether clear what his Honour meant by this
statement. The important
fact is that his Honour held that there was
jurisdiction in him to entertain the application and that he would proceed
with it.
(at p51)
7. It was in these circumstances that the prosecutor obtained an order nisi
dated 2nd June 1976 from Stephen J. calling upon Demack
J. and the parents to
show cause why a writ of prohibition should not issue on the ground that the
Family Law Act is ultra vires
to the extent to which it purports to confer
upon the Family Court of Australia jurisdiction to hear and determine
an
application
by a party to a marriage for the custody of a child of the
marriage when the child is in the care and control of
the Director of
the
Department of Children's Services under the Children's Services Acts,
1965-1974. (at p51)
8. Section 31 of the Family Law Act 1975 provides that the Family Court has
jurisdiction in matrimonial causes instituted under
the Act. The expression
"matrimonial cause"
was defined by s. 4 (1) of the Act in its original form to
mean, in the absence of
any contrary intention (inter alia):
"(c) proceedings with respect to -This definition, as the judgments of the Court in Russell v. Russell (1976) [1976] HCA 23; 134 CLR 495 point out, is expressed without limitation as to the parties between whome the proceedings are taken. In this respect it stood in marked contrast to pars (a) and (d) of the definition which are confined expressly to proceedings between the parties to a marriage. Consequently, if the definition were unaffected by other considerations it could scarcely be contended that the Family Court was without jurisdiction to entertain proceedings with respect to the custody of a child of a marriage in which a party other than a spouse was a party to the proceedings. (at p52)
...
(iii) the custody, guardianship or maintenance of, or access
to, a child of marriage."
9. By s. 3 of the Family Law Amendment Act 1976 (No. 63 of 1976) there was
substituted for par. (c) of the definition of "matrimonial
cause" in s. 4 (1)
new pars (c), (ca) , and (cb) . New par. (c) is as follows:
"(c) proceedings between the parties to a marriage withThe effect of this amendment, which was expressed to come into force on 1st July 1976, was to confine the Family Court's jurisdication in custody and guardianship cases instituted on or after that date to proceedings between the parties to a marriage. But in my opinion the amendment had no effect in relation to the instant proceedings in the Family Court, which had been "instituted under the Act", to use the words of s. 31, before that date. (at p52)
respect to -
(i) the maintenance of one of the parties to the
marriage; or
(ii) the custody, guardianship or maintenance of, or
access to, a child of the marriage."
10. Even so, the prosecutor argued that there are other considerations which
require that the definition contained in s. 4 (1)
in its unamended form should
be read down. First, it was submitted that the constitutional power to
legislate with respect to marriage
(s. 51 (xxi.)) is confined to legislation
which defines, or makes provision for the enforcement of, the rights of the
parties to
a marriage with respect to the custody of a child of the marriage.
According to the argument, the power does not extend to authorizing
a court to
make an order which would affect the rights of a Minister or officer of the
State in relation to the care and control
of a child arising under a State law
of general application directed to the welfare of children generally. The
submission was also
expressed in the form of a proposition that the marriage
power does not extend to the making of a law with respect to the custody,
care
and control of children generally, and as a consequence, that the power could
not authorize the making of a law which displaced
the custody, care and
control of the prosecutor having its origin in a State law of the kind already
referred to. (at p52)
11. The submission is misconceived. The marriage power extends to the
definition of, and the enforcement of, the rights of the
parties to a
marriage, including their rights with respect to the custody of the children
of the marriage (see Attorney-General
(Vict.) v. The Commonwealth (the
Marriage Act Case) [1962] HCA 37; (1962) 107 CLR 529 ; Russell v. Russell [1976] HCA 23; (1976)
134 CLR 495
. 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 of such way as to
give them a paramount and
exclusive operation.
(at p53)
12. The prosecutor's second submission was that s. 10 denies to the Family
Court power to make an order which will deprive the
prosecutor of his rights
arising under the order made by the Children's Court. Section 10 as originally
enacted was in the following
terms:
"10. (1) Subject to sub-section (3), a court shall not make
an order under Part VII or Part VIII for the maintenance,
custody or guardianship of -
(a) a child who, under the law of a State, is a ward of the
State or a State child or is under the care and control of
a Minister of State of the State; or
(b) a child who has a similar status under a law of a
Territory.
(2) Nothing in this Act, and no decree under this Act,
affects -
(a) the jurisdiction of a court, or the power of an authority,
under a law of a State to make an order, or take any
other action, whereby a child becomes a ward of the
State or a State child, or is placed under the care and
control of a Minister of State of a State or any similar
jurisdiction or power under a law of a Territory;
(b) any such order made, or action taken, or the operation,
in respect of a child in relation to whom any such order
has been made or action taken, of the law under which
the order was made or action taken;
(c) the jurisdiction of a court under a law of a State or
Territory to make an order in respect of the
maintenance of a child referred to in sub-section (1) in
favour of an officer or authority of the State or
Territory performing functions in relation to the
welfare of children; or
(d) an order of a kind referred to in paragraph (c) made by
a court.
(3) The Family Court or the Supreme Court of a State or
Territory may make an order referred to in sub-section (1) if it
is satisfied that there are special circumstances that justify
the making of the order." (at p54)
13. This section creates some problems of construction. Sub-section (1)
denies power to the court to make an order under Pt VII
(which includes s. 61
dealing with rights of guardianship, and custody of children), subject to
sub-s (3) . Sub-section (2) (b)
provides that nothing in the Act and no decree
under the Act affects an order made under a State law whereby a child becomes
a
ward of the State or a State child or is placed under the care and control
of a Minister of the State. Sub-section (3) then provides
that the Family
Court may make an order of the kind referred to in sub-s. (1) if it is
satisfied that there are special circumstances
that justify the making of the
order. (at p54)
14. When these sections are read together, in my opinion they place a
limitation on the authority of the Family Court to make
orders for custody
with respect to children who are wards of the State or who are State children
or are in the care and control
of a Minister of the State. In these cases the
Family Court can only make an order for custody if it is satisfied that
special
circumstances exist within the meaning of sub-s. (3). And even if the
Family Court is so satisified, the making of an order for
custody by the
Family Court does not affect an order already made under State law in respect
of the child. Precise effect must
be given to the language of sub-s. (2) of s.
10 and I see nothing in sub-ss. (1) and (3) which requires a reading down of
sub-s.
(2). It seems to me that the section was designed, as the marginal note
"Child welfare law not affected" suggests, to preserve the
independent
operation of State child welfare laws and of orders with respect to the care
and control of a child made under such
laws. (at p54)
15. By s. 6 of the Family Law Amendment Act 1976 (No. 63 of 1976) s. 10 was
amended in several respects so as to give it an operation
in relation to a
child under the guardianship or the care and control
of a Minister of the
State, an officer of the State or an
officer of an adoption agency approved
under a law of the State. Except
in so far as the amendments give s. 10 a
wider application
in this respect, they do not alter the operation which the
section had before its amendment. (at p54)
16. In these circumstances the rights of the prosecutor with respect to the
child Yvonne Gaye are preserved by s. 10 (2) of the
Family Law Act. But it
does not follow that the Family Court is without jurisdiction to hear and
determine the application for
custody made by
the mother and the
cross-application made by the father. Before the Family Court can make an
order for custody
in favour of either
parent it must be satisfied that there
are special circumstances that justify the making of the order and, even
if it
is so satisfied,
an order for custody made in favour of either parent will not
affect the rights of the Director under State
law. (at p55)
17. There was some debate as to the sufficiency of the procedural steps which
had been taken in the Family Court with a view to
making the prosecutor a
party to those proceedings. In the light of the conclusion which I have
reached on the substance of the
matter I do not find it necessary to deal with
these aspects of the case, except to say that the provisions of the Family Law
Act
and the rules, to the extent to which they relate to parties in cases of
this kind, may require some reformation. (at p55)
18. It is enough to say that for the reasons stated above I would discharge
the order nisi. (at p55)
JACOBS J. The child Yvonne Gaye Beckman is by order of a Children's Court of
Queensland under the care and control of the prosecutor,
the Director of the
Department of Children's Services (Queensland). I shall assume that, as
submitted on behalf of the prosecutor,
she is a child who falls within s. 10
(1) (a) of the Family Law Act (Cth), both within the original wording of that
paragraph and
within the paragraph substituted by s. 6 of Act No. 63 of 1976.
(at p55)
2. The mother of the child, the respondent, applied to the Family Court of
Australia (Demack J.) for custody, joining her husband
as respondent. Notice
of the application was given to the prosecutor and copies of the papers were
served on him. He now seeks
to prohibit the proceedings in the Family Court.
(at p55)
3. The proceedings and argument before this Court have taken the following
course. The respondent mother of the child has appeared
to submit but has
presented no argument. The prosecutor and the Commonwealth (intervening) have
placed at the fore of their submissions
that s. 10 on its true construction
allows the Family Court in special circumstances (see sub-s. (3)) to make an
order which affects
the jurisdictions, powers, actions, orders and operation
of laws set out in sub-s. (2) among which the order of the Children's Court
falls. At that point their arguments diverge. The prosecutor submits that when
s. 10 is so construed it is beyond the power of
the Commonwealth to make such
a provision as sub-s. (3) when the proceedings for custody are not ancillary
to principal proceedings
for dissolution of marriage and when the proper
parties to the proceedings are other or more than the parties to the marriage.
In a case such as the present, it is submitted, the proper parties to the
proceedings for custody must include the State or the
Minister or officer of
the State who under the legislation of that State has the guardianship or
custody or care and control of
the child in question. On the other hand the
Commonwealth submits that even when the proceedings are not ancillary to
proceedings
for dissolution and even though the child may be under the
guardianship or in the custody or the care and control of a State, its
Minister or officer, nevertheless the Commonwealth has power under s. 51
(xxi.) to make laws with respect to the custody of that
child, at least where
the husband and wife are parties to proceedings for that custody. (at p56)
4. The State of Victoria (intervening) places at the fore of its submission
that s. 10 on its true construction does not allow
the Family Court, even in
special circumstances under sub-s. (3), to make an order which affects those
jurisidictions, powers,
orders, actions or operation of laws set out in sub-s.
(2); hence no question of constitutional power arises. The prosecutor would
adopt this as a secondary submission but still argue that prohibition should
go. (at p56)
5. The proper construction of s. 10 must therefore be the starting point. If
an order made under sub-s. (3) does not affect any
jurisdiction, power, order,
action or operation of a law referred to in sub-s. (2) then there is no
obstacle, constitutional or
otherwise, to the Family Court exercising its
jurisdiction. But if such an order does have such an effect, then the question
arises
whether a Commonwealth law providing in any and, if so, in what
circumstances for the custody of a child who falls within s. 10
(1) (a) is
within power. I would express no opinion on that question unless it were
necessary to my decision so to do; and I do
not conclude that it is necessary.
Though s. 10 is cast in a form which leads one to wonder why sub-s. (3) was
placed at the end
of the section instead of in or immediately following sub-s.
(1), nevertheless the language of sub-s. (2) is absolute. No decree
under the
Act, which by s. 4 (1) is defined to mean decree, judgment or order, affects
the matters and things set out in subs.
(2). This provision is not made
subject to sub-s. (3) and there is no way which I can see whereby it can be so
read. Therefore,
even if the Family Court exercises its jurisdiction under
sub-s. (3) its order will not affect the matters and things set out in
subs.
(2). There is therefore no reason why the Family Court should not for what it
is worth proceed to determine whether it should
exercise the limited
jurisdiction given to it by s. 10 (3). I would discharge the order nisi with
costs. (at p57)
MURPHY J. The power in s. 51 (xxi.) of the Constitution to make laws with
respect to marriage is plenary. It includes power to make laws for the care of
children even where there is no
divorce or other matrimonial cause (see s. 51
(xxii.) of the Constitution). This marriage power authorizes definition (and
provision for the adjudication and enforcement) of rights and obligations of
spouses
in regard to the care of children (this includes custody, access,
guardianship, maintenance, advancement and security). The laws
may cover a
child of one or both spouses who was born or adopted before or during a
marriage and may provide for care of children
during and after marriage. The
power is wide enough to regulate the adoption of children by one or both
spouses or the adoption
of the child of a marriage or former marriage by a
person who is not party to a marriage. (at p57)
2. The marriage power thus authorizes laws relating to children which deal
with rights and obligations of persons either before,
during or after
marriage. Such laws may regulate the rights and obligations of married persons
in relation to each other and in
relation to others. The power in relation to
custody is not restricted to defining or providing for the enforcement of the
custodial
rights of parents inter se. Parliament may also provide for these
rights to be paramount, or exclusive of, or subordinate to other
authority. In
s. 10 of the Family Law Act 1975 (now amended: see s. 6 of the Family Law
Amendment Act 1976), Parliament has provided
for the making of an order for
maintenance, custody or guardianship
of a child who is a State ward or State
child or under State
care, control or guardianship, but the making of such an
order by
the Family Court is not to affect any State order made or action
taken in respect of the child or the operation of the State law.
Parliament
could have enabled the Family Court to make, on a spouse's
application, an
order for custody which would override the
Queensland law giving the
Director-General custody. (at p57)
3. The Family Court may make an order for custody of a child if it is
satisfied that there are special circumstances (see s. 10
(3) of the Family
Law Act), but for practical purposes, its order is inoperative while the child
is in the Director-General's custody
(s. 10 (2) (b)). Section 10 enables the
Court to determine the right to custody between the parents before the
Director-General
relinquishes custody, and the result may be a factor in his
decision whether or not to relinquish custody. For example, State welfare
authorities may be unwilling to relinquish custody while there is an
unresolved dispute between the parents over custody or access;
or the decision
to relinquish may depend on which parent will have custody. In general, the
powers under State law are related
to the State. The powers of the Family
Court are not so restricted. (at p58)
4. Section 10 of the Family Law Act is valid. The Family Court has
jurisdiction. The order nisi for prohibition should be discharged.
(at p58)
ORDER
Order nisi discharged. Prosecutor to pay respondents' costs of the proceedings including the costs of the application.