DMW v CGW

[1982] HCA 73

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

D.M.W. v. C.G.W.

(1982) 151 CLR 491

16 December 1982

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants—Family Court of Australia—Jurisdiction—Powers—Custody of child of a marriage—Paternity proceedings in State Supreme Court—Application for custody—Jurisdiction—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxi), (xxii), 75(v), Family Law Act 1975 (Cth), ss. 4(1) "matrimonial cause" (c), (f), 8(1), 39(1), (5), 40(3).

Decisions

December. 16. The following written judgments were delivered: -
GIBBS C.J. The question which is raised for decision by this case stated is whether the Supreme Court of New South Wales has jurisdiction to entertain certain proceedings brought in that court and to make the declarations and orders and give the directions sought in those proceedings. The proceedings in relation to which the question is asked were commenced in the Equity Division of the Supreme Court by D.M.W. and R.C.H. as plaintiffs against C.G.W. as defendant. In those proceedings the plaintiffs claimed as follows:

"1. A declaration that the plaintiff R.C.H. is the father of the child K.J.W. born 4 October 1973. 2. A direction that the defendant submit to a blood test for the purpose of ascertaining whether the defendant is the father of the said child. 3. An order that the plaintiffs have the custody of the said child K.J.W. 4. An order that the defendant pay the plaintiffs' costs in these proceedings. 5. Such further and other relief as to the Court may seem appropriate."

The defendant opposes the order sought. (at p498)

2. D.M.W. and C.G.W. were married on 9 June 1966. On 4 October 1973 Mrs. W. gave birth to a female child, K.J.W. On 31 October 1980 Mrs. W. commenced to live with Mr. H. and on 7 November 1980 Mr. W. issued an application for the custody of K.J.W. On 28 January 1981 the Family Court ordered, in proceedings brought by Mr. W. against Mrs. W., "that until further order of the Court the husband have the care and control of K.J.W. the child of the marriage on an interim basis". Further orders were made giving access to Mrs. W. No appeal was brought from that order and the Family Court has not varied or revoked it. Subsequently Mrs. W. applied to the Family Court for dissolution of the marriage. The application alleged, but the husband's answer denied, that K.J.W. was a child of Mrs. W. and Mr. H. On 4 December 1981 the Family Court pronounced a decree nisi for the dissolution of the marriage. The Court noted an undertaking by the husband and the wife to do all things necessary to give effect to the provisions for the care and control of K.J.W. contained in a document which bore the heading "Consent Orders", and which dealt with the care and control of the child during a period which ended…