Dougherty v Dougherty

[1987] HCA 33

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Dawson and Gaudron JJ.

DOUGHERTY v. DOUGHERTY AND ANOTHER

(1987) 163 CLR 278

5 August 1987

Family Law—Constitutional Law (Cth)

Family Law—Family Court—Jurisdiction—Alteration of property interests—Intervention by independent adult child for order in his favour—Unfulfilled promise of assignment of family property to that child—Family Law Act 1975 (Cth),ss. 79,92. Constitutional Law (Cth)—Powers of Commonwealth Parliament—Divorce and matrimonial causes—Power conferred on Family Court to alter property interest—Connexion with marriage relationship—Extension to independent adult child—Validity—Family Law Act 1975 (Cth), ss.4, 79.

Decisions

MASON C.J., WILSON AND DAWSON JJ.: Mr and Mrs Dougherty were married in January 1956. They separated in 1983. The marriage was dissolved in 1986. There are fifteen children of the marriage, the eldest being Michael Damian Dougherty born on 3 November 1956 (hereinafter referred to as "Michael") and the youngest a daughter born in 1976.

2. On 3 August 1984, the wife applied to the Family Court of Australia at Brisbane for an order for maintenance for herself and the dependent children of the marriage and for an exercise by the Family Court of the power conferred upon it by s.79 of the Family Law Act 1975 (Cth) as amended ("the Act") to alter the property interests of the parties to the marriage in her favour.

3. On 22 February 1985 Michael applied for leave to intervene in the proceeding commenced by his mother and also an order altering the property interests of his parents in his favour. In an affidavit sworn on 18 February 1985 and filed in support of his claim, Michael deposed that, apart from small periods on holiday or away with work, he had always resided at the family farm at Nambour in Queensland. He further deposed that in 1973 his parents had purchased another farm at Harwood in New South Wales and that about one year after that purchase he had a discussion with his father as to his future. In consequence of that discussion, he agreed to forgo learning a trade and to stay on the farm in order to help work both the Nambour and Harwood farms as one family farm unit. Michael further deposed that in the course of the discussion his father had told him that he could not afford to pay him wages but eventually the Harwood farm would be transferred to him, and that this intention had been mentioned in front of his brothers and sisters on various occasions. Michael further deposed that since he finished his year 12 at school in November 1974 he had worked on both farms on a permanent basis.

4. On 22 March 1985, a consent order was made granting Michael leave to intervene. However, his claim for a property settlement in his favour ran into difficulty. Before Elliott J. on 6 August 1986, the husband, who had already filed an affidavit disputing Michael's affidavit in critical respects, opposed the making of any order in favour of Michael. He contended that the Family Court did not have jurisdiction to entertain Michael's application because it did not constitute a matrimonial cause within the meaning of the Act. Furthermore, his Honour was informed that it was not part of the wife's case that any order should be made in favour of Michael. The husband's objection to the jurisdiction of the Family Court was overruled. It was then submitted for the husband that in so far as the provisions of the Act purport to permit a claim by a child of the marriage for an order altering the property interests of the parties to the marriage for the benefit of that child or a child of the marriage or permit the making of such an order, such provisions are invalid as being beyond the legislative powers of the Commonwealth. This submission required that notice be given to Attorneys-General of the States and of the Commonwealth in accordance with s.78B of the Judiciary Act 1903 (Cth) as amended. Thereafter, on the application of the Attorney-General of the State of Queensland, an order was made in accordance with s.40(1) of the Judiciary Act removing into this Court that part of the cause between the parties to the marriage as concerns Michael's application.

5. In the course of argument, considerable attention was paid by counsel to the application in the circumstances of the present case of pars(cg) and (f) of the definition of "matrimonial cause" in s.4(1) of the Act. Those paragraphs read as follows:

"(cg) proceedings by or on behalf of a child of a marriage against one or both of the parties
to the marriage with respect to the welfare of the child;

(f) 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 (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act;".

However, on the view we take of the matter we do not find it necessary to consider those paragraphs. In our opinion, there is only one proceeding before Elliott J. It is the matrimonial cause constituted by the application of the wife for an alteration of the property interests of the parties to the marriage on grounds arising out of the marital relationship (see par.(ca)(i) of the definition, infra). The filing of Michael's application did not mark the commencement of a new proceeding, based upon the definition of "matrimonial cause" described in either par.(cg) or par.(f). On the contrary, he sought and was given leave pursuant to s.92 to intervene in the proceeding begun by his mother. He thereupon became a party to that proceeding and it is in that way that his claim falls to be determined. Sub-sections (1) and (3) of s.92 read as follows:

"(1) In proceedings other than proceedings for

principal relief, any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.

(3) Where a person intervenes in any proceedings

by leave of the court he shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party."

The meaning of the latter sub-section has been authoritatively expounded by Gibbs J., with whom Stephen, Aickin and Wilson JJ. agreed, in Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337, at p 357:

"It is obvious that this sub-section must be read down; it cannot mean that any intervener, whatever his her or its situation, is to have all the rights and liabilities of a party to a marriage.... Section 92(3) enables the court to make an order either in favour of or against an intervener if such order is one that can properly be made as a matter of substantive law; the sub-section removes a possible procedural obstacle, but does not alter substantive rights and duties. It does not give the Family Court power to impose new duties upon, or to annul the rights of, third parties who are interveners."

6. As we have said, the Family Court was dealing with an application under s.79 of the Act. Sub-section (1) of that section reads:

"(1) In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines."

The terms of the section authorize the Family Court, in its discretion, to make an order for the benefit of a child of the marriage. Sub-section (2) provides that the Family Court shall not make an order under sub-s.(1) unless it is satisfied, in all the circumstances, that it is just and equitable to do so. Sub-section (4) sets out a number of factors to which the Family Court shall have regard when exercising its jurisdiction under the section, but the factors there mentioned are not expressed to be the only factors to which regard may be had. However, it is provided that regard shall be had to the contribution, whether financial or otherwise, which a child of the marriage has made to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them.

7. It may be said of s.79, as was said of s.92(3) by Gibbs J., that it is obvious that the section must be read down. It purports to confer a wide discretionary power to vary the legal interests in any property of the parties to a marriage or either of them, but with no reference at all to the criteria by which a permissible claim to the exercise of the power may be identified. The validity of s.79 did not fall to be determined by this Court in Russell v. Russell (1976) 134 CLR 495, but the reasoning in that case indicates that the section can only have a valid application with respect to a claim based on circumstances arising out of the marriage relationship: see at pp.525, 528, 542-543, 552-553. See also Fisher v. Fisher (1986) 60 ALJR 731, at pp 733, 736, 737-738, 740; 67 ALR 513, at pp 518, 523, 526, 530. Since Russell v. Russell, Parliament has given attention on more than one occasion to the definition of "matrimonial cause" in this regard. The relevant definition, as enacted by amending Act No.72 of 1983, reads:

"(ca) proceedings between the parties to a marriage with respect to the property of the parties
to the marriage or either of them, being proceedings -

(i) arising out of the marital relationship;

...".

This paragraph requires that proceedings between the parties to a marriage with respect to property should arise out of the marital relationship. By this means a limit is imposed upon the jurisdiction of the Family Court to make an order under s.79 where the parties are parties to a marriage. Proceedings of that kind which do not arise out of the marital relationship do not constitute a matrimonial cause in relation to which jurisdiction is vested in the Family Court. It may be that this limitation sufficiently confines the operation of s.79 in relation to proceedings between the parties to a marriage with respect to property and obviates the need to read the section down in its application to such cases. In any event, whether the exercise is undertaken for the purpose of applying par.(ca) or reading down s.79, it should be comparatively easy to ascertain whether or not a claim by a party to a marriage for an alteration of property interests is based upon circumstances arising out of the marital relationship. Claims grounded solely in contract or tort or equity or otherwise arising by reason of a relationship, for example of partnership, where the marriage relationship is purely coincidental are not likely to attract the power. But leaving aside matters such as those there will not be wanting occasions where the Family Court may find it just and equitable to alter the respective property interests of the parties inter se for reasons associated with and finding their source in the marriage relationship.

8. In the circumstances of the present case, even though Michael's claim is made by way of intervention, the marital relationship between husband and wife must provide the basis for the making of any order under s.79. It is not easy to identify the circumstances when a claim by or on behalf of a child of the marriage to an order under s.79 will arise out of the marital relationship. In Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447, at p 457, Gibbs J. said:

"I adhere to the view that I expressed in Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40, at p 46, 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, I would add, with respect to married persons."

Again in Reg. v. Dovey; Ex parte Ross (1979) 141 CLR 526, at pp 532-533, in speaking of the phrase "arising out of the marital relationship" as it appears in par.(e) of the definition of "matrimonial cause" in s.4(1), Gibbs J. said:

"The words 'circumstances arising out of the marital relationship' appear to be wide, but it is not necessary in the present case to attempt to give a comprehensive statement of their meaning. It is, I think, true to say, as Demack J. said in In the Marriage of Mills (1976) 25 F.L.R. 433, at pp.435-436, that 'the mere fact that something happens between a husband and wife does not mean that it involves "circumstances arising out of the marital relationship"' and that 'events which raise issues of criminal law, industrial law or fiscal law cannot be brought within the "marital relationship" simply because the circumstances involve a husband and wife and their children'."

If the statement of Gibbs J. in Reg. v. Lambert; Ex parte Plummer were to be paraphrased so as to apply to the present case, it would be that a law is not a law with respect to marriage simply because it has some operation with respect to the relationship between parents (being parties to a marriage) and their child. The love and affection that ordinarily binds parents and child together in a family unit and therefore underlies any transaction that may occur between them does not of itself relate the transaction to the relationship of marriage that may obtain between the parents. It was suggested in argument that s.79 should be construed so as to limit the reference in the section to "child" to a child under the age of eighteen years of age. It was said that the entry into adulthood marks the end of the legal duty of nurture and care resting on the parties to a marriage in respect of the children of the marriage. But clearly, if dependency is to be the test by which the existence of the necessary connexion to the marital relationship is to be determined, adulthood is a criterion that is too arbitrary. We do not think that s.79 should be read so as to confine the power to make an order for the benefit of a child to a child who has not attained the age of eighteen. There are many sections in the Act where the distinction between childhood and adulthood is expressly drawn (see, for example, ss.61, 62, 62A, 70A, 70B, 73, 76, 87 and 110). The proper inference to draw is that, had the legislature intended to make such a distinction in s.79, it would have done so. Furthermore, the reference in s.79(4) to the contribution that a child of a marriage may have made to the property of the parties to the marriage suggests that an adult child may have been in contemplation.

9. Nevertheless, we incline to the view that the circumstances which will support a claim by or on behalf of an adult child of the marriage will be exceptional. The fact of a relationship of parent and child may not suffice. If it were to do so, the Family Court would have jurisdiction extending to claims unconnected with the marriage between the parents and so beyond the competence of the Parliament. The Family Court is empowered to make an order under that section where it is satisfied that in all the circumstances it is just and equitable to do so, but the circumstances must be such that the claim arises out of, or has a sufficient connexion with, the marriage relationship. If s.79 is to be a law with respect to marriage, and for that reason to be within power, it must be because of the connexion between the jurisdiction which it confers and the relationship of marriage. See Reg. v. Lambert; Ex parte Plummer, at pp 456-457. The jurisdiction which it confers is a jurisdiction to alter property interests. Thus, the rights and duties which the Family Court may validly create or define under the section are confined to those which have their basis in the marital relationship.

10. It was submitted that the claim made by Michael in this case has no connexion with the marriage of his parents and that the circumstances in which the claim is made would not be relevantly different if the claimant were a nephew, a cousin or a complete stranger to the marriage. If that were found to be so, s.79 would afford no basis for an order in favour of Michael. On the other hand, if the requisite connexion with the marriage were to be found - for example, by reference to circumstances importing an unfulfilled obligation on the part of the parties to the marriage or either of them which arose during the infancy or dependency of the claimant - then to that extent s.79 might be invoked. But this example, which of course is not intended to be exhaustive, serves only to emphasize that a sufficient connexion to the marriage relationship must be found in order to attract the jurisdiction conferred by the section. It may be added that any contribution made by the claimant to the property of the parties to the marriage or either of them, as referred to in s.79(4), does not of itself establish jurisdiction but is rather a factor to be taken into consideration in the exercise of the jurisdiction.

11. Clearly, the Family Court may embark upon a hearing of Michael's claim in order to determine whether it has the power to entertain it under s.79. At this stage Elliott J. has not completed that process. There is no warrant for suggesting that the Family Court will assume a jurisdiction which it does not possess. Nor, until the matters to which we have referred have been investigated, can it be said that the claim on its face lies outside jurisdiction.

12. We would hold, therefore, that the Family Court has jurisdiction to hear the evidence touching Michael's claim and to determine whether it is satisfied that, in all the circumstances, it is just and equitable to make an order in his favour. We repeat that the power of the Family Court to make any order in favour of Michael will depend upon whether the making of that order is referable to the relationship of marriage.

13. That part of the cause which has been removed into this Court should be remitted to the Family Court at Brisbane in order that the hearing may be continued. With respect to the costs of the hearing in this Court it was submitted that, if the Court upheld the jurisdiction of the Family Court in appropriate circumstances to make an order under s.79(1) in favour of an adult independent child of a marriage, the removing party (the Attorney-General of Queensland) should be ordered to pay the costs of the wife and Michael. However, in all the circumstances, we think it appropriate to make no order as to costs.

BRENNAN J.: John Brian Dougherty and Joan Mary Dougherty were married in January 1956. They were divorced in 1986. Fifteen children were born of the marriage, the eldest of whom is Michael Damian Dougherty. He was born in November 1956. After he left school, he worked on the family cane farms, one near Nambour in Queensland, the other near Harwood in New South Wales. In an affidavit filed in a proceeding which is presently to be mentioned, he said that when he left school he reached an understanding with his father that he would forgo the opportunity of learning a trade, that he would work without wages on the farms and that he would be given an interest in one of the farms after he had proved his worth. Some of his brothers also worked on the farms during school holidays or at weekends.

2. In August 1984 Mrs Dougherty ("the wife") made an application to the Family Court of Australia for an order, inter alia, "that there be an alteration of property interests in favour of the wife in such a manner as (the Court) may deem meet". The application for this relief was made under s.79(1) of the Family Law Act 1975 (Cth) ("the Act") which provides:

" In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines."

Among the matters which s.79(4) directs the Court to take into account in making an order under s.79(1) is the contribution, whether financial or otherwise, made directly or indirectly by a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them.

3. In February 1985 Michael made an application to the Family Court under s.92 of the Act for leave to intervene in the proceeding between his parents. In support of his application he filed an affidavit deposing to the facts earlier mentioned. In March 1985 by consent an order was made by Bulley J. giving Michael leave to intervene. Michael further sought an order:

" That the husband and the wife do pay to me an amount of money as this Honourable Court may deem meet and that there be an alteration of property interests in favour of me in such a manner as this Honourable Court, may deem meet".

Mr Dougherty ("the husband") objected to this application, submitting that an intervener has no right to make such an application and that there is no jurisdiction in the Court to entertain it.

4. Ruling on the objection, Elliott J. held that Michael, having been given leave to intervene, was

" deemed to be a party to the proceedings with all the rights, duties and liabilities of a party in relation to Section 79 proceedings, including the right to make an application under that Section."

In stating his reasons, his Honour referred to par.(cg) of the definition of "matrimonial cause" in s.4(1) of the Act. Paragraph (cg) reads as follows:

" proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the welfare of the child".

5. The husband then made a further submission in support of his objection, namely, that in so far as par.(cg) and s.79

" may permit the making of an application by a child of the marriage for an alteration of property interests for the benefit of that child or a child of the marriage or permit the making of such an Order then such provisions are invalid as being beyond the powers given to the Commonwealth by the Constitution."

After notice of this contention was given pursuant to s.78B(1) of the Judiciary Act 1903 (Cth), the Attorney- General for Queensland applied to remove into this Court part of the cause pending in the Family Court. It was ordered that -

" that part of the cause pending in the Family Court of Australia ... between (the husband and wife) and whereby their son MICHAEL DAMIAN DOUGHERTY as Intervener seeks orders by an application filed on the 22nd day of February, 1985:-

(i) that the said (husband and wife) pay to the (son) an amount of money as the Family Court may deem meet; and

(ii) that there be an alteration of property interests in favour of the (son) in such a manner as the Family Court may deem meet;

be ... removed into this Court".

6. It appears that Michael's application is made in reliance on s.79 of the Act and that his application for an order for the payment of money is merely incidental to the application for an order for the alteration of property interests. As the essential issues for this Court to determine are whether Michael's application for an order under s.79 has been validly made and whether the Court has power to hear and determine his application, it is unnecessary to consider the precise form of the relief sought.

7. There are three bases on which Michael's application might be said to have effectively invoked the Court's power to make an order under s.79(1) in his favour. The first basis treats Michael's application as a proceeding different from, and independent of, the proceeding between his parents and identifies Michael's proceeding as a matrimonial cause answering the definition in par.(cg). The second basis treats Michael's application as a proceeding different from, but related to, the proceeding between his parents and identifies Michael's proceeding as a matrimonial cause answering the definition in par.(f). The third basis treats Michael's application as a mere aspect of the proceeding already current between the husband and wife, the application being no more than an invitation to the Court to make in his favour an order in exercise of the power conferred on the Court in the existing proceeding. The existing proceeding between husband and wife admittedly answers the definition of matrimonial cause in par.(ca).

8. Arguments are raised against each of the bases of Michael's application. Against the first basis, it is said that a proceeding brought by an adult independent child to be granted an interest in the property of his parents or either of them is not a claim with respect to "the welfare" of that child within the meaning of that term in par.(cg); against the second basis, it is said that Michael's proceeding is not "in relation to" the existing proceeding between the husband and wife within the meaning of that term in par.(f); against all the bases advanced, it is said that if s.79 (whether in conjunction with par.(cg) or par.(f) or not) purports to confer on an adult independent child a right to claim an interest in the property of his parents or either of them and does not prescribe criteria which are referable to the marriage power, s.79 is at least to that extent beyond the powers of the Parliament. The last of these objections is fundamental to each of the bases on which Michael's application rests, and it is desirable to consider that objection on the footing that Michael's application has not given rise to a proceeding different from the proceeding in which he was given leave to intervene. Michael has not purported to commence an independent proceeding nor to seek the making of an order other than an order to be made in the proceeding between his parents. If Michael's intervention entitles him to make the application he has made and if s.79 validly authorizes the making of an order in a proceeding between parents in favour of an adult independent child, it is unnecessary to consider objections founded on par.(cg) or par.(f). Those paragraphs cannot expand s.79 to the point of invalidity; they can only restrict the scope of the relief that might be granted under that section. The paragraphs in the definition of "matrimonial cause" in s.4(1) prescribe the categories of proceedings which the Court is empowered to entertain, but they do not confer by themselves a right to make a claim. The definition of "matrimonial cause" in s.4(1) defines the Court's jurisdiction and is thus part of the definition of the scope of rights, including the right to apply for an order under s.79(1), conferred in general terms by other provisions of the Act. I turn, then, to consider the grounds advanced for attacking the validity of s.79.

9. Section 79 does not precisely prescribe the criteria governing the exercise of the power thereby conferred. Sub-section (1) empowers the Court to make "such order as it thinks fit", and sub-s.(2) directs the Court not to make an order "unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Although sub-s.(4) prescribes matters which the Court must take into account, it is not exhaustive. The generality of the terms in which s.79 is drawn has led to a submission that an order might be made under s.79 to satisfy a claim which does not arise out of the marital relationship, and that a claim by an adult independent child of a marriage for an interest in the property of his parents does not arise out of the marital relationship. Thus it is said that, in the present case, Michael's claim is founded on some contractual or equitable obligation and that an obligation of that kind might be owed to a person irrespective of his being a child of the marriage. If it be right to say that the proceeding, in so far as it might result in an order in Michael's favour, does not arise out of the marital relationship of his parents, the objection would be well founded. Jurisdiction to entertain a proceeding between parties to a marriage with respect to their property cannot be conferred on a court by a law enacted under the marriage power unless the proceeding, or the claim made in the proceeding, arises out of the marital relationship: Russell v. Russell (1976) 134 CLR 495, at pp 510-511,527-528,542, 552-553; Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447, at pp 456-457; Fisher v. Fisher (1986) 60 ALJR 731, at pp 733,736,737-738,740; 67 ALR 513, at pp 518,523,526, 530. But s.79 limits the persons who might be interested in an application to the members of a family: the section confers power to make orders in matrimonial causes for the settlement or transfer of property belonging to the parties to a marriage or either of them in favour of those parties or their children, and it does not purport to confer jurisdiction to make an order in satisfaction of a claim or obligation arising outside the section.

10. The silence of s.79(1) and (2) as to the grounds on which an order might be made and the specification by sub-s.(4) of the matters to be taken into account imply that the foundation for a claim under s.79(1) is no more than the relationship between or among the parties to the marriage and the children of the marriage. The power to make an order under s.79 is not dependent on the existence of an obligation owed to the applicant at law or in equity; the order is made not in satisfaction of a cause of action but in the exercise of a discretion. A contractual or equitable obligation would not merge in and be extinguished by a discretionary order made under s.79. At most the making of such an order could alter the circumstances in which an obligation might otherwise have arisen or might otherwise have been continued (for example, an obligation to maintain an infant child or a physically or mentally handicapped child).

11. The implication from the text of s.79 is that the foundation for a claim and therefore the ground or reason for making an order under the section must be found in the relationship between or among the parties to a marriage and the children of the marriage. That implication is strengthened when regard is had to the powers under which s.79 is enacted, for the rule, stated by Dixon J. in Attorney-General (Vict.) v. The Commonwealth (1945) 71 CLR 237, at p 267, is that "(w)e should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them". By construing s.79 as requiring that a claim should arise out of the marital relationship, the section is given a valid operation. That assumes, however, that the marital relationship includes the spouses' parenthood of, and their relationship with, any child or children of the marriage.

12. There is no doubt that the marital relationship embraces the relationship between the parties to a marriage on the one hand and the children of the marriage on the other when the children are in need of nurture and protection: Russell, at pp.548-549; In the Marriage of Cormick (1984) 156 C.L.R. 170, at pp 175-176; V. v. V. (1985) 156 CLR 228, at p 232; Reg. v. Cook; Ex parte C. (1985) 156 CLR 249, at pp 253, 257,260. True it is that an infant child's need of nurture and protection imposes a duty on, and thus affects the relationship of, husband and wife and that no duty of nurture and protection is owed to an adult child who is not mentally or physically handicapped and who is or is able to be self-supporting. But the relationship between the parents of a child remains affected by their common parenthood after the duty of nurture and protection has ceased. Once there is a child of a marriage, the relationship of a husband and wife is no longer bilateral; they have founded a family and their relationship includes their child. It may revert to a substantially bilateral relationship as the child or children of the marriage grow up and grow away, but it is not entirely bilateral so long as any child of the marriage is living. When there are children of a marriage, an aspect of the relationship of the parties to the marriage is their membership of the family group and their participation in the web of relationships among the members of the group. The relationship between husband and wife which embraces the child or children of the marriage owes its continuance (as it owes its origin) to the child's status as a child of the marriage - a status acquired by having been born of the union of husband and wife or by having been born of parents who subsequently marry or by having been adopted by husband and wife. The relationship of husband and wife is not fully described, and therefore is not accurately described, if the description ignores the children of the marriage, if any.

13. "Relationship" is, of course, a word descriptive of a great variety of connections, and not all aspects of the relationship of a husband and wife are aspects of a marital relationship. Sometimes the members of a family create a relationship which is intended to stand outside the marital relationship, as when they become members of a company, and that is not the sort of relationship out of which a proceeding may arise which finds support in the marriage power. A proceeding which finds support in the marriage power must not only arise out of the relationship of husband and wife; the subject of the proceeding must also be central to or commonly incidental to the institution of marriage. But what is an incident of marriage in our society? I sought to answer that question in Fisher v. Fisher, saying (at pp 737-738; p 526 of ALR):

" The legislative power conferred by s.51(xxi) extends to subjects which the customs of our society generally recognise as incidents of marriage - that is, subjects connected with and affected by either the contracting of marriage or the family relationships to which a marriage gives rise. The application of the property of husband and wife to provide proprietary interests to be enjoyed by the spouses and their children is an incident of marriage and a law governing that subject is accordingly a law with respect to marriage. Such a law may operate either by adjusting the interests in the property of husband and wife or by creating a jurisdiction to make orders adjusting those interests."

Property interests of a husband and wife are commonly adjusted for the benefit of their children after the children become adult and self-sufficient. The ties of family affection and the recognition of moral claims by members of the family frequently move parents to dispose of property to adult and self-sufficient children. That is not to say that it is a usual or even a common concomitant of marriage that property is settled by parents on adult children. The point is that when property is settled on or transferred to an adult child of a marriage by the husband and wife or by one of them, the customs of our community regard the transaction as a common incident of marriage unless the settlement or transfer is in satisfaction of some legal or equitable right which has arisen from a relationship which stands outside the marital relationship. A law which confers power on the Court to order a husband and wife or either of them to settle property upon or to transfer property to their children having regard to the relationships among the parties to a marriage and the children of the marriage exhibits characteristics of a law with respect to marriage. The subject of the law is an incident of marriage and the relief which can be given under the law is given in satisfaction of a claim arising out of the marital relationship. It is a law with respect to marriage.

14. It is for the Parliament to prescribe the conditions on which property should be settled on or transferred to the children of a marriage or to prescribe the proceedings arising out of a marital relationship in which jurisdiction to entertain a claim for such a settlement or transfer of property may be exercised. It would be surprising if the Parliament were to authorize a claim to be made by or on behalf of an adult, independent child when the parents were not engaged in dividing or otherwise adjusting their interests in property, and it is unnecessary to determine in this case whether the Parliament has power to do so. Although, for reasons earlier stated, the validity of par.(cg) need not be determined, it should not be assumed that, because the welfare of an infant child may have a financial element, the welfare of an adult, able-bodied, self-supporting child has a financial element also. A final decision on the construction of par.(cg) should await a case in which the question necessarily arises for decision. In this case, the child's application is made in a proceeding in consequence of the breakdown of the parents' marriage, when the family assets will no longer be available for the benefit of all members of the family and when it is appropriate to consider the moral claims of children who may have contributed to the acquisition, conservation or improvement of the assets vested in their parents or either of them.

15. Parliament has provided for applications to be made by persons intervening in proceedings under s.92. Section 92(3) deems a person who intervenes in proceedings to be a party to the proceedings, and such a person is therefore entitled to apply in those proceedings for any order which the Court is empowered to make in those proceedings. In Ascot Investments Pty.Ltd. v. Harper (1981) 148 CLR 337, Gibbs J. said (at p 357):

" Section 92(3) enables the court to make an order either in favour of or against an intervener if such order is one that can properly be made as a matter of substantive law; the sub-section removes a possible procedural obstacle, but does not alter substantive rights and duties."

As Michael was given leave to intervene, he is entitled to apply in the proceeding between his parents for any order which the Court might make in that proceeding under s.79(1).

16. An order which might be made in the proceeding between the husband and the wife without Michael's intervention could provide for the transfer of property to him or the settlement of property upon him. The fact that he has intervened does not affect the power or the discretion of the Court, but it does allow him to apply for an order in his favour and to be heard in support of his application. I would declare that Michael was entitled to make an application for an order in his favour under s.79(1) in the proceeding current between the husband and wife and that he is entitled to be heard on that application. I would remit the matter to the Family Court of Australia to proceed in conformity with that declaration.

GAUDRON J.: Michael Damian Dougherty ("Michael") is the eldest of fifteen children of the marriage of John Brian Dougherty ("the father") and Joan Mary Dougherty ("the mother"). Michael was born on 3 November 1956. The marriage of his parents was dissolved in 1986. Prior to the dissolution of the marriage, the mother had made application to the Family Court of Australia for an alteration of the property interests of the parties to the marriage. This application was made in reliance upon s.79(1) of the Family Law Act 1975 (Cth) ("the Act"). Michael sought and was granted leave to intervene in those proceedings, and made application for alteration of the property interests of his parents in favour of himself. At the time of his application Michael was aged 28. So much of the cause pending between the father and the mother as involves Michael's application was removed into this Court on the application of the Attorney-General of Queensland (Judiciary Act 1903 (Cth) s.40). The part of the cause so removed involves three distinct questions: first, whether the application made by Michael is an application authorized by the Act; secondly, whether, as a matter of construction, the Family Court is empowered to make an order under s.79 of the Act in favour of an adult independent child; and thirdly, if so, whether the Commonwealth Parliament may validly confer such power on the Family Court.

2. The Act confers jurisdiction on the Family Court with respect to matters arising under the Act, in respect of which matrimonial causes are instituted (s.31(1)(a)). "Matrimonial cause" is defined in s.4 to include:

"(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings -

(i) arising out of the marital relationship;

...

(cg) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the welfare of the child;

(and)

(f) 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 (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act".

3. The application by the mother for alteration of the property interests of the parties constituted a matrimonial cause as defined in par.(ca) of the definition of "matrimonial cause". It was argued on behalf of Michael that his application also constituted a matrimonial cause as defined in pars(cg) and (f) of the definition. In the view which I have formed it is unnecessary to consider whether his application constitutes a matrimonial cause separate from that constituted by the mother's application.

4. By s.92 of the Act, any person may apply for leave to intervene in proceedings, other than proceedings for principal relief. Sub-section (3) of that section provides that a person who has been granted leave to intervene is "deemed to be a party to the proceedings with all the rights, duties and liabilities of a party." Such rights include the right to invoke any right, remedy or relief provided to the intervener by the Act, whether in the capacity of intervener or in some other capacity. If, for example, s.79 provides for a right, remedy or relief in favour of an adult child of the marriage, Michael was and is entitled to invoke that right, remedy or relief by virtue of the grant of leave to intervene, and in such circumstances, it is immaterial whether his application of itself constitutes a matrimonial cause.

5. By s.79(1) of the Act, the Family Court is empowered:

"In proceedings with respect to the property of the parties to a marriage or either of them (to) make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines."

6. The expression "child of the marriage" is apt to refer to the issue of a marriage, regardless of the age of such issue. It seems to have been so used consistently in the Act, with express provision being made in the relevant sections when the provisions thereof are not intended to apply to, or in relation to, a child over the age of eighteen years. (See, for example, ss.60, 61, 62, 62A, 63, 70A, 70B, 72, 73, 75, 76, 87 and 110.) In sub-s.(8) of s.70A, there is express provision that in that section, "child" means a person who has not attained the age of eighteen years. There thus arises a necessary inference that the same expression when used in s.79, without limitation to children under the age of eighteen years, includes an adult who is the issue of a marriage. That inference is reinforced by the terms of s.79(4) which requires the Court to take into consideration "the financial contribution made directly or indirectly by or on behalf of ... a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them ...".

7. Accordingly, in my view, s.79 empowers the Family Court in proceedings with respect to the property of the parties to a marriage or either of them, to alter property interests in favour of an adult child. An adult child who has been granted leave to intervene in such proceedings may invoke the power so conferred. It remains to be considered whether, so construed, s.79 is a valid exercise of the legislative power of the Commonwealth.

8. The powers conferred by s.79 upon the Family Court are powers which may only be exercised in proceedings with respect to the property of the parties to a marriage or either of them. Section 79 itself provides no foundation for the institution of such proceedings. The foundation lies in a matrimonial cause instituted or continued under the Act (s.31(1)(a)) which constitutes a proceeding with respect to the property of the parties to a marriage or either of them. Jurisdiction may validly be conferred upon the Family Court to entertain such proceedings where the proceeding arises out of the marital relationship: Russell v. Russell (1976) 134 CLR 495, at pp 510, 511, 524, 525, 528, 541-542, 552-553. So too, power to alter the property rights of parties to a marriage may validly be conferred upon the Family Court where the power is invoked and exercised by reference to matters arising out of the marital relationship: Fisher v. Fisher (1986) 60 ALJR 731, at pp 733-734, 736, 737-738, and 740; 67 ALR 513, at pp 518-519, 523, 526 and 530.

9. Although s.79 does not expressly limit the invocation and exercise of the power thereby conferred by reference to matters arising out of the marital relationship, it is clear that the section is relevantly so confined when it is invoked by a party to the marriage by the institution of proceedings (constituting a matrimonial cause) with respect to their property. A proceeding falling within par.(ca) of the definition of "matrimonial cause" must satisfy the limitation that it arises either out of the marital relationship, or one of the other two limitations therein specified. So too, a proceeding with respect to such proceeding falling within par.(f) of the definition is relevantly confined by the limitations in par.(ca). These aside, the only other proceedings which may constitute a matrimonial cause as defined in the Act (which may also constitute proceedings between the parties to a marriage with respect to the property of the parties to a marriage or either of them) are those falling within par.(e) of the definition being "proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ...".

10. As s.79 provides no criterion for differentiating as between parties to a marriage and children of a marriage in relation to the invocation and exercise of the power thereby conferred upon the Family Court, the power must be construed in its operation in relation to a child of the marriage as similarly confined by reference to matters arising out of the marital relationship.

11. The marital relationship extends to the relationship of the parties to a marriage with the children of that marriage. In Attorney-General (Vict.) v. The Commonwealth (1962) 107 CLR 529, Menzies J. (at p 574) regarded as within the marriage power laws which "relate to the effect of marriage upon the relationship of those who marry and their children". Windeyer J. (at p.580) stated that:

"Even if the Constitution had not contained an express power to legislate with respect to divorce and matrimonial causes, I would have thought that laws prescribing consequences for breaches of the personal obligations that are inherent in the marriage relationship were within the power of the Commonwealth Parliament. And, I am inclined to think, the Commonwealth power would extend to matters concerning the support and care of children, duties that are commonly considered to be inherent in the institution of matrimony."

So too, Owen J. (at p.602) considered the power "wide enough to enable the relationship between those who marry and their children to be defined and regulated ...": see also Fisher v. Fisher at pp 736, 737-738; pp 522-523, 525-526 of ALR The scope of the relationship between the parties to the marriage and the children of the marriage is not limited by the obligation to provide nurture and protection and those rights consequent thereon: V. v. V. (1985) 156 CLR 228; Reg. v. Cook; Ex parte C. (1985) 156 CLR 249. Rather, the obligation to provide nurture and protection is but an aspect of the relationship between the parties to a marriage and the children of that marriage. This relationship comprises a complex of rights, duties, obligations and responsibilities, which Murphy J. in Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40, at p 57 enunciated as including "custody, access, guardianship, maintenance, advancement and security". The nature of the rights, duties, obligations and responsibilities entailed in this relationship, and the manner of their enforcement and discharge, will generally vary according to the age and abilities of the children of the marriage, such that it may fairly be said that it will only be in exceptional circumstances that the marital relationship will support a claim by or on behalf of an adult independent child of the marriage as against the parties to the marriage, or in respect of the property of the parties to the marriage. However, the fundamental and all-embracing obligation of the parties to a marriage to the children of the marriage is (for example, as expressly provided in s.60A(1) of the Act in relation to a guardian) to accept responsibility for the long-term welfare of such children. Normally that responsibility will be fully discharged in relation to each such child during the child's infancy or soon thereafter. However, the Act itself contemplates that such an obligation may endure beyond infancy; s.76, for example, makes provision for the maintenance of a child who has attained the age of eighteen years, but who requires continuing maintenance by reason of the circumstances therein set forth. Normally, too, the obligation to provide for the welfare of a child of a marriage will be discharged personally by the parties to the marriage, or the party to the marriage having guardianship of the child. This, however, is not always the case, and it may be accepted that in some family units, some of the obligations of the parties to a marriage in relation to the children of the marriage are, to some extent, discharged by others, including other (usually, older) children of the marriage. Without being exhaustive of the circumstances which will confer upon a claim by a child of the marriage the relevant nexus with the marital relationship, it seems to me that claims advanced by reference to an unmet obligation of parties to a marriage to provide for the long-term welfare of a claimant child of the marriage, or claims made by reference to the obligation to provide for the long-term welfare of other children of the marriage when that obligation has devolved upon the claimant child of the marriage, would constitute claims which can be said to arise out of, or have the relevant nexus with, the marital relationship.

12. In the present case, Michael has deposed that he had a discussion with his father concerning his future when he was in his final year of schooling. As a result of this discussion, he agreed to forgo the opportunity to acquire a trade qualification in order to work on the farms when he left school. He has also deposed that he has received only pocket money, lodgings and payment of some holiday expenses in return for his efforts. The inference is available that his efforts contributed to the generation of income for the discharge of the marital obligations of his parents, including, in this case, the maintenance of the younger children of the marriage. In these circumstances his claim is capable of being viewed as a claim arising out of the marital relationship and as providing a relevant foundation for the invocation of the Court's powers pursuant to s.79 of the Act. Whether the claim is properly so characterized depends upon a consideration of all the available evidence. If, upon analysis, the evidence supports a finding that the claim arises out of the marital relationship, then the Family Court is empowered to make such orders as are just and equitable in all the circumstances.

13. I would declare that Michael was entitled, as intervener in the proceedings between his mother and father, to make application for an order in his favour under s.79(1) of the Act; and that s.79(1) empowers the Family Court in such proceedings to alter the interests in the property of parties to a marriage or either of them for the benefit of an adult child of the marriage where the claim of the child arises out of the marital relationship. That part of the cause which has been removed into this Court should be remitted to the Family Court in Brisbane for further hearing.

14. I would make no order as to costs of the proceedings in this Court.

Orders

Remit the matter to the Family Court of Australia at Brisbane.

Order that there be no order as to costs.