Fisher v Fisher

[1986] HCA 61

HIGH COURT OF AUSTRALIA

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

FISHER v. FISHER

(1986) 161 CLR 438

28 October 1986

Family Law—High Court

Family Law—Family Court—Jurisdiction—Death of either party to pending proceedings—Proceedings to alter property interests—Right of representative of deceased party to be substituted—Family Law Act 1975 (Cth), ss. 4(1), 79(1), (2), (8)—The Constitution (63 &64 Vict. c. 12), s. 51(xxi). High Court—Appellate jurisdiction—Appeals from "judgments, decrees, orders and sentences"—Answers to questions in special case to Full Court of Family Court not appealable—The Constitution (63 &64 Vict. c. 12), s. 73.

Decisions

GIBBS C.J.: June May Fisher ("the wife") and Kenneth John Fisher ("the husband") were married on 30 October 1948. They lived together until 23 November 1983 when they separated and they did not cohabit thereafter. At the date of the separation the property of the spouses consisted of the former matrimonial home, which was in the name of the husband, two motor cars, one in the name of the husband and one in the name of the wife, and other items of personal property owned solely or jointly by the husband and the wife. On 17 February 1984 the wife filed an application in the Family Court of Australia seeking orders pursuant to s.79(1) of the Family Law Act 1975 (Cth), as amended ("the Act") for the alteration of the interests of the parties to the marriage in the property of the parties to the marriage. In particular, she sought an order that the matrimonial home be sold and that the proceeds of sale be divided equally between the husband and the wife and that other property of the husband and the wife be divided equally between them, or sold and the net proceeds divided equally between them. Certain procedural orders were made, but the proceedings on the application had not been completed when the wife died on 11 July 1984. She was survived by her son, Robert John Fisher ("the respondent"), a daughter and three grandchildren, the eldest of whom was aged eleven. By her will, the wife appointed the respondent to be the executor and trustee of her will, and gave all her jewellery to her daughter and the residue of her property to her trustee on trust for such of her grandchildren as should attain the age of twenty-five years. Probate of the will was granted to the respondent on 28 October 1984. On 30 April 1985 the respondent filed an application in the Family Court seeking, inter alia, an order, pursuant to s.79(8) of the Act and O.14 r.6 of the Family Law Rules, that he be substituted as a party to the proceedings commenced by the application made by the wife. The husband raised the question whether s.79(8) of the Act is valid and whether the Family Court had power to substitute the respondent as a party. Subsequently, the Attorney-General for the Commonwealth intervened in the proceedings. Thereafter Smithers J. stated a special case under s.94A of the Act for the opinion of the Full Court of the Family Court on two questions, which, in their amended form, are as follows:

"(1) Is the Family Law Act 1975 as amended, (and in particular are paragraph 79(8)(a) of the Act and Order 14, Rule 6 of the Family Law Rules) a valid law of the Commonwealth to the extent that it authorises the Family Court of Australia to make an order that Robert John Fisher as the legal personal representative of the late June May Fisher be substituted as a party to the proceedings constituted by the application filed 17th February, 1984 by the late June May Fisher.

(2) Is the Family Law Act 1985 as amended, (and in particular are sub-sections 79(8), 31(1), 39(1), 4(2) and paragraph (ca)(i) of the definition of 'matrimonial cause' in sub-section 4(1) of that Act) a valid law of the Commonwealth to the extent that it confers jurisdiction upon the Family Court of Australia to entertain and determine, in accordance with paragraph 79(8)(b) of that Act, the application of the late June May Fisher filed 17th February, 1984 upon the substitution of Robert John Fisher as a party to the proceedings."

The special case was heard by a Full Court of the Family Court which, by a majority (Fogarty and Nygh JJ., Strauss J. dissenting) determined that both questions should be answered "yes". The formal order of the court was "That the matter be remitted to the Trial Judge to be dealt with in accordance with the determination made this day". From this decision the husband appealed to this Court upon a certificate of a Full Court of the Family Court given under s.95 of the Act that an important question of law or public interest was involved. However, the husband's legal advisers apparently became doubtful whether either the answers given by the Full Court or its formal order was a decree from which an appeal would lie to this Court and filed on behalf of the husband a notice of motion seeking an order that the application filed on 30 April 1985 by the respondent be removed into this Court under s.40 of the Judiciary Act. We have heard together the appeal and the motion for removal.

2. The proceedings commenced by the wife constituted a matrimonial cause within par.(ca) of the definition of that expression contained in s.4(1) of the Act, which, so far as is material, reads as follows:

"'matrimonial cause' means -

...

(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;

..."

It was conceded that the proceedings commenced by the wife arose out of the marital relationship. Section 79 of the Act contains a number of provisions which deal with applications for the alteration of the property interests of the parties to a marriage or either of them. Section 79(1) reads:

"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."

Section 4(2) provides that a reference in the Act to a party to a marriage includes (inter alia) a reference to a person who was a party to a marriage that has been terminated by the death of one party to the marriage. Section 79(1A) enables an order made under s.79(1) to be enforced, after the death of a party to the proceedings, on behalf of, or against, as the case may be, the estate of the deceased party. By s.79(2):

"The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order."

The matters to be taken into account on an application under the section are set out in s.79(4).

3. The provisions upon which the respondent particularly relies in the present case are those of s.79(8), which was inserted in the Act by the Family Law Amendment Act 1983. It provides as follows:

"Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies -

(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(b) if the court is of the opinion -

(i) that it would have made an order with respect to property if the deceased party had not died; and

(ii) that it is still appropriate to make an order with respect to property,

the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and

(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party."

If the provisions of the Act to which reference has been made above are valid, the Family Court had jurisdiction to entertain the proceedings commenced by the wife and continued by the respondent: see ss.31(1) and 39(1) of the Act. In the exercise of that jurisdiction the Family Court is empowered by its rules to substitute the respondent as a party - see O.14 r.6(1) of the Family Law Rules which, so far as is material, provides as follows:

"Where a person dies and proceedings may, under the Act, be instituted or continued in a court by or against the estate, or the legal personal representative, of the person, the court may make such orders as it thinks proper with respect to the conduct of the proceedings, including - (a) an order that the legal personal representative of the person be substituted for the person as a party;

..."

4. Although the second question asked in the special case refers to various provisions of the Act, the only provision whose validity it is necessary to consider in the present case is s.79(8). It will be apparent from what is said hereunder, and was indeed conceded, that jurisdiction is validly conferred on the Family Court to entertain proceedings between parties to a marriage with respect to the property of the parties to a marriage or either of them when the proceedings arose out of the marital relationship. The question is whether the Parliament can validly provide for the continuance of such proceedings by the personal representative of a spouse who, having commenced those proceedings, has died before their completion. We are not concerned to consider whether the Parliament can validly provide for the commencement of proceedings by the personal representative of a deceased spouse against a surviving spouse with respect to the property of the spouses or either of them. Similarly, we are concerned with the validity of O.14 r.6 only in so far as it operates to allow the Family Court to order that the legal personal representative of a spouse who had commenced proceedings under s.79 and has since died be substituted for that spouse as a party when the proceedings are continued under s.79(8). The validity of that rule, in so far as it has that effect, depends on the same considerations as those which govern the validity of s.79(8).

5. The critical question in the case is whether the enactment of s.79(8) can be supported as an exercise of the power to make laws with respect to marriage conferred by s.51(xxi) of the Constitution, or of the power given by s.51(xxxix) to make laws with respect to matters incidental (inter alia) to the execution of the power to make laws with respect to marriage. Ever since Russell v. Russell (1976) 134 CLR 495 it has been accepted that "marriage" in s.51(xxi) includes the relationship of marriage and that the power to make laws with respect to marriage enables the Parliament to define and enforce the rights and obligations of the parties to a marriage which arose out of the marital relationship. The power is not limited to the definition and enforcement of rights and obligations of the parties to the marriage between themselves. The Parliament may, in some circumstances at least, validly provide that a right or obligation which arose out of the marital relationship may be enforced by the parties to the marriage or one of them against a third person: Dowal v. Murray (1978) 143 CLR 410, at p 418; Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447, at pp 456-457, 459, 465-468; Vitzdamm-Jones v. Vitzdamm-Jones (1981) 148 CLR 383, at p 414; Fountain v. Alexander (1982) 150 CLR 615, at pp 625-626, 631-632, 642-643, 646-647; V. v. V. (1985) 59 ALJR 607, at pp 608-609; 60 ALR 522, at pp 524-525. Those were cases in which a party to a marriage and a stranger to a marriage made conflicting claims to the custody of a child of the marriage. It has been constantly recognized that the protection and nurture of the children of the marriage is at the very heart of the marital relationship and that the right of a party to a marriage to the custody of a child of the marriage arises directly out of the marital relationship. However, not every legislative provision which creates rights and duties in respect of a child of a marriage will be a valid exercise of the marriage power. Thus in Reg. v. Lambert; Ex parte Plummer it was held by a majority that s.10 of the Act, in so far as it purported to authorize the Family Court by its order to interfere with the custody or possession of a child in respect of whom an order had been made under s.49 of the Children's Services Act 1965 (Q.), as amended, was not a law with respect to marriage and was invalid. As that case shows, an enactment is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of the marriage or with respect to married persons: see at p.457 and see Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR 227, at p 234. That statement is consistent with the view expressed by Latham C.J. in Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p 186:

"A power to make laws with respect to a subject matter is a power to make laws which in reality and substance are laws upon the subject matter. It is not enough that a law should refer to the subject matter or apply to the subject matter ..."

6. The question whether a law is one with respect to marriage is one of degree and the answer to it depends on whether the connexion between the law and the marital relationship is sufficiently close to enable it to be said that the law is in truth one with respect to the relationship: see Gazzo v. Comptroller of Stamps (Vict.), at pp 234-235, 248.

7. It would be unduly cynical to regard matrimonial property as central to the concept of marriage and it is certainly not true to say that all the proprietary rights which a party to a marriage possesses arose out of the marital relationship. Even if the proprietary rights of a party to a marriage have arisen out of the marital relationship, a law which provides for the enforcement of those rights by that party to the marriage against a stranger to the marriage will not necessarily be a valid enactment under s.51(xxi). The connexion between the law and the marital relationship in such a case may be only slight, tenuous or remote. Consistently with the principles stated above, a law which has some application to the property of a party to a marriage will not for that reason alone be a law with respect to marriage. Whether a law which in some way affects the property of the parties to a marriage or one of them is a law with respect to marriage will depend on the strength of the connexion between the law and the marital relationship.

8. It was submitted by Mr Ryan on behalf of the husband that s.79(1) does not itself create rights but enables the Family Court to do so by its order. Section 79(8) applies where the Family Court has made no final order under s.79(1) and therefore where no right has been created and the submission was that s.79(8) itself provides, not for the enforcement of rights which subsisted during the marriage, but for the creation of new rights which will arise only after the marital relationship has come to an end. It was argued that the sub-section enables an order creating these new rights to be made on the application of a stranger to the marriage (the legal personal representative of the deceased spouse) and for the benefit of persons (those entitled to the deceased's estate) who may have no relationship to either party to the marriage. It was further submitted that the sub-section might apply even though both parties to the marriage had died, since "either" may mean "each of two" as well as "one of two" (Currie v. Glen (1936) 54 CLR 445, at p 453) and that this consideration strengthened the argument that the sub-section cannot be given the character of a law with respect to marriage. This last submission may immediately be rejected. Clearly the word "either" in the context of s.79(8) means "one of two" and the sub-section refers only to the case where proceedings with respect to the property of the parties to the marriage, or one of those parties, had not been completed before the death of one of the spouses.

9. It is true that s.79(8) provides for the creation of new proprietary rights after a marriage has been terminated by death. However, those rights may be created only if proceedings with respect to the property of the parties to the marriage or either of them had been commenced while the marriage was subsisting and only if the proceedings are continued by or against the legal personal representative of the deceased spouse; further we are concerned only with the case in which the proceedings arose out of the marital relationship. An order may be made under the sub-section only if the Family Court is of the opinion that it would have made an order with respect to property if the deceased party had not died and that it is still appropriate to make an order with respect to property. We are not concerned to consider in what circumstances it would be appropriate to make an order that would benefit complete strangers, but clearly the discretionary power to make an order under s.79(8)(b) should not be exercised lightly.

10. There can be no doubt that the Parliament can validly provide, as it has provided by s.79(1A), for the enforcement, after the death of one party to a marriage, of rights that had, before the death, arisen out of the marital relationship by virtue of an order made under s.79(1). The power to make laws with respect to marriage "carries with it authority to make such provisions as are incidental to the effectuation of the purpose described by the express words of the power": Gazzo v. Comptroller of Stamps (Vict.), at p 235, citing Federated Ironworkers' Association of Australia v. The Commonwealth (1951) 84 CLR 265, at p 277. The power given by s.51(xxi) would carry with it authority to make effective any order made by the Family Court and to "provide against any impairment of the operation and practical efficacy" of the order: Gazzo v. Comptroller of Stamps (Vict.), at pp 235-236. The principle that a grant of legislative power contains everything which is incidental to the main purpose of the power, and the operation of s.51(xxxix) which relates to matters incidental to the execution of a power, produce the same result in the present case, viz. "that the Parliament may in the exercise of any of the substantive powers given by s.51 make all laws which are directed to the end of those powers and which are reasonably incidental to their complete fulfilment": Burton v. Honan (1952) 86 CLR 169, at p 178, cited in Gazzo v. Comptroller of Stamps (Vict.), at p 236.

11. Although s.79(8) does not provide for the enforcement of substantive rights already in existence, its provisions are incidental to the effectuation of the marriage power. There is a sufficient connexion between those provisions and the marital relationship to make s.79(8) a law with respect to marriage, in its application to a case such as the present. The connexion is found in the circumstances that the proceedings which may be continued under s.79(8) were between the parties to a marriage with respect to the property of the parties to the marriage or either of them and arose out of the marital relationship, that those proceedings were apparently well founded in that they would have resulted in the making of an order if the deceased party had not died and that they may be continued only by or against the legal personal representative of the deceased party. The fact that strangers may in some cases possibly benefit from the continuance of the proceedings does not make the connexion too remote, because the strangers can become entitled only by derivation from the deceased party in whose place the legal personal representative stands.

12. Viewed in another way, s.79(8) operates to reverse the result which would otherwise have followed from the death of a party, viz. that the proceedings would have abated: Vitzdamm-Jones v. Vitzdamm-Jones, at pp 415, 427, 434; D'Este v. D'Este (1973) Fam. 55, at p 59; Sims v. Sims (1981) FLC 91-072. If the Parliament can validly legislate to enable proceedings of a particular kind to be commenced, it is a very short step to hold valid a provision which will enable such proceedings to be continued notwithstanding the death of a party. Such a provision would prevent the proceedings from becoming abortive, and would in that way be incidental to the effectuation of the purpose of the legislation which, ex hypothesi, is valid. Although from one point of view s.79(8) may be characterized as a law which provides for the survival of a right of action, it may also have the character of a law with respect to marriage, because there can be no doubt that a law may possess several quite disparate characters: see Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169, at pp 192-194.

13. In my opinion s.79(8), in its application to the present case, is within the marriage power and O.14 r.6 is similarly valid.

14. For these reasons the majority of the Full Court of the Family Court were correct in answering both questions "yes".

15. An appeal to this Court from the Family Court is given not by the Act but by s.73 of the Constitution. That section provides that this Court "shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences" of (inter alia) any federal court. Section 95 of the Act creates one of the exceptions of which s.73 speaks. It has been held that an appeal will not lie to this Court under s.73 of the Constitution from a judicial opinion which is advisory and which leaves the legal situation of the parties unaffected and does not by itself operate to affect in some way the parties' mutual rights and obligations: Saffron v. The Queen (1953) 88 CLR 523, at pp 527-528; Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. (1967) 116 CLR 273, at pp 279, 282. In Yule v. Junek (1978) 139 CLR 1, this Court held that no appeal lay to a Full Court of the Family Court under s.94 of the Act from the conclusion of a single judge who gave a preliminary ruling to the effect that the claim of the petitioner in that case for damages against the co-respondent was competent. Mason J., with whom the other members of the Court agreed, said, at p.14:

"'Decree' was defined by s.4(1) so as to mean 'decree, judgment or order, and includes a decree nisi and an order dismissing an application or refusing to make a decree or order'. The sub-section, read in the light of the statutory definition, makes it clear that an appeal lies from a judicial order, not from a mere answer to a question of law arising in proceedings, in particular an answer which of itself could not be decisive of the rights of the parties unless and until the primary judge dealt with the other questions upon which he reserved judgment."

In the light of these authorities it should be held that the answers given by the Full Court of the Family Court to the questions of law in the present case, which by themselves were not decisive of the rights of the parties, could not be described as a judgment, decree or order within s.73 of the Constitution. It follows that no appeal lay to this Court and that the appeal should be dismissed as incompetent.

16. Section 40 of the Judiciary Act however empowers this Court to make an order for the removal of the cause into this Court. Had a removal been effected before the Full Court of the Family Court had given its decision there would have been no difficulty. This Court could then have proceeded to answer the questions raised by the special case if it had considered it appropriate to do so. However if the Full Court of the Family Court had given its decision and ordered a remitter to the trial judge and, after removal, this Court had taken a different view of the matter from that taken by the Full Court, there would have been technical difficulties in dealing with the matter. Obviously this Court would not have proceeded to determine the application on its merits, and since there was no valid invocation of its appellate jurisdiction it is difficult to see how it could have interfered with the Full Court's answers. Fortunately that question does not arise for decision. Since this Court is in agreement with the answers of the Full Court, the order for removal should be refused; a judge of the Family Court will then proceed to hear and determine the matter in accordance with the answers of the Full Court of the Family Court with which this Court agrees.

17. I would order -

(1) that the appeal be dismissed as incompetent;

(2) that the application for removal be refused;

(3) that the costs of the appellant and the respondent be paid by the Commonwealth.

MASON and DEANE JJ.: The substantial issue in these proceedings is whether s.79(8) of the Family Law Act 1975 (Cth) ("the Act") is a valid law of the Commonwealth Parliament.

2. It is common ground that the provisions of the Act which operate to confer jurisdiction on the Family Court to hear and determine proceedings between the parties to a marriage with respect to their property or the property of either of them are valid, at least to the extent that the proceedings fall within par.(ca)(i) of the definition of "matrimonial cause" in s.4(1) of the Act, being proceedings "arising out of the marital relationship". Although it was held in Russell v. Russell (1976) 134 CLR 495 that the original provisions of the Act conferring jurisdiction to hear and determine proceedings with respect to the property of the parties to a marriage or of either of them were invalid unless they could be read down, they were read down so as to confer jurisdiction only to grant ancillary relief in proceedings for annulment or dissolution of marriage (at p.542). The problem with par.(c)(ii) of the definition of "matrimonial cause", as it then stood, was that it referred to proceedings with respect to the property of the parties to a marriage or of either of them, without any limitation of any kind. The problem was solved by supplying a limitation which brought the paragraph within constitutional power. The present paragraph (ca) limits the proceedings to proceedings between the parties to a marriage and imposes a further limitation in terms of the alternatives mentioned in par.(ca)(i), (ii) and (iii).

3. It is wrong to regard the standard which was applied in the operation of reading down in Russell as marking the terminal point of the marriage power. As Stephen J. pointed out in Dowal v. Murray (1978) 143 CLR 410, at p 424:

"It would be a coincidence indeed were particular legislation ever to contain a standard or test available for purposes of 'reading down' which happened also precisely to correspond with the extent of the particular constitutional power found to be capable of supporting that legislation as so read down."

Russell therefore provides no support for the proposition that the marriage power only enables Parliament to confer jurisdiction on courts in proceedings between the parties to a marriage.

4. Once it is accepted that the marriage power extends to a law conferring jurisdiction to hear and determine proceedings between the parties to a marriage with respect to their property or that of either of them, being proceedings arising out of the marital relationship, it is obvious that the power also extends to a law enabling such proceedings, when uncompleted, to be continued by or against the legal personal representative of a party who dies after they have been commenced. Such a law, enabling the proceedings to be so continued and authorizing the court, by virtue of s.79(8)(b) and (c), to make an effective order in those proceedings, is necessarily a valid exercise of the marriage power.

5. It might have been possible to reach a different conclusion if the continuation of the proceedings by or against the legal personal representative in some way or another had endowed the proceedings or their subject matter with a different character so that it could be said that they did not arise out of the relationship of marriage. But the presence of the requirement stated in par.(ca)(i) of the definition of "matrimonial cause", in conjunction with the qualification expressed in s.79(8)(b), provides a comprehensive answer to this suggested basis of invalidity. The proceedings continue to have their initial character as something arising out of the marital relationship, the effect of s.79(8) being to provide for the survival of the claim on the death of a party.

6. It is well settled that the constitutional concept of marriage, considered as a head of legislative power, embraces marriage as a relationship. In the exercise of that legislative power, Parliament may regulate the relationship and, subject to the requirement that the law remain one "with respect to" marriage, attach to it such consequences as Parliament considers appropriate. It follows that Parliament may make provision for the alteration of the interests of the parties to a marriage in their property or the property of either of them by reference to considerations arising out of the relationship. And it may make such provision by conferring jurisdiction on a court to make orders altering such interests. This is precisely what s.79, especially sub-ss. (1), (2) and (4), does. It is for this simple reason that it is within the central area of the marriage power, without there being any occasion to engage in discussion about the need for a connexion with the subject matter of the power, whether close or otherwise - an exercise which is more appropriately undertaken when the operation of the law is not on the subject matter of the power, but on something which is incidental to it. Even in such a case it is a mistake to insist on the existence of a "close" connexion, as if this were some immutable dictate proceeding from the Constitution itself. In this respect, while the actual decision in Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR 227 must be respected unless and until it is overruled, we consider that the authority of that case should be confined to its particular facts for the reason that we regard the reasoning underlying the decision as fundamentally unsound.

7. For present purposes what is important is that s.79 authorizes the making of curial orders altering interests in property with a view finally to determining the financial relationships between the parties to the marriage and avoiding further proceedings between them (s.81). Orders so made are to endure beyond the termination of the marriage relationship; indeed, they are generally made after that relationship has ended. They fall within the central area of the marriage power because they create rights which are grounded in that relationship. True it is that orders made under s.79 do not give effect to antecedent rights arising in virtue of the marital relationship. Instead they perform a dual function by creating and enforcing rights in one blow, so to speak (see generally R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at pp 165-169). However, the rights are created by virtue of the exercise of a judicial discretion which necessarily takes account of considerations arising out of the marital relationship (see s.79(4)). They are rights which would not have come into existence but for that relationship. It is because they have their source in that relationship, though they are created by a curial order, and they are intended to endure beyond termination or dissolution of the marriage, or death of a party, that the continuation of the proceedings for which s.79(8) provides is within the primary scope of the legislative power conferred by s.51(xxi) of the Constitution.

8. It is therefore immaterial that a person other than a party to the marriage may benefit from an order made in proceedings commenced by a party to a marriage who dies before completion of the proceedings. The order which gives rise to the benefit comes into existence by virtue of the marital relationship in circumstances in which the making of a curial order in those proceedings is conditioned on the formation by the court of the opinion set out in s.79(8)(b).

9. Another aspect of the subsection remains to be mentioned. The expression "either party" which appears in the opening words means "one of the two parties" so that the subsection deals only with the case where proceedings are not completed by reason of the death of one of the parties. That being so, it is unnecessary for the purposes of the present case to consider the case where both parties to the marriage have died after the institution of the proceedings or the case where one or both of the parties to the marriage have died before the institution of proceedings. It should however be apparent from what we have said that, as at present advised, we consider that a law would, in any event, be within the primary scope of the legislative power of the Parliament with respect to marriage if it conferred jurisdiction upon the Family Court to deal with a dispute arising from a marriage in a case where the disputants were persons standing in the place of or claiming through the respective parties to the marriage (for example, a legal personal representative or a dependant), notwithstanding that both parties to the marriage had died before the institution of proceedings.

10. In the result, s.79(8) is valid in its application to the present case and, as a consequence, O.14 r.6 of the Family Law Rules is also valid. The Full Court of the Family Court was therefore correct in answering both questions in the special case stated under s.94A of the Act in the affirmative.

11. However, we agree for the reasons given by the Chief Justice that the appeal is incompetent and that the application for removal under s.40 of the Judiciary Act 1903 (Cth) should be refused.

12. We would therefore make the orders proposed by the Chief Justice.

WILSON J.: I agree with the reasons for judgment of the Chief Justice.

BRENNAN J.: The relationships between husband, wife and the children of a marriage, which are at the heart of the marriage power, are essentially personal, not proprietary. Property is not an element in the marriage relationship: the relationship of husband and wife is brought into existence and intended to endure irrespective of the property of the parties - "for richer for poorer" to quote familiar words which the Book of Common Prayer adopted from the traditional marriage vow. Nevertheless, the common law provided for the alteration of interests in the property of each spouse in order to provide what was thought to be an appropriate arrangement of proprietary interests for members of the family (that is, husband, wife and the children of the marriage): see Eversley's Law of Domestic Relations (6th ed.) Chs.VIII and IX. Indeed, that has been the concern of legal systems in societies quite different from our own. In an introduction to a collection of essays relating to marriage in different societies published under the title Marriage and Property (Aberdeen 1984), E.M. Craik observes:

" The secondary theme of property runs through all the chapters of this book. Dowry and bride-price are its most obvious expression: the main questions relate to the property brought into the marriage at its inception. However, testamentary provisions and prohibitions are important also, as is the question of work and wages. Legal concern with marriage relates primarily to the disposal of property."

A law governing the alteration of interests in the property of husband and wife in order to provide an appropriate arrangement for members of the family is not a law governing the marriage relationship, but it is a law upon a subject which is a customary incident of marriage.

2. Marriage is a social and legal institution. For many, marriage is also, and primarily, a sacrament or an institution of religious significance, but it is in the character of a legal institution that marriage is a subject of legislative power conferred on the Parliament by s.51(xxi) of the Constitution. A power to make laws with respect to a legal institution is not like a power to make laws with respect to many of the other heads of power contained in s.51. Although the nature and incidents of a legal institution would ordinarily be susceptible to change by legislation, constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power. The measure of the legislative power cannot be determined by reference to the occasions of its purported exercise. The nature and incidents of the legal institution which the Constitution recognizes as "marriage" and which lie within the power conferred by s.51(xxi) are ascertained not by reference to laws enacted in purported pursuance of the power but by reference to the customs of our society, especially when they are reflected in the common law, which show the content of the power as it was conferred. The words "with respect to" in s.51 in their application to the marriage power are not needed to bring the customary incidents of marriage within the power. On the other hand, those words do not empower the Parliament to legislate upon the customary incidents of marriage so as to affect the nature of the marriage relationship.

3. The legislative power conferred by s.51(xxi) extends to subjects which the customs of our society generally recognize 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.

4. As the adjusting of those interests is an incident of marriage, a proceeding in which the jurisdiction to make orders adjusting those interests is invoked is a proceeding arising out of the marital relationship falling within par.(ca)(i) of the definition of "matrimonial cause" in s.4(1) of the Family Law Act 1975 (Cth) ("the Act"). Such a proceeding may be contrasted with a proceeding affecting the title to, or the benefit or enjoyment of, the property of either spouse where the ground on which the claim is made does not arise as an incident of marriage. A jurisdiction to entertain any proceeding between parties to a marriage with respect to their property whether or not the proceeding arises out of the marital relationship cannot be created in reliance on the marriage power: Russell v. Russell (1976) 134 CLR 495, at pp 510-511, 527-528, 542, 552-553. On the other hand, if the jurisdiction is limited so that its exercise is governed by considerations arising out of the marital relationship, the creation of the jurisdiction is supported by s.51(xxi), at least where the parties to the proceedings are the parties to the marriage. I respectfully agree with what Mason J. said in Russell v. Russell, at pp 538-539:

" The notion that the creation of rights arising out of the marriage relationship stands within s.51(xxi.) but the enforcement of those rights stands outside the power makes an arbitrary distinction which should be rejected, except in so far as it is necessary to acknowledge that Ch.III makes special provision for defining and investing jurisdiction in courts."

The proceedings with which we are concerned in this case were commenced between the parties to a marriage and arose out of their marital relationship.

5. A proceeding under s.79(1) of the Act arising out of the marital relationship subjects the whole of the property of the spouses to the discretionary jurisdiction of the Family Court. The interests of the spouses in the property may be altered and either or both of them may be ordered to settle or transfer property "for the benefit of either or both of the parties (to the marriage) or a child of the marriage". The property of the spouses is thus made available to answer the moral claims of either spouse or the children of the marriage against the spouse who is entitled to the property. It mistakes the operation of s.79(1) to say that a proceeding under that sub-section arising out of the marital relationship does not affect the property of the spouses until an order is made. So soon as the proceedings are commenced, the Family Court may make "such order as it thinks fit" to adjust the proprietary interests of each spouse and of the children of the marriage in the property of the spouses.

6. The question in this case is whether a jurisdiction can be created to make such an order after the death of one spouse. That jurisdiction is not created by s.79(1), but by s.79(8) of the Act. Section 79(1) in conjunction with par.(ca)(i) of the definition of "matrimonial cause" in s.4(1) empower the Family Court in "proceedings between the parties to a marriage" to make an order "altering the interests of the parties in the property". Those words cannot be satisfied if one of the parties to the marriage has died and that party has disposed by will of his or her interests in property or those interests have devolved on others. The language of s.79(1) temporally restricts the exercise of the jurisdiction it confers to the lifetime of both parties to the marriage. Section 79(8), however, authorizes the making of an order after the death of one party.

7. Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within par.(ca) of the definition of "matrimonial cause" in s.4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s.79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided "it is still appropriate to make an order with respect to property" (s.79(8)(b)(ii)). That qualification on the power, coupled with par.(ca)(i) of the definition of "matrimonial cause", ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied.

8. Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse's marital relationship. It is a law with respect to marriage.

9. That is not to say that the exercise of the jurisdiction under s.79(8) is governed by precisely the same considerations as govern the making of orders under a Testators' Family Maintenance Act, much less to suggest that there is any inconsistency between s.79(8) and legislation of that kind: see Smith v. Smith (1986) 60 ALJR 508, at p 519; 66 ALR 1, at pp 21-22. However, there will be occasions when an order made under s.79(8) will satisfy or go towards satisfying a moral obligation which might otherwise have warranted the making of an order or an order in a larger amount under Testators' Family Maintenance legislation.

10. It follows from what I have written that the validity of s.79(8) would not be affected if it related to the continuation of proceedings after both spouses had died provided the proceedings were being carried on to obtain an order satisfying the moral obligations owed to their children. But it is clear from the context of s.79(8) that "either party" should not be construed as both parties. The provisions of par.(a) show that the sub-section is intended to operate when there is but one "deceased party" by or against whose legal personal representative the proceedings may be continued.

11. I agree with the answers given by the Full Court of the Family Court to the two questions set out in the case which Smithers J. stated for the opinion of the Full Court, each question being limited to the circumstances of the present proceedings.

12. We are not here concerned with proceedings commenced between former spouses which do not arise out of the marital relationship: concededly these proceedings do arise out of the marital relationship. Proceedings which fall under pars.(ii) and (iii) of par.(ca) of the definition of "matrimonial cause" and which do not fall under par.(i) must derive their constitutional support from s.51(xxii) of the Constitution. It is not necessary to consider whether s.51(xxii) gives the same support to s.79(8) in its application to proceedings which do not arise out of the marital relationship as s.51(xxi) gives to that sub-section in its application to proceedings which do arise out of the marital relationship.

13. Although I have stated my opinion on the questions answered by the Full Court, I agree with the Chief Justice for the reasons he gives that no appeal lies from the answers given by the Full Court and that the application to remove the matter into this Court should be refused.

DAWSON J.: The special case states that the husband and wife separated on 23 November 1983. On 17 February 1984 the wife filed an application in the Family Court seeking orders pursuant to s.79(1) of the Family Law Act 1975 (Cth) ("the Act") that the matrimonial home be sold and that the proceeds of sale be divided equally between the husband and wife and that the other property of the husband and wife be divided equally between them or sold and the net proceeds divided equally between them. The special case also states that the application arose out of the marital relationship of the husband and wife.

2. On 11 July 1984, the wife died before the application was heard and determined. She had appointed her only son to be her executor and probate of her will was granted to him. On 30 April 1985 the son as executor applied in the Family Court for an order that he be substituted for the wife as a party to the proceedings constituted by the wife's application. The application was made pursuant to s.79(8) of the Act and Order 14 rule 6(1) of the Family Law Rules. Order 14 rule 6(1) provides for the substitution of the legal personal representative in proceedings which may be continued notwithstanding the death of a party.

3. Section 79(8) of the Act provides:

"Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies -

(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(b) if the court is of the opinion -

(i) that it would have made an order with respect to property if the deceased party had not died; and

(ii) that it is still appropriate to make an order with respect to property,

the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and

(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party."

The question which arises for determination is whether s.79(8) is a valid enactment of the Commonwealth Parliament under s.51(xxi) of the Constitution (the marriage power).

4. Section 79(1) provides that the Family Court in proceedings with respect to the property of the parties to a marriage or either of them, 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 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. Section 79(2) requires the court not to make an order under the section unless it is just and equitable to do so. Section 79(4) sets out a number of matters which are to be taken into account in considering what order (if any) should be made in such proceedings.

5. Under par.(ca)(i) of the definition of "matrimonial cause" in s.4(1) of the Act the proceedings between the parties to a marriage with respect to the property of the parties to a marriage or either of them, being proceedings arising out of the marital relationship, constitute a matrimonial cause. Section 4(2) provides that a reference in the Act to a party to a marriage includes a reference to a person who was a party to a marriage that has been terminated by the death of one party to the marriage. Thus the proceedings in this case constitute a matrimonial cause under the Act and were, when instituted, within the jurisdiction of the Family Court under s.31(1) and s.39(1) of the Act.

6. Whatever debate may remain concerning the outer limits of the concept of marriage as a subject of legislative power, there can be no doubt that it extends beyond the entry into the estate of matrimony and embraces the mutual rights and obligations which arise from the resultant relationship. Those rights and obligations are central to marriage as a legal concept. That is as far as it is necessary to go in the present case, and to attempt in the abstract any more comprehensive definition of the marriage power is neither necessary nor desirable.

7. It is sufficient to acknowledge that marriage may be described in terms other than those of a relationship - terms which serve nevertheless to show the nature of the rights and duties which may be said to arise from the marriage relationship. Thus, in our society marriage is an institution with particular attributes to which it will often be necessary to have regard in order to determine whether a particular law is a law with respect to marriage. This is important for more than one reason. There are matters which, whilst not directly concerned with the mutual rights and obligations of married persons, may validly be the subject of a law with respect to the institution of marriage because they are incidental to it. For example, a law dealing with bigamy may be thought to fall within that category. Furthermore, it is not correct to say that any law, whatever its scope, which modifies the legal incidents of the marriage relationship, will be a law with respect to marriage. If, when modified in accordance with a law, the resultant relationship or the relevant aspect of it cannot be embraced within the institution of marriage, the law will not be a law with respect to marriage. This is not to impose limits upon the marriage power by reference to personal preconceptions; it is merely to treat marriage, as does the Constitution, as a recognizable institution and so to identify the power to legislate with respect to it. That is sufficient to make the point that it is not possible to speak of marriage exclusively in terms of a relationship and to continue further would be to disregard my own warning against the dangers of abstract theory in relation to the marriage power.

8. There is no contest in this case that jurisdiction is validly conferred by s.79(1) of the Act, that jurisdiction being limited in its exercise, as it is by the definition of "matrimonial cause", to proceedings arising out of the marital relationship. Since it is also conceded that the present proceedings arose out of the marital relationship which existed when they were instituted, it is unnecessary to explore the extent of that limitation upon the operation of s.79. It is enough in this case to say that the limitation means that while s.79(1) authorizes the alteration of existing rights and the creation of new ones, it does so only to satisfy the claims arising from marriage upon the property of either spouse. The rights and obligations involved arise, therefore, from the marriage relationship. Thus, it is not correct to say, as was submitted, that where one of the parties to a marriage has died and proceedings are continued under s.79, new rights may be created which are unrelated to the marriage. If this were not already apparent, it is made clear by the express requirement of s.79(8) that the court may only make an order where it would have done so if the deceased party had not died and it is still appropriate to do so.

9. The submission was made that s.79(8) contemplates that proceedings may be continued after both parties to the marriage have died and that this demonstrates the lack of any requirement by the sub-section of a connexion between the proceedings which are continued and the marriage out of which they arose. I myself doubt whether, having regard to the matters to which I have referred, the situation would be any different if the provision were to be given an operation upon the death of both parties to the proceedings, but it is unnecessary to decide the point because it is clear to my mind that in speaking of the death of either party to the proceedings, s.79(8) is not speaking of the death of both of them.

10. The simple point of the case is whether, when one of the parties to proceedings under s.79 dies, the proceedings must abate or whether the legislature has validly provided that they be continued for the benefit of the estate of the deceased party. True it is that when one party to a marriage dies the marriage ends. However, that does not mean that the proceedings, which arose out of the marital relationship, cease to have a sufficient connexion with marriage and so fall outside the relevant legislative power. If there is power to provide for the commencement of the proceedings, there is power to provide for their termination. There could be no question that an express provision for the abatement of the proceedings upon the death of one of the parties would be valid and I cannot see why it is not equally within power to provide for their continuation.

11. The only substantial reason advanced against such a proposition is that the eventual result of the proceedings may be no more than to affect the entitlement of the beneficiaries in a deceased party's estate, something which may not provide a connexion with the marriage. That result may be a consequence of the change in circumstances brought about by the death of one of the parties, but the necessary connexion with the legislative power is provided by the subject matter of the proceedings which remains as it was when the proceedings were commenced. The consequence which flows from the change in circumstances does not alter or diminish that connexion.

12. For these reasons I think that the Full Court of the Family Court was correct in the answers which it gave to the two questions, set out in the special case, which were stated for its opinion. However, for the reasons given by the Chief Justice, no appeal lies from those answers and it follows that the application to remove the matter into this Court should be refused.

Orders

Appeal dismissed as incompetent.

Application for removal refused.

Order that the costs of the appellant and the respondent be paid by the Commonwealth.