FPK & LCP
[2008] FMCAfam 282
•1 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRAY & WILLIAMS | [2008] FMCAfam 282 |
| FAMILY LAW – Jurisdiction – interpretation of Family Law Act 1975. FAMILY LAW – Children – child of marriage – ex nuptial children – powers of court – recovery order. COURTS & JUDGES – Federal Magistrates Court – constitutional powers – jurisdiction – powers referred by States. |
| Australian Constitution 1901, ss.51(xxii), 51(xxix), 51(xxxvii), 75, 75(4), 76, 122 Commonwealth Powers (Family Law – Children) Act 1986 (Vic), s.3(1)(b) Family Law Act 1975 (Cth), Part VII, ss.67U, 69(2)(a), 69ZE, 69ZF, 69ZG, 69ZH, 69ZJ |
| Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 Le Mesurier v Connor (1929) 42 CLR 481 Lansell v Lansell (1964) 110 CLR 353 Russell v Russell (1976) 134 CLR 495 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 Spratt v Hermes (1965) 114 CLR 226 R v Hughes (2000) 202 CLR 535 AMS v AIF [1999] HCA 26; 199 CLR 160 |
| Applicant: | JENNIFER ELIZABETH GRAY |
| Respondent: | TIMOTHY JAMES WILLIAMS |
| File Number: | MLC6241 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 28 March 2008 |
| Date of Last Submission: | 28 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Testart |
| Solicitors for the Applicant: | Lucas & Marshman |
| Counsel for the Respondent: | Ms J. Elleray |
| Solicitors for the Respondent: | Power & Bennett |
| Counsel for the Independent Children’s Lawyer: | Mr P. Pascoe |
| Solicitors for the Independent Children’s Lawyer: | Heinz & Partners |
ORDERS
That the mother’s application for summary dismissal of the father’s recovery application be refused.
IT IS NOTED that publication of this judgment under the pseudonym Gray & Williams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC6241 of 2007
| JENNIFER ELIZABETH GRAY |
Applicant
And
| TIMOTHY JAMES WILLIAMS |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
The applicant and the respondent have one child born in 2005. The parties have never married. There are parenting orders in force with respect to the child, providing for the child to live with the mother, and for the father to have regular time with the child. The mother has since moved to a different rural town in Victoria, many hours drive away. As a result, the child has not been made available for time with the father. The father seeks a variety of orders under Part VII of the Family Law Act (the parenting orders provisions of the Act), including a recovery order to recover the child from the mother. The court’s power to make a recovery order is provided for in s.67U, subject to various restrictions set out in Division 8 of Part VII. Importantly, the recovery order provisions, like most of the provisions in Part VII refer simply to a ‘child’, without qualification relating to constitutional sources of power to legislate with respect to children.
Jurisdiction Issue
Counsel for the mother argues that the court has no power to make a recovery order with respect to the child as a result of the effect of s.69ZH of the Family Law Act1975. He says that this flows from the interpretation of the section by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B.[1] Put simply, the mother’s counsel argues that s.69ZH(2) limits the meaning of the word ‘child’ throughout various divisions of Part VII (including the divisions relevant to the issue in this case) to a ‘child of a marriage’. As a result, he argues, none of the provisions of Part VII that are limited by s.69ZH can be relied upon in this case as the child’s parents were never married. The precise terms of s.69ZH are:
[1] [2004] HCA 20; (2004) 219 CLR 365.
69ZH [Additional application of Part] (1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2) By virtue of this subsection, Subdivision BA of Division 1, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:
(a) each reference to a child were, by express provision, confined to a child of a marriage; and
(b) each reference to the parents of the child were, by express provision, confined to the parties to the marriage.
(3) The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage, including (but not being limited to):
(a) the duties, powers, responsibilities and authority of those parties in relation to:
(i) the maintenance of the child and the payment of expenses in relation to the child; or
(ii) whom the child lives with, whom the child spends time with and other aspects of the care, welfare and development of the child; and
(b) other aspects of duties, powers, responsibilities and authority in relation to the child:
(i) arising out of the marital relationship; or
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii) in relation to the divorce of the parties to that marriage, an annulment of that marriage or a legal separation of the parties to that marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104.
(4) By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor.
The section is difficult to read and understand, particularly as s.69ZH(2) appears to limit the operation of Subdivision BA of Division 1 of Part VII of the Act (Best Interests of the Child), yet the whole of Division 1 is to operate according to its tenor by virtue of s.69ZH(4). Read in isolation, s.69ZH(2) is apt to give the appearance of limiting the operation of most of Part VII to children of a marriage. It is this reading that Counsel for the applicant relies upon, arguing that such a reading of the section is supported by comments of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B.[2]
[2] [2004] HCA 20; (2004) 219 CLR 365.
In particular, Counsel argues that the judgment of Gummow, Hayne and Heydon JJ supports the propositions:
a)That s.69ZH confines the provisions it refers to, to children of marriages;[3] and
b)That s.69ZH is a complete and conclusive statement of the application of the provisions to which it refers.[4]
[3] ‘Section 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage.’ see para [74].
[4] ‘[110] The provisions of subdiv F of Div 12, including ss 69ZE, 69ZG, 69ZH and 69ZJ, control the application of the preceding provisions of Pt VII. They do not merely add something onto an operation which those earlier provisions have in their own right. They consist of a complete and exclusive statement of the application of the earlier provisions. That this is so follows from s 69A(e), which provides that subdiv F of Div 12 (not any earlier provision) deals with the places and people to which Pt VII extends and applies. It follows from the form of s 69ZE, and s 69ZG, neither of which, unlike a section which operates in supplementation of some provisions having independent application[106], is expressed to be "without prejudice to" the effect of those provisions. It follows from s 69ZH(1), which provides that Pt VII has effect as provided by s 69ZH without prejudice to its effect apart from "this section" - not "this subdivision"; if the latter word had been used, it would point against the construction being advanced, and use of the former word favours it. It follows from s 69ZH(4), which provides that certain miscellaneous provisions of Pt VII which are not those described in s 69ZH(2) have effect according to their tenor: for this would be unnecessary if the provisions had effect according to their tenor in any event, and implies that the provisions of Pt VII which are described in s 69ZH(2) do not have effect according to their tenor at all, but only according to the terms of s 69ZH(2) and (3). It follows from the fact that, if the provisions of Pt VII described in s 69ZH(2) did apply according to their tenor, s 69ZG and s 69ZH would have been unnecessary.’.
Counsel argued that the judgment of Gleeson CJ and McHugh J leads to the following conclusions:
a)That there is not a general jurisdiction over children, and Part VII is subject to the general limitation in s.69ZH;[5] and
b)The relevance of s.69ZH is to limit the general references to ‘children of a marriage’;[6]
[5] ‘[28] As we have already indicated, Pt VII is concerned with children. Like Pt V, and despite the terms of s 31, Pt VII contains a number of conferrals of jurisdiction. None of them expressly indicates or inferentially suggests that the Family Court has jurisdiction to make orders against the Minister. On the contrary, the various Divisions and subdivisions of Pt VII show that the main object of the Part is to require parents to act in ways that will advance the best interests of their children. Indeed, s 60B(1) declares that the object of the Part is to:
"ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children."
Nor, when construed as a whole, does anything in Pt VII suggest that the Part was intended to give the Family Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.’
[6] Relying upon paragraphs [39], [46] and [49].
The argument of counsel for the applicant appears to be a straightforward and simple explanation of the meaning and operation of the section. However, as H. L. Mencken said, ‘there is always an easy solution to every problem — neat, plausible and wrong.’[7]
[7] H. L. Mencken, Prejudices: Second Series (1920) cf >
The Act must be read as a whole, in the context of the federal constitutional system. For the reasons that follow I am of the view that sec 69ZH does not operate in the way suggested by counsel for the applicant, and that the passages in Minister for Immigration and Multicultural and Indigenous Affairs v B, once read in their entirety, and in the context of the legal framework for the legislation are not authority for the proposition put by counsel for the applicant.
The Constitutional Powers supporting Part VII
The starting point, when considering difficult questions about the court’s jurisdiction, is the legislative power of the Commonwealth to make laws with respect to the subject matter of the proceedings. From there, one must consider whether jurisdiction in a ‘matter’ (within the meaning of ss.75 and 76 of the Constitution)[8] has been conferred upon the court, and then the precise terms of that jurisdiction.
[8] In In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265 where the court pointed out that ‘the word ‘matter’ in s 76 means … the subject matter for determination in a legal proceeding … there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.’
Importantly, the powers of the Commonwealth to make laws with respect to the care of children do not arise as a result of specific constitutional provisions that provide a general power to make laws with respect to children. The power of the Commonwealth legislature to make laws affecting the care of children can flow from five potential sources.
a)The states may refer to the Commonwealth power to make laws with respect to a particular subject matter.[9] Relevant to this case is the referral by the Victorian government to the Commonwealth of legislative power with respect to ‘the custody and guardianship of, and access to, children’.[10] Not all states had referred such powers to the Commonwealth at the time that Div.12 (which contains s.69ZH) was enacted, thus the section is a little more complex to cover the differences between states at different times.
b)Where the dispute about parental responsibilities for children involves parents who are residents of different states, the Commonwealth can rely upon its constitutional power with respect to disputes between residents of different states.[11]
c)Where the dispute concerns a child in one of the Territories the Commonwealth can rely upon its constitutional power to make law with respect to the Territories.[12]
d)The Commonwealth can rely upon its external affairs powers to make laws implementing treaty obligations.[13] In this case, it was not argued that such a source of power had been exercised.[14]
e)The Commonwealth has power with respect to marriage and matrimonial causes,[15] and as such can make laws with respect to marriage, divorce and matters incidental thereto, such as the care of the children of a marriage.[16]
[9] Section 51(xxxvii) of the Constitution.
[10] see s.3(1)(b) of the Commonwealth Powers (Family Law – Children) Act 1986, Vic.
[11] See s.75(4) of the Constitution.
[12] See s.122 of the Constitution.
[13] See s.51(xxix) of the Constitution.
[14] Presumably this was not pursued as a result of the comments of Callinan J in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 at [220].
[15] This power flows from ss.51(xxi) and 51(xxii) of the Constitution.
[16] See s.51(xxii) of the Constitution [and HCA cases]. These provisions do not limit each other, and so include issues relating to parental care of children: Le Mesurier v Connor (1929) 42 CLR 481; Lansell v Lansell (1964) 110 CLR 353; Russell v Russell (1976) 134 CLR 495.
These potential sources of legislative power provide the context for the operation of the so called jurisdiction provisions in Division 12 of Part VII of the Family Law Act. In reality, these provisions confine the use that the Commonwealth has made of its various sources of power when enacting the provisions contained in Part VII.
In some cases the Commonwealth may have constitutional power to make laws with respect to a particular child on more than one of the above basis, for example where the parents were married and now live in different states.[17] As the Commonwealth can only exercise its legislative power in accordance with the Constitution, care was needed to ensure that Part VII did not extend beyond the limits of the various sources of legislative power. It is for this purpose that subdiv.F of div.12 appears to have been enacted, confining the extent to which each of the various sources of constitutional power have been exercised. This is to ensure that the legislation does not extend beyond the boundaries of any particular source of constitutional power.
[17] So long as a power to enact a particular law can be identified it will be valid, regardless of which power was intended to be exercised: see Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 at [109]; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 534; Spratt v Hermes (1965) 114 CLR 226 at 278 and R v Hughes (2000) 202 CLR 535 at [15].
(a) Power referred by the States
The Subdivision commences with ss.69ZE and 69ZF. These sections provide for the children’s provisions of the Family Law Act to extend to Victoria in reliance upon powers referred by the Victorian Parliament as follows:
69ZE [Extension of Part to the States] (1) Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.
(2) Subject to this section and section 69ZF, this Part extends to Western Australia if:
(a) the Parliament of Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:
(i) the maintenance of children and the payment of expenses in relation to children or child bearing;
(ii) parental responsibility for children; or
(b) Western Australia adopts this Part.
(3) This Part extends to a State under subsection (1) or (2) only for so long as there is in force:
(a) an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:
(i) the matters referred to in subparagraphs (2)(a)(i) and (ii); or
(ii) matters that include, or are included in, those matters; or
(b) a law of the State adopting this Part.
(4) This Part extends to a State at any time under subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to:
(a) the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or
(b) matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters.
…
69ZF [Unless Declaration in force, part’s extension to a state has effect subject to modifications] (1) [Proclamation] The Governor-General may, by Proclamation, declare that all the child welfare law provisions of this Part extend to a specified State.
…
Sections 69ZE and 69ZF set out the limits of the Commonwealth’s exercise of the powers referred by the States. To the extent that Part VII relies upon powers referred by the States to the Commonwealth, this section describes the extent to which the Commonwealth has exercised those powers: the maintenance of children, the payment of expenses with respect to child bearing, and parental responsibility (see s.69(2)(a)(i) and (ii)). The terms of the reference of power by the Victorian parliament is set out above.
(b) The use of the Territories powers
Section 69ZG extends the operation of Part VII to the territories, exercising the Commonwealth’s constitutional power to make laws with respect to the Territories.
(c) The powers with respect to residents of different states
Section 69ZJ extends the operation of Part VII to residents of different states, exercising the Commonwealth’s constitutional power to make laws with respect to disputes between residents of different states.
(d) The external affairs power
As already noted, it was not argued that the Commonwealth has utilized its external affairs powers to support the provisions of Part VII that are relevant to this case.
(e) The use of the matrimonial causes powers
Section 69ZH defines the extent to which the Commonwealth has exercised its powers with respect to the marriage power.[18] It is for this reason that s.69ZH(1) acknowledges that Part VII can have effect in circumstances where the marriage power is not relied upon. In order to ensure that the provisions, to the extent that they rely upon the marriage and matrimonial causes powers, remain within the boundaries of the that power under the Constitution, the section limits the reliance upon that source of constitutional power to children of a marriage, with respect to matters of parental responsibility and other related aspects. [19] As a result, there is no room for the operation of the provisions of s.69ZH in a case where the child’s parents have never married, as the power to make orders in such a case is the power referred by the states, and relied upon by the Commonwealth to the extent set out in ss.69ZE and 69ZF of the Act.
[18] See AMS v AIF [1999] HCA 26; 199 CLR 160 per Callinan J at [252] to [259]; Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365.
[19] s.69ZH(2).
The Relevant Constitutional Power relied upon in the Case
In this particular case, it is only the first source of constitutional power (power referred to the Commonwealth by the State of Victoria) that can be relied upon (as the parents live within one state – not a territory, and have never married). There has been a referral of power by the State of Victoria, and the Commonwealth has relied upon that power to support Part VII, as set out in ss.69ZE and 69ZF. The restrictions upon the use of the marriage or matrimonial causes powers in s.69ZH are not applicable to the exercise of the referred power.
The decision in Minister for Immigration and Multicultural and Indigenous Affairs v B
In Minister for Immigration and Multicultural and Indigenous Affairs v B, the High Court considered whether the Family Court had power to make orders for the release of children held in detention pending the processing of their refugee applications. The children were the children of a marriage, and thus the power of the Commonwealth flowed, prima facie, from the marriage and matrimonial causes power. Alternatively, it was argued that the states had referred sufficient powers to allow the Commonwealth to confer jurisdiction upon the Family Court to exercise a child welfare power beyond the power that would fall within the marriage and matrimonial causes power. The central question for the High Court to determine was the breadth of the operation of s.67ZC which provides:
67ZC [Orders relating to welfare of children] (1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Gleeson CJ and McHugh J gave a joint judgment. Their Honours note the importance of legislation identifying a ‘matter’ (as that concept appears in Ch.III of the Constitution) with respect to which jurisdiction is conferred. This concept is a significant aspect of the difference between judicial, legislative, and administrative power under the constitution.[20] Put simply, the difference is between deciding a justiciable controversy (a judicial function), and simply exercising a general governmental power (in the nature of the executive function). Their Honours found that s.67ZC, if read in isolation, would not confer jurisdiction with respect to a ‘matter’ in the constitutional sense. Their Honours held that the section, when read with the balance of Part VII, did not provide for a general welfare jurisdiction, but was confined in breadth by the provisions of div.12, of which s.69ZH is only one.[21] Ultimately, however they did not need to determine the precise operation of s.69ZH.
[20] see In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[21] ‘[49] On the other hand, despite s 69ZH(1), the terms of sub-ss (2), (3) and particularly (4) of s 69ZH suggest that s 67ZC is confined by the terms of s 69ZH(2) and (3). Section 69ZH(4) declares that various provisions of Pt VII have effect according to their tenor. If the provisions identified in s 69ZH(2) and (3) operated independently of Div 12, this declaration would be superfluous. Importantly, the terms of s 69ZH(4) also necessarily imply that the various provisions named in s 69ZH(2) - including s 67ZC - do not operate according to their tenor. If they did, Parliament's enactment of s 69ZG and s 69ZH would be unnecessary.’ (emphasis added).
Gummow, Hayne and Heydon JJ concluded that the powers referred by South Australia were not sufficient to refer a general ‘welfare’ power on the Commonwealth[22]. Their Honours then turned to the other source of Commonwealth power that the applicants argued was a basis for a broad welfare power under s.67ZC, the marriage and matrimonial causes power. It was in this context that they found that s.69ZH operates according to its tenor, saying
[105] … in its terms, s 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage.
[22] See paras [103] to [104].
Importantly, s.69ZH must be seen as controlling the use of the marriage and matrimonial causes power, not confining the balance of Part VII. The Honours said:
111. The provisions of subdiv F of Div 12, including ss 69ZE, 69ZG, 69ZH and 69ZJ, control the application of the preceding provisions of Pt VII. They do not merely add something onto an operation which those earlier provisions have in their own right. They consist of a complete and exclusive statement of the application of the earlier provisions. … It follows from the form of s 69ZE, and s 69ZG, neither of which, unlike a section which operates in supplementation of some provisions having independent application[106], is expressed to be "without prejudice to" the effect of those provisions. It follows from s 69ZH(1), which provides that Pt VII has effect as provided by s 69ZH without prejudice to its effect apart from "this section" - not "this subdivision"; if the latter word had been used, it would point against the construction being advanced, and use of the former word favours it. It follows from s 69ZH(4), which provides that certain miscellaneous provisions of Pt VII which are not those described in s 69ZH(2) have effect according to their tenor: for this would be unnecessary if the provisions had effect according to their tenor in any event, and implies that the provisions of Pt VII which are described in s 69ZH(2) do not have effect according to their tenor at all, but only according to the terms of s 69ZH(2) and (3). It follows from the fact that, if the provisions of Pt VII described in s 69ZH(2) did apply according to their tenor, s 69ZG and s 69ZH would have been unnecessary. (emphasis added)
Callinan J also found that that a general welfare power had not been referred by the states to the Commonwealth, and that such a power did not flow from the matrimonial causes power in the Constitution. Kirby J determined the case on issues unrelated to the Family Law Act.
Conclusion
Counsel for the mother has read the judgment of Gleeson CJ and McHugh J and that of Gummow, Hayne and Heydon JJ as proscribing the class of children covered by Part VII of the Act (those whose parents were legally married), rather than a section that merely defines the extent of the Commonwealth’s exercise of the matrimonial causes power to ensure that the Commonwealth did not exceed the powers available under the Constitution.
For the reasons I have given I find that the argument put on behalf of the mother should be rejected.
I find that the court has jurisdiction under Part VII to issue a recovery order for the child the subject of these proceedings. I will now hear the parties on whether the facts and circumstances make it appropriate to issue such an order.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 1 April 2008
0
13
3