R v Demack; Ex parte

[1977] HCA 37

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

THE QUEEN v. DEMACK; Ex parte PLUMMER

(1977) 137 CLR 40

27 June 1977

Constitutional Law (Cth)—Infants and Children

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Family Court of Australia—Jurisdiction—Matrimonial cause—Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage—Child in custody of State social welfare authority—Power to invest jurisdiction to make custody order affecting custody of State authority—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi.)—Family Law Act 1975 (as amended by Family Law Amendment Act 1976) (Cth), ss. 4 (1), 10, 31—Children's Services Act of 1965 (Q.), s. 64. Infants and Children—Family Court of Australia—Jurisdiction—Powers—Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage—Scope—Whether limited to proceedings between parties to marriage—Order of State court placing child in custody of State social welfare authority—Order of Family Court forbidden to affect order of State court placing child under control of State authority—Family Law Act 1975 (as amended by Family Law Amendment Act 1976) (Cth), ss. 4 (1), 10, 31.

Decisions

1977, June 27.
The following written judgments were delivered: -
BARWICK C.J. This application for prohibition raised the question whether s. 10 (3) of the Family Law Act 1975 (Cth) ("the Act") is a valid law of the Parliament, and the question whether s. 31 of the Act read with the definition of "matrimonial cause" in s. 4 (1) could validly apply to proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, which were not proceedings between the parents of the child. (at p43)

2. The Court in Russell v. Russell (1976) 134 CLR 495 gave a wide construction to s. 51 (xxi.) of the Constitution. In my reasons for judgment in those cases, I expressed my dissent from the view espoused by the majority of the Court. But, whilst maintaining myself the view there expressed, I have come to the conclusion that, conformably to the reasons given by the majority in those decisions, ss. 10 and 31 of the Act can be held validly to operate according to their terms except that the jurisdiction derived from them should, by construction, be limited to proceedings between the parents of the child whose custody or guardianship is in question. As I have formed that opinion, its application to the facts and circumstances of this case, which may be found in the reasons for judgment of my brother Mason, means that the order nisi ought to be discharged. The proceedings in the Family Court are in substance, if not in form, proceedings to which both parents are contesting parties. Because of the provisions of s. 10 (3), the interest of the prosecutor cannot be affected by the result of these proceedings - a matter to which I shall later advert. Having had the advantage of reading those reasons, I find myself, bearing in mind the Court's decisions on the validity of the Act, in general agreement with the reasons he expresses for concluding, on the premises adopted by the majority, that a writ of prohibition for want of jurisdiction should be refused. I agree that the amendments made in the Act after the commencement of the proceedings in the Family Court have no consequence in the resolution of this case. (at p43)

3. The result of the case, having regard to the terms of s. 10 (2) of the Act, cannot be said to be satisfactory. That section creates the absurdity of two antithetical orders for custody of the same child being valid and operative at the same time. But that circumstance, absurd as it is, was evidently intended by the Parliament. Consequently, it affords no reason for denying the Family Court jurisdiction under ss. 10 (3) and 31 to make the order sought in this case. (at p44)

4. In my opinion, the order nisi should be discharged. (at p44)

GIBBS J. The mother of a girl then aged fourteen made application to the Family Court of Australia for an order for her custody. The application was filed on 2nd March 1976. The respondent to the proceedings, the father of the child, was the husband of the applicant. In his affidavit filed in the Family Court, the husband asked the Court to place the child in his care and custody. The child had on the 11th November 1974 been committed by an order of a Children's Court to the care and control of the Director, Department of Children's Services of the State of Queensland. The effect of the order was to make the Director the guardian of the child, and to authorize the Director to take the child into his custody: s. 64 of the Children's Services Act of 1965 (Q.), as amended. Acting in pursuance of his powers under that Act, the Director had on 28th January 1976 placed the child with the mother, subject to certain requirements of supervision, and the child was living with the mother at the date of the application. The Director now seeks a writ of prohibition directed to the Family Court and to the parties to the proceedings on the ground that the Family Law Act 1975 (Cth) is ultra vires and invalid to the extent to which it purports to confer upon the Family Court jurisdiction to hear and determine an application by a party to a marriage for the custody of a child of the marriage when the child is in the care and control of the Director under the provisions of the Children's Services Act. (at p44)

2. The proceedings brought by the applicant in the Family Court were not ancillary to any "proceedings for principal relief" within the meaning of the Family Law Act 1975. It is not necessary, in order that the Family Court should have jurisdiction in custody proceedings, that those proceedings should be ancillary to "proceedings for principal relief". It was held in Russell v. Russell (1976) 134 CLR 495 , by a majority, that the relevant provisions of the Family Law Act 1975 which conferred jurisdiction in proceedings for custody were validly enacted in so far as they related to proceedings between the parties to a marriage with respect to the custody of the natural and adopted children of the parties to the marriage. In accordance with that decision it was necessary to read down the provisions of the Family Law Act 1975 in order to render them valid, but the Family Law Amendment Act 1976 has since amended the definition of "matrimonial cause" in s. 4 (1) of the Family Law Act 1975, and proceedings for the custody of a child of a marriage now come within that definition only if they are proceedings between the parties to the marriage. What was formerly achieved by limiting the law by construction is now brought about by express provision. It was submitted on behalf of the Director that the present proceedings were not proceedings between the parties to the marriage, and so not within the jurisdiction of the Family Court, because the Director either was, or was required to be, a party to them. When the proceedings came before the Family Court, the Director submitted that the Court did not have jurisdiction to hear and determine them. It does not appear from the material before us in what capacity the Director appeared and made this submission. If he had been granted leave to intervene, he would, unless the Court otherwise ordered, be deemed to be a party to the proceedings: s. 92 (3) of the Family Law Act. However it is unnecessary to consider the procedural aspects of the matter. It is immaterial whether the Director became, or was deemed to have become, or should have become, a party. In any case the proceedings were between the parties to the marriage; they were brought by a wife against a husband with a cross claim by the husband against the wife. They were proceedings with respect to the custody of a natural child of the marriage. If the rights and powers of the Director could not be affected by any order the Court might make, the mere fact that he was, or was deemed to have been, or ought to have been, a party, did not prevent the proceedings from being proceedings between the parties to the marriage, and so within the jurisdiction which the Family Law Act conferred, and as the majority of this Court has held, validly conferred, on the Family Court. (at p45)

3. The main argument on behalf of the Director was that s. 10 of the Family Law Act on its proper construction empowers the Family Court to make an order which is binding on the Director and under which a child committed by a Children's Court to the care and control of the Director pursuant to the Children's Services Act may be removed from that care and control, and that so construed the section is beyond the power of the Parliament. If s. 10 did have the effect which the Director suggested, I would gravely doubt its validity. The provisions of the Family Law Act enabling the Court to make orders for the custody of a child, when the relief sought is not ancillary to any matrimonial cause, are said to be enacted under the power to make laws with respect to marriage (Constitution: s. 51 (xxi.)). It seems to me that a law is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage. For example, it would not in my opinion be within the power of the Parliament to authorize the Family Court to release the child of a marriage from a prison to which he had been committed by the sentence of a State Court, notwithstanding that the purpose of the order of the Family Court was to place the child in the custody of one of his parents. However this question need not be further discussed, since in my opinion s. 10 does not have the effect suggested. (at p46)

4. Section 10 of the Family Law Act in its original form referred to "a child who, under the law of a State, is a ward of the State or a State child or is under the care and control of a Minister of State of the State". By amendment made by the Family Law Amendment Act 1976 the section now applies in relation to:

"a child who, under the law of a State, is a ward of the State or a State child or is under the guardianship, or the care and control, of - (i) a Minister of the Crown of the State; (ii) an officer of the State; or (iii) an officer of an adoption agency approved under a law of the State".

I need not decide whether, as was submitted on behalf of the Director, a child who has been placed by a Children's Court under the care and control of the Director is a ward of the State or a State child within the meaning of s. 10. It is also unnecessary to decide whether the amendment made to s. 10 in 1976, which took effect after the present proceedings were commenced, would have had any operation in relation to those proceedings. If the child in the present case was not within the scope of s. 10 in its original or in its amended form, whichever is applicable, that is the end of the argument based on that section. However even if the section does apply in relation to the child, it does not in my opinion have the effect for which the Director contended. (at p46)

5. The provisions of s. 10 are framed in a somewhat roundabout way, but their meaning, upon examination, appears to me to be plain enough. It is unnecessary for me to set out the words of the section in full. For convenience, I shall refer to the operation of s. 10 only in so far as it is relevant to the circumstances of the present case, and on the assumption that a child who has been placed under the care and control of the Director does come within the scope of the section (which is undoubtedly the case if the section in its amended form applies). The section, although divided into three sub-sections, has a twofold effect. In the first place, sub-ss. (1) and (3) , read together, empower the Family Court to make an order for the custody of a child who has been placed under the care and control of the Director, but only if the Court is satisfied that there are special circumstances that justify the making of the order. Secondly, the effect of sub-s. (2), which is the governing provision, is that no decree which the Family Court may make affects any order made by a court under the Children's Services Act whereby a child was placed under the care and control of the Director, or the operation of the Children's Services Act in relation to the child. In other words under s. 10 the Family Court has jurisdiction to make an order for the custody of a child who has been committed to the care and control of the Director, if it is satisfied that there are special circumstances that justify the making of the order, and an order so made will be binding as between the parties to the marriage, but will not affect the order that the child be committed to the care and control of the Director, or the rights or powers of the Director under the Children's Services Act. It was not contended on behalf of the Director that if s. 10 were construed in this way it would be invalid. (at p47)

6. In some cases it might be thought to be futile, or even perhaps officious, for the Family Court to make an order for the custody of a child who had been committed to the care and control of the Director, particularly when the order was not ancillary to any application for principal relief. However the Family Court may only make such an order if it is satisfied that there are special circumstances that justify the making of it and in the present case the Family Court has not proceeded to consider whether those special circumstances exist. We are concerned only with the question whether the Family Court had jurisdiction in the present case. For the reasons that I have given I am of the opinion that it did have jurisdiction, and that no ground has been made out for the issue of a writ of prohibition. (at p47)

7. I would accordingly discharge the order nisi. (at p47)

STEPHEN J. In March 1976 Mrs. Beckman applied to the Family Court of Australia at Brisbane for an order that she be granted custody of her daughter Yvonne, then aged fourteen. Mrs. Beckman had for some time been living apart from her husband but no proceedings for dissolution of marriage had been commenced. Her application was opposed by her estranged husband who himself sought custody of Yvonne. (at p48)

2. In November 1974 a Queensland Children's Court had committed Yvonne to the care and control of the Director of the Queensland Department of Children's Services pursuant to s. 61 of the Children's Services Act of 1965 (Q.). The Director thereupon became Yvonne's guardian (s. 64) and as such had the sole right to custody of her (Johnson v. Director-General of Social Welfare (1976) 135 CLR 92, at p 97 ). Then, in January 1976, in exercise of his powers under s. 65 of the Queensland Act and without in any way affecting his continued custody of her, the Director placed Yvonne with her mother, with whom she is still residing. (at p48)

3. It was in those circumstances that notice of Mrs. Beckman's application to the Family Court came to be served on the Director. At the hearing of the application counsel appeared on his behalf and submitted that the Family Court lacked jurisdiction to entertain Mrs. Beckman's application. When this submission was rejected the Director obtained in this Court an order nisi for prohibition, of which this is the return. (at p48)

4. The ground of prohibition is that the Family Law Act is ultra vires in so far as it purports to confer jurisdiction upon the Family Court to hear and determine an application by a party to a marriage for custody of a child of that marriage in circumstances in which a third party, here the Director, has lawful custody of the child. The Director contends that s. 10 (3) of the Family Law Act 1975 purports to confer jurisdiction in such circumstances and that in doing so the legislation travels outside the legislative head of power conferred by s. 51 (xxi.) of the Constitution, the marriage power; instead of jurisdiction being confined to questions relating to the rights of the parties to the marriage it is extended so as to affect the existing custody rights of a third party, thereby travelling outside the marriage power. (at p48)

5. In my view these proceedings raise no such constitutional issue and this because the first, and essential, step in the Director's argument fails. Upon its true meaning s. 10 of the Family Law Act does not confer the width of jurisdiction which he claims for it. While it confers, quite validly, jurisdiction to make an order determining, as between the parties to the marriage, their rival claims to the custody of a child of the marriage whose existing custody resides in one who, for convenience, may be described as a State custodial officer, it is careful, at the same time, to ensure that any such order will leave unaffected that custodial officer's right to custody. It follows that s. 10 does not travel beyond the bounds of the marriage power and, accordingly, that no question of ultra vires arises. (at p49)

6. The terms of s. 10 are set out in full in other judgments. Its effect is the more easily appreciated if its last sub-section, sub-s. (3), be read first, followed by the qualifying provision of sub-s. (1) and finally the quite distinct provisions of sub-s. (2). Sub-section (3) is the operative, empowering provision; it confers jurisdiction "in special circumstances" to make orders for maintenance, custody or guardianship under those Parts of the Act concerned with such orders in the case of children in the custody of State custodial officers. Then sub-s. (1) in effect qualifies this power by prohibiting the making of such orders but always "subject to sub-section (3)". So far so good for the first step in the Director's argument; it is upon sub-s. (2) that it founders. That sub-section preserves in unambiguous terms a variety of matters from being in any way affected by anything in the Act or by any decree under the Act. One such matter, that described in par. (b) of the sub-section, is any order made or action taken in respect of a child placed in the custody of a State custodial officer and the operation, in respect of such a child, of the law under which the order was made or the action taken. (at p49)

7. It follows that the proceedings which Mrs. Beckman has instituted in the Family Court are incapable of affecting in any way the Director's rights to the custody of Yvonne; there would seem to have been no occasion for the Director to have been notified of those proceedings nor for him to have intervened in them. The Family Court's exercise of jurisdiction under s. 10 will be confined to a determination of custodial rights as between husband and wife; that determination will necessarily be subject to the Director's prior right to custody and will only have operative effect if Yvonne should at any time cease to be in the custody of the Director. Hence, no doubt, the reason for the requirement, in s. 10 (3) of the Act, that a Court should only exercise its jurisdiction to make such an order if it is "satisfied that there are special circumstances that justify the making of the order". I should add that the view which I take of the effect of s. 10 of the Act would not be affected by the amendments made by Act No. 63 of 1976 even if, contrary to my opinion, those amendments were applicable in the present case. (at p49)

8. What I have said involves the adoption of the arguments urged on behalf of the intervenor State of Victoria and means that in this case there arise no questions of constitutional ultra vires which call for decision. It also means that the Family Court may, if satisfied of the existence of the requisite special circumstances, proceed with the hearing of the present application in exercise of the limited jurisdiction which is conferred upon it by s. 10. I would discharge the order nisi with costs. (at p50)

MASON J. Yvonne Gaye Beckman is the daughter of Lyall Heinrich Beckman and June Yvonne Marie Beckman. She is now aged fifteen years. On 11th November 1974 Mr. R. T. Matthews, a magistrate sitting in the Children's Court at Brisbane, made an order under s. 60 (c) and s. 61 (4) (a) (iii) of the Children's Services Acts, 1965-1974 (Q.) ("the Acts"), committing her to the care and control of the Director, Department of Children's Services, on the ground that she was or appeared to be uncontrollable. (at p50)

2. By virtue of this order the guardianship of Yvonne Gaye Beckman vested in the prosecutor as Director of the Department of Children's Services in accordance with the provisions of s. 64 (1) of the Acts. By virtue of the same section the guardianship remains in the prosecutor until such time as the order continues in force. In the normal course of events the order will continue in force until the child attains the age of eighteen. The vesting of guardianship in the prosecutor carries the right to custody of the child (see Johnson v. Director-General of Social Welfare (1976) 135 CLR 92 ; Carseldine v. Director of the Department of Children's Services (1974) 133 CLR at p 365-366 ). (at p50)

3. On 28th January 1976 the Director placed the child with Mrs. Beckman subject to a condition which I need not specify. The Director took this action pursuant to s. 65 of the Acts which states that it is the duty of the Director to utilize his powers so as to further the best interests of the child and that in the performance of that duty he may, amongst other things, make use of such facilities and services as may be available or be made available by a parent of the child. (at p50)

4. Whilst the child was placed with the mother, the mother made an application to the Family Court of Australia for an order that she be granted custody, care and control of her two children, including the child Yvonne Gaye. The application was dated 2nd March 1976. It was not ancillary to any application for principal relief in relation to the marriage of the parents. The father then filed an affidavit in the proceedings in the Family Court in which he asserted that the marriage had broken down and requested the Court to make an order placing Yvonne in his care and custody. (at p50)

5. The matter came on for hearing in the Family Court on 8th April 1976 and 26th May 1976 when the parties were represented, as was the prosecutor. The prosecutor was not named as a respondent to the application made by the mother, but he was served with the papers and it seems that he was treated as a party to the proceedings although not so named. (at p51)

6. Counsel for the prosecutor submitted that the Family Court did not have jurisdiction to entertain the application relating to the child Yvonne. Demack J. rejected this submission, holding that s. 10 (3) of the Family Law Act 1975 was a valid exercise of the marriage power within s. 51 of the Constitution. His Honour then went on to hold that s. 10 (3) protected the rights of the prosecutor, although it is not altogether clear what his Honour meant by this statement. The important fact is that his Honour held that there was jurisdiction in him to entertain the application and that he would proceed with it. (at p51)

7. It was in these circumstances that the prosecutor obtained an order nisi dated 2nd June 1976 from Stephen J. calling upon Demack J. and the parents to show cause why a writ of prohibition should not issue on the ground that the Family Law Act is ultra vires to the extent to which it purports to confer upon the Family Court of Australia jurisdiction to hear and determine an application by a party to a marriage for the custody of a child of the marriage when the child is in the care and control of the Director of the Department of Children's Services under the Children's Services Acts, 1965-1974. (at p51)

8. Section 31 of the Family Law Act 1975 provides that the Family Court has jurisdiction in matrimonial causes instituted under the Act. The expression "matrimonial cause" was defined by s. 4 (1) of the Act in its original form to mean, in the absence of any contrary intention (inter alia):

"(c) proceedings with respect to - ... (iii) the custody, guardianship or maintenance of, or access

to, a child of marriage."

This definition, as the judgments of the Court in Russell v. Russell (1976) 134 CLR 495 point out, is expressed without limitation as to the parties between whome the proceedings are taken. In this respect it stood in marked contrast to pars (a) and (d) of the definition which are confined expressly to proceedings between the parties to a marriage. Consequently, if the definition were unaffected by other considerations it could scarcely be contended that the Family Court was without jurisdiction to entertain proceedings with respect to the custody of a child of a marriage in which a party other than a spouse was a party to the proceedings. (at p52)

9. By s. 3 of the Family Law Amendment Act 1976 (No. 63 of 1976) there was substituted for par. (c) of the definition of "matrimonial cause" in s. 4 (1) new pars (c), (ca) , and (cb) . New par. (c) is as follows:

"(c) proceedings between the parties to a marriage with

respect to - (i) the maintenance of one of the parties to the marriage; or

(ii) the custody, guardianship or maintenance of, or access to, a child of the marriage."

The effect of this amendment, which was expressed to come into force on 1st July 1976, was to confine the Family Court's jurisdication in custody and guardianship cases instituted on or after that date to proceedings between the parties to a marriage. But in my opinion the amendment had no effect in relation to the instant proceedings in the Family Court, which had been "instituted under the Act", to use the words of s. 31, before that date. (at p52)

10. Even so, the prosecutor argued that there are other considerations which require that the definition contained in s. 4 (1) in its unamended form should be read down. First, it was submitted that the constitutional power to legislate with respect to marriage (s. 51 (xxi.)) is confined to legislation which defines, or makes provision for the enforcement of, the rights of the parties to a marriage with respect to the custody of a child of the marriage. According to the argument, the power does not extend to authorizing a court to make an order which would affect the rights of a Minister or officer of the State in relation to the care and control of a child arising under a State law of general application directed to the welfare of children generally. The submission was also expressed in the form of a proposition that the marriage power does not extend to the making of a law with respect to the custody, care and control of children generally, and as a consequence, that the power could not authorize the making of a law which displaced the custody, care and control of the prosecutor having its origin in a State law of the kind already referred to. (at p52)

11. The submission is misconceived. The marriage power extends to the definition of, and the enforcement of, the rights of the parties to a marriage, including their rights with respect to the custody of the children of the marriage (see Attorney-General (Vict.) v. The Commonwealth (the Marriage Act Case) (1962) 107 CLR 529 ; Russell v. Russell (1976) 134 CLR 495 . The exercise of the power cannot be restricted to a definition of, or to making provision for the enforcement of, the custodial rights of the parents inter se. It follows that the Parliament may in the exercise of the marriage power enact a law providing that the custodial rights of the parent of a child shall be paramount and that they shall prevail over the rights of any other person, whether he be a Minister or officer of the State or not. So also the Parliament may in the exercise of the power, authorize a court to make an order for custody of a child in favour of a parent to the exclusion of the rights of any other person, including a Minister or officer of a State. So to define the rights of the parents is not to derogate from the character of the law as one which defines the rights of the parties to the marriage; it is merely to define the rights of such way as to give them a paramount and exclusive operation. (at p53)

12. The prosecutor's second submission was that s. 10 denies to the Family Court power to make an order which will deprive the prosecutor of his rights arising under the order made by the Children's Court. Section 10 as originally enacted was in the following terms:

"10. (1) Subject to sub-section (3), a court shall not make an order under Part VII or Part VIII for the maintenance, custody or guardianship of - (a) a child who, under the law of a State, is a ward of the State or a State child or is under the care and control of a Minister of State of the State; or (b) a child who has a similar status under a law of a Territory. (2) Nothing in this Act, and no decree under this Act,
affects - (a) the jurisdiction of a court, or the power of an authority, under a law of a State to make an order, or take any other action, whereby a child becomes a ward of the State or a State child, or is placed under the care and control of a Minister of State of a State or any similar jurisdiction or power under a law of a Territory; (b) any such order made, or action taken, or the operation,
in respect of a child in relation to whom any such order has been made or action taken, of the law under which the order was made or action taken; (c) the jurisdiction of a court under a law of a State or
Territory to make an order in respect of the maintenance of a child referred to in sub-section (1) in favour of an officer or authority of the State or Territory performing functions in relation to the welfare of children; or (d) an order of a kind referred to in paragraph (c) made by a court. (3) The Family Court or the Supreme Court of a State or
Territory may make an order referred to in sub-section (1) if it is satisfied that there are special circumstances that justify the making of the order." (at p54)

13. This section creates some problems of construction. Sub-section (1) denies power to the court to make an order under Pt VII (which includes s. 61 dealing with rights of guardianship, and custody of children), subject to sub-s (3) . Sub-section (2) (b) provides that nothing in the Act and no decree under the Act affects an order made under a State law whereby a child becomes a ward of the State or a State child or is placed under the care and control of a Minister of the State. Sub-section (3) then provides that the Family Court may make an order of the kind referred to in sub-s. (1) if it is satisfied that there are special circumstances that justify the making of the order. (at p54)

14. When these sections are read together, in my opinion they place a limitation on the authority of the Family Court to make orders for custody with respect to children who are wards of the State or who are State children or are in the care and control of a Minister of the State. In these cases the Family Court can only make an order for custody if it is satisfied that special circumstances exist within the meaning of sub-s. (3). And even if the Family Court is so satisified, the making of an order for custody by the Family Court does not affect an order already made under State law in respect of the child. Precise effect must be given to the language of sub-s. (2) of s. 10 and I see nothing in sub-ss. (1) and (3) which requires a reading down of sub-s. (2). It seems to me that the section was designed, as the marginal note "Child welfare law not affected" suggests, to preserve the independent operation of State child welfare laws and of orders with respect to the care and control of a child made under such laws. (at p54)

15. By s. 6 of the Family Law Amendment Act 1976 (No. 63 of 1976) s. 10 was amended in several respects so as to give it an operation in relation to a child under the guardianship or the care and control of a Minister of the State, an officer of the State or an officer of an adoption agency approved under a law of the State. Except in so far as the amendments give s. 10 a wider application in this respect, they do not alter the operation which the section had before its amendment. (at p54)

16. In these circumstances the rights of the prosecutor with respect to the child Yvonne Gaye are preserved by s. 10 (2) of the Family Law Act. But it does not follow that the Family Court is without jurisdiction to hear and determine the application for custody made by the mother and the cross-application made by the father. Before the Family Court can make an order for custody in favour of either parent it must be satisfied that there are special circumstances that justify the making of the order and, even if it is so satisfied, an order for custody made in favour of either parent will not affect the rights of the Director under State law. (at p55)

17. There was some debate as to the sufficiency of the procedural steps which had been taken in the Family Court with a view to making the prosecutor a party to those proceedings. In the light of the conclusion which I have reached on the substance of the matter I do not find it necessary to deal with these aspects of the case, except to say that the provisions of the Family Law Act and the rules, to the extent to which they relate to parties in cases of this kind, may require some reformation. (at p55)

18. It is enough to say that for the reasons stated above I would discharge the order nisi. (at p55)

JACOBS J. The child Yvonne Gaye Beckman is by order of a Children's Court of Queensland under the care and control of the prosecutor, the Director of the Department of Children's Services (Queensland). I shall assume that, as submitted on behalf of the prosecutor, she is a child who falls within s. 10 (1) (a) of the Family Law Act (Cth), both within the original wording of that paragraph and within the paragraph substituted by s. 6 of Act No. 63 of 1976. (at p55)

2. The mother of the child, the respondent, applied to the Family Court of Australia (Demack J.) for custody, joining her husband as respondent. Notice of the application was given to the prosecutor and copies of the papers were served on him. He now seeks to prohibit the proceedings in the Family Court. (at p55)

3. The proceedings and argument before this Court have taken the following course. The respondent mother of the child has appeared to submit but has presented no argument. The prosecutor and the Commonwealth (intervening) have placed at the fore of their submissions that s. 10 on its true construction allows the Family Court in special circumstances (see sub-s. (3)) to make an order which affects the jurisdictions, powers, actions, orders and operation of laws set out in sub-s. (2) among which the order of the Children's Court falls. At that point their arguments diverge. The prosecutor submits that when s. 10 is so construed it is beyond the power of the Commonwealth to make such a provision as sub-s. (3) when the proceedings for custody are not ancillary to principal proceedings for dissolution of marriage and when the proper parties to the proceedings are other or more than the parties to the marriage. In a case such as the present, it is submitted, the proper parties to the proceedings for custody must include the State or the Minister or officer of the State who under the legislation of that State has the guardianship or custody or care and control of the child in question. On the other hand the Commonwealth submits that even when the proceedings are not ancillary to proceedings for dissolution and even though the child may be under the guardianship or in the custody or the care and control of a State, its Minister or officer, nevertheless the Commonwealth has power under s. 51 (xxi.) to make laws with respect to the custody of that child, at least where the husband and wife are parties to proceedings for that custody. (at p56)

4. The State of Victoria (intervening) places at the fore of its submission that s. 10 on its true construction does not allow the Family Court, even in special circumstances under sub-s. (3), to make an order which affects those jurisidictions, powers, orders, actions or operation of laws set out in sub-s. (2); hence no question of constitutional power arises. The prosecutor would adopt this as a secondary submission but still argue that prohibition should go. (at p56)

5. The proper construction of s. 10 must therefore be the starting point. If an order made under sub-s. (3) does not affect any jurisdiction, power, order, action or operation of a law referred to in sub-s. (2) then there is no obstacle, constitutional or otherwise, to the Family Court exercising its jurisdiction. But if such an order does have such an effect, then the question arises whether a Commonwealth law providing in any and, if so, in what circumstances for the custody of a child who falls within s. 10 (1) (a) is within power. I would express no opinion on that question unless it were necessary to my decision so to do; and I do not conclude that it is necessary. Though s. 10 is cast in a form which leads one to wonder why sub-s. (3) was placed at the end of the section instead of in or immediately following sub-s. (1), nevertheless the language of sub-s. (2) is absolute. No decree under the Act, which by s. 4 (1) is defined to mean decree, judgment or order, affects the matters and things set out in subs. (2). This provision is not made subject to sub-s. (3) and there is no way which I can see whereby it can be so read. Therefore, even if the Family Court exercises its jurisdiction under sub-s. (3) its order will not affect the matters and things set out in subs. (2). There is therefore no reason why the Family Court should not for what it is worth proceed to determine whether it should exercise the limited jurisdiction given to it by s. 10 (3). I would discharge the order nisi with costs. (at p57)

MURPHY J. The power in s. 51 (xxi.) of the Constitution to make laws with respect to marriage is plenary. It includes power to make laws for the care of children even where there is no divorce or other matrimonial cause (see s. 51 (xxii.) of the Constitution). This marriage power authorizes definition (and provision for the adjudication and enforcement) of rights and obligations of spouses in regard to the care of children (this includes custody, access, guardianship, maintenance, advancement and security). The laws may cover a child of one or both spouses who was born or adopted before or during a marriage and may provide for care of children during and after marriage. The power is wide enough to regulate the adoption of children by one or both spouses or the adoption of the child of a marriage or former marriage by a person who is not party to a marriage. (at p57)

2. The marriage power thus authorizes laws relating to children which deal with rights and obligations of persons either before, during or after marriage. Such laws may regulate the rights and obligations of married persons in relation to each other and in relation to others. The power in relation to custody is not restricted to defining or providing for the enforcement of the custodial rights of parents inter se. Parliament may also provide for these rights to be paramount, or exclusive of, or subordinate to other authority. In s. 10 of the Family Law Act 1975 (now amended: see s. 6 of the Family Law Amendment Act 1976), Parliament has provided for the making of an order for maintenance, custody or guardianship of a child who is a State ward or State child or under State care, control or guardianship, but the making of such an order by the Family Court is not to affect any State order made or action taken in respect of the child or the operation of the State law. Parliament could have enabled the Family Court to make, on a spouse's application, an order for custody which would override the Queensland law giving the Director-General custody. (at p57)

3. The Family Court may make an order for custody of a child if it is satisfied that there are special circumstances (see s. 10 (3) of the Family Law Act), but for practical purposes, its order is inoperative while the child is in the Director-General's custody (s. 10 (2) (b)). Section 10 enables the Court to determine the right to custody between the parents before the Director-General relinquishes custody, and the result may be a factor in his decision whether or not to relinquish custody. For example, State welfare authorities may be unwilling to relinquish custody while there is an unresolved dispute between the parents over custody or access; or the decision to relinquish may depend on which parent will have custody. In general, the powers under State law are related to the State. The powers of the Family Court are not so restricted. (at p58)

4. Section 10 of the Family Law Act is valid. The Family Court has jurisdiction. The order nisi for prohibition should be discharged. (at p58)

Orders

Order nisi discharged. Prosecutor to pay respondents' costs of the proceedings including the costs of the application.