R v Lambert; Ex parte Plummer

[1980] HCA 52

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.

THE QUEEN v. LAMBERT; Ex parte PLUMMER

(1980) 146 CLR 447

12 December 1980

Constitutional Law (Cth)

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 by State authority—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi)—Family Law Act 1975 (amended by Family Law Amendment Act (No. 2) 1976 (Cth), ss. 4 (1) "Matrimonial Cause", 10, 31)—Children's Services Act, 1965-1979 (Q.), ss. 49, 64.

Decisions

December 12.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs in this matter. (at p450)

2. I agree with his conclusion that s. 10 of the Family Law Act, 1975 (Cth), as amended, in so far as it would authorize the Family Court by its order to interfere with the custody or possession of a child in respect of whom an order has been made under s. 49 of the Children's Services Act, 1965-1979 (Q.) is invalid as not being a law with respect to marriage and thus beyond the constitutional competence of the Commonwealth Parliament. I agree with my brother's reasons for so concluding. I would add that, whilst I would not think the Court should reconsider its decision in Russell v. Russell (1976) 134 CLR 495 , I am of opinion that that decision should be strictly confined and not used as a base for any extension of what is comprised within the concept of a law with respect to marriage. I regard that case as deciding no more than that the Family Court can make an order operative and enforceable as between husband and wife as to the custody between themselves of a child of the marriage, even though no proceedings for principal relief under that Act are current. (at p451)

3. Provision for the making of such an order may be regarded as a law with respect to marriage: but, in my opinion, it clearly approaches the outer margins of the power. Certainly a law authorizing interference with the lawful possession by a State official of a child committed to his care and custody exceeds that margin. (at p451)

4. Regarding the order here under challenge as no more than an order inter parties binding only husband and wife as to their respective rights vis-a-vis custody of the child, there would be no ground for prohibition, but, agreeing with my brother Gibbs, it should be declared that the order is not enforceable against the prosecutor. (at p451)

GIBBS J. In Reg v. Demack; Ex parte Plummer (1977) 137 CLR 40 , the Director of the Department of Children's Services of the State of Queensland ("the Director") sought to establish that s. 10 of the Family Law Act 1975 (Cth) was ultra vires and invalid to the extent to which it purported 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. 1965-1979 (Q.). It was contended on behalf of the Director that s. 10 on its proper construction empowered the Family Court to make an order which was 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 might be removed from that care and control, and that so construed the section was beyond the power of the Parliament to make laws with respect to marriage. However, this Court held that s. 10 did not have the effect suggested by the Director. It was held that upon the proper construction of s. 10, an order made under that section did not affect an order made under the Children's Service Act that a 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. So construed, the section was valid. (at p452)

2. At the time when Reg. v. Demack; Ex parte Plummer was argued, s. 10, which had been amended by the Family Law Amendment Act 1976, was in the following terms:-
"(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 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; 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 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, 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, a Family Court of a State 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." Since that time the section has been amended by s. 3 of the Family Law Amendment Act (No. 2) 1976 which provided as follows: -

"Section 10 of the Principal Act is amended - (a) by omitting from sub-section (2) the words 'Nothing in this Act' and substituting the words 'Subject to sub-section (3), nothing in this Act'; and (b) by adding at the end of sub-section (3) the words 'and an order made in accordance with this sub-section has effect notwithstanding any order or action of the kind referred to in paragraph (2) (b) or (d) made or taken before the making of the order made in accordance with this sub-section'."

If this amendment is valid, its effect is that an order made by the Family Court under s. 10 will prevail over an earlier order, of the kind mentioned in s. 10 (2), made under the Children's Services Act. The Director has accordingly renewed his attack on the validity of the section. (at p453)

3. The Director seeks to raise this constitutional question on an application for prohibition directed to a Judge of the Family Court (Lambert J.) and to the parents of the child in question (a girl born on 29th January 1975), who are husband and wife. On 19th April 1978, a Magistrate at Mount Isa made an order under the Family Law Act giving custody of the child to the wife. Subsequently, an application was made under s. 49 of the Children's Services Act for an order that the child be admitted to the care and protection of the Director, on the ground that the child, not having a parent or guardian who exercised proper care of or guardianship over her, was exposed to physical danger. On 28th June 1978, a Magistrate, sitting as a Children's Court, made an order as sought. On the following day, 29th June, the husband applied under the Family Law Act that the order made on 19th April 1978 be varied to give him the custody of the child. This application was not ancillary to any proceedings for principal relief under the Family Law Act. On 4th May 1979, Lambert J. ordered that the husband have the custody of the child. In the course of his judgment he said that any order that he might make could have no more than persuasive effect on the Director. By that time the Director, who had the child in his custody, had placed her in a home in Maryborough, and the husband thereafter made several requests that he be given possession of the child. That was the situation when the order nisi for prohibition was made. Thereafter, however, it appears that the Director, acting in intended exercise of the powers given by s. 58 of the Children's Services Act, has allowed the husband to have custody of the child on certain conditions. (at p454)

4. The order of the Children's Court in the present case was made under Pt VI of the Children's Services Act which deals with children in need of care and protection. The order in Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40 was made under Pt VII, which deals with children in need of care and control. The provisions of the two Parts of the Children's Services Act to some extent overlap, although speaking generally Pt VII deals with children thought to need more control than those dealt with under Pt VI - convicted children, for example. So far as the application of s. 10 is concerned there is however no distinction between the two Parts. Whether a child is admitted to the care and protection of the Director under Pt VI, or committed to his care and control under Pt VII, the guardianship of the child vests in the Director (ss. 55 (1); 64 (1)) who acquires a right to the custody of the child (ss. 53 (2); 64 (2)). Section 10 operates in relation to an order for care and protection in the same way it operates in relation to an order for care and control. (at p454)

5. However, in the circumstances which I have recounted, no case for prohibition has been made out on any view of the constitutional validity of the amendments made to s. 10 by the Family Law Amendment Act (No. 2) 1976. If those amendments are valid, that is of course the end of the Director's case. If, on the other hand, the amendments are invalid, s. 10 will remain in the form in which it was when Reg. v. Demack; Ex parte Plummer was decided: cf. Attorney-General (N.S.W.); Ex rel. McKellar v. The Commonwealth (1977) 139 CLR 527, at pp 550, 560-561, 567 , where Federal Commissioner of Taxation v. Clyne (1958) 100 CLR 246, at p 267 was cited. In other words, s. 10 will remain a valid provision under which the Family Court can make an order for custody which is effective as between the parties to the marriage but which does not affect the position of the Director. On either view the Family Court had jurisdiction to entertain the application made on 29th June 1978, and to make the order which it did. The question that is now raised is as to the effect of an order validly made. (at p454)

6. In these circumstances the order nisi for prohibition must be discharged. (at p454)

7. Nevertheless it seems both proper and desirable to decide the constitutional question. Arguments that the amendment is invalid have been advanced not only on behalf of the Director but also on behalf of the Attorneys-General for Victoria, South Australia and Tasmania, and the validity of the legislation has been supported by the Attorneys-General of the Commonwealth and New South Wales. The case being one involving the interpretation of the Constitution, this court has original jurisdiction: Constitution, s. 76 (i.); Judiciary Act, s. 30. A real, and not a theoretical question, arises which the Director has a real interest to raise, and the Attorney-General of the Commonwealth (amongst others) has a true interest to oppose the contentions of the Director. The case is one in which it would have been appropriate to grant a declaration if one had been sought: see Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421, at pp 437-438 . No-one can be put to disadvantage if we exercise our powers of amendment in a rather sweeping way and treat the present proceedings as a claim for a declaration and proceed to determine the validity of the amendments made to s. 10. (at p455)

8. Mr. Jackson, in the course of his argument on behalf of the Director, asked us to reconsider the correctness of the decision in Russell v. Russell (1976) 134 CLR 495 , where it was held that the power given by s. 51 (xxi.) of the Constitution, to make laws with respect to marriage, is not limited by s. 51 (xxii.), which refers to "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants", and enables the Parliament not only to declare and define the rights and duties which arise from the marriage relationship, but also to provide for the enforcement of those rights and duties. Although that decision was given by a majority of a Court consisting of five Justices, and not by a majority of the whole Court, there are powerful reasons of policy which would tell against overruling it. In very many cases jurisdiction has been exercised, and orders have been made, in reliance on that decision. The wholesale invalidation of orders for custody, which have a continuing operation, and for good or ill may profoundly affect the welfare and future lives of the children concerned, cannot lightly be contemplated. I am not prepared to reconsider that decision, at least in the present case. (at p455)

9. Then it was argued that the marriage power extends only to the definition and enforcement of rights and duties between the parties to the marriage, and the children of the marriage, among themselves, and does not empower the Parliament to enact a law which will provide for the definition or enforcement of rights as against other members of the community, and particularly against the authorities of the States. That, in my opinion, is too narrow a view. The question did not fall for decision in Russell v. Russell, where the proceedings were between the parties to the marriage. In that case Mason J. (with whom Stephen J. agreed) said (1976) 134 CLR, at p 538 , that the marriage power extends, inter alia, "to the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage", and to the enforcement of those rights, duties and obligations. However, His Honour did not intend to hold that the power is restricted to a definition of, or to making provision for the enforcement of, the rights of the parties to the marriage inter se, as he made clear in Reg. v. Demack; Ex parte Plummer (1977) 137 CLR, at p 53 . It was established by the decision in Dowal v. Murray (1979) 143 CLR 410 that the marriage power is not so restricted. In that case the Court, by a majority, upheld the validity of s. 61 (4) of the Family Law Act, which defined and enforced the rights of a surviving spouse to the custody of a child of a marriage in respect of whom a custody order had been made. Moreover, in cases concerned with the construction of the Matrimonial Causes Act 1959 (Cth), as amended, it has been held that orders may be made against persons not parties to the marriage: Sanders v. Sanders (1967) 116 CLR 366 ; Antonarkis v. Delly (1976) 51 ALJR 21 . Those cases proceeded on the assumption, which was not however tested, that legislation enacted under s. 51 (xxii) may validly provide for the enforcement of orders against persons not parties to the marriage out of which the matrimonial cause arose. In principle there seems no reason why a power which extends to the creation, declaration or definition of the rights and duties which arise from the marriage relationship should be so confined that those rights and duties should exist only as between the parties to the marriage and the children of the marriage, and should not be enforceable against other persons. (at p456)

10. The crucial question, however, is whether the legislation creates, defines or declares rights or duties that arise out of, or have a close connexion with, the marriage relationship. If not, the law cannot be said to be one with respect to marriage. This was, I think, recognized by the majority of the Court in Russell v. Russell (1976) 134 CLR, at pp 524, 538, 552-553 . Similarly in Dowal v. Murray (1978) 143 CLR 410 , the judgments emphasized that the right defined by s. 61 (4) arose out of, or was intimately concerned with, the marriage relation: see per Stephen J. (1978) 143 CLR, at p 423 , per Jacobs J. (1978) 143 CLR, at pp 426-427 and in my own judgment (1978) 143 CLR, at p 417 . (at p457)

11. I adhere to the view that I expressed in Reg. v. Demack; Ex parte Plummer (1977) 137 CLR, at p 46 , that an enactment is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of the marriage, or, I would add, with respect to married persons. In some circumstances - as the learned Solicitor-General for the Commonwealth rightly acknowledged - the connexion between the operation of the law and the relationship of marriage may be so tenuous that such a law cannot be said to be a law with respect to marriage. Mr. Simos, who appeared for the Attorney-General of New South Wales, made a similar concession, but went further; he agreed that a law which provided that a parent in whose favour an order for the custody of a child had been made might give effect to that order by procuring the child's release from prison, or from a mental hospital or a hospital for infectious diseases, would not be a law with respect to marriage. I agree that this concession was rightly made, but can see no reason in principle to distinguish cases of that kind from the present case. (at p457)

12. The question whether a law is one with respect to marriage is one of degree. The answer to it depends on the closeness of the connexion between the law and the marriage relationship. Sometimes - as in the present case - it is helpful to consider what sort of rights and duties flow from the relationship of marriage in the ordinary understanding of reasonable men. That is not to say that the Parliament cannot create new rights and duties of a kind not previously envisaged. But there comes a time when it is inaccurate to describe rights and duties, although created in respect of a child of a marriage, as rights and duties arising out of the marriage relationship. However, if a law is, in truth, a law with respect to marriage, it is not necessarily invalid because it affects the exercise of the powers of an authority of a State. (at p457)

13. Section 10 of the Family Law Act, as amended, in the aspect with which we are concerned, gives a custody order made by the Family Court paramountcy over an order made by a State Court whereby a child is placed under the guardianship, or the care and control, of an officer of a State. This would mean, if the section is valid, that a parent in whose favour a custody order had been made could enforce that order against the Director, notwithstanding that the child had been found guilty of an offence and had been ordered to be committed to the care and control of the Director under s. 62 (1) (g) of the Children's Services Act, or even, it would seem, if the child had been sentenced to imprisonment or to be detained under s. 62 (1) (i) of that Act, for in those circumstances the child would be deemed to have been ordered to be committed to the care and control of the Director (s. 62 (5); s. 63 (2)), and the guardianship of the child would accordingly vest in the Director (s. 64 (1)). It would also mean that a parent in whose favour an order for custody had been made under s. 10 could, by virtue of that order, take a child, who had been held to be exposed to physical danger and to need care and protection, out of the custody of the Director to whose care and protection the child had been admitted under s. 49. In these respects s. 10 seems to me to go beyond merely defining, and providing for the enforcement of, the custodial rights that flow from the marriage relation. The connexion between the operation of s. 10 as amended and marriage is so slight and incidental that the section in its amended form cannot, in my opinion, properly he said to be, in reality and substance, a law with respect to marriage, at least in so far as its operation is relevant to the present case. I need not consider whether s. 15A of the Acts Interpretation Act 1901 (Cth), as amended, would, in respects not now material, enable s. 10 to be given a partial operation that would be valid. (at p458)

14. For the reasons given, I would discharge the order nisi for prohibition, but would make a declaration that the order made by Lambert J. on 4th May 1979 has no effect on the rights or powers of the Director pursuant to the order made by the Children's Court on 28th June 1978 in respect of the child in question. I would make no order as to costs. (at p458)

STEPHEN J. This application to make absolute an order nisi for prohibition can, in itself, be disposed of quite briefly. Until amended by s. 3 of the Family Law Amendment Act (No. 2) 1976, s. 10 of the Family Law Act 1975 provided that no maintenance, custody or guardianship order made in respect of children described, compendiously although not wholly accurately, as wards of the State should affect the continued application to them of State or Territorial wardship laws. The amendment changed this: it gave to such orders under the Family Law Act their full effect, notwithstanding the operation of State wardship laws. (at p458)

2. In the present case an order had been made under Queensland legislation admitting a young girl to the care and protection of the Director of that State's Department of Children's Services. Subsequently an order of the Family Court under s. 10 of the Family Law Act awarded custody of her to her father. It is in relation to this latter order that prohibition is now sought, substantially upon the ground that the amendment to s. 10, which gives to such an order paramountcy over State wardship laws, is ultra vires. (at p459)

3. Prohibition cannot go. If s. 3 of the amending legislation be valid the application must necessarily fail; if invalid, the order made under s. 10 will nevertheless be good as between the child's parents, the parties to the marriage, although, consistently with s. 10 as it stood before the amendment, it will not affect the powers of the Director under the legislation of his State: Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40 . Accordingly, there can be no occasion for prohibition to issue; the present application to make absolute the order nisi for prohibition must be dismissed. It is a curious although, perhaps, irrelevant fact that the Family Court judge who made the order here in question apparently overlooked the amendment of s. 10 and regarded his order as having just such a limited effect as invalidity of the amendment would result in, leaving untouched the powers of the Director. (at p459)

4. Despite this conclusion about the outcome of this application, having heard argument at length upon the constitutionality of the amendment made to s. 10, I should, I think, state my views on the matter. (at p459)

5. The legislative power conferred by s. 51 (xxi.) of the Constitution, the marriage power, has received much definition in recent decisions of this Court. They are reviewed in the reasons for judgment of Wilson J. I may say that I have read again those decisions, following the hearing of argument in this case. I do not wish to alter any of the views which I have there expressed. However, those decisions leave unresolved the question of the validity of the amendment to s. 10: granted that the marriage power extends to the conferring of jurisdiction upon courts to make and enforce orders for the custody of children of a marriage independently of the grant of principal relief - Russell v. Russell (1976) 134 CLR 495 : granted also that the power is not confined to orders made in proceedings between parties to the marriage but extends to cases such as those dealt with in s. 61 (4) of the Act - Dowal v. Murray (1978) 143 CLR 410 ; the question remains whether the marriage power enables jurisdiction to be conferred upon a court to make a custody order which prevails over and takes effect notwithstanding that the child is already in the custody of the child welfare authorities of a State. (at p459)

6. I have referred to the marriage power, par. (xxi.) of s. 51; the present was a case of a custody order made independently of any question of principal relief. However the question is equally applicable in relation to par. (xxii.), the matrimonial causes power. Section 10 does not distinguish between independent and ancillary relief, it deals alike with all custody orders. (at p460)

7. While at first sight a truism, it is worthwhile recalling that the custody of children is concerned with the making and carrying out of decisions relating to the upbringing of infant children. Because the law regards infant children as incapable of making responsible choices for themselves, it entrusts to others the making of those decisions and their execution. Parental custody of children of a marriage is the norm but this may be affected either by action under appropriate child welfare legislation or by court order. (at p460)

8. The range of choices which a person having custody of a child may make will be limited by the state of the law, both common law and statutory law, at any given time. It is only within those limits that his choices lie since the general body of law must be observed by and in respect of the child, just as it must by other members of the community. The more government by its laws intrudes upon the life of the individual the narrower will be the range of choices. Over the past one hundred years that range has greatly narrowed; no longer may children be left to go without formal education, or be set to work long hours in factories and mines; they may not be cruelly treated nor denied the benefits of basic public health measures. (at p460)

9. Apart from limiting the choices that may be made concerning the upbringing of children, the law has always qualified in other respects the power of those having the custody of infants. Custodial right, whether of a parent or of a guardian, has never been a bar to the imposition upon a child of the sanctions of the criminal law: a custodial parent could never, by asserting his right, save a child from imprisonment, transportation or corporal or capital punishment, despite the radical effect which any one of these might have upon custodial right. Nor does that right shield from subjection to military discipline the child, who, whether as a result of conscription or otherwise, has become a member of the armed forces. Children with notifiable infectious diseases may be isolated in segregated hospitals, regardless of their parents' wishes, just as those who are insane may be committed to mental institutions. Custodial right is subject to all such qualifications as these. (at p460)

10. The right conferred by custody is, therefore limited in these two ways: the law both habitually restricts those choices about a child's upbringing which are open to a guardian and may also on occasions operate to take most of those choices altogether out of the guardian's hands, as it does, for example, during the term of a child's imprisonment. However, in neither case is the custody of the child varied, it remains in the guardian, parental or otherwise. (at p461)

11. In a unitary state this gives rise to no difficulty; in federations it may. In our federation, the Commonwealth has some legislative power, concurrently with the States, with respect to the custody of infants. At the same time the States possess and exercise wide powers to legislate for the welfare of children, including the manner of their upbringing. From this distribution of legislative powers collisions between State and Federal laws may result, but the occasion for them will be much reduced if custody is recognized for what it is: the right of the guardian to make and carry out such choices concerning a child's upbringing as, in the case of any particular child, the current state of the general law, whether State or Federal, permits. State laws which only operate to restrict the choices open to guardians regarding children's upbringing, being laws which apply generally to all members of the community or to all children in the community, can then be seen to provide no occasion for collision. There will then, for example, be no question of conflict between State educational or criminal laws and a federal law under which custody is given to a particular parent: State laws which prevent that parent from keeping his child at home, untaught, or from being sent to a reformatory, will then not be seen to conflict with the parent's federally conferred custody. (at p461)

12. When, however, a State legislates with respect to custody itself, with the right to make and carry out decisions on the upbringing of children, occasion for conflict will arise. It might also arise where a State, while not in express terms legislating about custody, to so restrict the choices open to a guardian that it could be said to have pre-empted that guardian's role. Here it is the former which has occurred; a State law has legislated with respect to custody itself, it has conferred upon its own nominee, Queensland's Director of the Department of Children's Services, the power to make those choices which previously a particular child's parents possessed. By ss. 55 and 64 of Queensland's Children's Services Act custody of particular children passes to the Director. When a custody order is then made by a Court under s. 10 of the federal Family Law Act in respect of such a child a clear conflict arises: custody, as I understand that term, has then been granted to two different persons. The amendment to s. 10 of the Family Law Act ensures that in such a situation the grant of custody under federal law will prevail. (at p461)

13. Section 10, as amended, has been careful to confine itself to proper limits in asserting its supremacy over State laws. Those orders or administrative actions of a State over which an order of a Court under s. 10 (3) is expressed to prevail are confined to those "of the kind referred to in par. (2) (b) or (d)" of s. 10. They are orders or actions taken "whereby a child becomes a ward of the State or a State child, or is placed under the guardianship, or the care and control" of specified State authorities. If these words be applied to the Children's Services Act of Queensland it can be seen that the Family Law Act only intervenes to the extent that the State Act deals with custody itself. Where, in contrast, the State Act does no more than confer upon the Director supervisory powers, as occurs under ss. 43 and 56, s. 10 of the Family Law Act has, appropriately enough, not been given any paramountcy of operation; a child of whom custody is granted by s. 10 will remain subject to these supervisory powers of the Director, which do not involve any transfer of custody to him. (at p462)

14. My analysis of the content of custody, combined with my adherence to the existing authorities concerning the scope of the marriage power conferred by s. 51 (xxi.) of the Constitution, allows me readily enough to conclude that the amendment which gives to s. 10 of the Family Law Act its supremacy over Queensland's Children's Services Act is valid. The express grant of power over "parental rights, and the custody and guardianship of infants" which is made by s. 51 (xxii.) clearly empowers Parliament to legislate concerning the custody of infants in relation to divorce and matrimonial causes. In doing so Parliament may expressly override the operation of State laws as to custody, relying upon s. 109 to lend its effect to such provision and thereby ensuring that the Commonwealth law will have effective operation: Reg. v. Credit Tribunal (S.A.); Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545, at p 563 , per Mason J. Section 51 (xxi.), the marriage power, has in its own sphere no narrower reach. That it is not to be restricted by reference to the terms of par. (xxii.) I regard as now well-established. It extends to the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage and to the definition, modification and re-defining of the legal incidents of the marriage relationship, the Marriage Act Case (1962) 107 CLR 529 , per Taylor J. (1962) 107 CLR, at p 560 and Owen J. (1962) 107 CLR, at p 602 , and see per Kitto J. (1962) 107 CLR, at p 554 and Menzies J. (1962) 107 CLR, at p 572 . Russell v. Russell (1976) 134 CLR 495 recognized the breadth of this power and Dowal v. Murray (1978) 143 CLR 410 affirmed it. (at p463)

15. It follows that power exists in the Commonwealth Parliament to legislate so as to confer jurisdiction upon Courts to determine the custody of children of a marriage. This they may do either as ancillary to the grant of principal relief or independently of the grant of such relief. And Parliament's enactments may be so expressed as to ensure that its law on that subject shall take effect notwithstanding State laws which themselves deal with the custody of such children. (at p463)

16. I would, as earlier mentioned, discharge the order nisi. (at p463)

MASON J. This is an application to make absolute an order nisi for prohibition made by Wilson J. directed to Lambert J. of the Family Court and Leonard William Shonhan and Lorraine Shonhan, the parents of Paula Ann Shonhan, who was born on 29th January 1975. The prosecutor is the Director of Children's Services of the State of Queensland appointed under the Children's Services Act, 1965-1979 (Q.). (at p463)

2. On 28th June 1978, the Children's Court at Mount Isa made an order under s. 49 of the Children's Services Act admitting the child to the care and protection of the prosecutor on the ground that, not having a parent or guardian who exercised proper care or guardianship over her, she was exposed to physical danger. Guardianship of the child thereupon vested in the prosecutor (s. 55) and he became entitled to custody. (at p463)

3. On 29th June 1978, the father applied to the Magistrate's Court at Mount Isa under the Family Law Act 1975, as amended, for an order varying an order previously made under that Act so as to provide that he had custody of the child. The application, which was not ancillary to any application for principal relief under the Family Law Act, came before the Family Court. On 4th May 1979, Lambert J., after finding that there were special circumstances within the meaning of s. 10 (3) of the Family Law Act, by consent ordered that the father should have custody of the child. The mother was, but the prosecutor was not, a party to the application. The prosecutor did not have notice of it and he did not participate in the proceedings. He has refused to give possession of the child to the father on the ground that the Family Court had no power to deprive him of custody. (at p463)

4. Since Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40 s. 10 of the Family Law Act has been amended by Act No. 95 of 1976. Section 10 (3) now enables a court to make an order for the maintenance, custody or guardianship of a child who under the law of a State is under the guardianship or the care and control of a Minister or an officer of the State "if it is satisfied that there are special circumstances that justify the making of the order". Further, it specifically provides that an order so made has effect notwithstanding the existence of a court order in favour of an officer or authority of a State performing functions in relation to the welfare of children. (at p464)

5. The order nisi for prohibition in effect restrains the making of any further order, further action on the order already made and the making of any order which would affect the rights of the prosecutor in respect of the child. The ground on which prohibition is sought is that the Family Law Act is outside the powers of the Parliament of the Commonwealth, in particular to the extent to which it purports to empower the Family Court to make an order for the custody of a child who under the law of the State of Queensland is under the guardianship of the prosecutor pursuant to a prior order made by a children's court. In support of his case the prosecutor makes these submissions: 1. that, contrary to the decision in Russell v. Russell (1976) 134 CLR 495 , the marriage power (s. 51 (xxi.)) does not extend to the enforcement of rights of custody by proceedings which are separate and independent of proceedings for annulment or dissolution of marriage; and 2. that in any event the marriage power is confined to the definition and enforcement of the rights inter se of the parties to a marriage and that it does not enable Parliament to authorize a court to deprive (a) a person, not being a party to the marriage, or (b) the prosecutor, of the custody of a child reposed in him by State law. (at p464)

6. The first submission invites a reconsideration of the decision in Russell, at least to the extent to which it decided that s. 39 of the Family Law Act, operating in conjunction with par. (1) (c) (iii) of the definition of "matrimonial cause" contained in s. 4 of that Act, validly conferred jurisdiction on a court to determine custody proceedings which were not ancillary to proceedings for principal relief. The prosecutor's argument on this point was that the scope of the marriage power is relevantly restricted by an implication to be derived from the presence of the head of power contained in s. 51 (xxii.), in particular "the custody and guardianship of infants" in relation to "divorce" and "matrimonial causes". In Russell (1976) 134 CLR, at p 539 I expressed reasons for concluding that the marriage power should be construed liberally according to its terms without any restrictive implication which might be gathered from the presence of par. (xxii.) in s. 51. Stephen J. agreed (1976) 134 CLR, at p 529 and Jacobs J. was of a like opinion (1976) 134 CLR, at p 550 . I see no reason to alter my view. In the interpretation of the Constitution it is a mistake to assume too readily that the presence of a particular head of power reflects an assumption on the part of the framers that the subject matter was not included in another head of power. A competing hypothesis of at least equal strength is that the former head of power was expressed as it was because doubts were entertained as to the scope of the latter. A more reliable approach to constitutional interpretation is to construe the words liberally according to their natural meaning. I would accordingly affirm the correctness of the decision in Russell. (at p465)

7. The prosecutor's second submission begins with the proposition that the marriage power is confined to the definition and enforcement of the rights inter se of the parties to the marriage. It ends with the conclusion that the rights so defined and enforced do not bind strangers to the marriage or, alternatively, a person having the responsibilities of the prosecutor under State law by virtue of an order made under s. 49 of the Children's Services Act. I do not accept the limitation inherent in the first proposition if the statement of it is intended to convey that the marriage power does not enable the Commonwealth Parliament to confer on the parties to a marriage rights which are exercisable against others. In argument much emphasis was given to passages in judgments, notably those delivered in Attorney-General (Vict.) v. The Commonwealth (1962) 107 CLR 529 , stating that the marriage power extended to the definition and enforcement of rights inter se of the parties to a marriage and that it involved the mutual accommodation of the rights and obligations of those parties. However, I do not read the judgments as necessarily confining the scope of the marriage power to the definition and enforcement of the rights of the parties as against each other. (at p465)

8. No doubt in many of its exemplifications the exercise of the marriage power, though defining the rights of the parties to the marriage as against each other, does not create rights which are exercisable against strangers to the marriage. However, as applied to the rights of the parties with respect to the custody of a child of the marriage, the power authorizes a definition of the rights in the form of an entitlement to custody in one or both parents which will prevail or be effective against strangers to the marriage. Thus a law providing that the father or mother of the child of a marriage or both of them shall have custody of that child is in my opinion a law with respect to marriage, notwithstanding that the custodial rights it confers may be enforced against strangers to the marriage. This is because the law defines the rights of the parties to the marriage with respect to the custody of a child of the marriage. It is of the essence of an award of custody, as with the father's right to custody under the old common law, that it may be enforced against strangers to the marriage. Where custody is awarded to one parent, though it is awarded as against the other parent, it is enforceable against others. (at p466)

9. So also with a law which confers jurisdiction on a court to make an order for custody in favour of one or both parents in proceedings between them. The law does not cease to be an exercise of the marriage power merely because the court's order for custody takes effect as against a stranger to the marriage, even a stranger who enjoys custody right or similar rights under a prior court order. Accordingly, I consider that the marriage power does enable Parliament to authorize a court in proceedings between the parties to make an order for custody of a child of the marriage the effect of which will be to deprive the prosecutor of custody which he has by virtue of an order made under the Children's Services Act committing the child to his care and protection. (at p466)

10. The prosecutor, in support of the second ground which he takes, relies on a sentence contained in my judgment in Russell (1976) 134 CLR, at p 541 in which I said, with reference to custody proceedings, "Unfortunately by conferring a jurisdiction unlimited as to parties, par. (c) in my opinion travels beyong the marriage power". Stephen J. in Dowal v. Murray (1978) 143 CLR 410, at pp 423-425 pointed out that this statement was made at the commencement of an examination of the problem of reading down the statutory provisions. They were ex facie beyond power, not because they were not limited to the parties to the marriage, but because they were unlimited as to parties. (at p466)

11. In Demack a question arose as to the jurisdiction of a judge of the Family Court to make an order for custody at the suit of a party to the marriage when the child, pursuant to the proceedings of the Children's Services Act, was in the care and protection of the prosecutor. It was contended by the prosecutor in that case that s. 10 (3) of the Family Law Act 1975 was invalid on the ground that it exceeded the marriage power conferred by s. 51 (xxi.) of the Constitution. The Court rejected the prosecutor's submission. Gibbs, Stephen and Jacobs JJ. considered that s. 10 (3) as then expressed, when read together with s. 10 (1), empowered the Family Court to make an order for the custody of a child who had been placed under the care and control of the prosecutor, only if the Family Court was satisfied that there were special circumstances justifying the making of the order, but that an order so made does not bind the prosecutor. (at p467)

12. Their Honours did not find it necessary to decide whether s. 10 (3) was valid or not. However, Gibbs J. said (1977) 137 CLR, at pp 45-46 :

"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."

On the other hand, Murphy J. (1977) 137 CLR, at p 57 and I (1977) 137 CLR, at p 53 considered that the marriage power authorized the making of a law empowering a court to make an order for custody in favour of a parent which would override a State law giving the prosecutor custody. (at p467)

13. Subsequently in Dowal v. Murray (1978) 143 CLR 410 , Gibbs A.C.J., Stephen, Jacobs and Murphy JJ., Aickin J. dissenting, upheld the validity of s. 61 (4) of the Family Law Act which provides that on the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to custody only if the court so orders on the application of that party. The members of the majority expressly rejected the proposition that the exercise of the marriage power is restricted to defining, or providing for the enforcement of, the rights to custody of the parties to the marriage between themselves, though Gibbs A.C.J. (1978) 143 CLR, at pp 418-419 reiterated his view 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". The judgments in Demack (1977) 137 CLR 40 and Dowal v. Murray do not in my opinion support the narrow interpretation of the marriage power proposed by the prosecutor. (at p468)

14. The scope of the power is not so large as to enable an order for custody to prevail over a sentence of imprisonment imposed by a State court on a juvenile offender. But there is no analogy between that situation and the present. For the reasons which Stephen J. gives, the present is a case in which "a State law has legislated with respect to custody itself" and "custody . . . has been granted to two different persons". It is to such a situation that s. 10 (3) is directed; it is aimed at custody orders made under State laws relating to the welfare of children. (at p468)

15. I would discharge the order nisi. (at p468)

MURPHY J. The Family Law Act 1975 (Cth) ("the Act") provides that the Family Court may (if it is satisfied that there are special circumstances to justify it) make an order for the maintenance, custody or guardianship of a child who, under the law of a State, is a State ward or State child or is under the guardianship or care and control of a State Minister or officer, or an officer of an adoption agency approved under a State law (see s. 10). The section does not prevent the further exercise of jurisdiction by a State court or of power by an authority under State law. It thus authorizes the making of a federal order in special circumstances, notwithstanding that the child may be held under State law (for example, as a neglected child) but also permits the taking of further State action (for example, if the child again becomes neglected). (at p468)

2. The prosecutor challenges the constitutional validity of s. 10. The Constitution authorizes the Parliament to make laws, for the peace, order and good government of the Commonwealth with respect to marriage (s. 51 (xxi.))and "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants" (s. 51 (xxii.)). The Attorney-General of Australia contended that these and the incidental power of s. 51 (xxxix.) sufficiently supported the provisions. (at p468)

3. The powers in s. 51 should be construed generously and broadly with all the generality which the words will allow. This principle is clear and supported by a mass of authority (see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 367-368 , O'Connor J.; Higgins J. in Attorney-General (N.S.W.) v. Brewery Employees' Union of N.S.W. (1908) 6 CLR 469, at pp 611-612 ; Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 333 , Dixon J.; Nelungaloo Pty. Ltd. v. The Commonwealth (1948) 75 CLR 495, at pp 503-504 ; Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty. Ltd. (1964) 113 CLR 207, at p 225 ; New South Wales v. The Commonwealth (1975) 135 CLR 337, at pp 470-471 ). Where the challenge to an Act is not based on any constitutional prohibition or guarantee, there is a strong presumption that the Act is valid. The supreme tribunals of other countries have adopted this approach to the Acts of their national legislatures. For example, the Supreme Court of the United States of America will not substitute its judgment for that of Congress unless the relation of the law to the subject of legislative power and its effect on that subject are clearly non-existent (see Stafford v. Wallace (1922) 258 US 495 (66 Law Ed 735) ; see also East Donegal Co-operative Livestock Mart Ltd. v. Attorney-General (1970) IR 317 ). (at p469)

4. In Australia, the great principle of constitutional interpretation is not adhered to. The history of interpretation of the Australian Constitution shows a tendency to construe Parliament's legislative powers in a narrow way which often appears negative and occasionally hostile. The corporations power was stripped of any useful application in Huddart, Parker &Co. Pty. Ltd. v. Moorehead (1910) 8 CLR 330 . This was not corrected until Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 and so, for sixty years the Parliament was effectively deprived of one of its main powers to regulate trade and commerce. Because of the fallacy that intrastate and interstate trade and commerce are mutually exclusive (see R. v. Burgess; Ex parte Henry (1936) 55 CLR 608 ; Wragg v. New South Wales (1953) 88 CLR 353, at pp 385-386 ), the Parliament has been inhibited from using its direct power over trade and commerce among the States which, on the experience of the United States of America, could be a major instrument in enabling Parliament to deal with national economic problems. The external affairs and conciliation and arbitration power have been treated similarly. (at p469)

5. The marriage and divorce powers are the immediate subjects of this treatment. The marriage power is "entitled to as wide an interpretation as it can reasonably bear" and should be given "no narrow or restrictive construction" (see Attorney-General (Vict.) v. The Commonwealth (1962) 107 CLR, at p 543, 560 ). However, repeated attempts are being made to limit the power severely by introducing a requirement of a "close relationship" between marriage and the law under challenge, by reading the power so as not to enter into the field of general law, that is of State laws, and by denying the applicability of the power to State agencies. The narrowing of the marriage power can cause serious problems. Thus, although marriage has been almost universally regarded as an economic as well as a social institution, the power of Parliament to deal with the property rights of spouses in the absence of divorce or some other matrimonial cause is still in question. After Russell v. Russell the Parliament was induced to amend the Act to take away the power of the Family Courts to deal with property in the absence of divorce or other matrimonial cause. Whether this was a logical consequence of the majority judgments in Russell v. Russell (1976) 134 CLR 495 is controversial (see "The Constitutional Limitations of the Jurisdiction of the Family Law Act", Ch. 2; Report of the Joint Select Committee on the Family Law Act, July 1980). In my opinion, there is no excuse for any doubt about the Parliament's power in regard to such an important social question. The power to make laws with respect to the property of parties to a marriage does not depend upon the pendency of divorce proceedings and would exist even if there were no statutory provision for divorce. Parliament can use its power directly, for example, by laws providing for community property or other regime, or indirectly by providing for judicial administration under general or specific laws. (at p470)

6. In this case, the attempts to limit the powers are concerned with custody. The prosecutor contends that the power to make laws with respect to custody, whether deriving from s. 51 (xxi.) or s. 51 (xxii.), is so limited that it is confined to making laws which have a close relationship to the subject matters of those paragraphs and authorizes only laws which operate between the parties to a marriage and do not prevail over the general law (in this instance State Acts) or apply to State agencies. (at p470)

7. There is no constitutional requirement for a close relationship between the subject matter of the legislative power and the challenged law. The argument for such a requirement is constitutional heresy. It disregards the words, "with respect to" in s. 51 which must not be disregarded. This phrase enables Parliament to make laws on the subjects enumerated in s. 51 and s. 52 which need not be "closely" related to the subject. In Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, at p 77 , the majority of the Court (Dixon C.J., McTiernan, Webb and Kitto JJ.) said:

"The words 'with respect to' ought never be neglected in considering the extent of a legislative power conferred by s. 51 or s. 52. For what they require is a relevance or connection with the subject assigned to the Commonwealth Parliament, a conception very different from those which have been employed in the exposition of s. 92. In the next place, every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter."

(See also Windeyer J. in Victoria v. The Commonwealth (1971) 122 CLR 353, at p 399 ; Herald &Weekly Times Ltd. v. The Commonwealth (1966) 115 CLR 418 . There is not the slightest justification for giving less width to the marriage and divorce powers than that given to the other legislative powers. (at p471)

8. Even if a close relationship were required, it exists her. Custody of children is part of marriage law, and the marriage power impliedly authorizes laws dealing with custody. The marriage power is not qualified by the divorce power (see Russell v. Russell (1976) 134 CLR 495 ; Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40 ; Dowal v. Murray (1979) 143 CLR 410 ), so that laws authorizing judicial custody proceedings need not be conditioned on the pendency of divorce or other matrimonial cause. The marriage power authorizes but is not restricted to laws defining the mutual rights and obligations of married persons in regard to property, maintenance and custody. The divorce power, of course, expressly authorizes laws dealing with custody. (at p471)

9. Thus, federal legislative power extends impliedly under s. 51 (xxi.) and expressly under s. 51 (xxii.) to laws which deal directly or indirectly with custody of children of a marriage. Examples of laws dealing directly with custody ar s. 61 (1) of the Act which states:

"Subject to any order of a court for the time being in force, each of the parties to a marriage is a guardian of any child of the marriage who has not attained the age of 18 years and those parties have the joint custody of the child."

and s. 61 (3) which states:

"Unless a court having jurisdiction under this Act otherwise orders, an order in respect of the custody or guardianship of, or access to, a child of a marriage ceases to be in force if the child is adopted by a person who is not a party to the marriage."

Examples of laws dealing indirectly with custody are those contained in Pt VII, Welfare and Custody of Children. One is s. 64, which authorizes the Family Court of Australia to make orders placing the custody of a child of the marriage in one or both parents or in some other person (see s. 64 (2) and (3)). (at p472)

10. If the power to make laws with respect to custody were confined to making laws which operate only between the parties to a marriage, the Parliament could not make a law authorizing the effective enforcement of custody which it had placed with the parties directly by s. 61 (1) or indirectly by a judicial order under s. 64. This would mean that the Parliament has no power to provide for enforcing a federal custody law or order against, say, a relative holding a child against the wishes of one or even both parents in whom custody was vested by a federal law or order. The provisions in s. 64 for issue of warrants for enforcement of custody orders would be unconstitutional. This argument was rejected in Reg. v. Demack; Ex parte Plummer and in Dowal v. Murray. A law for enforcement of a custody order against a State Minister or agency is as close to the marriage or divorce powers as is a law for enforcement of such an order against any other person not party to the marriage. (at p472)

11. The divorce power and the marriage power are not to be read down to fit the interstices of State law. The contention that the Parliament cannot create married parties' rights (such as custody) which are enforceable against strangers, or obligations (such as maintenance of spouse or children) which are enforceable by the community against the parties would restrict Parliament to dealing with marriage as if it were a contract rather than a status. (at p472)

12. Until 1959, the Australian Parliament had almost entirely refrained from exercising its marriage and divorce powers. State legislation dealt with divorce, matrimonial causes, married women's property, custody of children, alimony and maintenance, and testators' family maintenance, although the Commonwealth made some provision for the formalities of entry into marriage and for divorce of members of the armed services. The fact that the federal power was not substantially used during the first half of this century and that State laws occupied the field and set up administrative machinery to deal with many matters into which federal law now extends does not give any prescriptive superiority to these State laws. It is no justification for reviving the long rejected and discredited doctrine of State reserved powers (see the Engineers Case; Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 ). The notion that the Parliament may not intrude into the general law in the exercise of the marriage and divorce powers is unacceptable. The question under s. 51 is always whether a particular enactment is within Commonwealth power. It is never whether it invades a State's domain (Windeyer J. in Victoria v. The Commonwealth (1971) 122 CLR 353 ). As Latham C.J. said:

"The question to be determined is whether the statute is within Federal power. It is a wrong approach to this question to inquire whether the Federal statute, if upheld, would prevent or interfere with the operation of State statutes" (British Medical Association v. The Commonwealth (1949) 79 CLR 201, at p 235 .

See also Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54, at pp 79, 148 . (at p473)

13. In the instant issue, Parliament has made very careful and limited provision enabling the Court to make an order only in special circumstances and not preventing the State law from coming into operation again if circumstances warrant it. The denial of this power means that the national jurisdiction of the Family Court is cramped in a way which cuts across the express legislative policy to regard the welfare of the child as the paramount consideration (see s. 64 (1)). In a situation where, for example, a child of a separated couple living in different States is in the mother's custody, is neglected and becomes a state ward or state child, the Parliament permits the Court to order that the child be transferred to the father's custody if it considers not only that this is for the child's welfare but that the circumstances are special. The social necessity for a federal law which can cut across State child welfare laws is obvious. Acceptance of the argument that this is beyond the scope of Parliament's power is a triumph for the doctrine of the reserved powers of the States. (at p473)

14. Once it is accepted that Parliament's power to make laws with respect to marriage extends to making a law for custody of a child of the marriage which may be enforced against a person not party to the marriage, it is inconsistent with the Engineers' Case (1920) 28 CLR 129 to hold that such a law cannot apply to, and be enforced against, a State agency. (at p473)

15. Section 10 may also be supported by the divorce power in s. 51 (xxii.) which expressly refers to custody. Parliament has power to provide for orders for custody which will be effective against anyone including any State Minister or State agency wherever this is done "in relation to" divorce or matrimonial causes. The contention that Parliament cannot do so is a reassertion of what was rejected in the Engineers' Case. (at p474)

16. The narrow construction of Parliament's legislative powers is always wrong. This may not matter so much in economic areas, but it matters very much when, as here, Parliament is frustrated in its endeavours to establish procedures to east the personal problems which affect hundreds of thousands of citizens. (at p474)

17. Section 10 is valid, and operates against State agencies. The order nisi should be discharged. (at p474)

AICKIN J. In this matter I have had the advantage of reading the reasons for judgment of my brother Wilson. He sets out the material sections of the Family Law Act 1975 (Cth) and of the Children's Services Act, 1965-1979 (Q.) and examines all the relevant authorities. I do not need to repeat that material. I agree with his conclusion and the order which he proposes. There are however some observations which I wish to add. (at p474)

2. On the view which Wilson J. takes, and which I share, it is not necessary for the decision of this case to determine whether Russell v. Russell (1976) 134 CLR 495 should be reviewed. There are strong policy reasons against taking that course, whatever views one may entertain as to the initial correctness of the majority decision. It would be wrong to embark upon such a course in a case where it is not necessary to do so in order to reach a decision. If I considered that the ratio of that decision required that the provisions of the Family Law Act now in question be upheld, other matters would require examination, but in the present circumstances that is not the case. (at p474)

3. In my opinion the governing principle is best expressed in the words of Gibbs J. in his judgment in Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40, at p 46 where he said:

"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."

That observation was obiter and there are other obiter dicta to the contrary effect. In my opinion however Gibbs J.'s observation represents the true constitutional position. (at p474)

4. It is necessary to bear constantly in mind that the legislative power is one to make laws with respect to marriage and not one to make laws with respect to the children of marriages. Some laws which affect children of marriages have been held to be laws with respect to marriage but many laws which affect children (including children of marriages) cannot be so classified. It remains the fact that most children are children of a marriage and there are many laws which deal exclusively with children generally. An obvious example is provided by State laws dealing with compulsory education of children. They do not differentiate between the children of a marriage and other children. Notwithstanding that they are concerned with the welfare and development of children and impose duties on parents in their relation to their children, they do not touch the marriage relationship at all. A federal law purporting to exclude the operation of such a law in relation to children of a marriage, either individually or as a class, would not be a law with respect to marriage. So also the criminal codes and the general criminal law, common law and statutory, of the States have an impact on children and their parents but a valid law with respect to marriage could not prevent or exclude their operation on children of a marriage. (at p475)

5. The provisions of the Children's Services Act operate in a different area from laws with respect to marriage, an area which is outside the constitutional range of the power to make laws with respect to marriage. Such provisions in so far as they are expressed to apply to children generally validly apply to children of a marriage. A law purporting to exclude, whether automatically or by an exercise of discretion, children of a marriage from the general provisions of an Act such as the Children's Services Act is not a law with respect to marriage. Since such an Act is outside Commonwealth legislative power, no question of inconsistency can arise. (at p475)

WILSON J. This is the return of an order nisi for prohibition granted on the application of Fraser Robert Plummer, the Director of the Department of Children's Services in the State of Queensland ("the prosecutor"). The office of Director is created by the Children's Services Act, 1965-1979 (Q.). The first respondent is a Justice of the Family Court of Australia. Prohibition is sought in respect of an order for custody of a young female child Paula Ann Shonhan made by his Honour in the course of proceedings between the second and third respondents, being parties to a marriage and parents of the child. (at p475)

2. Paula was born on 29th January 1975. On 19th April 1978, a court of summary jurisdiction in Queensland made an order pursuant to the Family Law Act 1975 (Cth) granting custody of Paula to her mother. At that time the parents had separated, and Mrs. Shonhan was living with another man. There has not been, either at that time or subsequently, any application by either party to the marriage for principal relief under the Family Law Act. (at p475)

3. Following an assault on Paula by the man with whom her mother was living, an order was made on 28th June 1978 by the Children's Court at Mount Isa on the application of a detective constable admitting her to the care and protection of the Director of the Department of Children's Services pursuant to s. 49 of the Children's Services Act. The ground of the application was expressed in the words of s. 46 (1) (a) of that Act, namely, that "not having a parent or guardian who exercises proper care of or guardianship over her, she is exposed to physical danger". (at p476)

4. On the following day, Paula's father applied pursuant to the Family Law Act to the court of summary jurisdiction at Mount Isa for a variation of the earlier custody order that had been made in favour of Mrs. Shonhan. The application was contested, and therefore was transferred into the Family Court. It came on for hearing in November 1978 before Lambert J., and was adjourned for further hearing on 30th April 1979. On 4th May 1979, his Honour made the order that is central to these proceedings. His reasons for judgment published on that day make it clear that his Honour was alert to the fact that Paula was the subject of an order made under the Children's Services Act and that consequently by reason of the provisions of s. 10 (3) of the Family Law Act he should not make a custody order relating to her unless he was satisfied that there were special circumstances to justify such a course. However, it appears that his Honour may have overlooked the amendment to s. 10 (3) that was enacted following the hearing in this Court of Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40 , because he proceeded in the belief that the custody order he was about to make would have no more than a persuasive effect upon the Director. In the result, he made an order granting the custody of Paula to her father. That order had the necessary consequence, assuming the validity of the amendment to s. 10 (3) that was made by Act No. 95 of 1976, that the order made under the Children's Services Act was rendered inoperative. (at p476)

5. It is the order made by Lambert J. that is the subject of the present proceedings. The prosecutor claims that it is beyond the power of the Commonwealth Parliament to empower the Family Court to make an order for custody which has the effect of ousting a prior order made by a Children's Court under the Children's Services Act. (at p476)

6. In Demack, the Director made a similar attack upon the validity of s. 10 (3) of the Family Law Act, as it then stood. The attack failed because the Court held that on the proper construction of the section it did not have the effect that was imputed to it. It was held that the exercise of jurisdiction under s. 10 was confined to a determination of custodial rights as between the parties to a marriage, and that any order that was made would not impair the custodial rights of the Director under the State Act. However, as I have said, subsequent to the hearing in Demack s. 10 was amended by Act No. 95 of 1976. In its amended form it reads as follows (with the relevant amendment underlined):

"(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 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; or (b) a child who has a similar status under a law of a Territory. (2) Subject to sub-section (3), 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 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, 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, a Family Court of a State 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 and an order made in accordance with this sub-section has effect notwithstanding any order or action of the kind referred to in paragraph (2) (b) or (d) made or taken before the making of the order made in accordance with this sub-section." (at p478)

7. It is necessary now to make some examination of the Children's Services Act. The long title of the Act describes it in part as "An Act to promote, safeguard and protect the well-being of the children and youth of the State through a comprehensive and co-ordinated programme of child and family welfare". The Act constitutes a Department of Children's Services administered by a Director, and it is the duty of the Director, subject to the Minister, to administer the Act and carry it into effect. Part VI of the Act deals with children in need of care and protection. It lists a wide range of circumstances the existence of any one of which shall cause the child to be deemed to be in need of care and protection (s. 46). One example of such circumstances is that of a child who, not having a parent or guardian who exercises proper care of and guardianship over him, is (i) neglected, or (ii) exposed to physical or moral danger, or (iii) falling in with bad associates, or (iv) likely to fall into a life of vice or crime. A Children's Court is empowered, on the application of a police officer or an officer authorized by the Director, to admit the child to the care and protection of the Director provided that it is satisfied that the child is in need of such care and protection and is not satisfied that the need can be met by any other order it can make (ss. 49, 52). Such an order is sufficient authority for any person acting on behalf of the Director at any time while such order continues in force, to take the child into his custody and deal with him as the Director may direct (s. 53). During the continuance of such an order, the guardianship of the child shall vest in the Director (s. 55). The Act declares it to be the duty of the Director "to utilise his powers and the resources of the Department so as to further the best interests of such child" (s. 58). Part VII deals with children in need of care and control. A child is deemed to be in need of care and control if (a) he is falling or is likely to fall into a life of vice or crime or addiction to drugs, or (b) he is exposed to moral danger, or (c) he is or appears to be uncontrollable (s. 60). This Part of the Act contains provisions broadly similar to those I have outlined in relation to Pt VI. In addition it confers a wide range of powers on any court of competent jurisdiction before which a child has pleaded guilty or has been found guilty of an offence (s. 62). Among other things, the court may admonish and discharge a child, it may release him into the custody of a parent, it may order that the Director exercise supervision over and in relation to him, it may commit him to the care and control of the Director, or it may order him to be imprisoned for a period not exceeding two years (s. 62). It is also provided that a child who is ordered to be imprisoned shall by virtue of such order be deemed to have been ordered by the court to be committed to the care and control of the Director (s. 62 (5)). (at p479)

8. Mr. Jackson, for the prosecutor, relief on the nature and scope of the Children's Services Act to press home his submission that a Commonwealth law which conferred jurisdiction on a court to make an order for custody in favour of a parent and to give that order the effect of ousting the Director's care and control with its consequential rights of custody and guardianship was not a law with respect to "marriage". However, his principal submission was that the legislative power to be derived from s. 51 (xxi.) did not extend to the enforcement of the rights of the parties to a marriage against third parties generally. In these submissions, the prosecutor was supported by the Attorneys-General for Victoria and Tasmania. The Attorney-General for South Australia also intervened in support of the prosecutor, but refrained from pressing the submission with respect to enforcement against third parties. (at p479)

9. On the other hand, Mr. Byers the Solicitor-General for the Commonwealth, supported by the Attorney-General of New South Wales, intervening, construed s. 10 of the Family Law Act as a declaration of legislative intent for the purposes of s. 109 of the Constitution. The legislative power contained in s. 51 (xxi.) was sufficient to sustain a law which authorized the declaration and enforcement of the rights of the parties to a marriage to the custody of their children. (at p479)

10. In Russell v. Russell (1976) 134 CLR 495 , the Court by a majority concluded, inter alia, that the power of the Parliament to legislate for the peace, order and good government of the Commonwealth with respect to "marriage" (s. 51 (xxi.)) embraced a law which conferred upon the Family Court of Australia jurisdiction, in a proceeding between the parties to a marriage, to award the custody of a child of the marriage to one or other of the parents. Barwick C.J. and Gibbs J. would have construed the power more narrowly, having regard to the legislative power contained in par. (xxii.) to make laws with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". (at p479)

11. Counsel for the prosecutor invited the Court to review the decision in Russell, in relation to the aspect that I have mentioned, with a view to overruling it. Whatever view one might take of the question of construction if the matter were res integra, it is necessary now to have regard to additional considerations. In relation to custody, the Family Law Act operates in a sensitive and intimate area of personal and family relationships, and has done so now for a period in excess of five years. It would occasion distress and serious disturbance to those relationships if the Court were now to confine the operation of the Act in matters of custody to cases where such matters were ancillary to proceedings for principal relief, and therefore supported by s. 51 (xxii.). Furthermore, on two occasions subsequent to the decision in Russell, the Court has been prepared to decide cases on the basis of a premise that the decision should be adhered to: Reg. v. Demack; Ex parte Plummer (1977) 137 CLR 40 ; Dowal v. Murray (1978) 143 CLR 410 . In the face of these considerations, I am not prepared, as at present advised, to examine afresh the question relevant to this case that was determined in Russell. (at p480)

12. However, in my opinion, that decision does not determine the issue in this case. Put shortly, the issue is whether the marriage power will authorize a law which invests a custody order with paramount and exclusive force with the result that it will oust an inconsistent order made under the general child welfare laws of the States. It will be helpful to review briefly the views of Justices on the scope of the marriage power as contained in previous decisions of the Court. (at p480)

13. In Attorney-General (Vict.) v. Commonwealth (the Marriage Act Case) (1962) 107 CLR 529 , in discussing the validity of certain provisions of the Marriage Act 1961 (Cth) relating to the legitimacy of children, the members of the Court spoke of the scope of the marriage power in s. 51 (xxi.). Dixon C.J. affirmed that "the power conferred by s. 51 (xxi.) should receive no narrow or restrictive construction" (1962) 107 CLR, at p 543 , although it may be noted that his Honour then proceeded to place the legitimacy provisions in question beyond power. Kitto J. came to a differrent conclusion, because he found the purpose and operation of the challenged law to be the annexing of a legal incident to the step of marriage. He said (1962) 107 CLR, at p 554 :

"For it is of the essence of marriage, from a legal point of view, that it produces, or provides a pre-requisite for, the legal recognition of family relationships; and what a law does which provides for legitimation by marriage is simply to add to the legal significance of marriage in this very matter of legal relationships. . . . But a law which makes the legitimation of a child . . . an inevitable legal consequence of the inter-marrying of the parents seems to me to be a law directly and squarely upon the subject of what marriage amounts to in law, and therefore upon the subject of marriage."

Taylor J. (84) spoke of s. 51 (xxi.) as a broad constitutional power "entitled to as wide an interpretation as it can reasonably bear". He considered the power to extend to the enactment of any law with respect to marriage considered as an institution, including laws defining and regulating the respective rights duties and obligations of the parties inter se. He could see no reason why the power should not authorize "laws defining or modifying and re-defining the legal incidents of the relationship". Menzies J. (85) made clear his view that the power must extend to the mutual rights and obligations of spouses, and to laws which relate to the effect of marriage upon the relationship of those who marry and their children. (at p481)

14. Windeyer J. (86) considered the personal relationships between spouses that are the consequences of marriage to be of the very nature of marriage, and he would extend the power to matters concerning the support and care of children because these are duties commonly considered to be inherent in the institution of matrimony. However, he favoured the limitation of the Commonwealth power to personal relationships and family obligations, excluding the consequences of marriage in property and other fields, on the ground that the former were of the essence of the estate of matrimony. (at p481)

15. Owen J. (87) expressed the opinion that the power was wide enough to enable the relationship between those who marry and their children to be defined and regulated. (at p481)

16. In Russell, Barwick C.J. (88) said that the power (i.e. s. 51 (xxi.)) extended to attaching consequences to the act of marriage, both for the spouses and, through their parent or parents, for the children of one or both of them; he said also that it may extend to the creation of mutual rights and obligations to flow from the act of marriage, and agreed with the approach of Kitto J. in the Marriage Act Case to which I have referred. The Chief Justice then proceeded, in a passage which I think is significant for present purposes, to say this (89):

"In my opinion, however, it is one thing to specify the consequnces of the act of marriage, including a specification of the mutual rights and duties of the spouses, both towards each other and towards their children: it is quite another thing to erect a jurisdiction to enforce those rights and duties. Though in relation to some topics of legislation powers of adjudication and enforcement may be seen as no more than incidental to the topic or to the execution of the law made under it, it seems to me that the creation of such a jurisdiction, as that with which I am dealing, is not incidental within the meaning of par. (xxxix) of s. 51 to the declaration of the consequences of marriage: nor is it wrapt up as an incident of and contained within the constitutional topic of 'marriage' itself. It is, indeed quite a disparate matter to determine how and by whom the particular consequences of the existence or exercise or non-performance of the rights or duties derived from the marriage may be determined and enforced. Hence the need for a specific topic of divorce and a specific topic of matrimonial causes, expressed in the terms of par. (xxii.) of s. 51."

Gibbs J. said (1976) 134 CLR, at pp 524-525 :

"Unless par. (xxii.) limits the meaning of par. (xxi.) . . . (a question which the majority decided in the negative) the power to make laws with respect to marriage would in my opinion enable the Parliament to declare the duty of one party to a marriage to support and maintain the other. Since the procreation and nurture of children is one of the ends of marriage, the power would also in my opinion enable Parliament to declare the rights and duties of the parties to a marriage with respect to the custody and maintenance of the children of the marriage. When the Parliament is empowered by one of the paragraphs of s. 51 to create substantive rights and liabilities it may also under the same power provide for the enforcement of those rights in legal proceedings . . . Therefore par. (xxi.), if read alone, would in my opinion enable the Parliament to legislate for the enforcement of the rights which one party had against the other and which arose from the marriage relationship, including rights to maintenance and custody."

Mason J. (with whom in this regard Stephen J. agreed) said (1976) 134 CLR, at pp 538-539 :

"The judgments in Attorney-General (Vict.) v. The Commonwealth (the Marriage Act Case (1962) 107 CLR 529 ) establish that the power conferred by s. 51 (xxi.) should not be narrowly construed. In that case the members of the Court were unanimous in rejecting the notion that the power was confined to the celebration of marriage. Once this step is taken it is obvious that the power extends to the institution of marriage, to the condition or state of being married and, as Taylor, Menzies and Owen JJ. were disposed to hold, to the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage. Moreover, subject to the provisions of Ch. III relating to the defining and the investing of jurisdiction in federal and State courts and to any limitation to be derived from the inter-relationship between pars. (xxi.) and (xxii.) . . . it will extend to the enforcement of the rights, duties and obligations thereby created without any need to resort to s. 51 (xxxix.). 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, . . . "

After dealing with the argument based upon the presence in s. 51 of par. (xxii.), his Honour concluded (1976) 134 CLR 539-540 : "Once this argument is rejected there is no obstacle to the conclusion that, notwithstanding the existence of s. 51 (xxii.), the marriage power enables the Parliament to provide for the enforcement of such rights, duties and obligations as may be created in exercise of the marriage power. . . . So understood the power may be exercised by providing for the enforcement of rights of maintenance, custody and property by proceedings separate and independent of proceedings for annulment or dissolution of marriage . . . " (at p483)

17. Jacobs J. remarked upon the special character attaching to pars. (xxi.) and (xxii.) of s. 51 in that they entered the field of personal and private rights in contrast to other subject matters of Commonwealth power which related to public economic or financial subjects (1976) 134 CLR, at p 546 . He then proceeded to concede a wide scope to the concept of marriage. In the course of a lengthy discussion, he said (1976) 134 CLR, at p 548 :

"The enunciation, recognition and enforcement of matrimonial rights and duties are part of the subject matter of marriage regarded as an institution. . . . The recognition by society of rights and duties of husband and wife in respect of the children of their marriage and of the relationship of the children of that marriage to their parents springing from their status as children of the marriage lies not on the periphery but at the centre of the social institution of marriage."

He concluded the discussion by saying (1976) 134 CLR, at p 550 :

"I conclude therefore that the power to make laws relating to marriage includes a power to make laws relating to the nurture of, and consequently the custody, guardianship and maintenance of, a child of the marriage. My reasons for this conclusion do not depend on the continuance of the marriage but on a recognition that by marriage and the procreation of children in the marriage relationship each parent has social rights and duties of nurture in respect of those children which arise from and are part of the marriage relationship which exists or which previously existed.

The power to make laws giving the custody or guardianship of a child of a marriage to a third party is ancillary to the power to make laws for the nurture of children of a marriage by the parties to the marriage. Where the parties to a marriage, or the survivor of them, fail or fails in the duty of nurture the rights which a law gives to them in respect of guardianship and custody may be taken away and given to another. Where the parties to a marriage are dead, a child of a marriage may still need the nurture which the parties to the marriage would or should have given him or her and it is ancillary to the power to make laws for the nurture of a child of a marriage by its parents to make laws for the care of a child of a marriage who is deprived by death of that care." (at p484)

18. I have already indicated the circumstances attending the decision of this Court in Demack (1977) 137 CLR 40 , when the Court construed s. 10 of the Family Law Act, in the form in which it then was, so as not to involve a conflict between an order for custody made by a Family Court with a prior order under the Children's Services Act committing the child to the care and control of the Director. Gibbs J. said (1977) 137 CLR, at pp 45-46 :
"If s. 10 did have the effect which the Director suggested, I would gravely doubt its validity. . . . 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 authorise 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." (at p484)

19. Mason J. discussed the scope of the power conferred by s. 51 (xxi.). He said (1977) 137 CLR, at pp 52-53 :

" . . . 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 authorising 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 authorise 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.

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, authorise 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 in such way as to give them a paramount and exclusive operation." (at p485)

20. Murphy J. (1977) 137 CLR, at p 57 , while accepting the same view as the other members of the Court on the question of the proper construction of s. 10, remarked in passing that "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 p485)

21. In Dowal v. Murray (1978) 143 CLR 410 , it was held by Gibbs A.C.J., Stephen, Jacobs and Murphy JJ., Aickin J. dissenting, that s. 61 (4) was a law within the scope of the marriage power. Gibbs J. (1978) 143 CLR, at p 418 considered this was so because:

"Once it is decided that the provisions of s. 51 (xxi.) are not to be read down or qualified in the light of s. 51 (xxii.) it must in my opinion be held that the power given by par. (xxi.) enables the Parliament to define the rights of the parties to a marriage to the custody of a child of the marriage and to provide for the enforcement of those rights. The power extends, . . . to the definition and enforcement of the right of a surviving party to a marriage to the custody of a child of the marriage after the marriage has come to an end by death or divorce. In such a case the right is still one that arises out of the marriage relationship."

Stephen J. said (1978) 143 CLR, at p 420 : "What ensures that s. 61 (4) is within the scope of the marriage power is its concern with a child of the marriage and with the re-defining and regulation of that child's custody, at the instance of the surviving parent, following the disruption caused to the pre-existing custodial situation by the death of the other parent. The authorities disclose that this subject matter is quite central to the marriage power." (at p486)

22. Jacobs J. (1978) 143 CLR, at p 427 considered the close relation between the original order for custody and the provisions of s. 61 (4) to be obvious. (at p486)

23. Murphy J. (1978) 143 CLR, at p 429 expressed the view that "the marriage power in relation to custody is not restricted to defining or providing for the enforcement of the custodial rights of the parties to the marriage between themselves (Reg. v. Demack; Ex parte Plummer)". (at p486)

24. Aickin J. dissented because he believed it to be clear from the decision in Russell (1976) 134 CLR 495 that "jurisdiction to decide questions of custody of the children of a marriage in a dispute not between the parties to the marriage cannot under the Constitution be validly conferred" (1978) 143 CLR, at p 436 . (at p486)

25. It was his Honour's view that the proceedings bore no relation to the original custody proceedings, and he found to be applicable the comment by Gibbs J. in Demack (1977) 137 CLR, at p 46 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". (at p486)

26. I have engaged in this extensive review of the several decisions of the Court which have some bearing on the question of the scope of the marriage power in order both that I may avail myself of all the guidance that is to be gained from these earlier cases, and also that I may distinguish between those statements which are authoritative, and those statements which fall into the category of obiter dicta, albeit of course obiter dicta which are entitled to great respect. (at p486)

27. I now proceed to draw some conclusions of my own. At the outset, I note that the issue in the present case, whether it be defined narrowly in terms of the enforceability of a custody order in favour of a parent against the Director of Children's Services in Queensland or more broadly in terms of any enforcement of such an order against third parties generally, is still an open question. That is to say, it has not been determined by any of the earlier decisions of this Court. The Marriage Act Case (1962) 107 CLR 529 was a decision of great importance because it denied the limitation of the power to the conditions and circumstances of a valid marriage. It allowed for the declaration of the legal consequences of the act of marrying, consequences extending to the recognition of those family relationships which are of the essence of the estate of matrimony. Consequently a law which made the legitimation of a child an "inevitable legal consequence of the inter-marrying of the parents" (Kitto J. (1962) 107 CLR, at p 554 ) is a law with respect to marriage. It may be that some of the other members of the Court in that case described the content of the power in rather different terms, but in this regard I would respectfully adopt what Barwick C.J. said in Russell (1976) 134 CLR, at p 510 when he remarked that he did not understand any of the other members of the Court to have gone beyond what Kitto J. had to say, and then added:

"If, contrary to my own view, it is thought that they did, then, in my opinion, their remarks should be regarded as obiter because all that was necessary for decision in that case was whether Parliament could attach to the act of marriage a consequence which affected the spouses and their child or children."

In any event, I do not understand any of their Honours in that case to have directed their attention to the question of enforcement, otherwise than in relation to the section which made bigamy an offence. (at p487)

28. So far as it is relevant to this case, Russell decided that s. 39 (1) of the Family Law Act is a valid law of the Commonwealth to the extent that it conferred jurisdiction in proceedings between the parties to a mariage with respect to the custody, guardianship or maintenance of, or access to the children of the parties to the marriage. In the form in which it was enacted, the Act purported to confer a jurisdiction in "proceedings with respect to . . . the custody, guardianship or maintenance of, or access to, a child of a marriage". As to this, Mason J. (with whom Stephen J. agreed) found that by conferring jurisdiction that was not limited to proceedings between the parties to a marriage, the clause travelled beyond the marriage power. He then proceeded to read it down by applying s. 15A of the Acts Interpretation Act 1901 (Cth). The importance of the decision, in my opinion, is twofold. In the first place, it demonstrates the necessity of a close relationship between the law and the marriage relationship if the law is to be within power; custody proceedings per se with respect to the children of a marriage are outside the power. The nexus to s. 51 (xxi.) lies in the fact that the parties to a marriage are engaged in proceedings with respect to their relationship to a child of the marriage. In this respect the decision in Russell illustrates the accuracy of the statement of Gibbs J. in Demack (1977) 137 CLR 40 to the effect 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. In the second place, Russell is important because it declares to be within power a law which creates a jurisdiction whereby the rights and obligations inherent in the marriage relationship may be enforced in proceedings between the parties to a marriage. I have quoted the differing views on the question of enforcement that were expressed in this case by Barwick C.J. and Mason J., and I do not repeat them. Although the view of the Chief Justice did not prevail in the instant case, I regard the passage as helpful to a resolution of the present problem, and I shall return to it later in these reasons. It remains to say of Russell (1976) 134 CLR 495 that although the Court upheld a custody jurisdiction in proceedings between the parties to a marriage, it says nothing about enforcement against third parties of any order that may be made in those proceedings. (at p488)

29. The case of Demack was thought by the prosecutor at the time to raise the present problem squarely for decision, but as I have already explained it did not do so. The resolution of the case was found in the construction of s. 10 of the Family Law Act as it then stood. However, the report is notable for the conflicting obiter dicta expressed by Gibbs J. and Mason J., and which may be seen in the passages I have quoted. I shall have occasion to refer to these passages again when I come to express my own conclusion. (at p488)

30. It remains to consider, from the point of view of authoritative guidance that is available from previous cases, the case of Dowal v. Murray (1978) 143 CLR 410 . In this case a majority of the members of the Court decided that s. 61 (4) as it then stood was a valid law with respect to marriage notwithstanding that one party to the marriage had died, and the provision contemplated that an application for custody could be made by the surviving parent in a proceeding to which a stranger to the marriage, namely, the person then having the care and control of the child at the time of the application, was entitled to be a party. Jurisdiction to entertain such a proceeding was found by reference to s. 39 and par. (f) of the definition of "matrimonial cause" in s. 4. With all respect, I do not find the case to be of assistance to the present problem. It may be that it is to be inferred that any order made in such proceedings could be enforced against the third party, but even if that suggestion were to be accepted I would decline to extend the decision. (at p488)

31. From the point of view of authority, then, in my opinion the matter is at large. The assistance that I draw from the expressions of opinion in these earlier cases may be summarized in the form of the following general propositions:
1. The marriage power is a constitutional power and is to be given "no narrow or restrictive construction" (Marriage Act Case (1962) 107 CLR 529, at p 543 ).
2. It extends to the definition of the mutual rights, duties and obligations of the parties to a marriage, including their rights duties and obligations with respect to children of the marriage (Marriage Act Case; Russell).
3. A jurisdiction may be conferred upon a court to declare and enforce those rights duties and obligations of the parties to the marriage inter se (Russell); but the extent, though not the existence, of the power to enforce such rights dutief and obligations against third parties remains unclear (Dowal v. Murray) (1978) 143 CLR 410 .
4. The validity of a law "with respect to marriage" must depend ultimately on the degree of its connexion to the marriage relationship (Marriage Act Case; Russell; Dowal v. Murray). (at p489)

32. Against the background provided by these general propositions, I proceed now to particularize the problem to be resolved in this case. It requires a resolution of the conflict of opinion concerning enforcement reflected in the statements of Barwick C.J. and Mason J. in Russell (1976) 134 CLR, at pp 510, 538-539 . For his part, the Chief Justice considered the erection of a jurisdiction to enforce the rights and duties derived from marriage to be a disparate matter from the topic of "marriage" itself, and he explained the presence of the specific topic of matrimonial causes by reference to this view. On the other hand, Mason J. (with whom Stephen J. agreed) rejected as arbitrary the suggested distinction between the creation of rights arising out of the marriage relationship and the enforcement of those rights. At the level of enforcement as between the parties to the marriage, of course, the decision in Russell resolved the difference of opinion in favour of that expressed by Mason J. But it does not follow that the decision in Russell affords support for the view expressed by Mason J. in Demack (1977) 137 CLR 40 when his Honour said that the power with respect to marriage extended to a law which gave to a Family Court's custody order a paramount and exclusive operation. There are subject matters, as the Chief Justice observed in Russell, where the enforcement of rights and duties emanating therefrom is not wholly comprehended as incidental to the topic itself. It seems to me with all respect, that marriage is such a topic. A law creating a jurisdiction to make an order for custody of a child of a marriage in favour of one party to the marriage may assume a different character according to the effect that the law gives to that order. If it is a mere declaration of the rights of the parties to the marriage, then clearly on present authority it is a law with respect to marriage. On the other hand, if the order is given a paramount and exclusive authority even against conflicting orders affecting the child made under the authority of the general law, then that consequence may confer on the law a different character. The question must then be asked as to whether in its new character the law retains that essential legal connexion with marriage necessary to sustain its validity. It is the legal operation of the law that will determine its character and therefore its validity: see, for example, the Marriage Act Case (1962) 107 CLR, at p 552 , per Kitto J. (at p490)

33. Earlier in these reasons I have referred to the reasons of Jacobs J. in Russell, and to the fact that his Honour remarked on the special character attaching to pars. (xxi.) and (xxii.) of s. 51 in that they entered the field of personal and private rights in contrast to other subject matters of Commonwealth power relating to public, economic and financial subjects. Although his Honour proceeded to construe the marriage power so widely that it led him into dissent from the decision of the Court, his perception of the special character of the power with respect to marriage serves to underline the potential significance of the distinction between definition and enforcement of the rights and duties of the parties to a marriage inter se, whether or not there is a consequential impact in some circumstances on third persons, and a paramount operation over the general law. Indeed, it will often be the disintegration of the private world of relationships grounded in a marriage that provides both the occasion and the necessity for the intervention of a general child welfare law directed to the care and protection of a child. A law of the latter description is, in my respectful opinion, far more than a law with respect to the custody of children. (at p490)

34. The learned Solicitor-General of the Commonwealth argued that s. 10 of the Family Law Act served the purpose of sustaining the operation of some State laws which would otherwise be rendered inoperative because of the operation of Pt VII of the Act dealing with the Welfare and Custody of Children and s. 109 of the Constitution. With respect, I do not think that such an argument does justice to the terms of the section. Section 10 (1) is a clear withholding of jurisdiction from a court exercising jurisdiction under the Act. Section 10 (2), as it stood before being amended by Act No. 95 of 1976, is a declaration which the prosecutor and supporting States say, in my opinion, correctly, was essential to keep the provisions of Pt VII in this respect within power; while s. 10 (3), prior to Act No. 95 of 1976, permitted in special circumstances a definition of the rights to custody inter se the parties to a marriage. (at p491)

35. In my opinion, the amendments to s. 10 (2) and 10 (3) that were made by Act No. 95 of 1976, are not supported by the power of the Parliament to make laws with respect to marriage, and are invalid. I reach this conclusion because their sole operation is to override rights and duties derived from the public or general law, and they cannot be characterized as a law with respect to marriage. The distinction between the personal and private world of relationships with which marriage is concerned and the area of general law is significant, and serves to supply the answer in the present case. It means that a child of a marriage may by operation of a law of a State come under the guardianship of a Minister or officer of the State, with the result that during the period of guardianship it ceases to be directly subject to the private world of that marriage relationship to which he belongs. (at p491)

36. It is unnecessary to deal specifically with the more general question which was touched on during the argument as to whether a custody order of the Family Court is enforceable against third parties, and I say no more about it. It remains to consider the form of the present proceedings. I agree with Gibbs J. that prohibition is not an appropriate form of relief in the circumstances of the case, and I would adopt all that he has said in this regard. Like him, I would discharge the order nisi for prohibition, but make a declaration that the order made by Lambert J. on 4th May 1979 has no effect on the rights or powers of the Director pursuant to the order made by the Children's Court on 28th June 1978 in respect of the child in question. There should be no order as to costs. (at p491)

Orders

Order nisi discharged.

Declare that the order made by the Honourable Mr. Justice Lambert on 4th May 1979 has no effect on the rights or powers of the Director of the Department of Children's Services for the State of Queensland pursuant to the order made by the Children's Court on 28th June 1978 in respect of Paula Ann Shonhan.

No order as to costs.