Re F; Ex parte F - [1986] HCA 41

No judgment structure available for this case.

HIGH COURT OF AUSTRALIA

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

Re: F.; Ex parte F.

(1986) 161 CLR 376

31 July 1986

Family Law—Constitutional Law

Family Law—Family Court of Australia—Jurisdiction—Custody of children—Ex-nuptial child of party to dissolved marriage—Family Law Act 1975 (Cth), s. 5(1)(e)(i). Constitutional Law—Powers of the Commonwealth Parliament—Marriage—Custody of ex-nuptial child—Family Court of Australia—Jurisdiction—Ex-nuptial child deemed to be child of marriage—Validity—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi)—Family Law Act 1975 (Cth), s. 5(e)(i).

Decisions

GIBBS C.J.: This is the return of an order nisi for a writ of prohibition (and so far as may be necessary a writ of certiorari) directed to Cook J., a judge of the Family Court. The prosecutrix, Mrs F. ("the wife") was married to the second respondent, Mr F. ("the husband"), on 18 January 1977. On 23 January 1984 Cook J., on an application made ex parte by the husband, ordered that until further order the husband should have the guardianship and custody of Y.F., a child born on 16 June 1982, and described in the order as the child of the marriage. On 11 December 1984 a consent order was made giving the wife limited access to the child. The marriage was dissolved by a decree nisi which became absolute on 9 February 1985.

2. On or about 26 July 1985 blood samples were taken from the husband, the wife and the child and a blood group investigation which was carried out showed that the husband cannot be the father of the child. The wife believes that one B.L., with whom she had commenced a relationship in August/September 1981, is the father. The husband (who was not represented before us) does not dispute the correctness of the result of the tests or that he is not the natural father of the child.

3. The wife seeks an order for custody of, or at least increased access to, the child, but although the matter has since come before three judges of the Family Court, none have embarked on a hearing of the merits of the question what orders should be made for custody or access. The learned judges considered that it would be inappropriate to embark upon a hearing of the merits until it had first been determined whether the Family Court had jurisdiction. The wife then commenced proceedings in the Equity Division of the Supreme Court of New South Wales, seeking a declaration that the husband was not the father of the child, and an order for custody, but the view has been taken, correctly, having regard to the decision of this Court in D.M.W. v. C.G.W. (1982) 151 CLR 491, that the Supreme Court could not be asked to make orders of that kind while there remained in force an order of the Family Court based on a finding that the child was a child of the marriage. In these circumstances the wife has been forced to seek prerogative relief from this Court, although her concern is not to prevent the Family Court from dealing with the matter, but rather to establish which court has jurisdiction so that the case may be decided on its merits.

4. Obviously Cook J. was right in proceeding to deal with the application made to him on 23 January 1984 since it was not then suggested that the child was an ex-nuptial child, but we are called on to decide, in the light of the facts as they are now known, whether the Family Court has jurisdiction in the matter. It is not in doubt that the Family Court will have jurisdiction if the proceedings are a "matrimonial cause" within the meaning of the Family Law Act 1975 (Cth), as amended ("the Act"). The Attorney-General of the Commonwealth intervened in the matter, and the learned Solicitor-General, who appeared on his behalf, contended that the case falls within par.(cb) of the definition contained in s.4(1) of the Act, which provides that "matrimonial cause" means (inter alia) -

"(cb) proceedings between the parties to a marriage with respect to the custody, guardianship or maintenance of, or access to, a child of the marriage".

Of course Y.F. is not in truth a child of the marriage, but the learned Solicitor-General submitted that she is to be deemed to be such a child by virtue of the provisions of s.5(1) of the Act which provides, inter alia, as follows:

"For the purposes of each application of this Act in relation to a marriage -

...

(e) a child of either the husband or the

wife, including -

(i) an ex-nuptial child of either of them; and

(ii) a child adopted by either of them (whether alone or together with another person or other persons),

if, at the relevant time, the child was

ordinarily a member of the household of the husband and wife

...

shall be deemed to be a child of the marriage ..."

It was conceded by counsel for the wife that the child was at the relevant time (which was in about April 1983, when the parties separated - see s.5(2)) ordinarily a member of the household of the husband and wife. However, he submitted that s.5(1)(e)(i) of the Act, if given the full operation which its words permit, would be beyond the power of the Parliament and that it is not possible to read the words down in a way that would bring them within power.

5. The legislative powers which may possibly authorize the enactment of s.5(1)(e)(i) of the Act are those conferred by s.51(xxi) and (xxii) of the Constitution, which empower the Parliament to make laws with respect to "Marriage" and "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants" respectively.

6. In In the Marriage of Cormick; Salmon (Respondent) (1984) 59 A.L.J.R. 151; 56 A.L.R. 245, it was held that the marriage power did not render valid a law (in that case s.5(1)(f) of the Act) which attempted to make the provisions of the Act which deal, inter alia, with guardianship and custody applicable to a dispute between the parties to a marriage on the one hand and a stranger to the marriage on the other with regard to the custody of an ex-nuptial child who had not acquired the status of a child of the marriage through birth, legitimation or adoption. The majority of the Court left open the question whether it might be within power for the Parliament to define the rights and duties of the parties to the marriage, as between themselves, with respect to a child who is not a child of the marriage, but Brennan J. expressed a decided view on that question, saying, at p.155; p.253 of A.L.R.:

"... the rights and duties of husband and wife in respect of children who do not enjoy the status of children of their marriage - whether by birth, by legitimation or by adoption - are not, in my opinion, amenable to regulation by a law for which the marriage power alone provides support".

In Re Cook; Ex parte C. (1985) 59 ALJR 669; 60 ALR 661 this Court had to consider the validity of s.5(1)(e)(i) in custody proceedings to which a stranger to the marriage was a party, but which were claimed to be a "matrimonial cause" within par.(ce) of the definition of that expression in s.4(1). Paragraph (ce) is in the following terms:

"proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, being proceedings to which one party to the marriage is a party (whether or not the other party to the marriage is also a party to the proceedings) ..."

The majority of the Court (Deane J. dissenting) held, in accordance with the principles stated in In the Marriage of Cormick; Salmon (Respondent), that the provisions of s.5(1)(e)(i) are not validly enacted, at least to the extent to which, in conjunction with par.(ce) of the definition of "matrimonial cause" in s.4(1), they attempt to make provision for the rights of the parties to a marriage to the custody of an ex-nuptial child as against strangers to the marriage. Again the question whether a law made under the marriage power might validly regulate the rights and duties of the parties to the marriage as between themselves to the custody of a child who was not a child of the marriage was left open, except by Brennan J., who adhered to his previous opinion. A further question which was not decided in that case is whether a sufficient connexion with the marriage would exist in the case of a child who had been adopted de facto by the parties to a marriage; Gibbs C.J. and Mason J. left that question open, but Wilson and Brennan JJ. would have answered it in the negative.

7. It is now trite to say that "Marriage" in s.51(xxi) includes the relationship of marriage and that the power given by s.51(xxi) enables the Parliament to define and enforce the rights and obligations of the parties to a marriage which arose out of the marital relationship. In deciding whether a law is one with respect to marriage, it is necessary to consider the strength of the connexion between the law and the marital relationship. The fact that a child is a child of one party to a marriage does not in itself provide a sufficient connexion with that marital relationship to sustain the validity of a law with respect to the custody of that child. That in my opinion is true even if the child was born to a wife during the marriage once the presumption of legitimacy has been rebutted, for if it is established that the child is an ex-nuptial child, the fact that it was born during the subsistence of the marriage does not make it a child of the marriage or give it any relevant connexion with the marital relationship. Further, it is established that the Parliament cannot bring a case within s.51(xxi) by deeming a child to be a child of a marriage if the necessary connexion between the child and the marriage does not in truth exist: In the Marriage of Cormick; Salmon (Respondent), at p.153; p.248 of A.L.R.; Re Cook; Ex parte C., at p 670; p 663 of ALR The necessary connexion is not provided by the fact that at a particular time (in the present case the time when the parties to the marriage separated) the child was ordinarily a member of the household of the husband and the wife: it was so held in Re Cook; Ex parte C., at pp 670-671; pp 663-664 of ALR

8. I do not find it necessary, for the purpose of deciding the present case, to answer the questions which, as I have said, have been left open by some members of the Court. There is no suggestion that there was any de facto adoption of the child in the present case. I may assume, without deciding, that the marriage power would support a law governing the respective rights of husband and wife, as between themselves, in respect of the custody of an ex-nuptial child who has not acquired the status of a child of a marriage through birth, legitimation or adoption. On that assumption it would follow that s.5(1)(e) of the Act would be valid if it applied only as between husband and wife and had no application to a stranger to a marriage. But of course the provisions of s.5(1) are not intended to be limited in their application to proceedings between husband and wife. The introductory words of the section, "For the purposes of each application of this Act in relation to a marriage", do not reveal an intention to limit the application of the section to proceedings between the parties to a marriage. A contrary intention is made manifest when s.5(1) is read in conjunction with the definition of "matrimonial cause", to all of whose provisions it is clearly intended to apply. There can be no doubt that the deeming provisions of s.5(1) are intended to give an expanded effect to the meaning of the words "child of a marriage" where those words appear in a number of paragraphs in the definition of "matrimonial cause", including (ce) and (ch), both of which contemplate that a stranger to a marriage will be a party to the proceedings to which they refer. The question that then arises is whether it is possible, with the assistance of s.15A of the Acts Interpretation Act, to read down the provisions of s.5(1) (particularly s.5(1)(e)) so as to render them applicable only as between the parties to a marriage.

9. Before I deal with that question it is convenient to turn to the power conferred by s.51(xxii). In Lansell v. Lansell (1964) 110 CLR 353, at p 368, Menzies J. said that "in s.51(xxii) the words 'matrimonial causes' are used in conjunction with the word 'divorce' and can hardly cover all proceedings between spouses". Taylor J. seems to have been of the same opinion: see at p.367. On that view "matrimonial causes" would include suits for nullity, judicial separation, restitution of conjugal rights and jactitation of marriage but would not include proceedings between the parties to a marriage for the custody of a child of the marriage. Of course the concluding words of s.51(xxii) ("in relation thereto, parental rights, and the custody and guardianship of infants") do refer to custody; but even without those words s.51(xxii) would include within the power any topic "fairly incidental" to the subject of divorce and matrimonial causes: see Lansell v. Lansell, at p 359, per Kitto J. My present opinion is that the word "infants" in s.51(xxii) does not refer to children other than those who are children of the marriage; the use of the word "infants" instead of the word "children" was intended only to show that the power did not extend to adult children. Again it is not necessary to express a concluded view on these questions. On any view, the power given by s.51(xxii) can be exercised only in relation to "Divorce and matrimonial causes", that is in relation to proceedings between the parties to a marriage, and would not extend to authorize the making of a law regulating the right to the custody of an ex-nuptial child as between a party to a marriage and a stranger to the marriage. If s.5(1)(e) is to be upheld as a valid exercise of the power conferred by s.51(xxii) it must be read down to confine its operation to proceedings between husband and wife.

10. Whichever of the powers given by s.51(xxi) or s.51(xxii) is invoked to sustain the validity of s.5(1)(e)(i), the critical question is whether s.5(1) can be given a distributive construction so that it applies only as between husband and wife. Section 15A of the Acts Interpretation Act has the effect of reversing the presumption which exists at common law that a statute is to operate as a whole, and of creating a new and contrary presumption: Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p 371. However the statute itself may reveal an intention that the provisions sought to be given a divisible or a distributable operation should be inseverable and should have a general operation; if so, the new presumption will be rebutted. In the present case we are not concerned with an enactment which contains separate words, some of which considered by themselves would make the enactment valid while others would make it invalid, but with an enactment which contains a general word or expression comprising matters in respect of which legislation could be validly enacted and matters in respect of which it could not. It is easier to apply s.15A to an enactment of the former kind than to one of the latter kind, although the section can be applied to give a distributive operation to general words: see Pidoto v. Victoria (1943) 68 CLR 87, at p 110; Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468, at pp 516-517. In either case, however, it is necessary to consider whether the reading down of the statute would alter its policy or operation because the enactment, when read distributively, must operate upon the persons and things affected by it in the same way as it would have operated if it had been entirely valid: Pidoto v. Victoria, at pp 110-111, 118; Strickland v. Rocla Concrete Pipes Ltd., at p 493; and see Bank of N.S.W. v. The Commonwealth, at p 371; Vacuum Oil Co. Pty. Ltd. v. Queensland (No. 2) (1935) 51 CLR 677, at pp 692-693. Section 15A does not give to the Court power to rewrite the statute; indeed, the Parliament could not validly delegate to the Court "the legislative task of making a new law from the constitutionally unobjectionable parts of the old": Bank of N.S.W. v. The Commonwealth, at p 372; Strickland v. Rocla Concrete Pipes Ltd., at pp 492, 503, 506.

11. It is not difficult to find in the Act criteria by which the provisions of the Act which went beyond power might be read down so as to render them constitutionally unobjectionable - namely the criteria provided by s.51(xxi) and s.51(xxii). However, if s.5(1) of the Act were read down so as to render it applicable only as between husband and wife, the Act would have a very different operation from that which it has in its present form. An order for guardianship, custody or access is, by its nature, enforceable not only against the parties to the marriage but against other persons as well. Indeed, with a few exceptions, such as where a child is in prison or otherwise under statutory control or restraint, an order for custody is effective as against the whole world. That this is so is recognized by the Act, particularly by s.64(9) which enables a custody order to be enforced by taking possession of the child - even from a natural parent who is a stranger to the marriage. An order for custody which is ineffective against a stranger to the marriage is quite a different thing from an order for custody effective against citizens generally. Moreover, the rights of the true parents of an ex-nuptial child (one of whom must necessarily not be a party to the marriage) must be affected by any order for custody or access. In many cases it would be contrary to the rules of natural justice if an order were made regarding the custody of a child without giving the true parent an opportunity to be heard. Section 92 of the Act provides a procedure by which a parent who was not made a party to custody proceedings brought between husband and wife could intervene, and, having intervened, would be deemed to be a party: s.92(1A), (3). Proceedings which commenced between husband and wife in relation to the custody of an ex-nuptial child might readily be converted into proceedings to which a stranger to the marriage was a party. It would be impossible to give s.5(1) a sensible operation if, in custody proceedings to which a stranger to the marriage was a party, the child was deemed to be a child of the marriage in so far as the proceedings concerned the parties to the marriage but not so far as they concerned the stranger.

12. For these reasons I have concluded that s.5(1) is intended to apply not only as between husband and wife but also as between the parties to a marriage, or one of them, and a stranger, and that it is not possible to give its provisions a distributive effect which would maintain their intended operation. There is no power to reconstruct the provisions of the section so as to make it valid. Indeed from a practical point of view statutory reconstruction by the Parliament would be very difficult, since the nature of the powers given by s.51(xxi) and (xxii) makes it inevitable that in most cases no law made under those powers could validly affect the rights or claims of strangers to the marriage to the custody of an ex-nuptial child.

13. The conclusion which I have reached is consistent with Re Cook; Ex parte C., where it was held that it is not possible to read down s.5(1)(e)(i) to make it refer to de facto adoptions: see at p 671; p 665 of ALR

14. I would accordingly hold that the Family Court lacks jurisdiction to entertain the present proceedings. It follows of course that the wife may at last have her case heard - in the Supreme Court of New South Wales. The matter provides another example of the lamentable results that can ensue when the limits of the respective jurisdictions of State and federal courts are not clearly defined.

15. I would make absolute the order nisi for a writ of prohibition and certiorari.

MASON AND DEANE JJ.: It is well settled that the reference in s.51(xxi) of the Constitution to "Marriage" is not to be construed as a reference merely to the entry into the relationship of marriage, whether by religious ceremony or civil arrangement. In accordance with the general principles applicable to the construction of a constitutional grant of legislative power to the national Parliament, that reference is to be construed as encompassing the relationship itself. The rights and obligations arising from that relationship extend beyond those of the actual parties to a marriage between themselves. Marriage is a social institution which comprises an important part of the fabric of our civilization and which has wider significance and consequences in terms both of human relationships and of economic obligations, interests and expectations. It has traditionally been a source of rights and duties of persons other than those who are the immediate parties to it.

2. There are two important and related general principles which must be borne in mind in determining the ambit of the legislative power conferred by the various paragraphs of s.51 of the Constitution. They are of particular relevance in relation to par.(xxi). The first is that the different grants of legislative power contained in the paragraphs of s.51 are not mutually exclusive and are not to be read down by reference to some presumption that they are (see, e.g., the cases cited by Professor Zines, in The High Court and the Constitution (1981), pp 18-21; The Commonwealth v. Tasmania (1983) 57 ALJR 450, at p 549; 46 ALR 625, at p 813). "There are substantial reasons for thinking that an individual grant of power under the Constitution should be accorded a full operation according to its terms, unrestricted by dubious implications drawn from the existence of another grant of legislative power touching an associated subject matter" (per Mason J. in Russell v. Russell (1976) 134 CLR 495, at p 539; see also Jacobs J. at p 550 and Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447, at pp 462 and 464-465). Thus it should now be regarded as established that the legislative power conferred by s.51(xxi) cannot properly be confined by reference to the grant of legislative power contained in s.51(xxii) (see Attorney-General (Vict.) v. The Commonwealth (the Marriage Act Case) (1962) 107 CLR 529, at pp 560, 572; Russell v. Russell, at pp 539 (Mason J.) and 550 (Jacobs J.) (and note the agreement of Stephen J. (at p 529) with Mason J's judgment on this aspect of the case); Dowal v. Murray (1978) 143 CLR 410, at p 418).

3. The second of those two related principles is that a single law can possess more than one character in the sense that it can properly be characterized as a law with respect to more than one subject matter. It suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth legislative power. In determining validity, it is not necessary to single out the paramount character. It is enough that the law "fairly answers the description of a law 'with respect to' one given subject matter appearing in s.51" regardless of whether it is, at the same time, more obviously or equally a law with respect to some other subject matter (see Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169, at pp 192-194). In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in s.51, it will be valid notwithstanding that there is no independent connection between the two subject matters. Thus, if the operation of a particular law is such that the law fairly answers the description of being "with respect to ... Marriage", it will be within the legislative power conferred by s.51(xxi) notwithstanding that it more obviously or equally answers the description of being a law with respect to some other subject matter, such as a particular class of children, and regardless of the absence of any independent connection between marriage and that other subject matter.

4. There are many cases in the Court in which attention has been drawn to the width of the phrase "with respect to" in s.51 of the Constitution. "No form of words has been suggested which would give a wider power" (per Latham C.J. in Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p 186). "(W)hat (those words) require is a relevance to or connection with the subject assigned to the Commonwealth Parliament" (per Dixon C.J., McTiernan, Webb and Kitto JJ. in Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, at p 77, emphasis added). In Stenhouse v. Coleman (1944) 69 CLR 457, at p 471, Dixon J. referred to the important distinction between the legislative power conferred by s.51(vi) with respect to defence and the legislative power conferred by most of the other paragraphs of s.51. The defence power, like, to some extent, the external affairs power and the conciliation and arbitration power, is a purposive one. In contrast, as Dixon J. pointed out (ibid.), the subject of the grant of legislative power in most of the other paragraphs of s.51 is "described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy)" (emphasis added). His Honour added the comment (ibid.) that, in those cases where the subject matter of legislative power is non-purposive, "it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case" - i.e. in the case of "a recognized category of legislation" - "answers the description, and to disregard purpose or object". That comment of Dixon J. was expressed to apply, and is properly applicable, to cases where a question arises about the validity of legislation passed in reliance upon the legislative power with respect to marriage. In such cases, the relevant law will ordinarily be properly characterized as being with respect to the subject matter of marriage if it "operates upon or affects" that subject matter (ibid.).

5. Obviously, the Parliament cannot extend the ambit of its own legislative powers by purporting to give to "Marriage" an even wider meaning than that which the word bears in its constitutional context. Nor can the Parliament manufacture legislative power by the device of deeming something that is not a marriage to be one or by constructing a superficial connection between the operation of a law and marriage which examination discloses to be but contrived and illusory. Subject to those qualifications, a law which directly and on its face operates upon or affects the subject of "Marriage" - for example, a law which operates to confer rights or impose obligations upon the parties to a marriage or third persons by reference to or arising out of marriage - comes within the central area of the grant of legislative power contained in s.51(xxi) and must, for the purposes of that paragraph, be characterized as a law with respect to marriage. Such a law cannot properly be denied that characterization by reason of the fact that the members of this Court disapprove of its content or consider that it operates to make marriage the source of rights and duties, whether as between husband and wife or as against or in favour of third parties, which go beyond what is desirable or appropriate having regard to the competing or conflicting claims of other persons. Put differently, it would be contrary to basic constitutional principle to confine the reach of the legislative power conferred by s.51(xxi) by reference to preconceived notions of the matters with which a law with respect to marriage should or should not deal or to adopt the approach that a law should be denied characterization as a law with respect to marriage if, regardless of its operation, matters with which it dealt were thought by members of this Court to lack some requisite independent connection with the institution or relationship of marriage.

6. Where a law does not on its face directly operate upon or affect marriage, validity under s.51(xxi) will depend upon the nature and strength of any connection between what the law does and marriage: "for on the one hand the subject matter may itself involve or include a penumbra of things that are incidental, consequential and ancillary and a law as to some aspects of these things would not be ultra vires, and on the other hand the operation of a law upon any subject may not be apparent on its face but yet be clear when the actual practical working of cause and effect is perceived" (per Dixon C.J. in The Marriage Act Case, at p.543). Even in such a case, it is to the operation of the law that regard must be had for the purposes of characterization and that operation of itself can create or exhibit the relationship with marriage necessary to justify characterization as a law pursuant to s.51(xxi) of the Constitution notwithstanding that the law directly and more obviously operates upon some other subject matter which would lack any obvious independent connection with marriage. All that is necessary is that any connection between what the law does and "Marriage" is sufficient to enable the law to be fairly characterized not only as a law with respect to that other subject matter but also as a law with respect to marriage. If the sufficient and necessary connection does not exist and the particular law cannot fairly be so characterized, however, that does not mean that every law with respect to the subject matter with which that law deals is necessarily denied characterization as being also a law with respect to marriage for the purposes of s.51(xxi). The fact that one law dealing with a subject matter that is not within a specific grant of legislative power cannot properly be characterized as a law with respect to marriage simply does not mean that a different law dealing with that same subject matter must also be denied such characterization. If, for example, that different law directly operates upon or affects marriage, it will be within the legislative power conferred by s.51(xxi) regardless of whether its more obvious characterization may be as a law with respect to that other subject matter. If that different law does not directly operate upon or affect marriage, it will be necessary to examine its operation for the purpose of determining whether the connection between what it does and marriage is sufficient to justify its characterization as a law with respect to marriage notwithstanding that its primary or more obvious characterization may be as a law with respect to that other subject matter.

7. Section 5(1) of the Family Law Act 1975 (Cth) ("the Act") provides that, for "the purposes of each application of this Act in relation to a marriage", a child answering any one of a number of specific descriptions "shall be deemed to be a child of the marriage". Such a provision cannot of itself serve the purpose of effecting an extension of Commonwealth legislative power by, for example, extending the "penumbra of things that are incidental, consequential and ancillary" to the subject matter of marriage with the consequence that a law with respect to a "deemed" child of a marriage will be within the legislative power conferred by s.51(xxi) whenever a corresponding law with respect to an actual child of a marriage would be within that power. That being so, the abstract general validity of the assimilation of a child of a particular description and a child of the marriage must depend upon the existence of a connection between a child of that description and the relevant marriage which is sufficiently comparable in strength to the connection between an actual child of a marriage and the marriage for an application of a law to a child of that description to be within Commonwealth legislative power whenever the application of that law to an actual child of the marriage would be within that power. That is not to say, of course, that the application of a particular identified legislative provision to a child of that description by reason of the operation of such a deeming provision will only be within the legislative power with respect to marriage if there be such a sufficient independent connection between such a child and a marriage. If the applied law, in its application to such a child, is properly to be characterized as a law with respect to marriage in the sense that it directly "operates upon or affects" the subject matter of the institution of marriage, the "deeming provision" and the applied law, read together, will comprise a law with respect to marriage regardless of whether there is any independent connection between such a child and marriage. In such a case, the operation of the law upon, or the effect which the law has upon, marriage itself suffices to create the necessary nexus and, subject to questions of severability or reading down, the "deeming" provision will be valid to the extent that it applies the particular law to children of that description.

8. With the benefit of hindsight, it appears to us that in judgments, including our own, in recent cases concerning the validity of the various paragraphs of the "deeming" provisions of s.5(1) of the Act, insufficient attention was paid to the distinction between a law which directly operates upon or affects marriage and a law the validity of which under s.51(xxi) depends upon the identification of some more indirect connection with marriage such as, for example, its connection with something within the included "penumbra of things that are incidental, consequential and ancillary". Thus, in In the Marriage of Cormick (1984) 59 ALJR 151; 56 ALR 245, and Re Cook; Ex parte C. (1985) 59 ALJR 669; 60 ALR 661, the question of the validity of the "deeming" provision of one or other of the paragraphs of s.5(1) of the Act was approached on the basis that validity depended upon whether the independent connection between marriage and children of the particular description was such that the legislative power with respect to marriage extended to the custody or protection of such children (see, e.g., Cormick, at pp.152-153, 154; pp.247-248, 251 of A.L.R.; Cook, at pp.670-671; pp.663-664 of A.L.R.). In neither of those cases does one find any real consideration of the question whether the relevant operation of the deeming provisions of s.5(1) of the Act came within the primary or central area of the marriage power in that the sub-section operated upon or affected the relationship or institution of marriage by creating rights and obligations arising directly from and by reference to that relationship or institution.

9. It has, however, been pointed out on a number of occasions that there are weighty considerations against reopening decisions of the Court about the validity of particular provisions of the Act purportedly conferring jurisdiction upon the Family Court with respect to the custody of children. In particular, to reopen such a decision declaring such a legislative provision invalid would be to call in question the validity of any orders of State Courts which had been made on the faith of this Court's previous declaration of invalidity of the purported conferral on the Family Court of the exclusive jurisdiction to deal with such matters. In these circumstances, it would be wrong to reopen the actual decisions in Cormick and Cook to consider whether, regardless of the closeness or otherwise of any independent connection between the particular descriptions of children and marriage, the "deeming" provisions of s.5(1) are wholly within the marriage power to the extent of their operation for the purposes of the custody provisions of the Act for the reason that, to that extent, they directly operate upon or affect "Marriage" in that they create rights and obligations by reference to, and as arising directly from, "Marriage". That being so, the question of constitutional validity involved in the present case must be approached on the basis that the effect of previous decisions is that the various provisions of s.5(1) deeming a child of a particular description to be "a child of the marriage" for "the purposes of each application of (the) Act in relation to a marriage" are beyond the legislative power of the Parliament except to the extent that they can be justified by reference to some independent connection between a child of the particular description and "the marriage".

10. The provision of s.5(1) here in point is par.(e)(i). That provision expressly extends to children of either husband or wife and, as a matter of language, both to children born before and to children born after the relevant marriage. The child in the present case is, however, a child of the wife who was born during the marriage of the parties and it is convenient to approach the question of validity by considering whether the provision of the sub-paragraph would be within the legislative power with respect to marriage if it were confined to children of that more limited class. So confined, the effect of the relevant sub-paragraph would be that, for "the purposes of each application of (the) Act in relation to a marriage", an ex-nuptial child of the wife born during the period of the marriage "shall be deemed to be a child of the marriage" if, at the time when the husband and wife last lived together up to the time of the institution of the proceedings (see s.5(2)), the child was "ordinarily a member of the household of the husband and wife". The independent connection between such a child and the marriage of the husband and wife is twofold: first, the child is a child of the wife born during the subsistence of that marriage; secondly, the child was ordinarily a member of the household of the husband and wife when they last cohabited. Cormick establishes that the second aspect of that twofold connection would not of itself suffice as an adequate independent connection between the child and the marriage. The critical question is whether the first aspect provides such an independent connection either of itself or in conjunction with the second.

11. At common law, a child born of a woman during the subsistence of a marriage was presumed to be a legitimate child of the marriage whether conceived before or after marriage (Cocks v. Juncken (1947) 74 CLR 277). Whatever may have been the position prior to 1700 (see Sir Harris Nicolas, A Treatise on the Law of Adulterine Bastardy (1836), pp.1-121) the eighteenth and nineteenth century cases established that the common law presumption was not irrebuttable. It was however an extraordinarily strong one. Where the legitimacy of such a child was disputed on the ground that the husband was not the father, the evidence necessary to rebut the presumption was required to be of such facts and circumstances as were sufficient to prove conclusively that no sexual intercourse took place between the husband and wife at any time when, by such intercourse, the husband could have fathered the child. If the evidence did not establish conclusively the absence of sexual intercourse between husband and wife at any such time, the common law would not permit an inquiry into whether the husband or some other man was more likely to be the father. In such a case, the common law presumption of legitimacy necessarily prevailed. Thus, for example, the fact that the husband and wife in the present case apparently had sexual relations at a time when the child in question could have been conceived would have sufficed to ensure that, at common law, the presumption that the child was a child of the marriage of the parties would have prevailed. (See, generally, Cocks v. Juncken, at pp 294-299; Banbury Peerage Case (1811) 1 Sim &St 153, at pp 158-159, (57 ER 62, at p 64); Morris v. Davies (1837) 5 Cl. &Fin. 163, at pp 215, 252, 265 (7 ER 365, at pp 385, 399-400,404); In re Bromage, Public Trustee v. Cuthbert (1935) Ch 605, at pp 610-612; Piggott v. Piggott (1938) 61 CLR 378, at pp 412-415 and 428-429; P. v. T. (1980) FLC 90-822, at p 75,191 and the Canadian and New Zealand cases referred to in F. Bates, "The Presumption of Legitimacy: A Comparative Analysis of its Modern Operation", Anglo-American Law Review, vol.12 (1983), 78).

12. In that common law context, it is difficult to see any proper basis for denying that the connection between any child of a married woman and the subsisting marriage of his or her mother is such as to warrant characterization as a law with respect to marriage of a provision that such a child, even though in fact ex-nuptial, is, for the purposes of the application of the Act "in relation to (that) marriage", to be deemed to be a child of the marriage. Since long before 1900, the traditional law of this country recognized that the obvious connection between such a child and the mother's marriage was sufficient to give rise to the strong presumption that the child was, in fact, a child of the marriage. In significant respects, the operation and effect of the "deeming" provision of s.5(1)(e)(i) in relation to such a child are more confined than that long-established common law presumption which was of general application and which other sections (see ss.99 and 99A) effectively displace for the purposes of the Act. It is true that the common law presumption was not a conclusive one and that s.5(1)(e)(i) of the Act ignores the presumption and starts with the fact of the child's ex-nuptial status. On the other hand, the effects of the "deeming" provisions of s.5(1) are also essentially provisional in that their operation is confined to "the purposes of (the) application of (the) Act" to the particular marriage and the prima facie rights and obligations, as to custody and maintenance, which arise from that application are liable to be extinguished or overridden by order of the Family Court. Overall, it appears to us that the connection between a child of a married woman, even though in fact ex-nuptial, and the mother's marriage is sufficient to sustain characterization, as a law with respect to marriage, of the provision that such a child is to be deemed to be a child of the marriage for the purposes of the application of the Act to that marriage. The added requirement that the child must have been ordinarily a member of the household of the parties to the marriage when they last cohabited (up to the institution of proceedings) serves to reinforce that conclusion.

13. It follows that the provisions of s.5(1)(e)(i) of the Act would, in our view, be within the legislative power of the Parliament with respect to marriage if they were confined to the class of child involved in the present case, namely, a child of the wife born during the period of the marriage. On the other hand, Re Cook establishes that the provisions of the sub-paragraph are not within that legislative power to the extent that they extend to an ex-nuptial child of the husband or wife born before the marriage. Obviously, the connection between an ex-nuptial child of the husband and the marriage, where there is no room for the operation of any common law presumption that the child is a child of the marriage, is far less compelling than in the case of an ex-nuptial child of the wife. The question arises whether the provisions of par.(e)(i) can be read down to refer only to children born during the subsistence of the marriage and whether, even if the operation of the paragraph were to be found to be invalid to the extent that it relates to a child of the husband, it can nonetheless be sustained in so far as it relates to a child of the wife.

14. The previous decisions of this Court have correctly proceeded on the basis that, for the purposes of constitutional validity, the different paragraphs and sub-paragraphs of s.5(1) are to be construed distributively in the sense that the invalidity of any one of them will not affect the validity of others. Thus, it has never been, and could not properly be, suggested that the decision in Cormick that s.5(1)(f) was invalid of itself involved the consequence that any of the other paragraphs or sub-paragraphs of s.5(1) was also invalid by reason of inseverability. In our view, there can be discerned in the the structure and context of s.5(1) a clear legislative intent that the operation of the sub-section in respect of different classes of children should be treated as severable so that the validity of the operation of the sub-section in respect of any identified class of children should not be affected by the invalidity of the operation of the section in respect of any other class. In that context, the reference in s.5(1)(e)(i) to an ex-nuptial child of the wife should plainly be construed as severable, for the purposes of constitutional validity, from the reference to an ex-nuptial child of the husband with the result that the former can stand regardless of the validity or invalidity of the latter. Equally plainly, the reference to the ex-nuptial child of the wife should, in accordance with s.15A of the Acts Interpretation Act 1901 (Cth) and in the light of the decision in Re Cook, be read down to refer only to an ex-nuptial child of the wife born during the period of the marriage. That being so, the provision of s.5(1)(e)(i) is, to the extent of its application to a child of the wife born during marriage, a valid enactment pursuant to the provisions of s.51(xxi). It is unnecessary to consider whether the provision of the sub-paragraph could, at least to that extent, also be justified as a valid law by reference to s.51(xxii) of the Constitution.

15. As we have indicated, we have, in considering the validity of the operation of s.5(1) in relation to an ex-nuptial child of the wife born during the marriage, accepted the previous decisions of the Court, to which reference has been made, as precluding the approach that, for the purposes of the application of the custody provisions of the Act, the "deeming" provisions of s.5(1) are wholly within the marriage power in that, viewed in the context of those custody provisions, they directly operate upon or affect "Marriage". We should, however, indicate that, as at present advised, we would not be prepared to accept those previous decisions as excluding from the ambit of the marriage power a law which, without resort to "deeming" provisions, provided that the rights and obligations of the parties to a marriage arising out of their marriage included, both as between themselves and as against third parties, specified rights and obligations in relation to custody of any child coming within one or more of the descriptions contained in the various paragraphs of s.5(1). As we presently see the matter, such a law would, if it made clear that the relevant rights and obligations arose out of, and by reference to, the marriage relationship, be a law which directly operated upon and affected "Marriage" and, as such, would necessarily be within the primary scope of the marriage power. In that regard, we can do no better than quote from the judgment of Taylor J. in The Marriage Act Case, at pp.560-561: "the full measure of the legal effect of a marriage can be determined only by reference to the rights duties and obligations, which, by law, arise out of the relationship and I can see no reason why a constitutional power to make laws with respect to the subject matter of 'Marriage' should not be thought to authorize laws defining or modifying and re-defining the legal incidents of the relationship" (see also Menzies J., at p.574).

16. The order nisi for prohibition and certiorari should be discharged.

WILSON J.: In my opinion, s.5(1)(e)(i) of the Family Law Act 1975 (Cth) cannot be upheld as a valid exercise of the legislative power conferred either by s.51(xxi) or s.51(xxii) of the Constitution. It is beyond the power of the Parliament, with the object of enlarging the jurisdiction of the Family Court of Australia, to deem an ex-nuptial child of one of the parties to a marriage to be a child of the marriage even though at the relevant time the child was ordinarily a member of the household of the husband and wife. I agree generally with the reasons advanced in support of that conclusion by both Brennan J. and Dawson J. in the present case and I do not wish to add anything.

2. I would make absolute the order nisi for prohibition and certiorari.

BRENNAN J.: In proceedings between a husband and wife in the Family Court of Australia, Cook J. made an order on 23 January 1984 awarding to the husband the custody and guardianship of Y.F. "the child of the marriage". The wife had given birth to Y.F. during the marriage and the presumption of legitimacy warranted a finding by the Family Court that the child was a child of the marriage. The wife did not contest the husband's application for the order. Since the order was made, blood tests of husband, wife and child have been taken and those tests have established that the husband is not the father of the child. In her affidavit, the wife deposes that another man is the father of the child. It was not suggested that the wife's evidence is not receivable to prove that Y.F. is an ex-nuptial child. The husband did not appear in this Court but it is said that he accepts that he is not the father of the child. At all events, it is now clear that Y.F. is not a child of the marriage by birth.

2. The finding made by the Family Court that Y.F. is a child of the marriage does not preclude this Court in proceedings under s.75(v) of the Constitution from finding that Y.F. is not a child of the marriage if that finding determines whether the Family Court exceeded the constitutional limits of its jurisdiction: see Re Ross- Jones; Ex parte Green (1984) 59 ALJR 132, at pp 144-145; 56 ALR 609, at pp 630-631, and the cases there cited. Relying on the evidence of the blood tests, the wife obtained an order nisi calling on Cook J. and the husband to show cause why a writ of prohibition should not issue prohibiting any further proceeding on the husband's application for custody of Y.F. and removing into this Court to be quashed all current orders made by the Family Court relating to the custody of or access to the child Y.F.

3. The Commonwealth of Australia, intervening to support the jurisdiction of the Family Court to make the order, relies upon the extended definition of "child of the marriage" contained in s.5(1)(e) of the Family Law Act 1975 (Cth) ("the Act") in conjunction with par.(cb) of the definition of "matrimonial cause" in s.4(1) to establish the Family Court's jurisdiction to make an order for the custody and guardianship of Y.F. though she was not born of the union of husband and wife. Paragraph (cb) of the definition of "matrimonial cause" reads -

" proceedings between the parties to a marriage with respect to the custody, guardianship or maintenance of, or access to, a child of the marriage;"

Section 5(1)(e) provides -

" For the purposes of each application of this Act in relation to a marriage -

(a) ...

(b) ...

(c) ...

(d) ...

(e) a child of either the husband or the wife, including -

(i) an ex-nuptial child of either of them; and

(ii) a child adopted by either of them (whether alone or together with another person or other persons),

if, at the relevant time, the child was

ordinarily a member of the household of the husband and wife; and

(f) ...

shall be deemed to be a child of the marriage ..."

The evidence in this application tends to show that Y.F. is a child who falls within the description contained in s.5(1)(e)(i). At least, the prosecutrix' evidence falls short of showing that Y.F. is not a child who falls within that description. If s.5(1)(e)(i) is within the legislative power of the Parliament by virtue of either par.(xxi) or par.(xxii) of s.51 of the Constitution, the order nisi should be discharged; if it is beyond power the order nisi should be made absolute, for Y.F. is not a child who falls within the description in any other paragraph of s.5(1).

4. Section 5(1)(e)(i) operating in conjunction with par.(cb) of the definition of "matrimonial cause" in s.4(1) and ss.39 and 40 confers on the Family Court exclusive jurisdiction to make an order in proceedings between husband and wife for the custody or guardianship of a child who is an ex-nuptial child if, at the time when the husband and wife last lived together, that child was an ordinary member of their household. I have recently expressed in Re Cook; Ex parte C. (1985) 59 ALJR 669; 60 ALR 661, my reasons for holding that the operation of those provisions is not supported by the marriage power (par.(xxi)) and I adhere to those reasons.

5. "Marriage" as a subject of legislative power embraces those relationships which the law (leaving aside statutes enacted in purported exercise of the power) recognizes as the relationships which subsist between husband, wife and the children of the marriage. Statutes enacted in purported exercise of the power cannot extend the scope of the power: only those relationships which are already embraced within the subject are amenable to regulation by a law enacted in exercise of the power. The subject does not embrace the relationship between, on the one hand, the spouses and, on the other, a child born of an extra-marital association of a spouse with another person. To treat such a child as a child of the marriage of the spouses when he or she has not been adopted by them is to exclude or diminish the relationship between the child and the parent who is not one of the spouses. There is a web of obligations owed to, rights in respect of and authority over a child shared by the child's parents and there are reciprocal rights possessed by and duties owed by a child to his or her parents. The legal obligations of the child's parents to the child and their respective rights in respect of and authority over the child are inconsistent with the contemporaneous existence in the spouses of similar obligations, rights and authority, even if one of the parents is one of the spouses. The totality of the obligations, rights and authority shared by the child's parents and the reciprocal rights possessed by and duties owed by the child to his or her parents are not abrogated by the marriage of one parent to another person, unless the child is adopted by the spouses. Then the adoptive parents take the place of the natural parents. Even if the child lives with the spouses and is cared for by them, he or she does not become and, unless adopted, cannot become a child of the marriage. The familial identity of a child is not amenable to change by a marriage entered into by either of his or her parents to a person who is not the other parent.

6. If one keeps steadily in mind that laws with respect to custody and guardianship of children of a marriage are within the marriage power because those laws affect the nurture of the children of the marriage, one perceives more clearly that it is the status of a child of the marriage, not the rights of the spouses inter se, which brings the custody and guardianship of the child within the legislative power. The rights of the spouses inter se with respect to property is a matter falling within the marriage power, but the rights of the spouses inter se in respect of the child are not analogous to their respective rights to property: the primary effect of an order for the custody or guardianship of a child is experienced by the child rather than by either parent. Children who are not children of the marriage do not attract the support of the marriage power to laws governing their custody and guardianship.

7. Construing the power in this way, there is no room for finding a connexion between the custody and guardianship of children who are not children of a marriage and the marriage power sufficient to give to a law providing for the custody and guardianship of such children the character of a law with respect to marriage. In the practical application of the Act, that approach yields a result as satisfying as the nature of the jurisdictional problem permits. If the jurisdiction of the Family Court over children who are not children of the marriage by birth, legitimation or adoption depended on the extent to which the spouses cared for such children in their household, litigation on jurisdictional facts would sometimes extend or even duplicate litigation on the merits - a spectre which no civilized system of family law could properly contemplate. When jurisdiction over the custody and guardianship of some children is vested exclusively in the Family Court and jurisdiction over the custody and guardianship of other children is vested in the Supreme Courts or other courts, it is desirable that the criterion for determining the classes of children falling under the jurisdiction of one court or the other should be susceptible of application without the need to find the extent of the nurturing accorded by each spouse to a child in their care.

8. However, it does not dispose of this case to hold that the operation of s.5(1)(e)(i) in conjunction with par.(cb) of the definition of "matrimonial cause" is not supported by s.51(xxi). The Commonwealth seeks to support s.5(1)(e)(i) by the divorce and matrimonial causes power (par.(xxii)) which is submitted to be wider in scope than par.(xxi). By par.(xxii) the Parliament is empowered to make laws with respect to -

" Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:"

Paragraph (xxii) was not an available source of power in Re Cook; Ex parte C. but in this case it is an available source of power. The husband and wife have been divorced, the decree nisi having become absolute on 9 February 1985. The decree declared that the Court was satisfied that proper arrangements in all the circumstances had been made for the welfare of the child.

9. Paragraph (xxii) does not confer power to make laws with respect to the custody and guardianship of infants generally. A valid law of the Commonwealth with respect to custody and guardianship of infants can be made pursuant to par.(xxii) only when the custody and guardianship of an infant is related to divorce and matrimonial causes. The requirement of that relationship and the complementary nature of the powers conferred by pars.(xxi) and (xxii) show that the classes of infants for whose custody or guardianship a par.(xxii) law may provide are limited.

10. The powers conferred on the Parliament by pars.(xxi) and (xxii) are, of course, distinct and cumulative powers. Nevertheless, it would be curious if the classes of infants whose custody and guardianship might be the subject of a valid law under par.(xxii) were different from the classes of infants whose custody and guardianship might be the subject of a valid law under par.(xxi). There is nothing in the text of pars.(xxi) and (xxii) nor in the nature of the powers which those paragraphs confer to suggest that there is a difference between the classes of infants for whose custody and guardianship a valid law might be made under one paragraph or the other. Together pars.(xxi) and (xxii) confer power to make laws with respect to marriage, causes arising out of marriage, and dissolution of marriage by divorce. If the marriage power does not support a law with respect to the custody and guardianship of infants who are not children of a marriage by birth, legitimation or adoption, what ground can there be for thinking that the custody and guardianship of other classes of infants might be the subject of a law made under par.(xxii) merely because their custody and guardianship is "in relation" to a divorce of husband and wife or to a matrimonial cause between them?
If par.(xxii) is wider in scope than par.(xxi), the
rights, obligations and authority of the natural parents of ex-nuptial children might be amenable to affection by a law made under par.(xxii) when the marriage of one of the parents is dissolved, but would not be amenable to affection by a law made under par.(xxi) when one of the parents marries a third party. So adventitious an operation can hardly be attributed to par.(xxii).

11. The inclusion in par.(xxii) of the phrase "parental rights" is an indication that the classes of infants whose custody and guardianship may be the subject of a law made under that paragraph are the children of the marriage which is dissolved by the divorce or out of which the matrimonial cause arises. The parties to that marriage are the parents of the children of the marriage who are the subject of the "parental rights" mentioned in par.(xxii). The grant of power to make laws with respect to "parental rights, and the custody and guardianship of infants" ensures that those matters which fall within the marriage power at least for so long as the marriage subsists fall within the power conferred by par.(xxii) when the marriage is dissolved by divorce or when the marriage relationship is affected by an order made in a matrimonial cause.

12. The dissolution of a marriage by divorce destroys the familial relationship which embraced the web of parental rights, obligations and authority and the reciprocal rights and obligations of the children of the marriage. A new order of rights, obligations and authorities necessarily arises when the marriage is dissolved. Paragraph (xxii) empowers the Parliament to make laws providing for the regulation of those rights, obligations and authorities when the marriage is dissolved. It is the children of the marriage by birth, legitimation or adoption for whose custody and guardianship a law made under par.(xxii) may provide.

13. I would hold that the classes of infants whose custody and guardianship may be provided for by laws made under par.(xxii) are no larger than the classes of infants whose custody and guardianship may be provided for by laws made under par.(xxi). Under either paragraph the power is limited to the making of laws with respect to the custody and guardianship of children who are children of the relevant marriage by birth, legitimation or adoption.

14. It follows that par.5(1)(e)(i) of the Act is wholly invalid and the order nisi for prohibition should be made absolute.

DAWSON J.: The question which arises in this case is whether s.5(1)(e)(i) of the Family Law Act 1975 is a valid exercise of Commonwealth legislative power. The relevant provisions of the Constitution are s.51(xxi) (the marriage power) and s.51(xxii) (the matrimonial causes power). Section 5(1)(e)(i) of the Family Law Act provides:

"For the purposes of each application of this Act in relation to a marriage -

...

(e) a child of either the husband or the wife, including -

(i) an ex-nuptial child of either of them, ...

if, at the relevant time, the child was ordinarily a member of the household of the husband and wife,

...

shall be deemed to be a child of the marriage and a child of the husband and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage."

2. The parties to the marriage in this case were married on 18 January 1977. A child was born to the wife on 16 June 1982 who, upon the results of blood tests which have been carried out, cannot be the child of the husband. The husband does not dispute the results of the blood tests nor does he allege that he is the natural father of the child. The husband and wife separated in April 1983 and "the relevant time" for the purposes of s.5(1) was, as defined by s.5(2), immediately before the separation. At that time the child was ordinarily a member of the household of the husband and wife. Proceedings were instituted by the wife against the husband claiming custody of, or at least increased access to, the child. For these proceedings to be a matrimonial cause, and thus within the jurisdiction of the Family Court under s.31(1) and s.39(1) of the Family Law Act, they must be proceedings with respect to a child of the marriage within the meaning of par.(cb) of the definition of "matrimonial cause" contained in s.4(1). Since the child is not in fact a child of the marriage, par.(cb) can only apply if s.5(1)(e)(i) is a valid provision and deems it to be a child of the marriage.

3. In In the Marriage of Cormick; Salmon (Respondent) (1984) 59 A.L.J.R. 151; 56 A.L.R. 245, this Court held, in an application by maternal grandparents for the custody of their daughter's ex-nuptial child, that s.5(1)(f) of the Family Law Act was invalid. That provision, if it had been valid and had applied, would have deemed the child to be a child of the marriage of the grandparents because it was treated by the grandparents as a child of their family and was ordinarily a member of their household. The reason why the provision was held by the majority to be invalid appears from the judgment of the Chief Justice at p.153; p.248 of A.L.R., where he observes that:

"... the Parliament cannot, under the marriage power, enact a law which provides for the adjudication of a dispute between persons who are not and never have been married, when the child whose custody or guardianship is in issue is not a child of any marriage. It is immaterial that in such a case one of the parties to the dispute happens to be married (although not to the other disputant), since the rights claimed do not arise out of the marriage relationship, and the fact that the claimant happens to be married is merely incidental. The connection between the marriage and the law in such a case is far too tenuous and insubstantial."

As I understand the decision in Cormick, s.5(1)(f) was invalid because, in conjunction with par.(ce) of the definition of "matrimonial cause", it would have purported, in conjunction with other provisions, to confer jurisdiction upon the Family Court to determine rights and obligations with respect to the child as between the grandparents and the unmarried mother which were unconnected in any sufficient way with any marriage. The decision was, I think, limited to the facts of the case, because earlier at p.152; pp.247-248 of A.L.R., the Chief Justice, with whom Mason J., Wilson J., Deane J. and I agreed, left open the question whether it would be within power for the parliament to define the rights and duties of the parties to a marriage, as between themselves, with respect to a child who is not a child of the marriage.

4. The decision in Cormick was consonant with the view which I held at the time (and which I would still favour if I were not constrained by later authority) that a law purporting to allow rights of custody to be conferred upon the partners to a marriage otherwise than as between themselves, is not a law with respect to marriage. Custody, according to the view which I took, is a broader subject than marriage and a law with respect to marriage cannot exhaust it. This was a position which I explained in V v. V (1985) 59 ALJR 607; 60 ALR 522, but I was in dissent in that case and I think that the decision of the majority clearly proceeds upon the basis that the power of parliament to legislate under the marriage power with respect to the custody of a child of a marriage extends beyond the regulation of the rights of the partners to the marriage inter se. How far it extends beyond that point remains somewhat problematical because it was made clear enough in Reg. v. Lambert; Ex parte Plummer (1980) 55 ALJR 71; 32 ALR 505, that jurisdiction cannot validly be conferred on the Family Court to make an order for custody which prevails against the whole world. The Family Court cannot, for example, be validly authorized to make a custody order which prevails against the criminal law of a State or a law giving to a State official the care and control of a child for the purpose of its care and protection. But it is clear from V v. V that parliament may by a law with respect to marriage make provision for the custody of a child which has an effect beyond the rights of the parties to a marriage inter se. Thus it was held in that case where a grandmother was seeking an order for access to an adopted child of the marriage between her son and daughter-in-law, that jurisdiction was validly conferred upon the Family Court because the claim by the grandmother, although it could not affect the rights of the parents inter se, could affect the rights and obligations in respect of the child which flowed from the marriage relationship.

5. In Re Cook; Ex parte C (1985) 59 ALJR 669; 60 ALR 661, proceedings were instituted by the maternal grandparents seeking custody of a child born to their daughter when she was unmarried. The daughter had subsequently married but the child at the age of eleven years had run away to live with the grandparents. Reliance was placed by the grandparents upon s.5(1)(e)(i) in conjunction with par.(ce) of the definition of matrimonial cause but it was held that the former provision was not validly enacted except, perhaps, in so far as it may enable the rights and duties of the parties to a marriage in relation to an ex-nuptial child of either of them to be defined as between themselves. This appears from the judgment of the Chief Justice, with whom Wilson J. and I agreed (on my part being compelled by the decision in V v. V to abandon the position which I maintained in that case). At p 671; p 664 of ALR, he said:

"A law regulating the rights and duties of the parties to a marriage (at least vis-a-vis strangers to the marriage) with respect to the guardianship, custody and maintenance of children is a law with respect to marriage only if the children have the status of children of the marriage, through birth, legitimation or adoption ..."

See also Mason J. at p.671; p.665 of A.L.R.

6. It is, of course, possible to draw a distinction between the rights of the parties to a marriage to the custody of a child as between themselves and their rights to custody as against strangers when the child is not a child of the marriage. And it is not difficult to see that a law purporting to regulate the rights to custody as against strangers in that situation is not a law with respect to marriage. The child, not being a child of the marriage, provides no connexion with the marriage of the married parties. The marriage, in those circumstances, is merely coincidental and unconnected with the purported exercise of legislative power. It is only if the child is a child of the marriage that there is a connexion between such a law and marriage. The connexion cannot be provided by deeming something to be that which it is not. It is well established that the reach of a legislative power cannot be extended by this means. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the lawmakers, a lighthouse: Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at p 258, per Fullagar J. And a power to make laws with respect to marriage, which extends to the custody of the children of a marriage because they are the product of the marriage, cannot be extended to the custody of children who are not in fact the children of a marriage merely by deeming them to be so.

7. There is little difficulty in seeing that a deeming provision does not provide the necessary connexion with marriage in proceedings with respect to the custody of an ex-nuptial child between parties who, at least on one side, are not parties to any marriage. The lack of connexion is, perhaps, less obvious in a case which concerns the rights of the parties to a marriage as between themselves to the custody of a child which is not the child of the marriage. Such a case was reserved by a majority in Cormick and Cook for further examination, recognizing that it might be argued that marriage is a relationship which imports mutual rights and duties and that a law providing for the regulation of the rights and duties arising out of marriage - including their creation and enforcement - is a law with respect to marriage. Thus, so the argument would run, a law regulating the right to custody of a child as between husband and wife would be a law with respect to marriage whether or not the child was a child of the marriage, at least if the child was a member of the household of the husband and wife.

8. However, in my view further examination does not sustain the argument, which fails to recognize that a law which purports to regulate the rights and duties of the partners to a marriage may nevertheless do so quite outside the marriage relationship and apart from it and therefore not be a law with respect to marriage. The fact that the rights and duties in question are between the parties to the marriage does not necessarily produce a connexion with marriage. A child of a marriage is the product of the marriage and it is this fact which provides the connexion between the marriage and a law regulating the rights of the parents to the custody of such a child. An ex-nuptial child is not the child of a marriage and whilst it may be brought into the household of the partners to a marriage, it cannot be brought into the marriage relationship, which is a legal relationship, except by adoption or legitimation. Of course, adoption and legitimation by the parties to a marriage involve the creation of a new status - that of the child of a marriage - by replacing old rights on the part of the natural parents with new rights on the part of the parties to the marriage. It is clear that a law deeming a child to be the child of a marriage for certain purposes does not amount to adoption or legitimation or the equivalent of either.

9. Whilst Cormick and Cook could be decided upon a narrow basis which did not involve consideration of the nature of a law with respect to the rights of the parties to a marriage as between themselves in relation to the custody of a child who was not a child of the marriage, that question does arise in this case. In my view, it is now necessary to recognize that a law purporting to regulate the rights to custody of a child who is not the child of a marriage is not validly enacted under the marriage power in any circumstances. There can be no sufficient connexion between such a law and marriage. This was the view expressed by Brennan J. in Cormick when he said at p.155; p.253 of A.L.R.:

"The status of children as children of a marriage is the factor which attracts the support of the marriage power to a law which regulates the rights and duties of husband and wife in respect of those children and provides for the enforcement of those rights and duties. But the rights and duties of husband and wife in respect of children who do not enjoy the status of children of their marriage - whether by birth, by legitimation or by adoption - are not, in my opinion, amenable to regulation by a law for which the marriage power alone provides support."

With respect, I consider that to be a correct statement of the law and to be determinative of this case in so far as reliance was placed upon the marriage power.

10. It was also submitted that s.5(1)(e)(i) could be supported by the matrimonial causes power which enables the parliament to legislate with respect to "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". "Divorce and matrimonial causes" include everything incidental to those topics but were, apparently, thought insufficient to include the custody and guardianship of infants without further express provision: Lansell v. Lansell (1964) 110 CLR 353, at p 359. "Divorce" is clear enough. "Matrimonial causes" do not include all causes between husband and wife, but those matters which are subsidiary and consequential to marriage and divorce, such as judicial separation, restitution of conjugal rights, nullity of marriage, and jactitation of marriage: Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), at p.611; Lansell at pp.367-368. It was argued that the word "infants" is not of itself confined to the children of a marriage and that it was intended to bear a broad meaning so that the legislature might, in the event of a divorce or other matrimonial cause, provide for the custody and guardianship of all children, not only the children of the marriage, who might be affected by the proceedings. Essentially the argument adopts the view expressed by Murphy J. in Cormick. That view may have an initial plausibility but upon closer examination it cannot, with respect, reflect the intention of those who framed this head of legislative power. The words used must be given as broad a construction as is consistent with that intention but, in accordance with proper principles of interpretation, they cannot be given a meaning which is inconsistent with the intent merely because they are capable of bearing a wider meaning.

11. If it was the intention that the parliament should be empowered to provide for the custody and guardianship of all children forming part of the household of partners to a marriage or otherwise capable of being affected by proceedings between them, then it is anomalous that its power should have been restricted by reference to the event of divorce or a matrimonial cause, particularly having regard to the inherent limitation of the preceding power, the marriage power, to the relationship of marriage and matters incidental to it. Moreover, it is not possible to explain satisfactorily why, if "infants" include children who are not the children of a marriage and whose custody or guardianship may involve the rights of natural parents, the right to make laws with respect to that subject should arise only in relation to divorce or matrimonial causes which are confined to the parties to the matrimonial conflict. The words "parental rights" in relation to divorce and matrimonial causes clearly do not extend beyond the children of the relevant marriage and it would be a curious combination of words if the custody and guardianship of infants were not similarly confined. The use of the word "infants" rather than "children" may be explained by an intention to exclude adult children.

12. But in my view the fundamental reason why the matrimonial causes power cannot have the meaning contended for is that it, as well as the marriage power, is concerned with the relationship of marriage, albeit its breakdown, and the custody and guardianship of children who are not the children of the relevant marriage are matters which, because they lie quite outside that relationship and apart from it, are not "in relation" to it. That is why, in my view, the custody and guardianship of infants who are not the children of a marriage cannot be in relation to a divorce or a matrimonial cause arising from that marriage.

13. It is for these reasons that I think that s.5(1)(e)(i) of the Family Law Act is beyond the power of the parliament and can have no valid operation.

14. I would make the order nisi for prohibition absolute.

Orders

Make absolute the order nisi for writs of prohibition and certiorari directed to the Honourable Adrian George Hingston Cook prohibiting him from proceeding further in Matter No. S.6574 of 1983 in the Family Court of Australia and quashing all current orders made by that court relating to the custody of or access to the child Y.F.

Order that the Attorney-General for the Commonwealth pay the prosecutrix's costs in this Court.

Citations

Re F; Ex parte F [1986] HCA 41

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