Re LSH; Ex parte RTF
Case
•
[1987] HCA 53
•3 November 1987
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
Mason C.J., Wilson, Deane, Dawson and Gaudron JJ.
L.S.H. Ex parte R.T.F. and ANOTHER
(1987) 164 CLR 91
3 November 1987
Family Law
Family Law—Family Court—Jurisdiction—Child of marriage—Child adopted by others—Ceasing to be child of first marriage—No power left in Court over custody, access and guardianship of child qua first marriage—Family Law Act 1975 (Cth), ss. 5(1)(e), 61(3). Family Law—Family Court—Jurisdiction—Statutory preservation of independent operation of State welfare laws and orders—Effect on powers of Family Court—Family Law Act 1975 (Cth), s. 10. Family Law—Family Court—Jurisdiction—To grant injunctions—Circumstances arising out of marital relationship—Otherwise by way of interlocutory relief—Whether extending to restrain adoption application by third party under State law—Family Law Act 1975 (Cth), s. 114—Adoption of Children Act 1967 (S.A.), s. 27.
Decisions
MASON C.J. This application for prohibition and certiorari, which Brennan J. directed should be argued before a Full Court, questions the validity of interlocutory injunctions granted at the suit of a father seeking custody and, in the alternative, access to his child, restraining the mother of the child and her new husband from proceeding further with their application under State law for adoption of the child. The mother and the step-father of the child, who are the prosecutors, present the application on two grounds. The first is that the Family Law Act 1975 (Cth) does not authorize the grant of an injunction restraining an application for adoption under State law. The second is that, to the extent that it confers such power, the Family Law Act exceeds the legislative power of the Parliament of the Commonwealth.
2. The prosecutor J.E.F. and the respondent L.S.H. were married on 28 March 1981. There was one child of the marriage born on 2 July 1981. The parties separated on 3 July 1982. Custody of the child was granted to the mother by order of the Family Court on 5 October 1982. By a later order made on 29 July 1983 the Family Court granted the father access to the child for not more than two hours each week at the Counselling Section of the Court and required the preparation of a Court Counsellor's report. The report dated 26 August 1983 recommended that further access be not granted. The father has not enjoyed access since that date.
3. The prosecutors were married on 3 August 1985. On 24 February 1986 they applied under the Adoption of Children Act 1967 (S.A.) (the "Adoption Act") for an order for adoption of the child. They also applied under s.27 of the Adoption Act for an order dispensing with the consent of the father to the adoption.
4. On 13 May 1986 the father applied to the Family Court for orders restraining the prosecutors from proceeding with their application and for an order granting custody, and, in the alternative, access. At the hearing of the father's application before McGovern J. on 30 May 1986 the father and the mother were represented. There was no appearance for the step-father. McGovern J. ordered that the father and the mother attend a conference with a Court Counsellor and, in the event that the conference was unsuccessful, that a Court Counsellor's report be prepared on one or more occasions of supervised access. His Honour also made the interlocutory orders which are the subject of the present proceedings, restraining the mother and the step-father from proceeding with their adoption application. The mother and the step-father appealed to the Full Court of the Family Court against the orders made by McGovern J. except in so far as they required the holding of the conference and the making of the report. The appeal is pending. If it were not for the present proceedings the outcome of the appeal would appear to be pre-determined by the Full Court's decision in In the Marriage of Kent and Pigot (1982) 8 Fam LR 537. There the Full Court (Asche, Pawley and Emery S.JJ.) held that the Family Court, when dealing with an application by one spouse for access to a child of the marriage, had jurisdiction to grant an injunction restraining the other party to the marriage from proceeding with an application for adoption of the child in the County Court of Victoria.
5. The Family Law Act invests the Family Court with jurisdiction with respect to matters arising under that Act in respect of which matrimonial causes are instituted under that Act: s.31(1). The definition of "matrimonial cause" in s.4(1) of the Family Law Act specifies various proceedings in which the Family Court has jurisdiction with respect to matters arising under that Act. The definition includes:
"(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;
...
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ..."
6. Section 114 of the Family Law Act, so far as it is material, provides:
"(1) In proceedings of the kind referred to in paragraph (e) of the definition of 'matrimonial
cause' in sub-section 4(1), the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate, including -
...
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court thinks appropriate."
7. Section 114 begins in sub-s.(1) by making specific provisions for the types of orders and injunctions which may be granted in proceedings falling within par.(e) of the statutory definition of "matrimonial cause" in s.4(1), that being the one paragraph in the definition which describes proceedings by reference to a claim for an injunction. Section 114(3) then authorizes a court exercising jurisdiction in other proceedings, being a matrimonial cause, to grant relief by way of injunction. The draftsman of s.114 may well have thought that, as par.(e) of the definition was expressed in very general terms, it subsumed all matrimonial causes in which injunctive relief is claimed. However, in Perlman v. Perlman (1984) 155 CLR 474, Gibbs C.J. (at p 486) expressed the view that par.(e) should not be read in such a way as to make pars(a), (c), (ca), (cb) and (d) of the definition redundant.
8. I have no need to decide whether this view is correct and, if correct, whether it leads to the conclusion that s.114(1) is incapable of being a source of jurisdiction for the grant of the injunction under challenge in the present case. This is because I take the view that, subject to other questions to be examined later, s.114(3), in association with par.(cb), conferred jurisdiction on the Family Court to grant the injunction. That sub-section enables the Court to grant an injunction in proceedings being a matrimonial cause, other than proceedings falling within par.(e) of the definition, at least when the injunction is ancillary to the relief sought which brings the proceedings within the statutory definition of "matrimonial cause".
9. The fact that the injunction in the present case restrained the male prosecutor who was a stranger to the first marriage, as well as the mother of the child, from proceeding with the adoption application, raises once again for consideration the limits on the Family Court's power to make an order affecting the interests of a third party. It is now well settled that in some circumstances the Family Court has power to make an order or an injunction directed to a third party or which will indirectly affect the position of a third party. On the other hand, an order will not be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which he or she would not otherwise be liable to perform: Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337, at pp 354-355; The Queen v. Ross-Jones; Ex parte Green (1984) 156 CLR 185, at pp 200-202. In the first of these cases Gibbs C.J. pointed out (at p 354) that:
"... it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties."His Honour noted that, if the section operated to prejudice the interests of third parties, it would be necessary to consider its validity.
10. But in some matters, as, for example, questions relating to the custody of, and access to, a child of a marriage, the making of an order against a third party may be essential to the protection and enforcement of the rights and interests of the parties to a marriage or either of them. As I pointed out in The Queen v. Lambert; Ex parte Plummer (1980) 146 CLR 447, at p 466:
"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."Subsequently in In the Marriage of Cormick (1984) 156 CLR 170, Gibbs C.J. (with whom Wilson, Deane, Dawson and I agreed) observed (at p.176) that:
"... the law defines the rights of the parties to the marriage to the custody and guardianship of a child of the marriage, not only as between themselves, or between them and the child, but also as against other persons."See Brennan J. (at pp 182-183). See also Vitzdamm-Jones v. Vitzdamm-Jones (1981) 148 CLR 383, at p 414; Fountain v. Alexander (1982) 150 CLR 615, at pp 625-626, 630-631, 646-647; V. v. V. (1985) 156 CLR 228, at pp 232-233. The authorities to which I have referred establish that the marriage power extends to authorizing the Family Court to determine questions of custody of, and access to, the child of a marriage between a party to the marriage and a stranger. See especially V. v. V. (at pp 232-233).
11. It follows that neither as a matter of constitutional power nor as a matter of interpretation of s.114(3) is there any reason for denying to the Family Court power to grant an injunction against a third party by way of ancillary relief for the purpose of protecting and enforcing a right or claim to custody or access under the Family Law Act. But there remains the critical question: Does the Family Law Act authorize the Family Court to grant an injunction restraining a person, in particular a stranger to the marriage of which the child is issue, from making an application for adoption of the child?
12. The answer to this question hinges partly on an examination of provisions of the Family Law Act relating to adoption, on which the prosecutors rely to support their contention that the statute manifests an intention that the powers of the Family Court shall not be exercised so as to interfere with the operation of State laws regulating the adoption of children.
13. It is convenient in the first instance to consider ss.5(1) and 61(3) in conjunction. Section 5(1) provides:
"For the purposes of each application of this Act in relation to a marriage -
(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
...
(e) a child of either the husband or the wife, including -
...
(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
...
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."Section 61(3) provides:
"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."
14. The Solicitor-General for the Commonwealth submits that the word "person" in s.61(3) must be read in the plural as well as the singular (Acts Interpretation Act 1901 (Cth), s.23(b)) and that, so understood, s.61(3) applies only when both adopting parents are not parties to the marriage. The result, so the argument runs, is that an order for custody, guardianship or access continues in force if the child is adopted by one of the parties to the marriage or such a party and a stranger to the marriage. That is certainly not the natural sense in which one would read the sub-section, uninstructed by s.23(b), though the Solicitor-General's argument finds some support in the way in which the provision is expressed. If his argument is rejected, the words which follow the word "adopted" have the effect of terminating orders for custody etc., if the child is adopted by a stranger to the marriage, or by a stranger to the marriage and a party to the marriage but not if the child is adopted by a party to the marriage. However, this result is not so strange or curious as to induce me to depart from the natural reading of the sub-section. It is by no means surprising that the Parliament should provide that such orders should cease to operate once a child, in consequence of adoption by a stranger to the marriage, even jointly with a party to the marriage, becomes a member of a step-family. The Solicitor-General relies on a report by the Step-families Sub-committee of the Family Law Council (Cinderella Revisited: Rights and Responsibilities in Step-families (1986)) to support the view that adoption is an inappropriate means by which to resolve the status and relationships of a child who becomes a member of a step-family. It seems to me that neither this report nor the modern thinking which it represents should influence the interpretation of the sub-section.
15. Section 5(1) confirms the interpretation of s.61(3) which I favour. Section 5(1) proceeds on the principle that a child of a marriage, upon its adoption by another person or other persons, ceases in law to be a child of that marriage. The effect of this provision is that the Family Court thereafter lacks jurisdiction to determine questions of custody, access and guardianship relating to the child on the footing that it is a child of that marriage. The child is no longer a child of that marriage for all purposes under the Family Law Act.
16. Both ss.61(3) and 5(1) indicate that an adoption of a child under State law is accepted without any qualification for the purposes of the Family Law Act. The two provisions also indicate that the Family Court has no jurisdiction to make any order which would affect an adoption or the status of a child as an adopted child except in so far as the Court has jurisdiction to determine custody, guardianship and access in relation to such a child as the child of a marriage. To say this stops short of saying that the two sub-sections evince an intention that the process of adoption under State law is immune from interference by Family Court order or injunction. Whether the Family Law Act, viewed in its entirety, evinces such an intention is a question to be still considered.
17. Before addressing this question, I should refer to a submission made by the prosecutors which is based on s.10(2)(a) of the Family Law Act. This sub-section provides that nothing in that Act and no decree under that Act should affect the jurisdiction of a Court, or the power of an authority under State law, to make an order, or take action whereby a child is placed under the guardianship or the care and control of an officer of an adoption agency approved under a law of the State. Section 27 of the Adoption Act gives jurisdiction to the Adoption Court of South Australia to determine whether the consent of the natural father of the child should be dispensed with. If the Adoption Court of South Australia makes such a determination, the consequence is that the child is placed under the guardianship of a State officer, the Director-General of Community Welfare, pending the final determination of the application for adoption. The submission is that s.10(2) of the Family Law Act precludes the making of an order which would affect the jurisdiction given to the South Australian Court by s.27 of the Adoption Act.
18. The answer to the prosecutors' submission is that it is the object of s.10(1), not s.10(2), to limit the powers of the Family Court to make orders for maintenance, custody and guardianship of a child who, under State law, is under the guardianship or the care and control of the State or an officer of an adoption agency approved under State law. The prohibition in s.10(1) is in any event subject to s.10(3) which empowers the Family Court to make an order of the kind referred to in s.10(1) if satisfied that there are special circumstances that justify the making of the order. The function of s.10(2) is not to limit the Family Court's power to make orders but "to preserve the independent operation of State child welfare laws and of orders" 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 a State Minister or officer or an officer of an adoption agency approved under State law: The Queen v. Demack; Ex parte Plummer (1977) 137 CLR 40, at p 54.
19. Section 10 protects State child welfare laws and orders made under such laws only in so far as those laws provide for, or result in, the making of an order 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 a State Minister, a State officer or an officer of an adoption agency approved under the law of a State. That section is not expressed to protect State child welfare laws generally and orders for adoption made under those laws. There is nothing in s.10(1), or in s.10(2), which prohibits the Family Court from making an order for custody in relation to a child adopted under State law. That is a matter dealt with by ss.5(1) and 61(3). Nor is there anything in ss.10(1) and 10(3) which prohibits the Family Court, when considering questions of guardianship, custody and access, from granting an injunction restraining a party from proceeding with an application for adoption under State law.
20. The absence of any express provision in the Family Law Act dealing with the critical question - whether the Family Court has power to make an order restraining an application for adoption under State law is perhaps an argument for saying that the making of such an order falls within the general words of s.114(3). However, it seems to me that the way in which the Family Law Act, especially ss.5(1) and 61(3), takes account of adoption under State law points in the opposite direction. Under the Family Law Act the Family Court is not given any role in relation to adoptions. Nowhere does it appear that the Family Court has power to decide whether a child should or should not come under the regime of adoption. Instead the Act appears to recognize that adoption is a matter falling within the province of State and territory courts and authorities.
21. And if Parliament intended that the Family Court had jurisdiction to determine whether a child should remain subject to the regime of custody and access under the Family Law Act or be liable to adoption under State law, one would expect the Family Law Act to evince a clear intention to that effect. After all in Australia guardianship, custody and access on the one hand and adoption on the other hand traditionally have been separate and independent regimes, in which the regime of adoption has been immune from interference by courts exercising jurisdiction on matters of guardianship, custody and access. In the absence of a specific statutory provision pointing in a contrary direction, the Family Law Act should be read in accordance with its language as continuing that tradition. It would indeed be curious if the tradition already mentioned were to be overthrown by a statute which does not explicitly address the matter. Accordingly, I do not read the Family Law Act as authorizing the Family Court to grant a permanent order or injunction restraining a party from making an application for adoption.
22. This conclusion does not necessarily dispose of the present matter where an interlocutory injunction was granted. Although the Family Court has no wider jurisdiction to grant an interlocutory injunction than to grant a permanent injunction, that Court, like other courts, has authority to grant an interlocutory injunction and in such terms as may be necessary to preserve the status quo pending determination of its jurisdiction: Ross-Jones; Ex parte Green, at p.202. And it does not matter that the terms of such an injunction travel beyond the terms of any injunction which the Court is empowered to grant by way of final relief. Here, however, the interlocutory injunction was not granted pending a determination of a jurisdictional issue. It was granted by way of interim relief in a case in which final relief in similar terms was sought by the father of the child, the Full Court of the Family Court having previously held in In the Marriage of Kent and Pigot, incorrectly in my view, that the Court had power to grant relief of this kind.
23. For the foregoing reasons the Family Court did not have power to grant the injunction restraining the prosecutors from proceeding with their application for adoption and on this account prohibition and certiorari issue.
WILSON J. In these proceedings the prosecutors (R.T.F. and J.E.F.) apply by notice of motion to a Full Court for:
(a) a writ of prohibition directed to McGovern J., a Judge of the Family Court of Australia ("the Family Court"), the Chief Judge and other Judges of the Family Court prohibiting them or any of them from proceeding further in the application of the respondent L.S.H. in the Family Court numbered A3307 of 1982 to the extent that it is brought against the prosecutors; and
(b) a writ of certiorari directed to McGovern J. quashing the injunctive orders and directions made by the Family Court upon that application on 30 May 1986.
2. The matter arises in this way. J.E.F. was married to the respondent on 28 March 1981. There is one child of the marriage (hereinafter referred to as "the child"). The parties separated on 3 July 1982. On 13 September 1982, the respondent instituted the proceedings numbered A3307 of 1982 for access to the child. Since the parties separated, the child has been in the custody of his mother (J.E.F.). On 29 July 1983, the respondent was granted limited access for a period of three months. However, even limited access was attended with difficulty and on 26 August 1983 a court counsellor recommended against further access. No access has been taken since that date. Thereafter, the marriage was dissolved.
3. On 3 August 1985 J.E.F. married R.T.F. On 24 February 1986 they applied to the Children's Court of South Australia ("the Children's Court") in accordance with the provisions of the Adoption of Children Act 1967 (S.A.), as amended, (the "Adoption Act"), for an order for the adoption of the child. They applied also in accordance with s.27 of the Adoption Act for an order dispensing with the consent of the respondent. The respondent thereupon re-activated the proceedings in the Family Court begun by him in 1982 by applying for orders restraining each of the prosecutors from proceeding with the application for the adoption of the child. He also sought custody of, or access to, the child. On 30 May 1986 McGovern J. granted the injunctions sought by the respondent and made supplementary orders providing for a conference between the parties and for the preparation of a counsellor's report. Subsequently, J.E.F. instituted an appeal from the decision of McGovern J. to the Full Court of the Family Court but that appeal has not yet been heard. The prosecutors, confronted by the decision of the Full Court of the Family Court in In the Marriage of Kent and Pigot (1982) 8 Fam.L.R. 537, have elected to seek prerogative relief in this Court. In Kent and Pigot, Asche S.J., with whose reasons Pawley and Emery S.JJ. agreed, expressed himself to be satisfied that, when dealing with an application by the husband for access to a child of the marriage, the Family Court had jurisdiction to grant an injunction restraining his former wife from pursuing an application for adoption then pending in the County Court of Victoria. His Honour said (at p.540):
"It seems to me that the court's power arises under s.114(1) to: '(m)ake such order or grant such injunction as it thinks proper with respect to the matter (to) which the proceedings relate.' Section 114(1) takes its genesis from s.4(1)(e) in the definition of 'matrimonial cause'. It seems to me that this is a clear case of proceedings between the parties 'in circumstances arising out of the marital relationship'."His Honour continued:
"In Baba and Jarvinen (1980) 6 Fam LR 276 (at
p.281); (1980) FLC 90-882 at 75,575 Nygh J. says: 'In Smith and Saywell (1980) 6 Fam LR 245; (1980) FLC 90-856 the jurisdiction of this court to make an order restraining a party from proceeding in another court was sustained. This court can only take such an extreme step when it is absolutely essential and I would respectfully agree with the statement of the Full Court in Tansell (1977) 3 Fam LR (11,466, at p.11,483); (1977) FLC (90-307, at p.76,633) that the Family Court ought to avoid making orders which in terms restrain a party from continuing with proceedings validly instituted in another court. However, I read that statement not as implying that it shall never be done, but that it ought to be avoided if possible.'
With that statement I would respectfully agree."Being satisfied that there was power to grant the injunction, the Full Court upheld the exercise of discretion on the basis that (at p.542):
"all that his Honour did was in effect to stay the proceedings in the County Court until the parties had an opportunity to use those counselling facilities provided by this court which have so often allowed the parties to resolve their differences peacefully and successfully".
4. The prosecutors, supported by the Solicitor-General for South Australia intervening for the Attorneys-General of South Australia and New South Wales, submitted that on its proper construction the Family Law Act 1975 (Cth), as amended, ("the Act" or "the Family Law Act"), does not confer jurisdiction on the Family Court to restrain persons from applying under a law of a State to adopt a child of a marriage, notwithstanding that the child may be the subject of custody proceedings in the Family Court. The prosecutors argued further that, to the extent that the Act permits such orders to be made, it is beyond the legislative competence of the Commonwealth Parliament because it is not a law either with respect to marriage or with respect to matrimonial causes (Constitution, s.51(xxi) and (xxii)).
5. On the other hand the respondent, supported by the Solicitor-General for the Commonwealth intervening on behalf of the Attorney-General of the Commonwealth, argued that s.114 of the Act confers a wide discretion on the Family Court to grant injunctions, wide enough to encompass the orders made by McGovern J. in the present case. In so doing, the section is a valid law with respect both to the marriage power and the matrimonial causes power. The nexus to the power was said to reside in the fact that the making of an adoption order would terminate the parental status, rights and obligations of the respondent with respect to the child.
6. The Adoption Act outlines the circumstances in which an adoption order may be made and describes the legal effect of such an order. The welfare and interests of the child concerned shall be regarded as the paramount consideration: s.9. Except as provided in s.11, an adoption order must be made in favour of a husband and wife jointly: s.11(1). The spouse of a parent may, solely or jointly with the parent, make an application for an order for the adoption of the parent's child and an order may be made accordingly: s.11(4); in such a case, the spouse shall be deemed to be a parent of the child jointly with the parent as if the child had been born to them in lawful wedlock but, notwithstanding anything contained in s.30 -
(a) the child does not cease to be a child of the parent and that parent does not cease to be a parent of the child; and,
(b) the relationship between the child and that parent is not determined: s.11(5).The court to which an application for adoption is made by any person other than the Director-General of Community Welfare shall cause notice of the application to be given to the Director-General at least three weeks before the hearing of the application: s.16(1). The Director-General or other authorized officer may report in writing to the court and may appear at the hearing and exercise all the rights of a party to the proceedings: s.16(2). Division 2 of Part III of the Adoption Act (ss.21-29) contains detailed provisions concerning the consents to an adoption that must be provided unless that consent is dispensed with in accordance with s.27. Section 29 provides for the guardianship of a child awaiting adoption to vest in the Director-General of Community Welfare to the exclusion of all other persons once all the necessary consents have been furnished or dispensed with, as the case may be. That guardianship continues until an adoption order is made in respect of the child or until some other arrangement, as prescribed by the section, is made. Section 30 provides generally that, upon the making of an adoption order, the relationship of child and parent is established between the child and the adopter or adopters "as if the child had been born to the adopter or adopters in lawful wedlock". The section contains consequential provisions intended to give effect to the fundamental change in the status of the child.
7. I turn now to those provisions of the Family Law Act which, according to the prosecutors, lead to the conclusion that the Act was intended to operate against the background of the adoption laws of the States, with the result that the injunctive powers of the Family Court are not available to restrain access to those laws. The material provisions are as follows:
"5 (1) For the purposes of each application of this Act in relation to a marriage -
(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
...
(e) a child of either the husband or the wife, including -
...
(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 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.
10 (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 -
...
(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;
...
61 (3) 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."
8. These provisions reflect the legal effect of an adoption order. The material provisions of s.5(1) and s.61(3) may be considered together. The prosecutors mounted a discrete argument with respect of s.10(2) and that argument will be considered separately. In the case of an adoptee who formerly was a child of a marriage within the meaning of the Act, s.5(1) declares him or her no longer to have that status. If the adopting parents are married, the Act recognizes the adoptee as a child of that marriage.
9. The proper construction of s.61(3) is not without difficulty. At first sight, it seems to say plainly enough that upon adoption, whether into a step-family or not, the child passes into another regimen. The child no longer possesses a relationship to the marriage of which it was formerly a child. Hence an order in respect of the custody or guardianship of, or access to, the child ceases to be in force. Whether or not the Family Court will continue to be possessed of any jurisdiction with respect to the child will depend upon whether in his new status he is a "child of a marriage" - that is, some other marriage - within the meaning of the Act. However, the Solicitor-General for the Commonwealth argued that s.61(3) reflects a movement away from the traditional "clean break" principle formerly applied to the adoption process, whereby an order for adoption effected a clean break from the past regimen and opened the way to an entirely new relationship. According to the argument, such a principle does not sit well with the significant increase in step-families in Australia. In a family relationship of this kind, there can be no question of a clean break with the past because one of the child's natural parents continues in the role of parent, in association with a step-father or step-mother as the case may be. Furthermore, in such a case, the other natural parent will often still be alive and may well maintain a close and continuing relationship with the child. For a description of the social trends in relation to step-families, see P. Harper, Children in Stepfamilies: Their Legal and Family Status, (1984) and Step-families Sub-committee of the Family Law Council, Cinderella Revisited: Rights and Responsibilities in Step-families, (1986). The last mentioned report describes the present position in Australia in the following terms (at p.7):
"There have been differing responses to the questions surrounding the legal status and relationships of children in step-families. The overwhelming majority of families take no legal steps to clarify or change the legal status of those involved - children, natural parents or step-parents. A small proportion of step-parents and their spouses however have sought to clarify the status of the step-children in their care by means of adoption. While the total number of adoptions in Australia has fallen dramatically over the past ten years, and the number of step-parent adoptions has remained relatively stable or fallen only slightly, step-parent adoptions, as a proportion of total adoptions, have increased significantly and now constitute approximately 50% of all adoptions in Australia."The Sub-committee notes that the use of adoption to clarify or establish the legal status and relationships of the step-child in the step-family is increasingly regarded as inappropriate. It recommends inter alia that, in preference to adoption, step-parents desirous of establishing a legal relationship with their step-child should be encouraged to seek orders for guardianship and/or custody under s.64(2) of the Act and that the custody and guardianship rights of natural parents should remain until a court order is made to the contrary.
10. Against this background, the Solicitor-General for the Commonwealth argued that s.61(3) is itself a departure from the clean break principle. Existing custody, guardianship and access orders in relation to a child are to cease only "if the child is adopted by a person who is not a party to the marriage". The word "person" must, by reference to s.23(b) of the Acts Interpretation Act 1901 (Cth), as amended, be read as comprehending the plural as well as the singular. The result is to apply the sub-section only to the case where both the adopting parents are persons who are not parties to the marriage. It was observed that if the sub-section is not construed in this way then the concluding phrase is entirely otiose; the sub-section could have ended after the word "adopted".
11. On the other hand, the literal meaning of the words of s.61(3) is apt to apply to an adoption into a step-family. In addition, a consideration of the legislative history of the sub-section contributes to an understanding of the legislative purpose expressed therein. When first enacted in 1975, the sub-section commenced with the words "Unless a court having jurisdiction under this Act otherwise orders", thereby reserving to a court the power to continue existing orders in force with respect to a child of a marriage notwithstanding the child's adoption. If that phrase had remained in the sub-section it may have been argued with greater force that it reflected an intention of the legislature to depart from the clean break principle. However, s.21 of amending Act No.63 of 1976 removed that phrase from s.61(3). The amendment was one of a number of major amendments to the Act which followed the decision of this Court in Russell v. Russell (1976) 134 CLR 495. The provision has not been varied since that time. It is difficult in the light of this history to perceive in the present provision a legislative purpose to preserve in operation, in the case of an adoption into a step-family, orders which were made whilst the child was related to a different marriage. Furthermore, it would be remarkable, if the Solicitor-General's argument was correct, that the legislature should have anticipated by a decade - a decade during which Australian social patterns with respect to divorce and re-marriage have undergone fundamental changes which give rise to the increasing significance of step-families - the recommendations of the Family Law Council's Sub-committee. In any event, in my opinion the admitted change in status of a child on adoption that is reflected in the concluding phrase of s.5(1) of the Act renders untenable the construction for which the Solicitor-General contends. See Re Adoption Application No. A83/6507 (1984) 9 Fam LR 1003.
12. The crucial question of construction in the present case is whether, in the course of hearing and determining the respondent's application for custody or access, the Family Court had jurisdiction to restrain the prosecutors from proceeding with their application to the Children's Court for an adoption order. No doubt the restraining orders made by McGovern J. were intended to be interlocutory orders, pending the outcome of the hearing. But counsel for the prosecutors conceded - and the concession was undoubtedly correct - that the Family Court has no wider jurisdiction to grant an interlocutory injunction than it has to grant a permanent injunction. See The Queen v. Ross-Jones; Ex parte Green (1984) 156 CLR 185, at pp 202, 213.
13. It was argued for the respondent that the orders made in the present case were within the powers conferred on the Family Court by s.114(1) (as held in Kent and Pigot), or alternatively, s.114(3) of the Act. So far as material, those sub-sections read:
"114(1) In proceedings of the kind referred to in paragraph (e) of the definition of 'matrimonial cause' in sub-section 4(1), the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate, including -
...
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise ..., in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court thinks appropriate."
14. It is not easy to discern any substantive distinction between the power conferred by each of these sub-sections, but the circumstances which attract the exercise of each are different. The power conferred by s.114(1) is exercisable only by a court which is exercising jurisdiction in proceedings of the kind referred to in par.(e) of the definition of "matrimonial cause" in s.4(1) of the Act. The relevant words of that paragraph read as follows:
"(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ...".It might be said at once that the pending proceedings in the Family Court seek an injunction, not in circumstances "arising out of the marital relationship" but in circumstances where the respondent's former spouse and her new husband have applied to adopt the child of the earlier marriage. But in any event it is necessary to read down the wide words of par.(e) in order that they may accord with their context, because, if they were read without any limitation, they would cover the cases described in pars.(a), (c), (ca), (cb) and (d) of the definition: Perlman v. Perlman (1984) 155 CLR 474, per Gibbs C.J. at p 486 (a decision delivered after the decision in Kent and Pigot). McGovern J. is seized of an application by the respondent for orders for custody of, or access to, the child. Such an application satisfies the description of a matrimonial cause referred to in par.(cb) of the definition in s.4(1) of the Act, namely:
"(cb) proceedings between the parties to a marriage with respect to the custody ... of, or access to, a child of the marriage".In my opinion, therefore, s.114(1) has no relevance to the present problem.
15. The remaining question is whether the restraining orders made by McGovern J. are supported by the power conferred upon the Family Court by s.114(3). In its terms, the sub-section is wide enough to empower the Family Court to make the orders which McGovern J. has made in this case, provided that it should appear to the Court to be just or convenient to do so. The prosecutors argued that the sub-section should be construed so as to preserve consistency with the intention of the legislature with respect to adoptions, as expressed in s.5(1) and s.61(3) of the Act. They also relied upon s.10(2)(a) of the Act, which has already been set out in these reasons. It was argued that, if the injunctions in the present case are allowed to stand, their effect would be to preclude the exercise by the Children's Court of its jurisdiction in dealing with the application of the prosecutors to determine whether the consent of the natural father of the child should be dispensed with. The consequence of an order to that effect, if made, would be to place the child under the guardianship of an officer of the State, namely, the Director-General of Community Welfare, pending the final determination of the application for an adoption order (Adoption Act, s.29). The prosecutors argued that the plain effect of s.10(2) of the Act is that nothing in the Act can affect the jurisdiction of the Children's Court to make such an order. This last proposition is, of course, correct, being no more than a paraphrase of what the sub-section says. But, as at present advised, I am not persuaded that the restraint imposed upon the prosecutors by the orders of McGovern J. affects the jurisdiction of the Children's Court. That jurisdiction remains wholly unimpaired. The effect of the orders is to prevent the prosecutors from taking advantage of it. Nevertheless, if s.10 is read as a whole and construed in the light of Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447, it is wholly supportive of a legislative intention that the Act should operate alongside and without prejudice to the adoption laws of the States.
16. In my opinion, this same intention is clearly reflected in the provisions of s.5(1) and s.61(3), coupled with the absence of any positive indication of a contrary intention. It follows that s.114(3), being an ancillary power in aid of the exercise of the jurisdiction of the court, must be controlled as a matter of construction by the constraints which are to be found elsewhere in the Act. The legislature has not attempted to interfere with the operation of the adoption laws of the States which may lead to a change in the status of a child. If that change occurs, then the Act accepts it and the law applies to the child in his or her new status, provided, of course, that the new status identifies the child as a child of a marriage.
17. If, contrary to my opinion, s.114(3) on its proper construction invests the Family Court with power to restrain, temporarily or permanently, persons from seeking to adopt a child, I would have grave doubts as to its constitutional validity. Having regard to the conclusion I have expressed, it is unnecessary for me to embark on a consideration of that question. It has also been unnecessary for me to consider separately the position of the third party, R.T.F.
18. I would therefore issue writs of prohibition and certiorari. The writs should deal only with the injunctive relief sought against the prosecutors. There is no reason why the Family Court should not proceed to deal with the respondent's application for access and J.E.F. will remain a respondent to that application. No adoption order has yet been made. As I have indicated, the proceedings for access satisfy the description of a "matrimonial cause" contained in par.(cb) of the definition in s.4(1) of the Act. Indeed, it may be that even after the adoption of the child, should such a change in the child's status occur, the Family Court would still have jurisdiction to entertain an application by the respondent for access to the child. This is because, by amending Act No.72 of 1983, the definition of "matrimonial cause" was enlarged to include, inter alia, par.(ce):
"(ce) 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), other than proceedings for the making of an order, or the taking of any other action, of the kind referred to in sub-section 10(2)".The wording of the paragraph is apt to contemplate proceedings which are initiated by a natural parent who is a stranger to a marriage (in the present case, the respondent) against the parties to a marriage (in the present case, the prosecutors) for access to the child of which he or she is a natural parent. But, again, it is unnecessary in the present case to consider that possibility any further.
19. The writ of prohibition should prohibit McGovern J., the Chief Judge and other Judges of the Family Court from proceeding further with respect to the injunctions against the prosecutors granted by McGovern J. The writ of certiorari should be limited to quashing the injunction imposed on each of the prosecutors.
DEANE J. I agree with the judgment of the Chief Justice. The comments which follow are of a merely supplementary character.
2. There are two marriages involved. The child is a child of the first marriage which was between his natural parents. He was born during that marriage which has since been dissolved. He is in the sole custody of his mother under an order of the Family Court. The second marriage is the mother's existing marriage. The parties to that marriage, the mother and her present husband, are the applicants to the Children's Court of South Australia for an order for the adoption of the child. The order restraining the child's mother and her present husband from proceeding with that application for an adoption order was purportedly granted by the Family Court at the suit of the child's father who is applying to the Family Court for an order for custody or access in respect of the child.
3. If the provisions of the Family Law Act 1975 (Cth) ("the Act") had, according to their terms, conferred upon the Family Court jurisdiction to grant the interlocutory relief which it has purported to grant, they would, to that extent, have been within the legislative competence of the Parliament of the Commonwealth. An order for the adoption of the child, if made, would weaken, almost to the point of extinction, any enduring relationship between the child and the first marriage. It would eliminate the status of the child as a child of that marriage for the purposes of the Act and make him a child of the second marriage. The relationship between a marriage and a child of the marriage is an incident of the social and legal institution which constitutes marriage for the purposes of s.51(xxi) of the Constitution (see, generally, Russell v. Russell (1976) 134 CLR 495, at pp 538-539, 547-550). The grant of legislative power to make laws "with respect to" marriage which that sub-section confers would encompass a law conferring upon the Family Court jurisdiction to preserve and protect the relationship between a child and a marriage (in this case the former marriage of the child's natural parents) and the rights and obligations of the parties to that marriage with respect to that child. It would also encompass a conferral of jurisdiction upon the Family Court to create (e.g. by an adoption order), or to prevent the creation of, a new and substitutional relationship between the child and some other marriage (in this case the second marriage of his mother). That being so, a law conferring upon the Family Court jurisdiction to restrain, at the suit of a party to a marriage, an application to a State court for an order of adoption of a child of the marriage by the parties to another marriage would be doubly a law with respect to marriage. It would be a law with respect to the marriage from which adoption, if allowed to proceed, would remove the child. It would also be a law with respect to the marriage in which adoption would instate the child. That being so, the critical question in the present case is not one of legislative competence. It is whether the actual provisions of the Act are, as a matter of ordinary statutory construction, effective to confer jurisdiction to grant such injunctive relief.
4. The Act does not create jurisdiction to make an adoption order. Its provisions operate within the context of the jurisdiction of existing State (and Territory) courts to make such orders. Those provisions expressly accept the adoption of a child under State law as terminating both the status of the child as a child of a marriage to which an adopting parent is not a present partner and any order in respect of custody, guardianship or access which depends upon that status (ss.5(1) and 61(3)). They expressly accord to an adopted child the status of a child of the marriage into which he is adopted (s.5(1)(a)). Indeed, it is true to say that the jurisdiction which the Act confers upon the Family Court is predicated upon and controlled by jurisdictional facts of which adoption orders made by State (or Territory) courts form part. In my view, the wide power conferred upon a court exercising jurisdiction under the Act to grant such injunctive relief as it thinks proper (s.114(1) and (3)) does not extend to enjoining the creation or destruction of the facts upon which its jurisdiction is predicated. It is in that context that I agree with the conclusion of the Chief Justice that the provisions of the Act should, as a matter of construction, be read as not conferring upon the Family Court a substantive power to restrain the other party to a marriage or a stranger from applying to a State court for an order for the adoption of a child of the marriage.
5. The question whether the injunction granted by the Family Court in the present case can be justified on interlocutory grounds is a more difficult one. The Family Court, as a superior court of record, is entitled to determine jurisdictional facts. That being so, the power to grant interlocutory relief to maintain the status quo pending the determination of jurisdictional or other facts may well, on occasion, transcend the limits of the final relief which can be granted once jurisdictional facts have been determined. On balance however, I agree with the Chief Justice that, in the context of the special provisions of the Act deferring to the operation of adoption orders made by State (or Territory) courts, the injunction in the present case cannot be justified on the grounds that it is a grant of interlocutory relief to maintain the status quo.
6. I agree that a writ of prohibition directed to the Family Court should issue pursuant to s.75(v) of the Constitution.
DAWSON J. On 2 July 1981, a child was born to L.S.H. (the father) and J.E.F. (the mother), who had been married on 28 March 1981. The father and mother separated on 3 July 1982, and the child remained with the mother. On 13 September 1982, the father commenced proceedings in the Family Court for an injunction restraining the mother from removing the child from South Australia and seeking an order for access. The injunction was granted on an interim basis and the parties were directed to a conference with a Family Court counsellor. The mother subsequently applied for custody of the child. An order for custody was made in favour of the mother and the father was allowed limited access. On 6 April 1983 the mother applied for an order that access to the child by the father should cease. As a result of that application the Family Court ordered that a court counsellor's report be prepared. The report was presented on 26 August 1983. In effect, the report recommended that the father cease to have access to the child. In fact he did not seek to see the child again for some time, although no order was made to that effect.
2. The father and mother were divorced and on 3 August 1985 the mother married R.T.F. (the second husband). On 24 February 1986 the mother and the second husband applied to the Children's Court of South Australia, which is a court with jurisdiction to hear and determine applications under the Adoption of Children Act 1967 (S.A.), for an order for the adoption of the child. At the same time they applied for an order that the consent of the father to the adoption be dispensed with. The latter application was set down for hearing on 14 May 1986 but the hearing was adjourned on that date. In the meantime, on 13 May 1986, the father applied to the Family Court for orders that the mother and the second husband be restrained from proceeding with their application for adoption of the child. He also sought custody of the child or, alternatively, access to it. On 30 May 1986, McGovern J. made the orders sought by the father restraining the mother and the second husband from proceeding with their application for adoption. He also ordered that the parties attend a conference with a court counsellor and that, in the event of the conference proving unsuccessful, a report be provided upon supervised access. The application was otherwise adjourned sine die.
3. The orders restraining the mother and the second husband from proceeding with their application for the adoption of the child appear to have been made by way of interlocutory relief, although that is a matter of inference only and does not appear from the terms of the orders. The application was adjourned but the operation of the orders was not limited until its hearing or determination. Moreover, the second husband was not served and was not a party to the proceedings before the Family Court nor was he represented before that court and it is not apparent how any order could properly have been made against him otherwise than upon an interim basis pending his being given an early opportunity to appear before the Family Court to contest the making of any further order against him.
4. The hearing of the application for adoption was further adjourned on 3 June 1986 and on 26 June 1986 the mother filed a notice of appeal to the Full Court of the Family Court against the orders made by McGovern J. That appeal has not been brought on for hearing. The proceedings before this Court arise from the referral into this Court by Brennan J. of an application by the mother and the second husband for orders nisi for a writ of prohibition restraining the Family Court from proceeding further with the father's application and for a writ of certiorari quashing the orders made by McGovern J.
5. The relevant question is whether McGovern J. had the power to make the orders which he did restraining the mother and second husband from proceeding with their application for the adoption of the child.
6. Under the South Australian Adoption of Children Act, the welfare and interests of the child concerned are to be regarded as the paramount consideration: s.9. An order may be made by an adoption court for the adoption of a person under the age of 18 years or a person who has been brought up, maintained and educated by the applicant or by either or both of the applicants or by the applicant and a deceased spouse of the applicant as his or their child: s.10(1). An adoption order may be made in favour of one person but, with certain exceptions, an adoption order must be made in favour of a husband and wife jointly: s.11. The spouse of a parent may, solely or jointly with the parent, make an application for an order for the adoption of the parent's child and an order may be made accordingly: s.11(4). In that event, the spouse shall be deemed to be a parent of the child jointly with the parent as if the child had been born to them in lawful wedlock but, notwithstanding anything contained in s.30, the child does not cease to be a child of the parent and that parent does not cease to be a parent of the child and the relationship between the child and that parent is not determined: s.11(5). The court must be satisfied concerning the fitness of the applicant or applicants before making an adoption order: s.13. The consent of the parents or guardians of a child born within marriage is required for the adoption of a child not previously adopted, but a court may, upon the application of the Director-General of Community Welfare or on behalf of an applicant for an adoption order, by order, dispense with the consent of a person to the adoption of a child where it appears to the court, amongst other things, that the person has, for a period of not less than one year failed without reasonable cause, to discharge the obligations of a parent of the child or that there are other circumstances by reason of which the consent may properly be dispensed with: ss.21, 27. Where the necessary consent for the adoption of a child has been given or where consent has been dispensed with, the Director-General shall, unless other arrangements are made, be the guardian of the child to the exclusion of all others pending the making of an adoption order in respect of the child: ss.29(1), 29(3). The effect of an adoption order is that the adopted child becomes a child of the adopter or adopters and the adopter becomes a parent, or the adopters become the parents, of the child as if the child had been born to the adopter or adopters in lawful wedlock: s.30(1)(a). Moreover, the adopted child ceases to be a child of any person who was a parent (whether a natural parent or a parent by adoption) of the child before the making of the adoption order, and any such person ceases to be a parent of the child: s.30(1)(b). That is, I think, a sufficient description of the Adoption of Children Act for present purposes.
7. The jurisdiction of the Family Court is statutory. It is a federal court and its jurisdiction is defined, pursuant to s.77(i) of the Constitution, by the Family Law Act 1975 (Cth) which is a law made by Parliament under the powers confided to it by s.51 of the Constitution. For present purposes, the relevant power is to be found in s.51(xxi), which is the power to make laws with respect to marriage, or in s.51(xxii), which is the power to make laws with respect to divorce and matrimonial causes and in relation thereto, parental rights, and the custody and guardianship of infants. These powers not only constitute the ultimate source of the jurisdiction conferred on the Family Court; they also define the limits of that jurisdiction. That is important having regard to the way in which the Family Law Act is framed. For example, the Family Court has jurisdiction conferred upon it with respect to matters arising under the Act in proceedings between the parties to a marriage (including a marriage which has been dissolved) with respect to the custody, guardianship or maintenance of, or access to, a child of the marriage. See par.(cb) of the definition of "matrimonial cause" in s.4(1); s.4(2); s.31(1)(a); s.39(1). The limits of that jurisdiction are not, however, finally marked out by the Family Law Act. Limits there must be, however, because the custody of children is a subject which extends beyond any connexion which it may have with marriage or with divorce and matrimonial causes. This was made clear in Reg. v. Lambert; Ex parte Plummer (1980) 146 CLR 447 where it was held that power of the Family Court to deal with the custody of a child did not extend to interference with the custody of a child which was being exercised by the Director of the Department of Children's Services of Queensland pursuant to an order made under the Children's Services Act 1965 (Q.). A child of a marriage has an existence which extends beyond the confines of the marriage and which subjects that child to laws governing persons generally, including laws which may affect its custody in ways unrelated to marriage or divorce and matrimonial causes - for example, criminal laws or laws dealing with health or welfare. It must always be borne in mind that the power of Parliament is not to make laws with respect to the children of a marriage or even with respect to the custody of the children of a marriage. Putting to one side the divorce and matrimonial causes power, which was not said to carry the argument any further in this case, the power is to make laws with respect to marriage and it is the requirement of a sufficiently close connexion between a law made under that power and marriage which must ultimately limit the jurisdiction which can be conferred upon the Family Court with respect to custody, however general the terms in which that jurisdiction is expressed. Cf. Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR 227. Nor does the marriage power extend to preventing the operation of other laws in order to preserve something upon which the marriage power (or jurisdiction conferred pursuant to the marriage power) can operate. It does not do so because a law with that object would not be a law with respect to marriage. This can be seen in Reg. v. Lambert; Ex parte Plummer where legislation which purported to give the Family Court jurisdiction to supplant the custody of the Director of the Department of Children's Services by custody granted in the exercise of its own jurisdiction was held to be beyond power and invalid. A child of a marriage, no less than other children, is subject to many laws dealing with matters outside the ambit of the marriage power which form the framework within which laws passed pursuant to the marriage power must operate.
8. Under s.114(1) of the Family Law Act a court may make such order or grant such injunction as it thinks proper in proceedings of the kind referred to in par.(e) of the definition of "matrimonial cause" in s.4(1) with respect to the matter to which the proceedings relate. The proceedings referred to in par.(e) are "proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ...". Under s.114(3) a court may, in proceedings other than those of the kind referred to in par.(e), grant an injunction by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree) in any case in which it appears to be just and convenient to do so.
9. There are obscurities surrounding the dichotomy between sub-ss.(1) and (3) of s.114, but it is clear that, if for no other reason, sub-s.(1) would be inapplicable in the present case because of the limits which it itself imposes by reference to par.(e) upon the power to grant relief. The proceedings in this case are not proceedings for an order or injunction in circumstances arising out of the marital relationship. In Reg. v. Dovey; Ex parte Ross (1979) 141 CLR 526 some light was shed upon the meaning of the words "in circumstances arising out of the marital relationship". It was said, at p.532:
"It does not seem to matter whether those words where they appear in par.(e) govern 'proceedings' or 'order or injunction' (although grammatically they appear to govern the former expression) because by s.114(1) it is made clear that the order or injunction may only be made with respect to the matter to which the proceedings relate, that is, with respect to the circumstances arising out of the marital relationship."Now it is perfectly clear in the present case that the injunctions restraining the mother and second husband from proceeding with their application for adoption were not made with respect to the marital relationship between the mother and the father. The right to make and the making of the application for the adoption of the child lay quite outside that relationship. The injunctions were, at best, made by way of ancillary relief to enable the father to pursue his application for custody or access, unimpeded by any adoption order which a court might make. And even if it be said that the application for custody or access arises out of the circumstances of the marital relationship, it is not comprehended by par.(e) and so brought within s.114(1), because the wide words of par.(e) must be read down so as to exclude the cases specifically described in other paragraphs of the definition of "matrimonial cause": Perlman v. Perlman (1984) 155 CLR 474, at p 486. Proceedings between the parties to a marriage with respect to the custody of, or access to, a child of the marriage are covered by par.(cb) of the definition. Thus the jurisdiction to grant these injunctions was to be found, if at all, in s.114(3). This conclusion is contrary to that recently reached by a Full Court of the Family Court (Asche, Pawley and Emery S.JJ.) in In the Marriage of Kent and Pigot (1982) 8 Fam.L.R. 537; (1982) F.L.C. 77320. That decision affords, I think, a sufficient explanation of the prosecutors' desire to pursue prerogative relief in this Court rather than their appeal to the Full Court of the Family Court.
10. The power to grant ancillary relief under s.114(3) is, however, not unrestricted despite the wide words used by the sub-section. The jurisdictional limits which the Constitution imposes upon the power of the Family Court to grant final relief (in this case final relief with respect to custody and access) apply also to its power to grant interlocutory relief. An injunction may only be granted pursuant to s.114 in aid of jurisdiction otherwise conferred on the court: Reg. v. Dovey; Ex parte Ross at p 532; Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337, at p 354; Reg. v. Ross-Jones; Ex parte Green (1984) 156 CLR 185, at pp 199-200, 208-209. And whilst a court may by way of interlocutory judgment preserve the status quo pending the final determination of a matter it can only do so in protection or assertion of some right which it has jurisdiction to enforce by way of final relief: North London Railway Co. v. Great Northern Railway Co. (1883) 11 QBD 30, at pp 39-40; Siskina (Cargo Owners) v. Distos S.A. (1979) AC 210, at p 256. As Wilson J. and I put it in Reg. v. Ross-Jones; Ex parte Green at p 213, if a matter is beyond the jurisdiction of a court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief. See also per Gibbs C.J. at p.202.
11. In seeking to restrain the mother and the second husband from proceeding with their application for adoption, the father was asserting a right to relief which the Family Court had no jurisdiction to grant. It forms no part of the father's claim for custody or access because, as I have already pointed out, the jurisdiction of the court to make orders for the custody of (and, it follows, for access to) the child of a marriage is limited by the requirement of a connexion with the marriage. The court has not and could not be validly invested with jurisdiction to prevent the exercise of rights by others which are outside the ambit of the marriage power. A law providing for the adoption of children, such as the law in this case, creates rights of just such a kind. No doubt there may be laws dealing with the consequence of adoption in relation to marriage which may be laws with respect to marriage. Section 5(1) of the Family Law Act, to the extent that it is validly enacted, contains provisions of that kind. But the right to apply for and be granted an adoption order of the type in question is not an incident of marriage, nor does the granting of an order operate upon the duties or obligations arising from marriage. Adoption may, by effecting a change in a parent or parents, change the status of a child so that it ceases to be the child of one marriage and becomes the child of another marriage. This was recognized by Gibbs C.J. in In the Marriage of Cormick (1984) 156 CLR 170 when he said, at p.177:
"In the case of adoption, the child is taken and treated by the adopting parents as their own, and, if the adopting parents are married, becomes a child of the marriage in law and in fact, so that a law regulating the rights of the adopting parents to the custody or guardianship of an adopted child would be a law with respect to marriage."
12. However, adoption itself and the right to apply for an adoption order lie outside marriage. This is because marriage is not the source of the new status with which an adoption order invests the adopted child. In this respect a law with respect to adoption may be contrasted with a law providing for the legitimation of illegitimate children as a consequence of the marriage of their parents. Such a law was held in Attorney-General (Vict.) v. The Commonwealth (1962) 107 CLR 529 to be a law with respect to marriage. But as Kitto J. observed, at p 554:
"Of course, not every enactment which confers
the status of legitimacy upon illegitimate children is properly described as a law with respect to marriage. If the legitimation is made to depend not upon the contracting of a valid marriage but upon the taking of some other step by the parents or one of them or by someone else - upon a formal acknowledgment of the child by the parents, for example, or the order of a Court or of an executive official - there is not such a relation between the law and the subject of marriage as would justify the description. But in such a case, it seems to me, the enactment is rightly to be described not only as a law with respect to legitimation but also as a law with respect to the step to which a legitimating effect is given."
13. That observation is illuminating, for the step which effects an adoption is the adoption order itself. An adoption order is itself in no way a consequence or an incident of marriage although it may result in mutual obligations for the adopting parents, if they are married, arising out of their marriage. What is important for present purposes is that, although an order for the adoption of a child of a marriage may effect a change in the relationship between that child and its parents, it does so, not by altering the nature of their marriage relationship, but by altering the parenthood of the child with the result that the child ceases to be a child of their marriage. It is for that reason that it lies beyond the jurisdiction of the Family Court to restrain the parties to an application for the adoption of the child of a marriage from proceeding with their application, for to do so would be to travel beyond the definition, regulation or modification of the incidents of the marriage relationship and so beyond the bounds of the marriage power. To do so would not be in aid of any order which the Family Court could properly make for the custody of, or access to a child of a marriage, because any such order, if it attempted to exclude any person, including a party to the marriage, from applying for or obtaining an order for the adoption of the child, would be beyond the jurisdiction of the court. Put plainly, the Family Court in making an order for the custody of, or access to, the child of a marriage cannot validly exclude the possibility of an adoption order being made in relation to the child and so cannot, by way of interlocutory relief pending the determination of an application for custody or access, make an order of that kind.
14. In what I have said I have been speaking of constitutional limits to the power of Parliament to confer jurisdiction and of a consequent need to read down the wide words in which jurisdiction is conferred upon the Family Court with respect to the custody of children so that it is confined within those limits. It should be observed that in so far as the Family Law Act makes specific reference to adoption, none of its provisions are inconsistent with the view which I have expressed.
15. In s.5(1) it is provided that 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. Whether that provision is superfluous in the light of the views which I have expressed need not be pursued. It is consistent with a legislative intent not to transgress the constitutional boundaries. Moreover, s.5(1)(e)(ii) provides that a child of either the husband or the wife, including a child adopted by either of them (whether alone or together with another person or other persons), shall be deemed to be a child of the marriage if, at the relevant time, the child was ordinarily a member of the household of the husband and wife. Those provisions provide clear recognition of the severance of any previous connexion with a marriage relationship which adoption outside that marriage effects.
16. With the provisions of s.5(1) in mind, it is possible to see plainly that s.61 was also intended to reflect the same notion. Sub-section (1) of s.61 provides: "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." Of course, the parties to a marriage would cease to be the guardians or have joint custody of a child upon that child ceasing to be a child of the marriage by reason of its adoption outside the marriage. The child might, by reason of the adoption, become the child of another marriage in which case s.61(1) would have a fresh application. However, the court may have made an order for the custody of, or access to, a child of a marriage, not expressed to terminate upon the child ceasing to be a child of the marriage by reason of its adoption. Section 61(3) governs that situation by providing that 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. It was submitted that the singular expression "person" must include the plural and that s.61(3) must be read to apply only if the child is adopted by a person who is not a party to the marriage or by persons neither of whom is a party to the marriage. Such a construction would be going somewhat beyond the mere inclusion of the plural in the singular expression, but in any event it would produce a result which is inconsistent with s.5(1) of the Act, which clearly envisages that once a child becomes a child of any marriage between its adoptive parents it ceases to be a child of any marriage between its natural parents (or earlier adopted parents). Not only does s.5(1) envisage this, but in par.(e) it extends the notion to the situation which I have already described. Moreover, the history of the provision indicates that such a construction should not be adopted. Originally the sub-section commenced with the words "Unless a court having jurisdiction under this Act otherwise orders" and thus contemplated the continuation of existing orders for custody and access notwithstanding the adoption of the child outside the marriage. The repeal of those words in 1976 indicates clearly enough an intention that adoption of a child should be seen as severing any relationship of the child with a marriage between its former parents. That is so even if the adoption is by two persons, one of whom was a party to that marriage.
17. It follows from what I have said that in my view McGovern J. had no power to make the orders which he did restraining the mother and the second husband from proceeding with their application for adoption. The existence of that application did not, however, in the absence of any order for adoption, preclude the Family Court from proceeding to determine the father's application for custody or access. Indeed, even in the event of an order for adoption being made, the father may not be shut out from seeking in the Family Court the relief which he claims, albeit as a stranger rather than the father of the child. See par.(ce) of the definition of "matrimonial cause" in s.4(1); V. v. V. (1985) 156 CLR 228. There is no reason, therefore, why the order made by McGovern J. with respect to a conference between the parties and the provision of a report upon supervised access should not be given effect.
18. I would grant the application for writs of prohibition and certiorari directed to the orders restraining the mother and the second husband from proceeding with their application for adoption of the child.
GAUDRON J. The prosecutor J.E.F. and the respondent L.S.H. were married on 28 March 1981. There was one child of the marriage ("the child"). The parties separated on 3 July 1982, and custody of the child was granted to J.E.F. (the mother) by order of the Family Court of Australia at Adelaide on 5 October 1982. By further order of 29 July 1983, the Court granted L.S.H. (the father) access to the child for not more than two hours each week at the Counselling Section of the Court, and required the preparation of a Court Counsellor's report. Difficulties attended access so ordered. The Counsellor's report of 26 August 1983 recommended against further access, and the father has not taken access to the child since that date.
2. On 3 August 1985 the prosecutors R.T.F. and J.E.F. were married. On 24 February 1986 they made application pursuant to the Adoption of Children Act 1967 (S.A.) ("the Adoption Act") for the adoption of the child. They also made application for an order dispensing with the consent of the respondent to the adoption of the child pursuant to s.27(1) of the Adoption Act, which provided (inter alia) that:
"A court may, on application ... by or on behalf of an applicant for an adoption order, by order, dispense with the consent of a person (other than the child) to the adoption of a child where it appears to the court -
...
(c) that the person has abandoned, deserted or persistently neglected or ill-treated the child;
(d) that the person has, for a period of not less than 1 year, failed, without reasonable cause, to discharge the obligations of a parent or guardian (as the case may be) of the child;
or
(e) that there are other circumstances by reason of which the consent may properly be dispensed with."
3. Thereafter on 13 May 1986, the respondent made application to the Family Court at Adelaide for orders restraining each of the prosecutors from proceeding with the application for adoption, and for an order for custody of, or alternatively access to, the child. On 26 May, he made further application to the Family Court seeking an expedited hearing of his application of 13 May 1986. Neither application was served on the prosecutor R.T.F. The matter came on for hearing before McGovern J. on 30 May 1986. The prosecutor J.E.F. and the respondent were each represented at the hearing, but there was no appearance by or on behalf of the prosecutor R.T.F. McGovern J. ordered that the prosecutor J.E.F. and the respondent L.S.H. attend a conference with the Court Counsellor, and further ordered, in the event that the conference proved unsuccessful, that a Court Counsellor's report be provided on one or more occasions of supervised access as the Court Counsellor should deem fit. Additionally, His Honour granted interlocutory injunctions restraining each of the prosecutors from proceeding with the application for adoption.
4. The prosecutor J.E.F. lodged an appeal to the Full Court of the Family Court against the orders of McGovern J., other than the order directing a conference with the Court Counsellor. Additionally, the prosecutors seek writs of prohibition and certiorari in this Court on the ground that the Family Law Act 1975 (Cth) ("the Act") does not empower the Family Court to restrain persons from applying for adoption orders under relevant State adoption laws. Alternatively, it is submitted that if the Act confers such power, it is to that extent beyond the legislative power of the Commonwealth Parliament.
5. By s.31(1)(a) of the Act, jurisdiction is conferred on the Family Court with respect to:
"matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act".Matrimonial cause is defined in s.4(1) of the Act to include:
"(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;
(ce) 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), other than proceedings for the making of an order, or the taking of any other action, of the kind referred to in sub-section 10(2);
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ...".
6. Section 114 of the Act confers power upon the Family Court to grant injunctions as follows:
"(1) In proceedings of the kind referred to in paragraph (e) of the definition of 'matrimonial cause' in sub-section 4(1), the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate ...
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court thinks appropriate."
7. It may be that the power to grant an interlocutory injunction is only conferred in respect of proceedings other than those to which s.114(1) applies. However, in my view, the proceedings instituted by the respondent are not proceedings to which s.114(1) applies. That sub-section applies only to proceedings falling within par.(e) of the definition of "matrimonial cause". The proceedings instituted by the respondent are proceedings falling within par.(ce) of that definition. Paragraph (e) was clearly intended to supplement, not supplant proceedings answering the description of matrimonial cause provided in the preceding and succeeding paragraphs of the definition. So much is made clear by the nature of the orders which the Court may make in such proceedings, as provided in s.114(1) as follows:
"(a) an injunction for the personal protection of a party to the marriage or of a child of the marriage;
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage or restraining a party to the marriage from entering the place of work or the place of education of a child of the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home."Paragraph (e) must therefore be read as referring to proceedings other than those falling within the other paragraphs of the definition of "matrimonial cause" in s.4(1) of the Act, for otherwise, many of the other paragraphs of the definition would be rendered superfluous. (See Perlman v. Perlman (1984) 155 CLR 474, per Gibbs C.J., at p 486.)
8. In my view, the respondent's application for an injunction restraining the prosecutors from proceeding with their application for adoption does not bring the proceedings within par.(e). Paragraph (e) defines "matrimonial cause" to include "proceedings ... for an order or injunction in circumstances arising out of the marital relationship". Whilst those words do not necessarily import a direct or immediate causal connection with the marital relationship, they nevertheless suggest that proceedings will not fall within par.(e) where the order sought arises out of some circumstance that is extraneous to the marital relationship. As Demack J. observed in In the Marriage of Mills (1976) 25 F.L.R. 433, at p.435, this nexus will not be established solely on the basis that the proceedings in question are between the parties to a marriage, or concern a child of that marriage. To establish the requisite connection with the marital relationship, such proceedings should arise as "a consequence of the act of marriage between the parties, and (should properly be referable to) an exercise of the rights and a performance of the duties to which the marriage has given rise." (The Queen v. Dovey; Ex parte Ross (1979) 141 CLR 526, at p 533).
9. The application for injunction, in the present circumstances, did not arise as a consequence of the act of marriage between the prosecutor J.E.F. and the respondent; it arose out of the prosecutors' application for the adoption of the child under the Adoption Act of South Australia. As the circumstances giving rise to the proceedings were extraneous to the marital relationship of J.E.F. and L.S.H., the proceedings are outside the ambit of s.4(1)(e), and the power (if any) of the Family Court to grant injunctions restraining the prosecutors from proceeding with that application must be found in s.114(3).
10. The extent of the Family Court's power to grant an injunction directed to a third party was considered in Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337. In that case Gibbs J., at p 354 (with whom Stephen, Aickin and Wilson JJ. agreed) stated:
"It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform."(See also The Queen v. Ross-Jones; Ex parte Green (1984) 156 CLR 185, at pp 200-202, 211-213.)
11. However, there are circumstances in which the Family Court is empowered to issue an injunction to a third party. So much was made clear by Gibbs J. in Ascot Investments in relation to "shams, and companies that are mere puppets". (See Antonarkis v. Delly (1976) 51 ALJR 21; 10 ALR 251 and The Queen v. Dovey; Ex parte Ross (1979) 141 CLR 526.) Sanders v. Sanders (1967) 116 CLR 366 (although concerned with the equivalent injunctive power in the now repealed Matrimonial Causes Act) also serves to illustrate circumstances in which an injunction may be directed to a third party, although it may well be (as Wilson and Dawson JJ. commented in The Queen v. Ross-Jones; Ex parte Green) that Sanders was not a case in which the rights of the third party were really affected because of the limited nature of the relief granted.
12. The decisions in Sanders, Antonarkis v. Delly and The Queen v. Dovey; Ex parte Ross, do not exhaustively set out the criteria upon which the Court may issue an injunction to a third party, although Ascot Investments does establish that an order or injunction may not be made "if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform" (per Gibbs C.J. at p.354). This proposition needs to be understood in the context of that particular case, which concerned rights existing solely as between the parties to a marriage inter se. Proceedings as to rights which exist inter se provide no foundation for the grant of an injunction to a third party, other than in circumstances closely analogous to those in Sanders, Antonarkis v. Delly and The Queen v. Dovey; Ex parte Ross as, for example, where a third party is acting in concert with a party to the marriage to the detriment of the other party, or the children of the marriage.
13. Where the rights the subject of the proceedings are not merely rights inter se, the power to direct an injunction to third parties is not so confined. The rights which parties to a marriage have in relation to a child of the marriage are not merely rights inter se, but are rights which extend (as Gibbs C.J. observed in In the Marriage of Cormick (1984) 156 CLR 170, at p.176) to the rights "between them and the child, (and) also as against other persons." (See also V. v. V. (1985) 156 CLR 228, at p 232.) Those rights are not extinguished when modified, even if modified in favour of a stranger to the marriage, as, for example, in proceedings falling within pars(ce) and (ch) of the definition of "matrimonial cause" in s.4 of the Act. These provisions of the Act, acknowledging that such rights may be modified in favour of strangers to a marriage, provide part of the context within which s.114(3) must be construed. They describe proceedings which may involve a party who is a stranger to the marriage, and in which the Family Court is empowered by s.114(3) to make orders and grant injunctions.
14. It is well settled that the marriage power authorizes laws providing for the adjudication of rights in relation to a child of the marriage as between, on the one hand, the parties to the marriage, or, on the other, a party to a marriage and a stranger to the marriage, for the rights of the parties in relation to a child of the marriage are rights which arise directly out of the marital relationship: Vitzdamm-Jones v. Vitzdamm-Jones (1981) 148 CLR 383, at p 414; Fountain v. Alexander (1982) 150 CLR 615, at pp 625-626, 631-632, 646-647; V. v. V. at pp 232-233. A law which authorizes the enforcement of the rights of parties to a marriage (in relation to a child of the marriage) as against strangers to the marriage is also within the power to legislate with respect to marriage. Thus it seems to me that s.114(3) necessarily imports a power to grant injunctions directed to a third party, where the injunction is granted in protection of a right which obtains against strangers to the marriage in relation to a child of the marriage, at least where the third party is engaging in, or threatens to engage in, conduct prejudicial to that right.
15. Accordingly, in my view, McGovern J. was empowered to grant an injunction directed to the prosecutor R.T.F., notwithstanding that he was a stranger to the marriage, if the injunction granted was otherwise authorized by s.114(3). As the injunction directed to the prosecutor R.T.F. was interim in nature, it matters not that it was granted ex parte, although, of course, R.T.F. has a right to be heard fully in opposition before any injunction of a final nature can be made against him.
16. Section 114(3) expressly confers power upon the Family Court to issue an interlocutory injunction, including an injunction in aid of the enforcement of a decree, which is defined in s.4(1) of the Act to mean a "decree, judgment or order (including) a decree nisi and an order dismissing an application or refusing to make a decree or order". The order of 29 July 1983 by which the respondent was granted access to the child of his marriage with J.E.F. constitutes a decree so defined.
17. Section 61(3) of the Act provides that:
"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."
18. It was argued by the Solicitor-General for the Commonwealth, intervening, that s.61(3) has operation only where neither adopting parent is a party to the marriage of which the child was born, by which it was legitimated, or into which it was adopted. However, the sub-section must be read against s.5(1) of the Act. That sub-section specifies that "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." The clear intention of s.5(1) is that a child will cease to be a child of the marriage of his or her natural or former adoptive parents in the event of his or her adoption by a person who is not (or by persons, one of whom is not) a party to that marriage. Thereupon the child ceases to be subject to the jurisdiction of the Family Court as a child of the marriage of his or her natural or former adoptive parents. It would be a curious result if, notwithstanding the Family Court's inability to entertain subsequent proceedings concerning the child as a child of the marriage of his or her natural or former adoptive parents, a previous order continued to have operation because the child had once been the child of a marriage to which one of his or her adopting parents had been a party. In my view this was not intended. Section 61(3) has the effect that previous orders for custody, guardianship and access to a child of a marriage cease to have operation if the child is adopted by a person who is not (or by persons, one of whom is not) a party to that marriage.
19. As, on adoption by the prosecutors, the previous orders of the Family Court relating to custody of, and access to, the child of the marriage of the prosecutor J.E.F. and the respondent would cease to have effect, orders restraining the prosecutors from proceeding with the adoption application fall within the power expressly conferred upon the Family Court to grant "an injunction in aid of the enforcement of a decree".
20. However, it was argued that s.114 must be read down by reference to the specific provisions of the Act dealing with adoption, which, it was submitted, evince an intention that adoption laws should operate free of any interference from the Act. The relevant provisions of the Act are s.61(3), which has been set forth above, s.5(1), to which some (but incomplete) reference has already been made, and s.10(2).
21. The provisions of s.5(1) relevant to adoption are as follows:
"For the purposes of each application of this Act in relation to a marriage -
(a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
...
(e) a child of either the husband or the wife, including -
(i) ...
(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 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."Neither s.5(1) nor s.61(3) speaks to the situation prior to adoption. Each sub-section operates so that the family relationship arising consequent upon adoption is the relevant relationship upon which the Act must operate. Each sub-section recognizes and makes appropriate practical allowance for any change in status or relationship effected by State adoption laws.
22. Within this general context s.5(1) makes plain the jurisdictional consequences of an order for adoption whilst s.61(3) makes plain the consequence which adoption has for the continued force of an order made in relation to the adopted child. Neither, however, carries any inference, necessary or otherwise, that adoption laws are to operate independently of the provisions of the Act. Indeed, s.5(1)(e)(ii) is directly contrary to any such inference. Leaving aside questions which might arise as to the constitutional validity of that paragraph (see The Queen v. Cook; Ex parte C. (1985) 156 CLR 249 and Re F.; Ex parte F. (1986) 60 ALJR 594; 66 ALR 193), it postulates that, at least in the circumstances therein set forth, the rights accruing to adoptive parents might be required to accommodate rights deriving from the Act.
23. Section 10(2) provides that:
"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 ... is placed under the guardianship, or the care and control, of -
...
(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 ...".The purpose of sub-s.(2), made clear by its opening words, is to give expression to an intention that State laws are to have a continued and concurrent operation with the Act to the extent therein specified. (See Palmdale-A.G.C.I. Ltd. v. Workers' Compensation Commission (N.S.W.) (1977) 140 CLR 236, at pp 243-244.) Its purpose is not to limit the power of the Family Court, as that purpose is achieved by sub-s.(1). Sub-section (1) operates subject to sub-s.(3) (as to the effect of which see The Queen v. Demack; Ex parte Plummer (1977) 137 CLR 40 and The Queen v. Lambert; Ex Parte Plummer (1980) 146 CLR 447) and provides that:
"... 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."In light of that specific limitation, there is no scope within sub-s.(2) (whether read alone or in conjunction with ss.5(1) and 61(3)) for an implication of some more general limitation upon the power of the Family Court in relation to a child of a marriage who is the subject of an adoption application. Section 114(3) must therefore be construed according to its ordinary and natural meaning, and so construed, it extends to the making of interlocutory orders restraining the prosecutors from proceeding with their application for the adoption of the child of the marriage of the prosecutor J.E.F. and the respondent.
24. A law by which power is conferred upon the Family Court to make an order or grant an injunction in aid of the enforcement of a decree, which, in my view, the subject injunctions are, is clearly within the legislative competence of the Commonwealth Parliament. It is not in doubt, that in the exercise of the power to make laws with respect to marriage, the Parliament may confer power to adjudicate the rights of the parties to a marriage with respect to custody of, and access to, a child of the marriage, either as between themselves, or as between them (or one of them) and strangers to the marriage (see Dowal v. Murray (1978) 143 CLR 410; Vitzdamm-Jones; Fountain v. Alexander and V. v. V.).
25. A necessary incident of the power to adjudicate is the power to make orders to effectuate the adjudication. Such orders include, in the words of s.114(3), "an injunction in aid of the enforcement of a decree". A law authorizing the making of such orders in relation to the adjudication of rights arising out of the marital relationship is a law with respect to marriage, for the power to legislate on the topic of marriage "carries with it authority to make such provisions as are incidental to the effectuation of the purpose described by the express words of the power": Federated Ironworkers' Association of Australia v. The Commonwealth (1951) 84 CLR 265, at p 277. (See also Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR 227, at pp 235-236.)
26. A law conferring upon a Federal Court power to grant an injunction in aid of the enforcement of a decree of that Court is also a law with respect to a matter "incidental to the execution of (a) power vested by (the) Constitution ... in the Federal Judicature" as authorized by s.51(xxxix) of the Constitution.
27. The above suffices to establish the validity of s.114(3) in so far as it authorizes the granting of injunctions restraining the prosecutors from proceeding with their application for adoption of the child, that child being the subject of a subsisting decree which would cease to have effect upon the making of an adoption order in favour of the prosecutors. However, I see no reason why the marriage power does not authorize a law of general operation prohibiting or authorizing the prohibition, during the lives of the parties to a marriage, of the adoption of a child of the marriage by a stranger to that marriage. The power authorizes laws with respect to the status of a child born to the parties to a marriage, even if the child was born before the marriage: Attorney-General (Vict.) v. The Commonwealth (1962) 107 CLR 529. There is no reason why it should not extend to the preservation of the status of a child as a child of a marriage, and to that end, at least whilst the parties to the relevant marriage are living and therefore capable of asserting rights referable to the marital relationship with respect to a child of the marriage, prohibit, or authorize the prohibition of, adoption of a child of a marriage by a stranger to the marriage.
28. I would dismiss the application.
Orders
A writ of prohibition issue directed to the Honourable Mr Justice McGovern, the Chief Judge and other Judges of the Family Court of Australia prohibiting them from proceeding further in the application of the respondent L.S.H. in the Family Court of Australia numbered A3307 of 1982 to the extent that it seeks to restrain the applicants from proceeding with their adoption application.
A writ of certiorari issue directed to the Honourable Mr McGovern quashing paragraphs numbered 3 and 4 of the order made by Mr Justice McGovern in the Family Court of Australia against the applicants on 30 May 1986.
The respondent L.H.S. pay the applicants' costs.
Citations
Re LSH; Ex parte RTF [1987] HCA 53
Cases Cited
17
Statutory Material Cited
0
Fountain v Alexander
[1982] HCA 16
Ascot Investments Pty Ltd v Harper
[1981] HCA 1