V v V

[1985] HCA 45

HIGH COURT OF AUSTRALIA

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

V. and ANOR. v. V.

(1985) 156 CLR 228

11 July 1985

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Access to children—Applications—Application by grandmother—No proceedings between parents with respect to children—Family Court of Australia—Jurisdiction—Matrimonial cause—The Constitution (63 &64 Vict. c. 12), s. 51(xxi)—Family Law Act 1975 (Cth), s. 4(1)(ce).

Decisions

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE JJ.: The question for decision in this case is whether the Family Court has jurisdiction to entertain an application for access to the children of a marriage when the application is made by the grandmother of the children and there have been no previous proceedings between the parties to the marriage. The children in the present case had been adopted by the parties to the marriage and it is not contested that they are deemed to be children of the marriage by s.5(1)(a) of the Family Law Act 1975 (Cth), as amended ("the Act"). The validity of that paragraph of s.5(1) has not been called into question - understandably, in the light of In the Marriage of Cormick (1984) 59 A.L.J.R. 151, at pp.153, 155; 56 A.L.R. 245, at pp.248, 253.

2. In the present case, an application was made to the Family Court seeking an order for access to two children, aged five and three respectively, who were in the custody of their adoptive parents, who are husband and wife. The application was made by the mother of one of the adoptive parents. There have been no proceedings under the Act or under the Matrimonial Causes Act 1959 (Cth), as amended, between the parties to the marriage (the parents) with respect to the custody of the children or at all. On the application of the parents, the matter has been removed into this Court for the purpose of deciding the question whether the Family Court has jurisdiction to entertain the application.

3. The jurisdiction of the Family Court includes jurisdiction with respect to matrimonial causes: see ss.8(1), 31(1)(a), 39(1) of the Act. The expression "matrimonial cause" is defined by s.4(1) to include:

"(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)".

That paragraph was inserted in the definition by the Family Law Amendment Act 1983 (Cth) and its validity has not previously been considered. Section 10(2) preserves the jurisdiction of courts and the power of authorities under certain laws of a State or a Territory with respect to child welfare; its provisions are not presently material. By s.61(1) of the Act, it is provided as follows:

"Subject to any order of a court for the…