Cormick v Salmon

Subject to some qualifications which are not material for present purposes, the Family Court has jurisdiction in matrimonial causes: see ss. 31(1) and 39(1) of the Act. The expression "matrimonial cause" is defined in s. 4(1) of the Act. The second application, made by Mrs. Cormick on behalf of the child, was intended to bring the proceedings within par. (cc) of that definition, as "proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the custody, guardianship or maintenance of, or access to, the child". It is unnecessary to consider whether a person seeking custody of a child aged five can, without authority, assume to bring the proceedings on behalf of the child, for it is clear that, if Skye Salmon is a child of the marriage, the present proceedings will answer the description in par. (ce) of the definition, viz., "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) ". If the child is not a child of the marriage for the purposes of the Act, it is equally clear that the present proceedings are not a matrimonial cause and that the Family Court has no jurisdiction to hear and determine them.

Skye Salmon will be a child of the marriage between Mr. and Mrs. Cormick only if s. 5(1)(f) of the Act is a valid enactment of the Parliament and if the facts of the case satisfy that provision. If the provision is valid, the determination of the questions of fact upon which the jurisdiction of the Family Court will depend will, in the first instance, be a matter for the Family Court itself. The sole question for decision in the present case is therefore whether s. 5(1)(f) is valid.

By s. 5(1), for the purposes of each application of the Act in relation to a marriage, inter alia -

(f) a child (other than a child mentioned in any of the preceding paragraphs) who has been, and was at the relevant time, treated by the husband and wife as a child of their family, 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. Children mentioned in the previous paragraphs of s. 5(1) include an adopted child, a child of the husband and wife born before the marriage, and a child (including an ex-nuptial or adopted one) of either the husband or the wife, if, at the relevant time, the child was ordinarily a member of the household of the husband and wife. Paragraph (f) therefore refers to a child who is not a child, natural or adopted, of either party to the marriage. The relevant time, for the purposes of s. 5(1), in relation to any proceedings is -

(a) if the husband and wife were not living together at the time when the proceedings were instituted - the time immediately preceding the time when the husband and wife separated, or, if they have separated on more than one occasion, the the time immediately preceding the time when they last separated before the institution of the proceedings; or

(b) if the husband and wife were living together at the time when the proceedings were instituted - the time immediately preceding the institution of the proceedings: see s. 5(2).

As the present case illustrates, the provisions of s. 5(1)(f) are intended to operate when no divorce or other matrimonial cause is or has been pending between the husband and the wife of whose household the child is deemed to be a member. The only possible source of power to give s. 5(1)(f) such an operation is that conferred by s. 51(xxi) of the Constitution; to have a valid application to the present case, s. 5(1)(f) must be a law with respect to "marriage". It is unnecessary to consider whether the provision can be read down in such a way that it would be a valid exercise of the power given by s. 51(xxii) of the Constitution to make laws with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants", and I express no opinion, one way or the other, on that question.

It is now well settled that marriage in s. 51(xxi) includes the relationship or institution of marriage and, since the protection and nurture of the children of the marriage is at the very heart of the relationship, that the power to make laws with respect to marriage enables the Parliament to define and enforce the rights of a party to the marriage with respect to the custody and guardianship of a child of the marriage. The rights and duties of the parties to a marriage, with respect to the children of the marriage, arise directly out of the marriage relationship, and a law defining, regulating or modifying the incidents of the marriage relationship is a law with respect to marriage. This is so, although 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. These principles have been fully discussed in the cases, particularly in Dowal v. Murray [1] ; Reg. v. Lambert; Ex parte Plummer [2] ; Vitzdamm-Jones v. Vitzdamm-Jones [3] ; and Fountain v. Alexander [4] .

1. (1978) 143 C.L.R. 410. 2. (1980) 146 C.L.R. 447. 3. (1981) 148 C.L.R. 383. 4. (1982) 150 C.L.R. 615.

It may in appropriate circumstances be within power for the Parliament to define the rights and duties of the parties to a marriage, as between themselves, with respect to a child who is not a child of the marriage. Where, however, the law provides that one or both of the parties to a marriage shall be entitled to the custody and guardianship of a child who is not a child of the marriage, and purports to make that entitlement effective against other persons, including the child and strangers to the marriage, the necessary connexion with the marriage does not exist to support the law under s. 51(xxi) of the Constitution. There is already authority for the view that the Parliament could not, in the exercise of the marriage power, make provision for the adjudication of a dispute concerning the custody of a child of a marriage, when the parties to the dispute are strangers to the marriage, and the adjudication has nothing to do with the adjustment or termination of the rights of the parties to the marriage: Vitzdamm-Jones v. Vitzdamm-Jones [5] ; Fountain v. Alexander [6] . It is even more clear that the Parliament cannot, under the marriage power, enact a law which provides for the adjudication of a dispute between persons who are not and never have been married, when the child whose custody or guardianship is in issue is not a child of any marriage. It is immaterial that in such a case one of the parties to the dispute happens to be married (although not to the other disputant), since the rights claimed do not arise out of the marriage relationship, and the fact that the claimant happens to be married is merely accidental. The connexion between the marriage and the law in such a case is far too tenuous and insubstantial.

1. (1981) 148 C.L.R., at pp. 414-415. 2. (1982) 150 C.L.R., at p. 631.

Of course, a child may become a child of the marriage although not born as such. Legitimation and adoption, when the persons who adopt the child are married, are examples. The case of legitimation was dealt with in Attorney-General (Vict.) v. The Commonwealth [7] . 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. It is unnecessary to inquire whether the same result might follow, for example, in the case of a de facto adoption not effected by legally recognized means. It is not suggested that the terms of s. 5(1)(f) are confined, or could properly be read down to apply, to such a case.

The Parliament cannot bring a case within s. 51(xxi) by deeming a child to be a child of a marriage if the necessary connexion between the child and the marriage does not, in truth, exist. It would be a fundamental misconception of the operation of the Constitution to suppose that the Parliament itself could effectively declare that particular facts are sufficient to bring about the necessary connexion with a head of legislative power so as to justify an exercise of that power. It is for the courts, and not for the Parliament, to decide on the validity of legislation, and so it is for this Court to decide in the present case whether there is, in truth, a sufficient connexion between the institution of marriage and a law which treats as a child of the marriage a child who is not in fact the natural or adopted child of either party to the marriage, but who was, at a particular time, treated by the parties to the marriage as a member of their family and was, at that time, ordinarily a member of their household. Section 5(1)(f) does not require that the child who is to be deemed to be a child of the marriage should have any relationship by blood or adoption to either party to the marriage. Indeed, it is not altogether clear that it requires that the parties to the marriage should have treated the child as a child of their marriage; but it may be assumed that "family" is used in a narrow sense, and that this was intended. However it is not made necessary by the provision that the parties to the marriage should have treated the child as a member of their family over a period of time sufficient to indicate the permanence of the relationship; it is enough that it was so treated at the relevant time specified in s. 5(2), and that at the relevant time the child was ordinarily a member of the "household" - a wide word which would include any relative, friend or servant ordinarily living in the house. It is not material whether any parent or guardian of the child acquiesced in the child being treated as a member of a family to which he or she did not, in truth, belong. The fundamental objection to the validity of s. 5(1)(f) is, however, that it seeks to render the provisions of the Act, such as s. 61, which deal, amongst other things, with the rights to custody and guardianship of children, applicable to a situation in which those rights do not arise out of, and do not have any necessary connexion with, the marriage relationship. There is no sufficient connexion between marriage and the extension of the law which s. 5(1)(f) attempts to effect. The marriage power does not justify the enactment of the provision.

I would declare that the Family Court has no jurisdiction to entertain the application made by Mrs. Cormick and would order that both her applications be refused as incompetent. It would, I consider, be right to order the Commonwealth to pay the costs of the present proceedings.

I agree with the reasons for judgment and orders proposed by the Chief Justice.

Last century, when the Commonwealth of Australia was envisaged, the framers of the Constitution planned for a Parliament which would have power to make laws on certain subjects which were considered to be of such national significance that they should be able to be dealt with by one national legislature, rather than being left to the legislatures of the various States. These included marriage and divorce. The framers were well aware of the experience of other federal countries, notably the United States of America, where absence of a national marriage and divorce law could lead to a bewildering, expensive, time-consuming clash of State jurisdictions and problems of recognition and enforcement of State laws and judicial orders, particularly in divorce, custody and property.

The Hon. Sir John Downer, speaking at the 1897 Sydney session, expressed the view that a marriage and divorce clause was "a highly proper power, and it will probably be exercised at the earliest possible moment". He went on to suggest "they will get into trouble if they do not [exercise it]" (Convention Debates, Sydney, 1897, p. 1081). In the Constitution, Parliament was given general legislative power "with respect to" 39 subjects in s. 51 of the Constitution. Two of these were:

(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.

These two heads of power were first relied on, to a limited extent, with the passage of the Matrimonial Causes (Expeditionary Forces) Act 1919 (s. 51(xxii)) and the Marriage (Overseas) Act 1955 (s. 51(xxi)). However it was some sixty years before the Federal Parliament passed the Matrimonial Causes Act 1959 ("the Matrimonial Causes Act "), the first general federal law about divorce, and the Marriage Act 1961.

Since 1959 the Parliament has acted on the basis that in relation to marriage or divorce it has power to legislate for the protection of children who are the children of a marriage and also for children who are not strictly children of a marriage. Section 6 of the Matrimonial Causes Act deemed ex-nuptial and adopted children of either party to be children of the marriage. By amendments made in 1983 to the Family Law Act 1975 ("the Act"), Parliament provided that a child which has been treated by married persons as a child of their family and is ordinarily a member of their household is a child of the marriage. It did so by including as a child of a marriage:

(f) a child (other than a child mentioned in any of the preceding paragraphs) who has been, and was at the relevant time, treated by the husband and wife as a child of their family, if, at the relevant time, the child was ordinarily a member of the household of the husband and wife.

The Act empowers the Family Court of Australia and certain other courts to make custody and guardianship orders and maintenance orders, among other things, in relation to a "child of a marriage".

Section 5(1)(f) was inserted into the Act by s. 4 of the Family Law Amendment Act 1983. Section 4 repealed the old s. 5 and was described by the Attorney-General in the second reading speech as "an expansion in the class of children with respect to whom guardianship, custody and like proceedings may be brought": Senate Hansard, 1 June 1983, p. 1098. Both the Senate and the House of Representatives agreed to the new clause without dissent: Senate Hansard, 24 October 1983, p. 188; House of Representatives Hansard, 19 October 1983, p. 1954.

The question is not whether Parliament can define such a child to be a child of the marriage. It is defined as such only as a convenient form of drafting. The question is whether Parliament is empowered to legislate for such a child.

Section 5(1)(f) operates commonly so that in the case of a family, say with two children, one of whom is a child born of the marriage and the other a child of the marriage within s. 5(1)(f), the Family Court of Australia can deal with the custody of both. Otherwise, each child must be dealt with separately under different provisions, by different courts (except in Western Australia).

Here, there is only one child involved, the ex-nuptial son of Mrs. Cormick's unmarried daughter. Mrs. Cormick alleges that her grandson has lived with her and her husband since November 1980, when he was about 22 months old. Mr. and Mrs. Cormick are applying for orders for joint custody and guardianship of the child. Mrs. Cormick's daughter opposes the making of such orders and disputes the Family Court's power to make them.

This power, like all others in s. 51, must be read broadly and generously. "The words "with respect to" ought never be neglected in considering the extent of a legislative power conferred by s. 51 or s. 52. For what they require is a relevance or connexion with the subject assigned to the Commonwealth Parliament In the next place, every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject-matter": Grannall v. Marrickville Margarine Pty. Ltd. [8] .

Marriage is a social and economic institution which takes many forms, and so affects human society that law-makers have always devoted much attention to it. The institution of marriage is closely connected with the concept of family, in ancient and modern thinking: see Fountain v. Alexander [9] ("Fountain").

Men and women have the right to marry and found a family (Art. 16).

In my opinion, Parliament correctly considered that its legislative power with respect to marriage extended to the protection of all children who become part of the family which arose from the marriage. It is ancillary and incidental to the power with respect to marriage to make provision for their custody, guardianship and maintenance either directly, or by judicial or administrative procedures. This reflects the realities of our society, that such a family often includes children who are not strictly born of the marriage, but are absorbed into it. Why should some line be drawn which recognizes Parliament's power to provide for children adopted according to Australian law by one or both parties, for children whose adoption by one or both parties is not recognized in Australia (see s. 4(1) of the Act), and for ex-nuptial children of either party, but not for a child who has otherwise been absorbed into the family.

Parliament has also grappled with some of the problems created by medical technology, in particular artificial insemination or the implantation of an embryo in the body of a woman. Children born as a result of these procedures are in certain cases deemed to be children of the woman's husband (s. 5A of the Act), and thus children of the marriage.

No narrow view should be taken of Parliament's power to provide for children who become part of the family arising from the marriage, even if they are not strictly children of the marriage. The legislative provision is presumed to be valid, and that presumption should not be displaced except by the clearest demonstration that there is no rational connexion between the challenged law and the legislative power. I am satisfied that there is a rational connexion, and that the law is valid.

The Divorce and Matrimonial Causes Power, s. 51(xxii).

The power is a wide one, to make laws with respect to divorce and matrimonial causes and in relation to them, the custody and guardianship of infants: see Fountain [10] .

The deliberate use of the general word "infants" rather than the limited "children of a marriage" shows that it was not intended to restrict the power, but to extend it so that Parliament could make laws relating to a child, even though not a child of the marriage, who might be affected by a divorce or other matrimonial cause. If the power were restricted to children of the marriage, Parliament could not even provide for children born during the marriage in consequence of adultery. The provision by Parliament which extends to the children referred to in s. 5(1)(f) of the Act is a law within the scope of the constitutional power, in that it deals with infants whose welfare might be affected by the divorce or matrimonial cause.

Even if the statutory power is held to be not available in the absence of a divorce or other matrimonial cause, so that the Family Court is not competent to make an order in a case such as this, the question of validity of the section and its availability in relation to a divorce or other matrimonial cause should be left open.

Whether ss. 51(xxi) or (xxii) operate to enable s. 5(1)(f) of the Act to apply in this case, it is beyond doubt that the section is valid within the Territories, as a law "for the government of any territory".

A declaration should be made that the Family Court of Australia has jurisdiction to hear the applications.

I agree with the reasons for judgment of the Chief Justice.

The scope of the marriage power conferred by s. 51(xxi) of the Constitution is to be determined by reference to what falls within the conception of marriage in the Constitution, not by reference to what the Parliament deems to be, or to be within, that conception. The scope of the power is unaffected by the manner in which it is purportedly exercised. Though it is helpful to say that the incidents of a marriage relationship are within the scope of the power, that is merely to say that the subject-matter of the power is not confined to the solemnization or status of marriage. It does not define what is and what is not an incident of the marriage relationship within the scope of the power. The power does not support a law which so regulates the incidents of marriage as to impair the essence of marriage: per Windeyer J., Attorney-General (Vict.) v. The Commonwealth [11] ; nor does the power support a law regulating what is deemed to be, but what would not otherwise be, an incident of the marriage relationship. In the present case the question is whether the relationship between a husband and wife on the one hand and a child described in s. 5(1)(f) of the Family Law Act 1975 Cth on the other is such an incident of the marriage of the husband and wife as to be the subject of a valid law supported by the marriage power. By s. 5(1)(f) a child who is not a child of the marriage is deemed to be a child of the marriage if, ordinarily being a member of the household of the husband and wife, he has been treated by them "as a child of their family" and is being so treated when the proceedings commence or when the husband and wife separate.

The recognition by society of rights and duties of husband and wife in respect of the children of their marriage and of the relationship of the children of that marriage to their parents springing from their status as children of the marriage lies not on the periphery but at the centre of the social institution of marriage. 1. (1976) 134 C.L.R. 495, at p. 548.

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

In Fountain v. Alexander [13] , I noted the absence in the Family Law Act 1975 Cth as it then stood of a procedural provision for the enforcement on behalf of nuptial children of the duties owed to them by delinquent parents. A provision facilitating the enforcement of such duties against their parents seems to me to be as much a law with respect to marriage as a provision facilitating the enforcement of the rights of husband and wife in respect of the children of their marriage. The Act has since been amended by s. 3(1)(h) of the Family Law Amendment Act 1983 Cth. One of the applications in the present case was an application brought in the name of the child. It is not necessary to determine in this case whether the amendment to the Act to allow such an application to be brought is valid, but that reservation does not imply any present doubt in my mind as to its validity.

Subject to these observations I agree with the judgment of the Chief Justice. I too would dismiss the applications as incompetent.

I agree with the reasons for judgment of the Chief Justice.