Dowal v Murray

Dowal v Murray - [1978] HCA 53 - HCA 1978 case summary — Zoe

[6]

The expression "party to a marriage" includes a person who was a party to a marriage that has been dissoved or annulled (s. 4 (2)). Section 61 (4) therefore applies in cases where the marriage was dissoved or annulled before the death of one of the parties, but it is not limited in its operation to such cases. It is quite immaterial to the operation of the sub-section whether the marriage was dissoved or annulled, or whether proceedings for divorce or nullity were pending at the date of death or completed before that date. There must of course have been earlier proceedings in which a "custody order" was made, but that order need not have been made in proceedings for divorce or nullity; it may have been made in proceedings in which custody was the only relief sought, e.g., in habeas corpus proceedings. It therefore seems that s. 61 (4) has a wider operation than could validly be given to a law enacted under s. 51 (xxii.) of the Constitution, which gives power to legislate with respect to: "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants." The question of custody with which s. 61 (4) deals need not arise in relation to divorce or any matrimonial cause, unless earlier proceedings for custody may themselves be described as a matrimonial cause. That expression, if given the widest meaning of which it is capable, would certainly include proceedings between spouses for the custody of a child of the marriage, but the concluding words of s. 51 (xxii.) suggest that proceedings for custody are not "matrimonial causes" for the purposes of par. (xxii.). If that is so, s. 61 (4) can only be supported as an exercise of the power conferred by s. 51 (xxii.) if it can be read down under s. 15A of the Acts Interpretation Act 1901 Cth, as amended. It will, however, be unnecessary to consider whether the sub-section was validly enacted under the power conferred by s. 51 (xxii.), if it can be sustained as a valid exercise of the power to make laws with respect to marriage, which is conferred by s. 51 (xxi.) of the Constitution.

[25]

What ensures that s. 61 (4) is within the scope of the marriage power is its concern with a child of the marriage and with the redefining and regulation of that child's custody, at the instance of the surviving parent, following the disruption caused to the pre-existing custodial situation by the death of the other parent. The authorities disclose that this subject matter is quite central to the marriage power. Attorney-General (Vict.) v. The Commonwealth [5] ("the Marriage Act Case ") was concerned with the validity of laws very different from s. 61 (4), yet in certain of the judgments may be found general statements regarding the scope of the marriage power which bear upon the present case and which were relied upon by members of this Court in Russell v. Russell. In the Marriage Act Case Taylor J. said of the one word "Marriage", which is all that s. 51 (xxi.) contains, that it: "is used to define a broad constitutional power and in the paragraph in question the word "marriage" - appearing without limitation or qualification - is entitled to as wide an interpretation as it can reasonably bear" [6] . He regarded it as extending to laws defining and regulating the respective rights duties and obligations of the parties inter se and went on to say [7] that: "Indeed, the full measure of the legal effect of a marriage can be determined only by reference to the rights duties and obligations, which, by law, arise out of the relationship and I can see no reason why a constitutional power to make laws with respect to the subject matter of "Marriage" should not be thought to authorize laws defining or modifying and re-defining the legal incidents of the relationship." Menzies J. regarded a law relating to the legitimacy of children of a valid marriage as valid because - "It would deal with the relationship of those marrying to the children of the marriage and this, I think, would be within the marriage power notwithstanding that it would relate to the status of the children as well." [8] .

[99]

There can be little doubt that the intention of the Parliament was to create a jurisdiction to entertain proceedings of the kind described in pars (c), (d), (e) and (f) of the definition of matrimonial causes, irrespective of whether or not they are ancillary to proceedings within pars (a) and (b) of that definition. He then turned to consider whether s. 39 was valid in relation to those paragraphs ((c), (d) (e) and (f)) if they were to be regarded as ancillary to proceedings for divorce or nullity. He said that it had been argued that the paragraphs should be confined by construction to proceedings which were ancillary to proceedings for divorce or nullity, but was of opinion that they could not be so read down as a matter of construction in the light of the provisions of the Act generally. He then indicated that by use of s. 15A of the Acts Interpretation Act 1901-1973 the provisions could be read so as to apply the words of s. 39 in combination with pars (c), (d), (e) and (f) only to ancillary proceedings which are within the competence of the Parliament [32] . Thus, he took the view that the jurisdiction given by s. 39 in so far as its operation depended upon pars (c), (d), (e) and (f) of the definition was valid only to the extent to which it gave jurisdiction to hear and determine proceedings as described in those paragraphs which were ancillary to proceedings under pars (a) and (b). Gibbs J. took the view that neither s. 51 (xxi.) nor s. 51 (xxii.) empowered the Parliament to confer jurisdiction to hear proceedings (whether continued under the new Act or otherwise) relating to the custody of a child brought by one spouse against another, but independently of any divorce or other matrimonial cause. He likewise took the view that the other parts of pars (c) to (f) inclusive were expressed so widely as to be outside constitutional power, but that s. 39 was capable of being read down with the aid of s. 15A and therefore concluded that it would be valid if confined to proceedings between the parties to the marriage which are ancillary to proceedings for principal relief. 1. (1976) 134 C.L.R., at p. 512. 2. (1976) 134 C.L.R., at p. 513-514.

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Judgment (115 paragraphs)

Parties