Dowal v Murray

Section 61 (4) of the Act is in the following terms:

On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time of the application is entitled to be a party to the proceedings.

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.

To enable that question to be decided, it is first necessary to consider the manner in which the sub-section operates. The effect of s. 61 (4) is to define the right of the surviving party to a marriage to the custody of a child of the marriage in certain circumstances, namely if a custody order in respect of the child has been made in favour of the party to the marriage who has since died. In such circumstances the surviving party has no right to custody unless the Court so orders. This appears to be so even if the surviving party has the care and control of the child. Sub-section (4) of s. 61 indicates one of the limits to the operation of s. 61 (1) which provides as follows:

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. In the light of sub-s. (4) it is clear that sub-s. (1) would not entitle the surviving party to a marriage to the custody of a child of the marriage after the death of the other party if an order for custody had been made in favour of that other, even if the order had ceased to be in force on the death of the party in whose favour it was made. Indeed even if a custody order had been made in favour of both spouses it appears that the effect of s. 61 (4) is that the survivor would have no right to custody unless the court so ordered.

Section 61 (4) confers no right to custody upon the person who has in fact the care and control of the child. Nor does it enable any such person to make an application for an order for the custody of the child. In In the Marriage of Robertson [19] , Demack J. expressed the view that s. 61 (4) confers on the person who has the care and control of the child rights similar to those of a testamentary guardian. He was influenced by the unsatisfactory position in which such a person might be placed if the surviving parent made no application for custody. It is indeed inconvenient that an application by the surviving spouse for the custody of a child can be entertained only by one court, and an application by the person who has in fact the care and control of the child can be entertained only by another, as Helsham C.J. in Eq. has pointed out in Clarke v. McInnes [20] . However the sub-section cannot be re-written to avoid any inconvenience that its provisions may create, if those provisions are clear and unambiguous. With all respect to the opinion of Demack J., s. 61 (4) confers no right on a person who has the care and control of a child except to be a party to the proceedings if the surviving parent applies for custody. Whether it would have been competent for the Parliament to have conferred further rights on such a person need not be considered. If the surviving parent does make an application under s. 61 (4), the court is required, in such proceedings, to regard the welfare of the child as the paramount consideration: s. 64 (1) (a). And on such application the court has power to award custody to the respondent - the person who had the care and control of the child: s. 64 (2).

1. (1977) 15 A.L.R. 145, at pp. 151-152. 2. (1978) 34 F.L.R. 197; [1978] 1 N.S.W.L.R. 598.

Section 61 (4) does not expressly confer jurisdiction on any court to entertain an application by the surviving party for the custody of the child. The relevant grant of jurisdiction which is made by ss. 31 and 39 of the Act is in respect of "a matrimonial cause". The expression "matrimonial cause" is defined in s. 4 (1) of the Act and by par. (c) of that definition it includes:

proceedings between the parties to a marriage with respect to - (ii) the custody, guardianship or maintenance of, or access to, a child of the marriage. It is plain that proceedings under s. 61 (4) would not be a matrimonial cause within that definition, because the proceeding would not be between the parties to the marriage. However, the definition of matrimonial cause in s. 4 (1) also includes the following:

(f) any other proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (e), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

To come within s. 61 (4) it is necessary that a custody order should have been made in favour of a party to a marriage during the lifetime of both parties to the marriage. No such order could properly be made except in proceedings between the parties to the marriage. A custody order within s. 61 (4) must therefore have been made in proceedings of the kind described in par. (c) of the definition of "matrimonial cause", whether those proceedings were begun after, pending at, or completed before, the commencement of the Act. The proceeding which results from the making of an application under s. 61 (4) may properly be regarded as related to the earlier custody proceedings, and therefore as coming within par. (f) of the definition of matrimonial cause contained in s. 4 (1). The provisions of s. 61 (4) themselves obviously contemplate that jurisdiction exists to entertain an application under the sub-section. For the reasons given the proceeding commenced by the application would be a "matrimonial cause", and the Family Court would have jurisdiction. Since a proclamation has been made under s. 40, the jurisdiction would be exclusive of that of the Supreme Courts of the States: see also s. 8.

From this analysis, it will have been seen that s. 61 (4) is a law with respect to the right of a surviving party to a marriage to the custody of a child of the marriage in certain circumstances. It is also a law with respect to the procedure by which such a party to a marriage may apply for the custody of a child of the marriage. Since Russell v. Russell [20a] such a law must be taken to be a valid exercise of the power conferred by s. 51 (xxi.). In that case I shared the view which was held by the majority of the Court that the power to make laws with respect to marriage would enable the Parliament to declare the rights and duties of the parties to a marriage with respect to the custody of the children of the marriage, and to provide for the enforcement of those rights and duties, unless the meaning of s. 51 (xxi.) were limited by the provisions of s. 51 (xxii.). It was however my opinion that the latter provisions indicated that the power of the Parliament extended to make laws with respect to custody only in relation to divorce and matrimonial causes. The majority of the Court held that the power was not limited in that way. Once it is decided that the provisions of s. 51 (xxi.) are not to be read down or qualified in the light of s. 51 (xxii.) it must in my opinion be held that the power given by par. (xxi.) enables the Parliament to define the rights of the parties to a marriage to the custody of a child of the marriage and to provide for the enforcement of those rights. The power extends, in my opinion, to the definition and enforcement of the right of a surviving party to a marriage to the custody of a child of the marriage after the marriage has come to an end by death or divorce. In such a case the right is still one that arises out of the marriage relationship.

It is true that in Russell v. Russell, Mason J. (with whom Stephen J. agreed) said that par. (c) of the definition of "matrimonial cause" in its original form, by conferring a jurisdiction unlimited as to parties, went beyond the marriage power [1] . Jacobs J. expressed a wider view [1a] . In accordance with the opinion of Stephen and Mason JJ. the provisions of par. (c) (iii) (which corresponded to the present par. (c) (ii)) were held valid only in so far as they related to proceedings between the parties to a marriage. However it does not follow that the exercise of the marriage power is restricted to defining, or providing for the enforcement of, the rights to custody of the parties to the marriage between themselves. In Reg. v. Demack; Ex parte Plummer [2] , Mason J. denied that the power was so restricted. If the law is one which defines the rights of a party to the marriage with respect to the custody of a child of the marriage, and provides for the enforcement of those rights, it provides for one of the legal consequences of the marriage relationship, and is a law with respect to marriage. In that case I expressed the view, to which I adhere, that a law is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage [3] . But a law such as s. 61 (4) is clearly within the limits of the power.

1. (1976) 134 C.L.R., at p. 541. 2. (1976) 134 C.L.R., at p. 550. 3. (1977) 137 C.L.R. 40, at p. 53. 4. (1977) 137 C.L.R., at p. 46.

For these reasons, I would hold that s. 61 (4) of the Act is a valid exercise of the power conferred on the Parliament by s. 51 (xxi.) of the Constitution. I would declare accordingly, and would remit the proceedings to the Family Court. I would make no order as to costs.

What is here in issue is the constitutional validity of s. 61 (4) of the Family Law Act 1975, as amended. Its terms, and those of other relevant provisions of that Act, appear in other judgments.

Section 61 (4) legislates for the case of the death of a party to a marriage in whose favour a custody order in respect of a child of the marriage has been made. It denies to the surviving party to the marriage the custody of the child except pursuant to a further court order. Should the survivor seek such an order the subsection also entitles a third party who has the care and control of the child to be a party to the survivor's application. I may say, in passing, that the sub-section does not, in my view, confer any power upon such a third party to himself initiate an application for an order for custody of the child: only the surviving parent may make such an application under s. 61 (4), although it may be that, as my brother Jacobs suggests, an application by a third party would be possible under s. 39 of the Act.

The effect of s. 61 (4) is to alter what would otherwise be the consequence, both for the survivor and for the child, of the death of the other parent, to whom custody of a child of the marriage had been awarded. But for it, the surviving parent, having been denied during their joint lives the entitlement to joint custody which, but for a court order, s. 61 (1) would have conferred, would acquire that entitlement once the other parent's death brought the effect of the disentitling order to an end. What may be the effect of the sub-section in those cases in which the previous custody order provided for joint custody is, perhaps, open to doubt. I incline to the view that the reference in s. 61 (4) to a custody order in favour of one party to a marriage should be understood as confining the operation of the sub-section to custody orders made in favour of one parent in the sense of being adverse to the other. On this view s. 61 (4) will be inoperative in the case of orders for joint custody and the survivor will remain entitled to custody after the death of the other party to the marriage.

The foregoing being the general effect of s. 61 (4), the attack upon its validity as a law enacted pursuant to the grant of power conferred by s. 51 (xxi.) of the Constitution, the marriage power, is twofold. Because s. 61 (4) envisages proceedings brought either ex parte by the survivor or to which the other party will be a stranger to the marriage, this is said, on the authorities, to take the section outside the scope of the grant of power in s. 51 (xxi.), only applications in which the contending parties consist of both of the parties to the marriage being said to be within power.

Quite apart from the matter of parties, s. 61 (4), concerned as it is with the custody of a child after the death of the former custodial parent, is said to have, in any event, no relevant connexion with the marriage power. To illustrate how remote from the subject-matter of marriage will be any application made under s. 61 (4), the applicant points to the terms of s. 39 of the Act. On that section, interacting as it does with the definition of matrimonial causes in s. 4, must rest a court's jurisdiction to entertain an application under s. 61 (4). It is said that an examination of the definition of matrimonial cause in s. 4 demonstrates that s. 39 can confer no jurisdiction which would extend to an application under s. 60 (4) and that, because of the accuracy with which that definition, amended following Russell v. Russell [4] , now reflects the limits of legislative power under s. 51 (xxi.), this lack of jurisdiction testifies to the ultra vires nature of s. 61 (4).

The other possible source of legislative power, upon which the validity of s. 61 (4) might rest, s. 51 (xxii.) of the Constitution, is said by the applicant to be equally unavailing. However I would only require to pursue the grounds for this particular submission were I to accept the foregoing contentions and hence have to look elsewhere than in s. 51 (xxi.) for the constitutional basis for s. 61 (4). As it is, the validity of s. 61 (4) can, in my view, be supported readily enough by reference to the grant of power conferred by s. 51 (xxi.), without recourse to s. 51 (xxii.).

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] .

1. (1962) 107 C.L.R. 529. 2. (1962) 107 C.L.R., at p. 560. 3. (1962) 107 C.L.R., at pp. 560-561. 4. (1962) 107 C.L.R., at p. 574.

He also held that laws relating "to the effect of marriage upon the relationship of those who marry and their children" were laws with respect to marriage. Windeyer J. regarded the marriage power as extending to "matters concerning the support and care of children, duties that are commonly considered to be inherent in the institution of matrimony" [9] . He described the personal relationships and family obligations flowing from marriage as "of the essence of the estate of matrimony" [10] . Owen J. spoke of the marriage power as wide enough "to enable the relationship between those who marry and their children to be defined and regulated" [11] . Certain of the judgments of these and other members of the Court also refer generally to the need to give to the marriage "no narrow or restrictive construction" (Dixon C.J. [12] ).

1. (1962) 107 C.L.R., at p. 580. 2. (1962) 107 C.L.R., at p. 581. 3. (1962) 107 C.L.R., at p. 602. 4. (1962) 107 C.L.R., at p. 543.

It is from Russell v. Russell [13] that more direct guidance upon the matter of custody and its relationship to the marriage power may be gained. Gibbs J. said [14] that, subject to a reservation as to whether or not s. 51 (xxi.) was to be understood as unaffected in its scope by s. 51 (xxii.), it would confer legislative power "to declare the rights and duties of the parties to a marriage with respect to the custody and maintenance of the children of the marriage" and to provide for the enforcement of those rights in legal proceedings. Mason J., with this aspect of whose judgment I expressed agreement, said [15] , that the marriage power extended to the definition and enforcement of the respective rights, duties and obligations arising out of the marriage relationsip. Jacobs J. said [16] , that recognition by society of the rights and duties of parents in respect of their children and the relationship of those children to their parents, as children of the marriage, lay at the centre of the social institution of marriage. His Honour said [17] , that the nurture of children by, and in recognized and ordered relationship with, their parents was integral to the concept of marriage as it had developed as an institution in our society. Laws relating to the nurture of children of a marriage were laws relating to marriage as a social institution.

1. (1976) 134 C.L.R. 495. 2. (1976) 134 C.L.R., at pp. 524-525. 3. (1976) 134 C.L.R., at pp. 538-539. 4. (1976) 134 C.L.R., at p. 548. 5. (1976) 134 C.L.R., at p. 549.

In Reg. v. Demack; Ex parte Plummer [18] , Mason J. cited these two authorities for the proposition that the marriage power extended to the definition of, and the enforcement of, the rights of the parties to a marriage, including their rights with respect to the custody of the children of the marriage and added:

The exercise of the power cannot be restricted to a definition of, or to making provision for the enforcement of, the custodial rights of the parents inter se. It follows that the Parliament may in the exercise of the marriage power enact a law providing that the custodial rights of the parent of a child shall be paramount and that they shall prevail over the rights of any other person, whether he be a Minister of officer of the State or not. So also the Parliament may in the exercise of the power authorize a court to make an order for custody of a child in favour of a parent to the exclusion of the rights of any other person, including a Minister or officer of a State. So to define the rights of the parents is not to derogate from the character of the law as one which defines the rights of the parties to the marriage; it is merely to define the rights in such a way as to give them a paramount and exclusive operation. Murphy J. said [19] of the marriage power that it "authorizes definition (and provision for the adjudication and enforcement) of rights and obligations of spouses in regard to the care of children (this includes custody, access, guardianship, maintenance, advancement and security). The laws may cover a child of one or both spouses who are born or adopted before or during a marriage and may provide for care of children during and after marriage". 1. (1977) 137 C.L.R. 40, at p. 53. 2. (1977) 137 C.L.R., at p. 37.

He added that "the power in relation to custody is not restricted to defining or providing for the enforcement of the custodial rights of parents inter se".

Viewed in the light of these authorities, s. 61 (4) may be seen to be intimately concerned with the marriage power since it defines and regulates the relationship between parent and child in a particular set of circumstances. The rights of one party to a marriage with respect to children of that marriage are, in those particular circumstances declared and their enforcement provided for. It is of particular relevance that those circumstances are ones which involve an interruption of the ordered regimen for the custody, as between parties to a marriage, of a child of a marriage. The sub-section assumes the existence of a custody order which, so long as it operated, regulated the rights and obligations of the parents and their relationship to a child of the marriage. The regimen thus established having been affected by the death of the custodial parent, it is with the future custodial regimen and with the role of the Court in determining its precise character that s. 61 (4) is concerned.

Far from exemplifying any lack of connexion between s. 61 (4) and the marriage power, the terms of the definition of matrimonial cause in s. 4 of the Act appear to me to have a contrary effect. Paragraph (f) of that definition extends to proceedings "in relation to" completed custody proceedings. I would regard a proceeding brought by a surviving parent under s. 61 (4) as being "in relation to" the earlier custody proceedings which resulted in custody being awarded to the now deceased parent. The position is closely analogous to that of the subsequent variation of an order made in some original proceedings because of a later change in circumstances: here it is brought about by the death of the custodial parent, a change which has disrupted the regimen established by the original order.

Then it is said that the marriage power cannot extend to s. 61 (4) because it contemplates proceedings to which one spouse, the deceased, will necessarily not be a party. This is said to be fatal to validity because of what is said to flow from passages from the judgment of Mason J. in Russell v. Russell [20] . I have already referred to passages from his Honour's judgment. His Honour examined in some detail [21] , the nature of the marriage power and nothing on these pages would support the applicant's submission. When his Honour [22] turned to a consideration of the definition of matrimonial cause in s. 4 (1) of the Act (it then being in its original, unamended form) it became clear that some of the proceedings there enumerated would encompass matters remote from the marriage power. The question then arose of how the "reading down" provisions of s. 15A of the Acts Interpretation Act, 1901-1973 might be applied to such a situation. His Honour referred to a passage from the judgment of Latham C.J. in Pidoto v. Victoria [23] which dealt with cases where the law in question might be read down by the use of some standard or test indicated by its own terms and concluded that this was such a case: in the definition of "matrimonial cause" such a standard was to be found, namely that of the identity of the parties to proceedings. By employing this standard his Honour was able to save from invalidity so much of the definition, and hence of the portions of the Act which relied upon that definition, as remained after confining its operation to proceedings between parties to the marriage.

1. (1976) 134 C.L.R. 295. 2. (1976) 134 C.L.R., at pp. 337-340. 3. (1976) 134 C.L.R., at p. 540. 4. (1943) 68 C.L.R. 87.

There was, of course, no intrinsic quality in this standard which made its application precisely co-terminous with the scope of the marriage power. It would be a coincidence indeed were particular legislation ever to contain a standard or test available for purposes of "reading down" which happened also precisely to correspond with the extent of the particular constitutional power found to be capable of supporting that legislation as so read down. The use of the standard did, however, ensure that, when applied to read down the terms of the definition, what remained after reading down would be within power. For example, whereas par. (c) (iii) of the original definition spoke of "proceedings with respect to the property of the parties to a marriage or of either of them", thus extending to some proceedings clearly in excess of power, an application of the standard, limiting proceedings of this type to those between parties to the marriage, kept it well within the ambit of the marriage power.

The standard so employed, that of "proceedings between the parties to a marriage", was thus no measure of validity distilled by his Honour out of the concept of the marriage power. It simply happened to be the appropriate standard, offered by the terms of the definition of "matrimonial cause", which could be employed so as to read down the definition and preserve for it a valid operation.

So understood, it is clear that the fact that s. 61 (4) contemplates a proceeding to which one party to the marriage will necessarily not be a party is no necessary badge of invalidity; and, for the reasons earlier expressed, I am in fact satisfied that the subject matter of s. 61 (4) is well within the grant of legislative power conferred by s. 51 (xxi.).

So far I have concerned myself with validity. There remains the question whether the Act as it now stands confers jurisdiction upon courts to entertain such proceedings as s. 61 (4) describes. The amendments made to the definition of "matrimonial cause" following Russell v. Russell [24] adopted as their model that same standard as Mason J. had had resort to in reading down the definition in its unamended form. The consequence is that proceedings under s. 61 (4) are not now within that part of the amended definition, par. (c) (ii), which now refers to custody applications. However it does not follow that there is now a want of jurisdiction to entertain proceedings instituted under s. 61 (4). Paragraph (f) of the definition of "matrimonial cause" retains its original form and, when read in conjunction with s. 39, confers jurisdiction in proceedings (regardless of the identity of the parties thereto) which are "in relation to completed proceedings of a kind referred to in", inter alia, par. (c) (ii) of the definition. Section 61 (4) proceedings must, in my view, necessarily answer that description because, for the reasons which I have earlier expressed, they are intimately concerned with the original custody proceedings, involving, in effect, such modification of the custodial regimen created by the earlier proceedings as is necessitated by the changed circumstances brought about by the death of the original custodial parent.

I would hold s. 61 (4) of the Act to be a valid exercise of the legislative power conferred by s. 51 (xxi.) of the Constitution and would remit the matter to the Family Court, with no order as to costs.

By an order of this Court made on 27th October 1977 there was removed into this Court so much of this cause as related to the validity of s. 61 (4) of the Family Law Act 1975. The cause is one commenced in the Court of Petty Sessions at Wollongong in New South Wales in which the father, Robert Dowal, sought custody of his son, Christopher Robert Dowal. The maternal grandparents also sought leave to intervene in the father's application and an order for custody (presumably pursuant to s. 64 (2) of the Family Law Act). They also filed a further application in that Court in the same proceedings for an order that custody of the child be granted to them.

Robert Dowal was married to Barbara Elizabeth Dowal on 8th March 1969 and the child was born on 6th December 1972. The husband and wife separated in 1973 and on 31st October 1974 a decree nisi for dissolution of the marriage was made in the Supreme Court of New South Wales in the exercise of jurisdiction under the Matrimonial Causes Act 1959 Cth. Custody of the child was given to the wife. On 9th May 1977 the wife died. Since that date the child has resided with Mr. and Mrs. Murray at Essendon in Victoria.

The order for removal into this Court was made on the application of Mr. Dowal. At the hearing Mr. and Mrs. Murray submitted to such order as the Court should make. The Commonwealth and the State of New South Wales intervened to support the validity of s. 61 (4). That sub-section is in the following terms:

On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such application, any other person who had the care and control of the child at the time of the application is entitled to be a party to the proceedings.

The argument against the validity of s. 61 (4) is not easy to comprehend. It appears to be based upon the contention that once a marriage, or a state of divorce, between two persons is brought to an end by the death of one of them, then Commonwealth power to regulate any aspect of their previous relationship also comes to an end. The argument cannot be sustained. It springs from a misunderstanding of the views expressed by Mason J., with whom Stephen J. agreed, in Russell v. Russell [25] . In that case the proceedings were between the parties to the marriage so that any views expressed on Commonwealth power in respect of proceedings other than proceedings between the parties to a marriage were necessarily obiter dicta. But in any case the limitation proposed by Mason J. did not deal with the situation envisaged in s. 61 (4) where there had been previous proceedings in respect of the custody of the child of the marriage, and where the proceedings after the death of one of the parties are a consequence of the court's exercise of a jurisdiction which it possessed during the joint lives of the parties to the marriage. The close relation between the original order for custody and the provisions of s. 61 (4) is obvious. The child may have been, as the child here was, in surroundings removed from the surviving parent as a result of the court's order made in exercise of federal jurisdiction. To legislate for a consequence of such an order is in my opinion clearly within Commonwealth power.

That conclusion is sufficient to dispose of the part of the cause removed into this Court. Further, by the combined effect of s. 61 (4) and s. 64 (2) which provides that in proceedings with respect to the custody of a child of a marriage the court may make an order placing the child in the custody of a person other than a party to a marriage, the Court may in the instant case, if it is satisfied that it is desirable to do so, place the child in the custody of the grandparents. It is not as clear whether the grandparents could themselves under these sub-sections make an originating application for custody. I am inclined to think that they could by virtue of par. (f) of the definition of "matrimonial cause" and by virtue of s. 39. The proceedings would be proceedings in relation to the previously completed proceedings for custody of the child and would be a "matrimonial cause" in respect of which s. 39 confers jurisdiction. However, if the view be taken that there is presently no right in such persons to apply, then it would seem that urgent legislative attention is required. I have no doubt that it would be within power to pass legislation entitling such persons who have the care and control of a child of a marriage to apply for legal custody of the child.

Whether or not Commonwealth power extends to making laws with respect to the custody of a child of a marriage where one or both parents are dead and where there was no order for custody made during the lifetime of the parents remains undecided, although different views were expressed upon this question by members of the Court in Russell v. Russell. My own views on the extent of Commonwealth power in such a case is made plain in the reasons I expressed in that case.

This proceeding was removed from the Family Court only to determine the question of the validity of s. 61 (4) of the Family Law Act 1975, as amended, which states:

On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time of the application is entitled to be a party to the proceedings. The Attorneys-General of the Commonwealth and of New South Wales intervened to support the validity of s. 61 (4). In the absence of any apparent violation of a constitutional prohibition or guarantee, legislation is presumed to be valid. The presumption is of course not conclusive, but is strong.

Parliament's authority to enact s. 61 (4) is amply founded on the marriage power in s. 51 (xxi.) of the Constitution. Marriage is a social and economic institution (see Westermarck, The History of Marriage (1925), ch. 1) and the close and fundamental connexion between marriage and the family is universally recognized. A law with respect to the family which arises from a marriage is a law with respect to marriage (see Jacobs J. in Russell v. Russell [26] ).

The social aspects of marriage extend to the children born of the marriage and to the children of either party who become part of the family initiated by the marriage. The power to make laws with respect to marriage enables Parliament to protect the child if one or both parties die or become incapable of promoting or unwilling to promote the well-being of the child, or if the parties separate or divorce. The power extends to those children who come with or are adopted into the family.

The meaning of the marriage power (s. 51 (xxi.)) is not limited or qualified by the existence of the divorce power (s. 51 (ix.)). It is wrong to carry over notions of matrimonial causes from the divorce power into the marriage power as if they were necessary for its operation. Under the marriage power, Parliament may choose judicial proceedings as a convenient means of dealing with custody, but this is not necessary.

Under the marriage power, Parliament can provide for the custody of a child of the marriage during and after the marriage (it can also provide for the custody of a child not born of the marriage in some circumstances, for example, a child born during the marriage of the wife of which the husband is not the father or a child who has been brought into and become part of the family which has arisen out of the marriage). (For an earlier example of this, see s. 6 of the Matrimonial Causes Act 1959.) It may provide directly for the custody in various circumstances by specifying who or what class of person is to have the custody or it may provide that the custody is to be determined by some procedure such as a judicial procedure. An example of the former is s. 61 (1) which provides that subject to any order of a court, parties to the marriage are to have joint custody. An example of the latter is s. 61 (4) which provides that on the death of a party to the marriage (in whose favour an order for custody has been made), the other party is entitled to custody only if the court so orders on application of that other party.

A law which deals with the custody of a child of the marriage (either directly, or indirectly as by providing for it through judicial order) is a law with respect to marriage. The marriage power in relation to custody is not restricted to defining or providing for the enforcement of the custodial rights of the parties to the marriage between themselves (Reg. v. Demack; Ex parte Plummer [27] ). Parliament may, if it wishes, provide that the guardianship or custody of a child of a marriage may be placed with some other person during or after the marriage. I leave aside any constitutional inhibitions (for example, those in favour of a free society) by reason of the powers in s. 51 being subject to the Constitution. If it wishes to use judicial procedures for custody purposes, the Parliament may vest jurisdiction in a court to make appropriate orders, and allow the parties to a marriage or other persons to initiate, defend or intervene in proceedings in relation to such orders. It follows that the marriage power enables Parliament to provide that on the death of a party to a marriage (or dissolved marriage), any interested person may apply for custody of a child of the marriage and for a court to make such order as it considers best for the child. Section 61 (4) fits easily within the marriage power.

On the question of constitutional power to legislate, Parliament's power to make laws with respect to external affairs (s. 51 (xxxix.) of the Constitution) should not be overlooked. Custody is an aspect of welfare of the child. The welfare of children has long been a subject of international concern (see Geneva Declaration of the Rights of the Child, 1924). The concern was expressed on 10th December 1948 by the United Nations in its Universal Declaration of Human Rights, art. 25 (2) of which states:

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. (See also the provisions in respect of education and other rights.)

The International Covenant on Economic, Social and Cultural Rights (entered into force 3rd January 1976 and ratified by Australia) states:

10. The States Parties to the present Covenant recognize that:

(3) Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.

The International Covenant on Civil and Political Rights (entered into force 23rd March 1976 and ratified by Australia) states:

4. (1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

On 20th November 1959, the General Assembly of the United Nations proclaimed the Declaration of the Rights of the Child. This called upon national governments, among others, to recognize these rights and strive for their observance by legislative and other measures taken in accordance with stated principles. The international concern with the welfare of the child continues. On 21st December 1976, the General Assembly declared 1979 the International Year of the Child.

Recent examples of the use of the external affairs power to make laws which may not otherwise have been within the competence of the federal Parliament are the Narcotic Drugs Act 1967, the Trade Practices Act 1974, s. 55 (see Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. [28] , per Mason J.), and the Racial Discrimination Act 1975.

The Parliament may have recourse to its power with respect to external affairs to carry out its international obligations in regard to children. For example, as Parliament by reason of the marriage power can make laws for custody of children at least during a marriage, it may well be that by reason of the external affairs power it can make the same provision for the custody of all children of a marriage after the marriage (whether ended by death or dissolution) and for the custody of ex-nuptial children. Thus the use of the external affairs power may enable Parliament to remove limitations on the Family Court's jurisdiction which have been criticized in this and other recent cases.

I agree with the observations of Jacobs J. on the existing jurisdiction of courts under the Family Law Act to entertain applications for custody by persons other than a party to the marriage.

Section 61 (4) is valid. The proceedings are competent and should be remitted to the Family Court of Australia.

By an order of the Chief Justice, Mason and Jacobs JJ. made on 27th October 1977 this cause was removed from the Family Court in so far as it related to the validity of s. 61 (4) of the Family Law Act 1975, as amended. The relevant facts may be shortly stated. Mr. and Mrs. Dowal were married on 8th March 1969 and they had one child, Christopher Robert, who was born on 6th December 1972. A decree nisi for the dissolution of that marriage was made under the Matrimonial Causes Act 1959-1973 on 31st October 1974 and on that date an order was made giving custody of the child to the wife. The wife died on 9th May 1977. Proceedings were thereafter commenced in the Wollongong Court of Petty Sessions by the father and by Mr. and Mrs. Murray, the parents of Mrs. Dowal, the mother, both parties seeking orders under s. 61 (4) of the Family Law Act. It appears that the matter was thereafter transferred to the Family Court of Australia in Sydney and that shortly thereafter the order to which I have referred was made removing the cause into this Court.

Section 61 of the Act (as amended) provides as follows (so far as material):

(1) 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.

(4) On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time of the application is entitled to be a party to the proceedings.

It appears that shortly before the death of the wife the child of the marriage was under the "care and control" of the maternal grandparents and presumably was still in their care and control at the date of the application to the Wollongong Court.

In Russell v. Russell [29] the provisions of s. 39 of the Family Law Act 1975 were considered and of the matters there dealt with the operation of s. 39 in conjunction with the definition of matrimonial cause in s. 4 (1) is of importance. Section 39 gave to the Family Court jurisdiction in proceedings for a decree of dissolution of marriage and in proceedings "of a kind referred to in any of paragraphs (a) to (e) of the definition of matrimonial cause in sub-section 4 (1), other than proceedings for a decree of dissolution of marriage." The critical aspects of the operation of those provisions arose from the definition of "matrimonial cause". The definition of "matrimonial cause" which was considered in Russell v. Russell was as follows:

(a) proceedings between the parties to a marriage for a decree of -

(b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise;

(i) the maintenance of one of the parties to a marriage;

(ii) the property of the parties to a marriage or of either of them; or

(iii) the custody, guardianship or maintenance of, or access to, a child of a marriage;

(d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement;

(e) proceedings for an order or injunction in circumstances arising out of a marital relationship; or

(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (e), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

In Russell v. Russell the majority of the Court held that s. 39 was a valid law of the Commonwealth in so far as the jurisdiction conferred related to paragraphs of the definition of "matrimonial cause" when read in the manner indicated in the order of the Court, namely:

(2) Paragraphs (c) (i) and (e) but only in so far as they relate to proceedings between the parties to a marriage.

(3) Paragraph (c) (ii) but only to the extent to which it relates to proceedings for ancillary relief in relation to proceedings of the kinds referred to in pars (a) and (b) of the definition.

(4) Paragraph (c) (iii) but only in so far as it relates to proceedings between the parties to a marriage with respect to the custody, guardianship or maintenance of, or access to, the natural and adopted children of the parties to the marriage.

(5) Paragraph (f) but only to such extent as is consequential upon the validity of s. 39 in relation to pars (a), (b), (c), (d), and (e) of the definition of "matrimonial cause".

The Court also held that s. 64 of the Family Law Act (which dealt with the powers of the Family Court in relation to custody) was a valid law only to the extent to which it related to proceedings between the parties to a marriage with respect to the custody of natural and adopted children of the parties to the marriage, and that the powers given by s. 74 with respect to maintenance were limited in the same manner. 1. (1976) 134 C.L.R. 495.

Somewhat different reasons for these conclusions were given by the various members of the majority and it will be necessary to refer below to those differences.

After that decision the Family Law Act was amended by Act No. 63 of 1976 by deleting pars (c) and (e) of the definition of "matrimonial cause" and substituting for them new pars (c), (ca) and (cb) and a new par. (e). The new provisions were as follows:

(c) proceedings between the parties to a marriage with respect to -

(i) the maintenance of one of the parties to the marriage; or

(ii) the custody, guardianship or maintenance of, or access to a child of the marriage;

(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties;

(cb) 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 maintenance of the child;

(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

It will be observed that no amendment was made to par. (f) of the definition, but it is plain that its operation was substantially affected by the amendments to which I have referred above, because the "other proceedings" must now be in relation to "proceedings between the parties to a marriage". Although par. (b) does not expressly say that the proceedings shall be between the parties to a marriage, the proceedings there referred to must of their very nature be between the parties to a marriage. It remains, however, to be considered what operation is to be given to the words "in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (e)" in the light of the decision in Russell v. Russell [30] and of the amendments to those paragraphs. 1. (1976) 134 C.L.R. 495.

I have said above that the majority of the Court in Russell v. Russell expressed somewhat different reasons for regarding s. 39 and s. 64 as valid only to the extent which I have stated. Barwick C.J. regarded the validity of s. 39 in so far as dependent on pars (c) and (f) as dependent on s. 51 (xxii.) and not supported by s. 51 (xxi.). He then said [31] that:

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.

Stephen J. on this aspect of the case agreed with Mason J. Mason J. took the view that the provisions by which jurisdiction was conferred under s. 39 by reference to the definition of matrimonial cause could not be supported wholly under s. 51 (xxii.). He said that pars (c), (d), (e) and (f) plainly provided for proceedings for maintenance, custody and other such matters when instituted not by way of ancillary relief but independently of and separately from proceedings for annulment or dissolution of marriage and that such operation fell outside s. 51 (xxii.) [33] .

He said that "by conferring a jurisdiction unlimited as to parties par. (c) in my opinion travels beyond the marriage power. At least for the same reason pars (e) and (f) of the statutory definition of "matrimonial cause" are also outside the marriage power. Of the four paragraphs in question only par. (d) is a valid exercise of that power." [34] . He then proceeded to consider whether s. 15A of the Acts Interpretation Act may be used to leave standing a valid provision. He said [35] :

Here, as it seems to me, the Parliament by providing for the exercise of a jurisdiction in the matters referred to in pars (c), (d), (e) and (f) independently of proceedings for annulment or dissolution of marriage has sought to exercise primarily the marriage power. For this reason a reading down should be carried out in the first instance by reference to the marriage power with resort to s. 51 (xxii.) only to the extent to which the former power is insufficient. Pursuing this approach, I would confine pars (c) (i), (c) (iii) and (e) to proceedings between the parties to a marriage thereby saving par. (c) (i), par. (c) (iii) to the extent to which it relates to the natural and adopted children of the parties to the marriage (cf. s. 5), and par. (e). Paragraph (c) (ii) by reason of its reference to the property of either of the parties to the marriage, presumably comprehending any property howsoever and whensoever acquired, is not susceptible of a reading down under s. 51 (xxi.); I would therefore read it down by reference to s. 51 (xxii.) and treat it, in conjunction with s. 39, as conferring jurisdiction to grant ancillary relief in proceedings for annulment or dissolution of marriage. 1. (1976) 134 C.L.R., at p. 541. 2. (1976) 134 C.L.R., at p. 542.

Jacobs J. dissented and took the view that s. 39 was wholly valid. The order made by the Court was in the terms proposed by Mason J. and gave effect to the view which he expressed in the passage above quoted. I have already quoted above the relevant portion of that order.

In my opinion the effect of the decision of the majority in Russell v. Russell [36] is that s. 39, in so far as it confers jurisdiction by reference to pars (a) to (e) of the definition of matrimonial cause, is valid only to the extent that it refers to proceedings between the parties to a marriage, and by reference to par. (f) only in so far as the proceedings are in relation to the proceedings between the parties to a marriage. The amendments made by Act No. 63 of 1976 embody that view.

It is not in the present case necessary to decide whether, in order to be valid, par. (f) must be confined to proceedings between the parties to a marriage. What is to my mind clear from the decision in Russell v. Russell is that jurisdiction to decide questions of custody of the children of a marriage in a dispute not between the parties to the marriage cannot under the Constitution be validly conferred. It was for that reason that s. 39 in relation to the jurisdiction conferred by par. (c) (iii) in its original form (the custody, guardianship or maintenance of or access to, a child of the marriage) was valid only in so far as it related to such proceedings between the parties to the marriage.

That is sufficient to require the conclusion that s. 39 in relation to par. (f) of the definition of matrimonial cause cannot support a jurisdiction to decide matters such as would fall within s. 61 (4).

Moreover I can see no basis for saying that an application by a father for custody of a child of the marriage after the death of the divorced mother has any relation to the divorce proceedings or to prior custody proceedings between husband and wife, wide though the words "in relation to" no doubt are. Such an application does not arise out of those proceedings, nor does it seek any variation of any order in, or consequential upon, those proceedings. The orders for dissolution and for custody are now wholly spent and nothing that can be done thereafter as to custody can have any relation to those proceedings. No doubt the present factual situation has its origins in the marriage and its dissolution, but that is a very different matter from saying that the husband's present application for custody has any relation to the prior proceedings. The proceedings under s. 61 (4) involve a contest which could not have been dealt with in any proceeding falling within pars (a) to (e). The husband's application relates to the factual situation that the child of the marriage is now in the care and control of strangers to the marriage, a situation related neither to the divorce nor the custody order but arising only out of the death of the divorced wife. It is not enough that the proceedings relate to one of the parties to any such proceedings, or to some indirect consequence of such proceedings. Here the proceedings do not relate to the divorce proceedings - they relate to an issue which did not then arise, and could not then have arisen.

It was argued that this problem could be overcome by the fact that the prior proceedings should be regarded as having determined that the husband was unworthy to have custody and was in relation to custody the "guilty party", and that only a fresh determination by the Family Court could alter that situation. This is to step back into the past and to try to revive the old conception of "guilt" and "innocence" in relation to divorce and the consequential rule that custody should go to the innocent party. Such conceptions are dead and buried by the Family Law Act and should not be exhumed. All that can be said is that the Supreme Court of New South Wales in exercising the jurisdiction given by the Matrimonial Causes Act 1959-1973 ordered that, as between husband and wife, the wife should have custody, whether or not as a result of a contest is not known. If there were a contest it was between husband and wife and what may then have been thought appropriate can have no relation to the question of custody after the death of the wife.

The present proceedings are not "in relation to" the previous proceedings and, in so far as the jurisdiction of the Family Court to entertain these proceedings is sought to be sustained by par. (f) of the definition of "matrimonial cause", the submission is inconsistent with the decision in Russell v. Russell [37] and cannot be accepted.

An alternative basis for jurisdiction in the Family Court was sought to be found in s. 61 (4) on the basis that that sub-section created the relevant rights and obligations and at the same time and by the same words gave to the Family Court jurisdiction to give effect to them. There is no doubt that it is possible, consistently with the scheme and operation of Ch. III of the Constitution, to confer jurisdiction by implication in somewhat this manner. This is clearly established by the decision in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (per Latham C.J. [38] , per Starke J. [39] ; and per Dixon J. [40] ). However that case is concerned only with mode of conferring jurisdiction and creating rights and obligations. It is a separate question whether there is a constitutional basis for conferring such jurisdiction or for creating such rights and imposing such obligations in the present case. On this view the question is the constitutional validity of s. 61 (4). It is expressed too widely to be supported by the divorce power, s. 51 (xxii.), but there may be a second question, namely, whether it can be read down so as to apply only to cases where there has been a divorce, whether before or after a custody order, and then supported under that power. In my opinion it cannot be so supported. It is of course true that divorce would, on that construction, be a necessary prerequisite to the exercise of the jurisdiction, but I do not think that is enough to make it a law with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". The effect of the divorce is now spent and there is no longer any relation between the custody of the child and the divorce or the divorce proceedings. This is in substance the same question as that discussed above with respect to par. (f) of the definition of matrimonial cause.

1. (1945) 70 C.L.R., at pp. 154-155. 2. (1945) 70 C.L.R., at p. 160. 3. (1945) 70 C.L.R., at pp. 166-168.

As Gibbs J. said in Reg. v. Demack; Ex parte Plummer [41] , "a law is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage". In the present case the only factor which could be relied upon to support the proposition that s. 61 (4) was a law with respect to "marriage" is the fact that an order under it would have some operation with respect to the custody of the child. That is not enough to provide constitutional validity to this provision.

I am therefore of the opinion that s. 61 (4), whether or not read down, cannot be supported as an exercise of the power given by s. 51 (xxi.) or s. 51 (xxii.).

It is however desirable that I should deal with the question referred to in the judgment of Gibbs J., namely, whether s. 61 (4), if valid enables a person who has de facto care and control of a child of divorced parents when one parent dies, to make an application to the Family Court for an order for custody. I respectfully agree with his view that the words of s. 61 (4) cannot be read as enabling such a person to make an application. Inconvenience cannot overcome the absence of a jurisdiction which the legislature has so plainly refrained from conferring. Accordingly I agree that the view expressed in In the Marriage of Robertson [42] cannot be supported.

I would therefore make a declaration that s. 61 (4) is outside the legislative power of the Parliament and that the Family Court has no jurisdiction in these proceedings. I would make no order as to costs.