Fountain v Alexander

1. An order that the child Gary George Jackson born 31st March, 1967, and presently in the care and control of the plaintiffs be declared a ward of this Honourable Court.

2. An order pending further order of the Court that the said child be placed in the care and control of the plaintiffs on such terms and conditions as the Court deems fit.

3. Such other or further order as the Court might consider necessary or expedient.

The question for decision is whether the Supreme Court has jurisdiction to make the orders sought.

The child Gary was born on 31 March 1967. On 22 October 1971 the Supreme Court of New South Wales, exercising jurisdiction under the Matrimonial Causes Act 1959 Cth, as amended, pronounced a decree nisi (which was later made absolute) for dissolution of the marriage between Patricia Margaret Jackson and Bruce William Jackson, and ordered that Patricia Margaret Jackson have custody of Gary. Before that date, in October 1968, Patricia Margaret Jackson had commenced to live as man and wife with Alan Edward Fountain and she continued to live with him until 1975. On 5 August 1971 Patricia Margaret Jackson gave birth to a child, Toni Terese Fountain, of whom Alan Edward Fountain is the father. When Patricia Margaret Jackson and Alan Edward Fountain separated in 1975, Gary and Toni remained with Mr. Fountain. In 1977 Patricia Margaret Jackson married Phillip John Alexander and in 1978 Alan Edward Fountain married Anitra Fountain. From August 1978 to the date of the proceedings the two children have from time to time lived with their mother and her present husband and also from time to time with Mr. and Mrs. Fountain. Proceedings concerning the custody of the child Toni were also commenced in the Supreme Court and have been amalgamated with the present proceedings in that Court but no question arises as to the jurisdiction of the Supreme Court to hear the proceedings with regard to Toni.

The question whether the Supreme Court has jurisdiction depends in the first place upon the proper construction of the Family Law Act 1975 Cth, as amended ("the Act"). By s. 8(1)(a) of that Act, proceedings by way of matrimonial cause shall not be instituted except under that Act. By s. 31(1)(a) the Family Court has jurisdiction in matrimonial causes instituted or continued under the Act. Section 39(1) provides as follows:

Subject to this Part, a person may institute a matrimonial cause under this Act -

By s. 39(5)(a), again "Subject to this Part", the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and the Supreme Court of each Territory, to hear and determine matrimonial causes instituted under the Act. However, by s. 40(3) (which like s. 39 is in Pt V of the Act), power is given to the Governor-General, by proclamation, to fix a date as the date on and after which proceedings under the Act may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the proclamation, and such a proclamation may be expressed only to apply to proceedings of specified classes. By a proclamation dated 27 May 1976, 1 June 1976 was fixed as the date on and after which (subject to exceptions not relevant to the present case) proceedings of a kind referred to in pars (a), (b), (c), (d), (e) or (f) of the definition of matrimonial cause in s. 4(1) of the Act may not be instituted in or transferred to the Supreme Court of (inter alia) the State of New South Wales. By s. 40(4) it is provided: The Supreme Court of a State or Territory shall not hear and determine proceedings under this Act instituted in or transferred to that Court otherwise than in accordance with any Proclamation in force under sub-section (3), but nothing in this section invalidates a decree made by such a Supreme Court. The effect of these provisions is that the Supreme Court of New South Wales is deprived of jurisdiction to hear and determine the present proceedings if they are proceedings of a kind referred to in pars (a), (b), (c), (d), (e) or (f) of the definition of matrimonial cause in s. 4(1) of the Act, although if the Supreme Court did make a decree it would not be invalidated.

By s. 4(1) of the Act, "matrimonial cause" is defined to mean:

(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;

(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;

(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 between the parties to a marriage for an order or injunction in circumstances arising out of the 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;

By s. 3(2) of the Act, notwithstanding the repeal of the Matrimonial Causes Act 1959 Cth, as amended ("the repealed Act"), a decree of the Supreme Court, made before the commencement of the Act in the exercise of jurisdiction invested or conferred by the repealed Act, and in force immediately before the commencement of the Act, shall have, or continue to have, effect throughout Australia, and except in certain immaterial cases the Act applies to and in relation to such a decree as if it had been made under the Act. Section 61(1) 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. By s. 4(2) a reference in the Act to a party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved. By s. 64(1) a court exercising jurisdiction under the Act is given power to make orders with respect to the custody or guardianship of, or access to, a child of a marriage, and by s. 64(7) may discharge or vary such an order. If an order for custody was made under the repealed Act, and remains in force, there is power to vary it under s. 64(7); by s. 3(2), the Act applies to such an order as if it had been made under the Act, and since, if it had been made under the Act, it must have been made under s. 64, s. 64(7) is applicable to it.

The first question that now arises is whether the Family Court has jurisdiction to vary an order for custody that has been made in respect of a child of the marriage when the application is made by a stranger to the marriage and the respondents to the application are the parties to the marriage (albeit a marriage that has been dissolved). This depends on whether the proceedings constitute a "matrimonial cause" within s. 4(1). On behalf of Patricia Margaret Alexander it was argued that such proceedings fall within par. (c) of the definition, and are proceedings between the parties to a marriage with respect to the custody of a child of the marriage. This somewhat surprising argument took as its starting point the proposition that the word "between" can be used to express a relationship between more than two things. That is of course correct, and it may rightly be said that the present proceedings are between the two plaintiffs on the one hand and the two defendants on the other. It would however be a misuse of language to say that the proceedings are between the two defendants. Since there can only be two parties to a marriage, the word "between" in the phrase "proceedings between the parties to a marriage" is used in reference to a relationship between those two parties, but it is a relationship that divides rather than unites them, and it is reciprocal, in that each opposes the other. In other words, the phrase refers to proceedings in which one party to the marriage is contending against the other. If the parties to the marriage join together in a common interest in proceedings against other persons the proceedings are between the parties to the marriage on the one hand and the other persons on the other, but are not between the parties to the marriage.

However, the present proceedings do in my opinion fall within par. (f) of the defintion of "matrimonial cause". Paragraph (f) does not require that the proceedings to which it refers should be proceedings between the parties to a marriage. This has already been pointed out in Yule v. Junek [1] , by Mason J., and in Dowal v. Murray [2] , by Stephen J., and a comparison between par. (f), on the one hand, and pars (a), (c), (ca), (d) and (e) on the other makes it plain that this view is correct. All that is necessary is that the proceedings should be in relation to, inter alia, completed proceedings of a kind referred to in par. (c), i.e., proceedings between a husband and a wife with respect to the custody of a child of the marriage. If, in proceedings between the spouses, an order for custody has been made in favour of the wife, further proceedings brought by a stranger to the marriage against the wife to obtain custody of the child are in my opinion related to the earlier proceedings. The connexion lies in the fact that the second proceedings seek to undo the effect of the order made in the first. Orders which give the same rights of custody in respect of the same child to different persons obviously cannot stand together, and an order which gave some rights of custody to a stranger to the marriage would, if valid, necessarily defeat or diminish the rights given by an unqualified order for custody made in favour of the wife.

1. (1978) 139 C.L.R. 1, at p. 11. 2. (1978) 143 C.L.R. 410, at p. 425.

It was argued that par. (f), construed in this way, would go beyond power, for, it was said, the Parliament cannot validly confer on the Family Court jurisdiction to entertain an application for the custody of a child of a marriage, when the application is made by a person who is not one of the parties to the marriage. This argument cannot now be accepted. It was in my opinion established by Dowal v. Murray that the marriage power (conferred by par. (xxi) of s. 51 of the Constitution) is not restricted to the definition of, or the making provision for the enforcement of, the rights of the parties to the marriage inter se. That view of the decision was, I consider, taken by the majority of the Court in Reg. v. Lambert; Ex parte Plummer [3] . However, any doubt on the question was resolved by the decision in Vitzdamm-Jones v. Vitzdamm-Jones [4] . The decision reported under that title concerned two matters, and it was the second, St. Clair v. Nicholson, in which the present question arose. There an application for the guardianship and custody of the child of a marriage was made by the stepfather of the child. The defendants were the maternal grandparents who had the physical custody of the child and the father of the child who, however, did not himself seek custody. The other party to the marriage, the mother, had, during her lifetime, been given custody by an order of a court, but she had died before the proceedings commenced. It was held (by a majority) that s. 61(4) of the Act was a valid provision, that if the proceedings had been instituted in the Family Court under s. 61(4) that Court would have had jurisdiction, and that accordingly the Supreme Court had no jurisdiction. Of course, s. 61(4) could have no application in the present case where the party in whose favour the custody order was made is still alive, but the reason for upholding the validity of that subsection applies equally to par. (f) of the definition of "matrimonial cause". In my reasons for judgment (which met with the concurrence of Stephen J. (subject to a reservation now immaterial) and Mason J.) I said [5] :

The Parliament can, in my opinion, validly provide for the adjudication of conflicting claims by a party to a marriage and a third party to the custody of a child of the marriage, for in so doing it is still regulating a right that arose out of the marital relationship. Paragraph (f) does not include proceedings for the custody of a child of a marriage brought by one stranger to the marriage against another and not affecting any right given to a party to the marriage by an existing custody order, for in such a case the proceedings would not relate to proceedings of the kind referred to in par. (c). 1. (1980) 146 C.L.R. 447, at pp. 455-458, 466, 472. 2. (1981) 148 C.L.R. 383. 3. (1981) 148 C.L.R., at p. 414.

I accordingly hold that the effect of par. (f) of the definition of "matrimonial cause", read in conjunction with the other sections of the Family Law Act to which I have already referred, is that an application for the guardianship or custody of a child of a marriage, made by a stranger to the marriage against a party to the marriage who has, in proceedings under the Act or under the repealed Act, been granted the custody of the child, may be instituted only in the Family Court, and that so construed the provisions are valid.

In the present case the plaintiffs seek orders for wardship, and for the care and control of the child. The latter claim is clearly a claim for a limited form of custody, i.e. for what might be described as actual custody, as distinguished from legal custody which (in the absence of special order) carries with it a bundle of powers, including the power to control the child's education, choice of religion and property as well as the personal power of physical control: see Hewer v. Bryant [6] , and Todd v. Davison [7] . In Wedd v. Wedd [8] , Mayo J. recognized that care and control is only one aspect of custody when he said [9] :

Custody essentially concerns control, and the preservation and care of the child's person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction and the like. Of course the amount of care that will be necessary, and the degree of control that it will be possible to exert, will depend on the age of the child. In Australia, as in England, the courts sometimes make an order giving joint custody of a child to both parents and placing the child in the care and control of one of them. That does not mean that an order for care and control is different from an order for custody, but means that the rights and powers appertaining to custody are divided, so that one parent has actual custody, while the wider rights and powers remain exercisable by the parents jointly. Clearly the Family Court has jurisdiction to make an order as to the care and control of the child Gary in the present circumstances, and it follows that the Supreme Court lacks jurisdiction to do so. 1. [1970] 1 Q.B. 357, at p. 373. 2. [1972] A.C. 392, at pp. 403-405. 3. [1948] S.A.S.R. 104. 4. [1948] S.A.S.R., at p. 107.

The claim that the child be made a ward of court raises a wider issue. The Family Court is not given jurisdiction to make orders for wardship. However, it is often said that the effect of an order for wardship is that the court becomes the guardian of the child (Reg. v. Gyngall [10] ) or has the custody of the child (see In re W. (An Infant) [11] ). In some cases an application to have a child made a ward of court may be made simply for the purpose of seeking an order that the applicant be given the care and control of, or access to, the child. When that is the case, if the child is the child of a marriage, and such an order if made will affect a right given to a party to the marriage by an order made in complete proceedings, there will be, for the reasons I have already indicated, a matrimonial cause which will be within the exclusive jurisdiction of the Family Court. The affidavits filed in respect of the application made in the Supreme Court in the present case clearly show that the purpose of the application for wardship was simply to obtain an order for the custody of the child Gary.

1. [1893] 2 Q.B. 232, at p. 239. 2. [1964] Ch. 202, at p. 210.

In these circumstances it is unnecessary to consider whether the Supreme Court would in other circumstances have jurisdiction to make an order for the wardship of a child of a marriage notwithstanding that the order would affect the rights of one of the parties to the marriage under an order for custody made in completed proceedings. Wardship proceedings are essentially protective; their original function was to protect the property of the child, but now an order for wardship may be made for the protection of the person of the child even against action taken or contemplated by its parents: In re D. (A Minor) [12] and In re B. (A Minor) [13] provide recent examples. The power of the Parliament to make laws with respect to marriage does not extend to laws for the protection or welfare of the children of a marriage except in so far as the occasion for their protection or welfare arises out of, or is sufficiently connected with, the marriage relationship. As I have previously said, an enactment is not law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage (Reg. v. Lambert; Ex parte Plummer [14] ), and it is not such a law because it is intended to provide for the protection or welfare of a child of a marriage. Further, as Reg. v. Lambert; Ex parte Plummer shows, State laws may validly operate in respect of a child of a marriage notwithstanding that they qualify the custodial right of the parents: see per Stephen J. [15] . There seems to be no reason therefore why the wardship jurisdiction of the State courts should not continue to be exercisable in respect of a child of a marriage, although it could not be exercised as a means of making an order for guardianship, custody or access of a child of a marriage in a case in which the Family Court would have jurisdiction to make such an order. The wardship jurisdiction of the State courts, which remains unimparied in its application to children who are not children of a marriage, may well be available, in a vestigial form, to fill gaps in the law under the Act so far as children of a marriage are concerned - A. v. Liverpool City Council [16] provides an analogy; see especially at pp. 376-377. However, it is unnecessary to express a concluded opinion on these questions in the present case. Although it was submitted that the application for a wardship order was made for the protection of the child Gary, it is perfectly clear that the application is in substance nothing other than an application for custody.

1. [1976] Fam. 185. 2. [1981] 1 W.L.R. 1421. 3. (1980) 32 A.C.R., at p. 512. 4. (1980) 32 A.L.R., at p. 515. 5. [1982] A.C. 363.

This case provides yet another example of the confusion and inconvenience that is caused by the fact that jurisdiction in cases relating to the custody of children is divided between State and Federal courts. Not only are the parties left uncertain as to the proper forum, thus causing costs to mount and delays to increase, but there is no one court which can determine the custody of the two children in the present case notwithstanding that they are half-brother and half-sister.

I would answer the question asked as follows: Has the Supreme Court of New South Wales jurisdiction to make the orders sought in proceedings No. 1483 of 1981? Answer - No.

In the circumstances it seems appropriate that the Commonwealth should pay the costs of the plaintiffs and the defendants and the learned Solicitor-General did not oppose this course.

I have had the advantage of reading the reasons for judgment of Mason J. Apart from the question of the existence of a residual wardship jurisdiction in Supreme Courts, concerning which his Honour expresses certain doubts but about which I express no views, I agree with all that his Honour says, as I do with the answer "No" which he would give to the question asked of the Court.

The facts in the case stated and the question are sufficiently set out in the reasons for judgment of Gibbs C.J.

The Extent of the Jurisdiction conferred by s. 39 of the Family Law Act 1975 Cth in Association with par. (f) of the Definition of "Matrimonial Cause" in s. 4(1).

In Yule v. Junek [17] , I drew attention to the fact that, unlike most of the other paragraphs now in the statutory definition, par. (f) is not confined to proceedings between the parties to a marriage. See also Dowal v. Murray [18] , per Stephen J. One of the other paragraphs, par. (cb), contains a restriction of a different kind, requiring that proceedings be instituted "by or on behalf of a child of a marriage". Although par. (b) contains no restriction, it is perhaps unlikely that anyone but a party to the marriage would seek a declaration as to its validity, its dissolution or annulment - see Dowal [19] , per Aickin J. But no such limiting consideration emerges from the subject matter of par. (f). Indeed, because the paragraph deals with proceedings which have a relationship with any of the proceedings mentioned in the seven preceding paragraphs of the definition, Parliament evidently contemplated that par. (f) should have a broad scope. It has to be read with s. 39 which, by providing that "a person" may institute a matrimonial cause, enables a stranger to commence such proceedings in a court of competent jurisdiction. Certainly the language of par. (f), differing significantly as it does from that of the other paragraphs, except par. (b), requires that construction.

1. (1978) 139 C.L.R. 1, at p. 11. 2. (1978) 143 C.L.R. 410, at p. 425. 3. (1978) 143 C.L.R., at p. 434.

Paragraph (f) is not specific in spelling out the relationship which is required to subsist between the proceedings which it includes, viz. "any other proceedings", and "concurrent, pending or completed proceedings" of a kind mentioned in the earlier paragraphs. But, "in relation to" being an expression of wide and general import, it should not be read down in the absence of some compelling reason for so doing. Certainly neither the content nor the context of the paragraph provide any justification for taking this course. It was suggested that the paragraph looks to subsequent proceedings which involve the working out of an order made in earlier proceedings. No doubt it does. None the less the vital question remains: Is there any solid ground for limiting the relationship? Putting to one side the question of validity shortly to be examined, I can think of none.

Proceedings for the variation of an earlier custody order are an obvious example of proceedings which fall within par. (f). But if such proceedings are caught by the paragraph why should proceedings for a new custody order, one which would displace or replace an earlier order, be excluded? The reach of the paragraph cannot be made to depend on whether the new order sought is expressed to operate by way of variation of the old order, for the paragraph looks to a relationship between proceedings rather than a relationship between orders. This relationship is satisfied when in the first proceedings an order for custody is made and in the second proceedings an order for custody is sought which, if made, will have the effect of displacing or altering the first order by creating different rights to custody.

The view which I have expressed is supported by the opinion of two members of this Court who have already considered this question, albeit in a different context. In Dowal [20] , Jacobs J. suggested that grandparents could make an originating application for custody "by virtue of par. (f) of the definition of "matrimonial cause" and by virtue of s. 39". His Honour stated:

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. 1. (1978) 143 C.L.R., at p. 427.

In the same case Stephen J. [21] expressed the view that a proceeding brought by a surviving parent by s. 61(4) was "in relation to" the earlier custody proceedings which resulted in custody being awarded to the deceased parent. Although his Honour did not refer to s. 39, he plainly had that section in mind as conferring the relevant jurisdiction on the court.

It is at this point that I reject an argument advanced by the Solicitor-General for Victoria. The argument begins with a proposition that an order for custody is merely an adjudication of custody as between the disputants in the instant litigation, leaving unresolved and awaiting future resolution any question of custody of the relevant child as between other parties or as between one of the contending parties and other parties. The argument ends with the conclusion that an order for custody made in litigation in which the parties are not the same as those participating in the first litigation is not an order that has an appropriate, or indeed any, relationship with the first order for custody and that the same comment applies to the two sets of proceedings.

This conclusion ignores the traditional character of the right to custody, whether flowing from curial order or otherwise. It is a right that is enforceable against the world at large, including strangers to the litigation in which the order for custody is pronounced. I venture to repeat what I said in Reg. v. Lambert; Ex parte Plummer [22] :

It is of the essence of an award of custody, as with the father's right to custody under the old common law, that it may be enforced against strangers to the marriage. Where custody is awarded to one parent, though it is awarded as against the other parent, it is enforceable against others. An order for custody once made is effective against strangers to the litigation during the currency of the order. 1. (1980) 146 C.L.R. 447, at p. 466.

In Reg. v. Demack; Ex parte Plummer [23] speaking of the marriage power, I said:

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. The correctness of this statement was subsequently affirmed in Dowal, Reg. v. Lambert and Vitzdamm-Jones v. Vitzdamm-Jones [24] . 1. (1977) 137 C.L.R. 40, at p. 53. 2. (1981) 148 C.L.R. 383.

Of course it could not be suggested that Parliament in the exercise of the power can make provision for the custody of a child of a marriage between parties who are strangers to the marriage when the making of that provision has nothing to do with the adjustment or termination of the rights of parties to the marriage. The connexion between the law and the head of power would be altogether too tenuous and insubstantial to sustain the validity of the law.

However, to my mind the outcome is otherwise when all that the law seeks to achieve is an award of custody at the suit of a stranger to the marriage in proceedings against a party to the marriage when the stranger seeks to displace an earlier order for custody made in favour of the respondent in relation to a child of the marriage in proceedings between the parties to the marriage. The order sought in the new proceedings, if made, will operate to terminate or vary rights arising out of marriage, notwithstanding that the occasion for defining those rights may have been the dissolution of the marriage.

In Vitzdamm-Jones [25] , Gibbs J. (with whose judgment on this point Stephen J. and I agreed) said:

it is possible for a third party, rather than a party to the marriage, to be awarded the custody of a child of the marriage, thus defeating or diminishing the right of a party to the marriage which arose from the marital relationship. The Parliament can, in my opinion, validly provide for the adjudication of conflicting claims by a party to a marriage and a third party to the custody of a child of the marriage, for in so doing it is still regulating a right that arose out of the marital relationship. 1. (1981) 148 C.L.R., at p. 414.

Earlier, in Dowal, the Court upheld the validity of s. 61(4) of the Family Law Act. In coming to that conclusion Stephen J. [26] said that the sub-section involved -

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. This analysis provides an analogy with the present case. What brings s. 61(4) within the marriage power is its dependence on a disturbance of the operation of a prior grant as between the parties to a marriage of custody to one of the parties of a child of the marriage. The existing custody order, which falls well within the ambit of the marriage power, is no longer appropriate - new rights, duties and obligations must be substituted. The nature of the particular disturbance - the death of the custodian - is not the critical factor on which the validity of s. 61(4) depends. It is enough, as his Honour said, that s. 61(4) defines the relationship between the surviving parent and the child in these circumstances. The connexion between the marriage power and the law now under consideration is no less direct merely because the third party seeks to substitute new rights, duties and obligations for a different reason - because it is claimed that circumstances have changed in that the existing custodian is no longer fulfilling the duties and obligations imposed by the custody order. It is the fact that the application is for an order substituting new rights, duties and obligations for rights, duties and obligations which arose out of the marriage which provides the relevant connexion between the law conferring jurisdiction to hear and determine that application and the marriage power. 1. (1978) 143 C.L.R., at p. 423.

Lest it be overlooked, the passage which I earlier cited from the judgment of Jacobs J. in Dowal [27] explicitly affirms the validity of s. 39 in its application to par. (f). The reasoning of Murphy J. in that case [28] leads to a similar conclusion.

1. (1978) 143 C.L.R., at p. 427. 2. (1978) 143 C.L.R., at pp. 428-429.

My conclusion, therefore, is that s. 39(1) is a valid law of the Commonwealth in its application to par. (f) to the extent that it permits a third party to make application to disturb a prior grant of custody to a party to a marriage of a child of the marriage. I should not have thought that the validity of the jurisdiction which s. 39 confers is dependent on the other party to the marriage being joined in the later proceedings as a party, but it is not necessary to decide that question. No doubt both parties to the marriage are proper parties to the proceedings. Whether they are both necessary parties will depend on the particular circumstances of the case.

The origin of the wardship jurisdiction was the sovereign's feudal obligation as parens patriae to protect the person and property of his subjects, particularly those unable to look after themselves, such as infants. This obligation was delegated to the Chancellor, and passed to the Chancery Court (see In re D. (A Minor) [29] ; Hope v. Hope [30] ). In New South Wales the jurisdiction is now exercised by the Supreme Court under s. 23 of the Supreme Court Act 1970. The jurisdiction to make a child a ward of court is not dependent upon the child having property the subject of a suit (Meyer v. Meyer [31] ). In exercising the jurisdiction the court has a wide power in relation to the welfare of infants. It has always been recognized that the dominant matter for the consideration of the court is the welfare of the child (In re McGrath (Infants) [32] ). In In re X. (A Minor) [33] , Lord Denning M.R. said:

No limit has ever been set to the jurisdiction. It has been said to extend "as far as necessary for protection and education" The court has power to protect the ward from any interference with his or her welfare, direct or indirect. 1. [1976] Fam. 185, at pp. 192-193. 2. (1854) 4 De G.M. & G. 328, at pp. 344-345 [43 E.R. 534, at pp. 540-541]. 3. [1978] 2 N.S.W.L.R. 36, at p. 39. 4. [1893] 1 Ch. 143, at p. 148. 5. [1975] Fam. 47 at p. 57.

In In re D. the Court exercised the jurisdiction by making a child a ward of court for the purpose of preventing the sterilization of the child which was to be carried out with the consent of the child's mother, the Court intervening on the ground that the operation was not in the child's interests. See also In re B. (A Minor) [34] .

To What Extent is the Wardship Jurisdiction Excluded by the Family Act?

In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage -

(c) subject to paragraphs (a) and (b), the court may make such order in respect of those matters as it thinks proper, including an order until further order.

The qualifications imposed on the wide discretion to make an order given to the court by the sub-section are: first, as the opening words indicate, that the proceedings must be "with respect to the custody or guardianship of, or access to, a child of a marriage"; secondly, that the welfare of the child shall be the paramount consideration (par. (a)); thirdly, that an order contrary to the wishes of a child who has attained the age of fourteen years shall only be made if, by reason of special circumstances, it is necessary to do so (par. (b)); and finally, that the power to make orders is limited to orders "in respect of those matters", referring to custody, guardianship or access.

The real problem is posed by the circumstance that the section, which arms the court with the relevant power to make orders, speaks only of proceedings with respect to guardianship, custody or access. It makes no mention of wardship jurisdiction or of wardship proceedings. The power to make orders is therefore limited to the making of orders with respect to guardianship, custody and access.

"Custody" has a variety of meanings. Like the chameleon it adapts itself to its surroundings so that little is to be gained by discussing its various connotations, except to note that in its widest meaning it is virtually the equivalent of "guardianship" which has been described as "a bundle of powers" including the power to control education, the choice of religion and the administration of the infant's property. See Hewer v. Bryant [35] . Section 64(1) seems to be speaking of proceedings in which the applicant is seeking an order by which rights, duties and obligations in relation to guardianship, custody or access are to be vested in someone. In most cases it is the applicant who seeks these rights but there is no reason why an applicant should not seek an order vesting such rights in another party, even a stranger to the marriage. An application for such an order answers the statutory description to be found in the opening words of the sub-section.

But an application for an order that a child be made a ward of court does not answer this description. In seeking such an order the applicant seeks to commit the child to the protection of the court and asks the court to make such order as it thinks fit for the child's benefit (In re B. (J.A.) (An Infant) [36] ). A ward remains at all times subject to the control of the court. A person may be granted care and control of the ward, but it is de facto care and control carrying the power to make only day-to-day decisions, e.g. disciplining the child.

Wardship and custody have been recognized as different though alternative legal regimes. Wardship proceedings cannot be described accurately as proceedings for guardianship or custody. However, I do not exclude the possibility that the Family Court's power to make such order as it thinks fit with respect to the matters mentioned may enable it to make an order prohibiting a child from undergoing an operation in a Re D. situation, if to do so falls within the limits of the marriage power as, for example, when the order would operate to qualify the rights and powers of a custodial parent arising from a custody order made in proceedings between the parties to the marriage. It would be necessary that the proceedings for the order fall within the description contained in s. 64(1). But, in some situations at least, the proceedings may be so described because they seek an order qualifying in one respect the exercise of rights and powers flowing from the earlier order. An order of this kind would not of course constitute an exercise of wardship jurisdiction because it does not involve making a child a ward of court. The fact that the making of the order is dictated by the welfare of the child would constitute no objection to its validity. It is the circumstance that it affects by way of qualification the rights and powers of the custodial parent arising from marriage that brings it within the scope of the constitutional head of power.

Accordingly, my conclusion is that the Act does not confer wardship jurisdiction on the Family Court.

Effect of the Family Law Act on the Wardship Jurisdiction of the Supreme Court.

The Family Law Act makes exclusive the jurisdiction of the Family Court in relation to a "matrimonial cause" as defined by par. (f) of the definition in s. 4(1) - see s. 8(1), especially par. (a). Although s. 39(1) enables a person to institute a matrimonial cause in the Supreme Courts or in the Family Court, a proclamation made pursuant to s. 40(3) fixed 1 June 1976 as the date after which the Supreme Courts except those of Western Australia and the Northern Territory should cease to have jurisdiction under the Act, thereby terminating the grant of jurisdiction effected by s. 39(1) and (5) in association with the statutory definition of "matrimonial cause". The same date was also fixed by a proclamation made pursuant to s. 41(2) as the date on which the jurisdiction of the Supreme Court of Western Australia should cease and that of the Family Court of that State commence.

The consequence of this is that the Supreme Court of New South Wales cannot, in the exercise of its wardship jurisdiction or otherwise, hear and determine any proceeding which is a "matrimonial cause". The Supreme Court cannot entertain an application for custody or guardianship of, or access to, a child of a marriage in respect of which the Family Court is given jurisdiction. Nor, as it seems to me, can the Supreme Court in the exercise of its wardship jurisdiction make any order which would amount to an exercise of any part of the jurisdiction so given to the Family Court. Generally speaking, the Supreme Court cannot make an order giving the care and control of a child of the marriage to one spouse as against the other for that would be to give the successful parents a substantial part, but not all, of the benefits and responsibilities of custody.

My conclusion that the Family Court lacks wardship jurisdiction, taken together with the circumstance that custody and wardship are different though alternative regimes, might tend to suggest that there remains with the Supreme Court a wardship jurisdiction capable of being exercised in relation to the child of a marriage so long as that exercise does not trench upon the Family Court's exclusive jurisdiction in relation to matrimonial causes. But reflection on the possible operation and limits of that jurisdiction immediately brings serious problems to mind. If the Supreme Court were to make an order of the kind made in Re D. would that order not affect the rights of a custodial parent flowing from an order made, or which might be made, by the Family Court. And, as I have said, it may be that the Family Court has power to make an order having a similar effect in relation to a limited object. Consequently I doubt whether the Supreme Court has a residual jurisdiction capable of being exercised in the relevant area. However, this question is better left for future exploration should the occasion arise.

When we turn to the circumstances of this case and to the evidence on which the application to the Supreme Court is based, it becomes very clear that the application for an order for care and control is in substance seeking something which amounts to a substantial part of the benefits and responsibilities of custody. This, as I have said, is inherent in the nature of the order sought, and it is supported by the character of the evidence adduced which is typical of evidence often led in support of an application for a change of custody. There is nothing special in the case which calls for an exercise of wardship jurisdiction or indicates that an exercise of that jurisdiction would be more advantageous than an exercise of custody jurisdiction.

I agree with the comments of the Chief Justice urging that action should be taken to overcome the serious problems that beset the Family Court's limited jurisdiction. They are problems that this Court cannot solve; yet they pose formidable obstacles to the prompt and just determination of family law controversies. The number of family law cases which have come before this Court involving arid jurisdictional questions only is much too high for our comfort or for that of litigants generally.

Needham J. of the Supreme Court of New South Wales was correct to question the attempt to invoke the jurisdiction of that Court to deal with an application for care and control of the child, Gary George Jackson. The application must have been made by oversight. It follows from Vitzdamm-Jones v. Vitzdamm-Jones; St. Clair v. Nicholson [37] that the Supreme Court of New South Wales has no jurisdiction to deal with any application for care and control (or any other aspect of custody) of the child. The Family Law Act 1975 Cth invests the Family Court of Australia (or other court exercising the federal jurisdiction: s. 39) with exclusive jurisdiction to deal with the question.

The question of jurisdiction to determine the custody, care and control of the child came before this Court on 8 October 1981 when the case was removed from the Supreme Court of New South Wales to the High Court. On that day the Court specially remitted the case to the Supreme Court for the purpose of its making an interim order for custody of the child, pending the hearing and decision by this Court. However the Supreme Court was unable to make any interim order before this matter was heard by this Court on 9 February 1982.

The constitutional powers of the Parliament to make laws with respect to custody and guardianship were questioned in argument. Certain constitutional provisions are relevant in particular areas of custody and guardianship. Among these are the territories power: s. 122; the external affairs power: s. 51(xx), for example, in relation to children taken out of Australia and the implementation of international treaties relating to children to which I referred in Dowal v. Murray [38] ; matters between residents of different states: ss. 75 and 77. However, the main legislative powers are the marriage and divorce powers.

The marriage power. The marriage power (Constitution, s. 51(xxi)) authorizing Parliament to make laws for the peace order and good government of the Commonwealth with respect to "marriage" is plenary, and extends to laws dealing with the relationships of the family founded by the marriage. "For it is of the essence of marriage, from a legal point of view, that it produces, or provides a pre-requisite for, the legal recognition of family relationships " (Kitto J. in Attorney-General (Vict.) v. The Commonwealth [39] ). The power authorizes laws providing for the custody and guardianship of children related to the marriage, that is, children born of the parties to the marriage or either of them or adopted by the parties to the marriage or either of them or other children who have become part of the family founded by the marriage. The Family Law Act altered the common law (which vested the father with custody and guardianship) by placing every child of a marriage in the joint custody and guardianship of the parents to continue until the child is eighteen: s. 61(1). Parliament can provide for alteration of this joint custody (for example, if the best interests of the child are not served by this statutory custody or guardianship) by a variety of means. It has chosen to permit the Family Court of Australia (or other court exercising federal jurisdiction) to vary the custody or guardianship: s. 61. It can empower the court to entertain an application by anyone for custody, care and control of any child within the scope of the power. The power thus extends to authorizing the Court to do so during the marriage or after its termination (by death or dissolution) on the application of either party, or of the child, or of the Attorney-General or of any other person, and to make variations and impose conditions.

The divorce and matrimonial causes power, (Constitution, s. 51(xxii)) is in wide terms. The power is to make laws for the peace order and good government of the Commonwealth with respect to "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants".

Parental rights. The legislative power is not limited except that the laws must be with respect to parental rights in relation to divorce or matrimonial causes; particularly it is not limited to parental rights in relation to children born of the marriage which is the subject of the divorce or matrimonial cause. The power being plenary, it extends to authorize laws dealing with other parental rights which are related to the divorce (or matrimonial cause) for example parental rights respecting an ex-nuptial child who had been living with the family founded by the marriage.

Custody and guardianship of infants. When a divorce (or other matrimonial cause) occurs, the usual consequences are disruption to any children living in the matrimonial home. These may include not only the children of a marriage but traditionally in our society may include a child or children of one of the parties from a former marriage (terminated by divorce or death) or an ex-nuptial child or an adopted child or a child who while not adopted has become part of the household. It is understandable therefore that the constitutional power with respect to divorce and other matrimonial causes did not limit the Parliament in making laws for the custody and guardianship of children in relation to divorce or matrimonial causes, to children of the marriage. In the Matrimonial Causes Act 1959, the Parliament acted on the basis that the power to make laws respecting the custody of infants extended to infants other than children of the marriage (see ss. 6 and 85). The power expressly authorizes laws providing for the custody and guardianship of any infant if the custody or guardianship is related to divorce (or any matrimonial cause). The plain purpose of this aspect of the power is to enable Parliament to provide for the custody and guardianship of all infants whose welfare might be affected by any divorce or matrimonial cause. Custody and guardianship of any infant is sufficiently related to a divorce or matrimonial cause if the infant's welfare might be affected by the divorce or matrimonial cause. Thus a law providing for custody or guardianship (pending or following a divorce or matrimonial cause) of any infant whose welfare might be affected by the divorce or matrimonial cause is a law with respect to the subject matter in s. 51(xxii). The power obviously includes laws dealing with the custody and guardianship of those infants who are born of the marriage which is the subject of the divorce or matrimonial cause but is not limited to those children. It extends to an infant born during marriage (who is the child of the wife but not the husband); if it did not it would be seriously defective in failing to deal with a commonplace problem arising out of, and often being the cause of, divorce. Nullity provides another example of infants not born of the marriage to whom the power extends. The power thus authorizes laws dealing with all infants whose welfare might be affected, including a child born outside the marriage to both or one only of the marriage partners or a child adopted by both or one only of the partners, or a child who had been living with them in the family founded by the marriage.

The value of vesting jurisdiction exclusively in the Family Court of Australia (or court under s. 39 of the Family Law Act) is that it avoids the confusion, embarrassment and expense which would occur if different courts had competing jurisdiction. Many of the unfortunate jurisdictional problems would be removed or diminished if the Family Court were vested with all the jurisdiction in family law matters permitted by the Constitution. The Family Court is a specialist jurisdiction staffed by judges with special qualifications and training, assisted by counsellors and other experts in the field (Family Law Act, Pt III Counselling and Reconciliation; ss. 62, 64(5). See also Fifth Annual Report of the Family Law Council 1980-1981, p. 18, par. 112ff: From 1 January to 31 December 1979, 50,000, and from 1 January 1980 to 31 December 1980, 56,000 clients had received assistance from the Family Court counselling services. The Family Law Council made special reference to the invaluable assistance of counselling where the welfare of children is involved. The Parliamentary Joint Select Committee on the Family Law Act in its Report: Family Law in Australia (1980), vol. I, at p. 178 noted the essential nature of counselling services "to assist children in coping with the problems associated with the breakdown of their parents' marriage and conflict between parents, processes recognised as creating stressful and emotionally disturbing forces upon children". The Committee recommended that these services be available through the Family Court of Australia directly to children coming within the terms of the Family Law Act). Before the Family Law Act for want of a better system, custody was generally dealt with by judges who, with little expertise and no counselling facilities, did the best they could, often in between their dealing with trust, corporate and other property cases. As the Parliament has recognised, the welfare of children is for too important to be left to judges whose main work is to deal with business affairs.

The question whether the Supreme Court has jurisdiction should be answered No.

I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I respectfully agree that the cases to which he refers require the conclusion that the Supreme Court of New South Wales has no jurisdiction to make the orders sought in the proceedings before it. The question should be answered in the negative.

The plaintiffs instituted proceedings in the Equity Division of the Supreme Court of New South Wales, seeking orders that a child Gary George Jackson be declared a ward of the Court and that pending further order the child be placed in their care and control. The question now is whether the Supreme Court has jurisdiction to make those orders.

In my view that question falls within a small compass. The answer will depend upon whether the proceedings fall within the definition of a matrimonial cause in the Family Law Act 1975 Cth, as amended ("the Act"). If they do, then not only must they be instituted under the Act, but the Family Court of Australia will have exclusive jurisdiction (ss. 8, 39, 40(3)).

In Carseldine v. Director of the Department of Children's Services [40] , McTiernan J. reviewed the origin and nature of the traditional parens patria jurisdiction over infants exercised by the courts of equity. In form that jurisdiction finds no direct parallel in the Act. The concept of wardship as such is not employed. It is unnecessary to consider whether and to what extent the incidents of wardship cover matters which are beyond the jurisdiction of the Family Court. It is plain that if they do so, then to that extent the jurisdiction and powers of the Supreme Court are unaffected. However, bearing in mind the observation of Kay L.J. in Reg. v. Gyngall [41] (cited by McTiernan J. in Carseldine [42] ) that the equitable jurisdiction is essentially a parental jurisdiction involving the benefit or welfare of the child, there is obviously much common ground between the two jurisdictions where the rights and responsibilities of the parties to a marriage in relation to their children are concerned. In the present case, the proceedings may fairly be described as seeking a declaration of wardship only to ground an order placing the child in the care and control of the plaintiffs. It is true that if the Supreme Court has jurisdiction then the declaration of wardship could be significant in vesting in that Court the power and responsibility of supervising the welfare of the child in the future, but for all practical purposes the relief which is sought falls somewhat short of that which would be involved in an application for his custody. The Act confirms that the description "care and control" connotes rights and powers which are ordinarily embodied within "custody": see for example, s. 70. This analysis demonstrates why it is appropriate to determine the question before this Court by asking whether there is jurisdiction in the Family Court to deal with an application by the plaintiffs with respect to the custody of the child.

1. (1974) 133 C.L.R. 345, at p. 350. 2. [1893] 2 Q.B. 232, at p. 248. 3. (1974) 133 C.L.R., at p. 351.

Gary George Jackson is a child of the marriage of the defendants. He was born on 31 March 1967. The marriage of his parents was dissolved, in accordance with the Matrimonial Causes Act 1959 Cth, as amended, by order of the Supreme Court of New South Wales in 1971. The Court awarded custody of Gary to the wife, now Mrs. Alexander, the first defendant, and ordered that no order be made in respect of access. By virtue of s. 3(2)(c) of the Act, that order continues to have effect throughout Australia and the Act applies to it as if it had been made under the Act. In these circumstances, it is argued inter alia for the defendants, and by the Solicitor-General for the Commonwealth, that the substantive proceedings now in question fall within par. (f) of the definition of matrimonial cause in s. 4 of the Act. They are proceedings in relation to completed proceedings of a kind referred to in par. (c)(ii) (the custody of a child of the marriage). It is immaterial that the earlier proceedings were completed before the commencement of the Act.

There are two aspects of the submission which call for consideration. The first is whether, in accordance with a reading of par. (f) that is consistent with its validity, the new proceedings must be between the parties to the marriage. The second is whether in any event there is a sufficient relation between the application by the plaintiffs for Gary's custody and the proceedings that have been completed.

In Vitzdamm-Jones v. Vitzdamm-Jones [43] , I had occasion to consider whether an application for custody of a child of a marriage by a stranger to the marriage, in circumstances where the party to the marriage having custody had died, could constitute a matrimonial cause within par. (f). I found difficulty in that context in comprehending how a stranger could institute a matrimonial cause, particularly where the application was said to relate to completed custody proceedings between the parties to the marriage where the custodian had subsequently died. I concluded that the change effected to s. 61(4) of the Act by amending Act No. 23 of 1979 could not be supported by the legislative power with respect to marriage. However, a majority of the Court was of a different opinion. The decision established the validity of s. 61(4) of the Act in its amended form, and grounded the jurisdiction of the Family Court on par. (f) and s. 39. Gibbs J. [44] (with whom Stephen and Mason JJ. agreed) said that: " par. (f) does not require that the proceedings should be between the parties to the marriage; to come within that paragraph it is enough that the proceedings should be in relation to (inter alia) completed proceedings of the kind referred to in par. (c)."

1. (1981) 148 C.L.R., at p. 430. 2. (1981) 148 C.L.R., at pp. 409-410.

In Dowal v. Murray [45] an opinion to the effect that jurisdiction in par. (f) proceedings was not dependent on the identity of the parties thereto was expressed obiter by Stephen J. [46] , Jacobs J. [47] , and Murphy J. [48] . In the light of this history, it must now be taken as established that par. (f) validly extends to proceedings instituted by a person not a party to a marriage so long as the proceedings bear the necessary relationship to one of the other proceedings referred to in the paragraph. This conclusion is entirely congruent with the fact that s. 39(1), dealing with jurisdiction in matrimonial causes, provides that "Subject to this Part, a person may institute a matrimonial cause under this Act " (my emphasis).

1. (1978) 143 C.L.R. 410. 2. (1978) 143 C.L.R., at p. 425. 3. (1978) 143 C.L.R., at p. 427. 4. (1978) 143 C.L.R., at p. 431.

The second aspect of the submission which requires consideration likewise derives considerable assistance from the decision in Vitzdamm-Jones. For if it be the fact that a sufficient relation, for the purposes of par. (f), exists between an application by a stranger for the custody of a child of a marriage and completed custody proceedings touching that child where the custodian has subsequently died then a fortiori there must be such a relation in the present case. For here the parties to the marriage are still alive, both are parties to the proceeding, and a custody order in favour of the mother is still in force. The plaintiffs are in effect seeking to vary that order. It is plain that such a variation can only be made by the Family Court. If granted, it necessarily involves a readjustment of the rights of the parties to the marriage in relation to their child. In my opinion, there can be no doubt concerning the relationship between the present and the completed proceedings. To hold otherwise would be to contemplate the co-existence of two orders for custody, one made in the exercise of the federal jurisdiction and the other by the Supreme Court in its equity jurisdiction. If such a distressing situation could and did arise, then the Act provides the machinery whereby the order in favour of the mother could oust any rights to which the latter might otherwise give rise (ss. 64(9); 70(2)). But in my opinion such a situation cannot arise. Section 109 of the Constitution ensures the paramount operation of the law of the Commonwealth, and operates so as to deny at the outset the jurisdiction of the Supreme Court either to entertain a matrimonial cause which is within the jurisdiction of the Family Court, or to make any order which is inconsistent with the custody order which at present stands in favour of the child's mother: Colvin v. Bradley Brothers Pty. Ltd. [49] .

Counsel for the plaintiffs attempted to draw an analogy between the orders sought from the Supreme Court of New South Wales in this case and the order made under the Children Services Act, 1965-1979 Q., that was in question in Reg. v. Lambert; Ex parte Plummer [50] . In my opinion, there is no analogy between the two cases. The present case is in substance an application for custody. The Queensland case was concerned with an order made under a general child welfare law dealing with the rights and responsibilities of the State in relation to juvenile delinquency, neglect and other circumstances calling for the care and protection, or control, of children. As I said in that case, the law involved was, in my opinion, "far more than a law with respect to the custody of children" [51] .

1. (1980) 146 C.L.R. 447. 2. (1980) 146 C.L.R., at p. 490.

In my opinion the Family Court has exclusive jurisdiction to hear and determine an application by Mr. and Mrs. Fountain for the custody of Gary George Jackson, and the law of New South Wales to the extent that it confers jurisdiction on the Supreme Court to deal with the care and control of the child is inoperative.

This conclusion does not deny to the Supreme Court the jurisdiction to declare the child to be a ward of Court in an appropriate case. However, since in the present proceedings that relief is sought merely to enable the care and control order to be made it is sufficient to answer the question in the case stated: No.

The Court of Chancery, exercising its jurisdiction to protect children, acknowledged the necessity of allowing any person to bring suit on the child's behalf. In Starten v. Bartholomew [52] , Lord Langdale M.R. said:

There are great complaints in this suit of the bill being filed by a stranger. I must, however, say, that if it is proper for the protection of the infants to institute a suit, such suit is not, on that ground alone, to be found fault with . Though the Court recognized the primacy of parental responsibility for the welfare of the child (Reg. v. Gyngall [53] ), it was prepared to exercise its powers against a parent who was delinquent in the performance of his duties. That was established by Lord Thurlow L.C. when he placed the infant son of Mr. Hunter, over the father's objection, in the care of Lord Hawke and Mr. Adams in 1790. When his jurisdiction to do so was challenged, his answer was [54] : that this Court had arms long enough to reach such a case and to prevent a parent from prejudicing the health or future prospects of the child: And that whenever a case was brought before him, he would act upon this opinion. If the House of Lords thought differently they might control his judgment; but he certainly would not allow the child to be sacrificed to the views of his father. Lord Thurlow's opinion, according to Lord Eldon L.C. in De Manneville v. De Manneville [55] , went upon this; that the Law imposed a duty upon parents; and in general gives them a credit for ability and inclination to execute it. But that presumption, like all others would fail in particular instances; and if an instance occurred, in which the father was unable, or unwilling, to execute that duty, and, farther, was actively proceeding against it, of necessity the State must place somewhere a superintending power over those, who cannot take care of themselves; and have not the benefit of that care, which is presumed to be generally effectual. Lord Thurlow took upon him the jurisdiction on this ground, that he would not suffer the feelings of the parents to have effect against that duty, which upon a tender, just, and legitimate, deliberation the parent owed to the true interests of the child. 1. (1843) 6 Beav. 143, at p. 144 [49 E.R. 779, at p. 780]. 2. [1893] 2 Q.B. 232, at pp. 242-243. 3. (1789) 2 Bro. C.C. 499, at p. 518 [29 E.R. 275, at p. 283]. 4. (1804) 10 Ves. Jun. 52, at p. 64 [32 E.R. 762, at p. 767].

The Chancery jurisdiction was exercised with respect to nuptial children long before the Divorce Court came to exercise jurisdiction in determining custody disputes between parties to a marriage, but when the Divorce Court entertained those disputes it also ensured that the welfare of the children of the marriage was protected by allowing parties other than the husband and wife to intervene for the benefit of the children: Chetwynd v. Chetwynd [56] , Griffith C.J. said in Brown v. Brown [57] , that it was settled that an application for custody in a suit for judicial separation, nullity or dissolution of marriage under the Matrimonial Causes Act 1899 N.S.W. "need not be made by one of the parties to the suit, but may be made by anyone else in the interest of the child".

1. (1865) 4 Sw. & Tr. 151, at p. 154 [164 E.R. 1474, at p. 1475]; (1865) L.R. 1 P. & D. 39. 2. (1906) 4 C.L.R. 595, at p. 598.

It cannot be doubted that the rights of children are better protected and their welfare better assured if proceedings can be brought not only by the parents but by any other person if the proceedings are brought on the child's behalf or in the child's interest. Both contemporary experience and earlier reports bear sad witness to the frequency of the occasions when parents are delinquent in discharging their duties to their children, particularly when the bitterness of matrimonial disputes finds its expression in proceedings for the children's custody. Yet the interests of nuptial children with respect to their custody and guardianship can be protected by orders made in proceedings under the Family Law Act 1975 Cth only if proceedings with respect to custody and guardianship are "between the parties to a marriage" (par. (c)(ii)) or are proceedings falling within par. (f), that is, proceedings "in relation to" proceedings of a kind referred to in pars. (a) to (e). Proceedings of a kind referred to in pars. (a) to (e) are proceedings between the parties to a marriage except in the cases provided for by par. (b) (declarations as to the validity of a marriage, dissolution or annulment) or by par. (cb) (proceedings by or on behalf of the child with respect to its maintenance).

No doubt the Act owes its present form to what was expressed to be the confines of the marriage power (Constitution, s. 51(xxi)) in the judgments in Russell v. Russell [58] . So long as the Act stands in that form the interests of nuptial children in respect of custody and guardianship are not susceptible of so ample a protection in the Family Court as they were in the Court of Chancery. However, it is neither appropriate nor necessary on this occasion to consider that consequence of the judgments in Russell v. Russell. In the present case there was an earlier proceeding under the Matrimonial Causes Act 1959 Cth, the statutory predecessor of the Family Law Act, between the parties to a marriage with respect to the custody of their son, the child of the marriage. The present proceedings are also in substance concerned with the custody of that child. For the reasons stated by the Chief Justice, I agree that the present proceedings are proceedings in relation to the earlier proceedings and thus fall within par. (f) of the definition of "matrimonial cause". I agree with the Chief Justice also that the marriage power supports a provision for the adjudication of conflicting claims to the custody of a child of a marriage by a party to the marriage and a third party. That is sufficient to determine this case.

It may be observed that any order for custody of a nuptial child enforces, modifies or defeats the rights which the parents have to the custody of the child and the reciprocal duties owed to the child, rights and duties which arise from the fact that the child is a child of the marriage. The rights of parents over, and the duties of parents owed to, nuptial children were the subject of the common law and the practice of the Court of Chancery and are the subject of statute. These considerations lead me to refrain from expressing a view that the constitutional validity of a provision for the adjudication of questions of custody of a nuptial child is dependent upon a conflict of claims between the parties to the marriage or between a third party and a party to the marriage of which the child is born.

The order sought in the Supreme Court of New South Wales relates to the earlier proceedings in which an order was made that the child's mother, the first defendant, should have custody of him. The application is a matrimonial cause and, as the Chief Justice has shown, the proceedings can be pursued only in the Family Court.

I too would answer the question in the stated case: No.