Fountain v Alexander

Fountain v Alexander - [1982] HCA 16 - HCA 1967 case summary — Zoe

[27]

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] :

[34]

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.

[87]

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.

[88]

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.

[107]

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].

At a glance

Court

Decision date

Before

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Judgment (114 paragraphs)

Parties