R v Cook; Ex parte C

R v Cook; Ex parte C - [1985] HCA 47 - HCA 1979 case summary — Zoe

[38]

Once one passes from legislative provisions dealing with the rights and duties of the parties to a marriage in relation to children born of the marriage to provisions dealing with their rights and duties in relation to other children, one has passed from the primary territory covered by the legislative power with respect to "Marriage" and entered an area where validity under s. 51(xxi) must depend upon some more particular connexion between what the law does and the subject-matter of the legislative power: cf. per Dixon C.J., the Marriage Act Case [26] . In such a case, "validity must depend ultimately on the degree of [the purported law's] connexion to the marriage relationship": per Wilson J., Reg. v. Lambert; Ex parte Plummer [27] . The adequacy of "the degree" of connexion in a particular case must be determined by reference to the challenged operation of the purported law in the sense that there must be reasonable proportionality between the nature and strength of the connexion and the relevant operation of the law. Thus, in Cormick , it was held that a "sufficient" or "necessary" connexion between the relevant operation of a law dealing with custody and guardianship of a child and a marriage was not provided by the mere facts that the child was treated by the parties to the marriage as a child of "their family" and was "ordinarily a member" of their "household": it was said that the connexion was "far too tenuous and insubstantial" [28] . To have held otherwise would have been to extend the scope of the "Marriage" power to an extent where it would encompass provisions dealing with the rights and status of children having no relationship by blood or social convention with either party to the relevant marriage or, for that matter, with the marriage itself: the mere fact that a husband and wife treat a child as part of "their family" and their "household" does not necessarily involve any direct or relevant connexion with their marriage. The position is quite different in the case of a child who satisfies the requirements of s. 5(1)(e)(i) of the Act, that is to say, in the case of an ex-nuptial child of one party to the marriage who is ordinarily a member of the household of the natural parent and his or her spouse.

[41]

The relationship between step-parent and step-child is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent. With origins in Judaic and Christian teaching (cf. Leviticus 18.8 and Genesis 2.24), it reflects the traditional common law view that, for some purposes, marriage "rendered the husband and wife as one": cf. Brotherhood of Locomotive Firemen and Enginemen v. Hogan [29] and see, generally, Gottliffe v. Edelston [30] . Its significance has been recognized in a multitude of legislative provisions. Some examples of the subject-matter of such provisions are: (i) the obligation to provide or pay for maintenance and support of a step-child (see, e.g., Children's Services Act 1965 Q., s. 120; Community Welfare Services Act 1970 Vict., ss. 3 (definition of "Parent"), 36(1A) and 37(d); Child Welfare Act 1939 N.S.W., ss. 58 and 59(1), (2)(b)(ii) (as in force 1939-1980); Department of Welfare of City of New York v. Siebel [31] ), including an obligation on the part of a step-father to make payments to his estranged wife (the natural mother) for the maintenance of his step-child (see, e.g., Lineham v. Lineham [32] ); (ii) liability in respect of damage caused by a child to which the child's "parent" has contributed "by wilful default or by habitually neglecting to exercise due care of the child" (see, e.g., Children's Court Act 1973 Vict., ss. 29, 30, 31 and definition of Parent in s. 3(1); Child Welfare Act 1939 N.S.W., s. 85 and definition of Parent in s. 4(1)); (iii) rights to claim compensation for death of or injury to a relation (see, e.g., Compensation to Relatives Act 1897 N.S.W., s. 7; Workers' Compensation Act 1916 Q., ss. 3(1) (definition of "Member of a family") and 14(1)(A) and 14B(2)A; Workers' Compensation Act 1971 S.A., ss. 8(1) (definition of "Member of family"), 20 and 49(1), (2) and (6); Mander v. O'Toole [33] ; Halsbury's Laws of England, 4th ed., vol. 24, par. 404, n. 6; (iv) income tax (see, e.g., Income Tax Assessment Act 1936 Cth, s. 6, definition of "child"); (v) incest or carnal knowledge (see, e.g., R. v. Frith [34] ; Crimes Act 1958 Vict., s. 52(1) and (2); Crimes Act 1900 N.S.W., ss. 73, 74, 77, 78N and 78O); and (vi) general welfare (see, e.g., Child Welfare Act 1939 N.S.W., s. 4(1), definition of "Parent"; Child Welfare Act 1947 W.A., s. 4(1), definition of "parent").

[47]

When the natural parents of an under-age ex-nuptial child do not live together, the primary entitlement and burden of guardianship and custody will ordinarily fall upon the parent with whom the child lives. Indeed, it would be to close one's eyes to reality to deny that in such a case it is as much the exception as the rule for the other natural parent to have any real continuing parental relationship with the child. The practical effect of the marriage of the natural parent in circumstances where the child becomes ordinarily a member of the household of the natural parent and the step-parent is that the natural parent's entitlement to and burden of guardianship and custody is, at least while the child remains ordinarily a member of that household, shared with the step-parent as part of, and by virtue of, the marriage relationship. What the relevant operation of the provision of s. 5(1)(e)(i) essentially does is to define and regulate that ordinary incident of the marriage relationship in a way which accords reasonably well with the emerging contemporary view that it is preferable that the relationship between step-parent and step-child be formalized by orders for guardianship and custody rather than by adoption orders: see, e.g., Patricia Harper, Children in Stepfamilies, Institute of Family Studies, April 1984, and see the Children Act 1975 U.K., esp. ss. 10(3) and 33 (the latter section to come into operation on 1 December 1985) which reflects recommendations of the U.K. Houghton Committee on the Adoption of Children, 1972. Subject to the qualification mentioned hereunder, the connexion between that operation of the provision of s. 5(1)(e)(i) and the relationship or institution of marriage is such as to warrant and sustain the characterization of that operation of the provision as a law with respect to marriage: it is a law with respect to relationships constituting or directly arising from the marriage between the natural parent and the step-parent of an under-age ex-nuptial child who is received as an ordinary member of their household. That being so and subject to that qualification, the relevant operation of the sub-paragraph is within the legislative power conferred by s. 51(xxi) of the Constitution.

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Judgment (52 paragraphs)

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