Re F; Ex parte F [1986] HCA 41

Re F; Ex parte F [1986] HCA 41 - HCA 1977 case summary — Zoe

[15]

the rights and duties of husband and wife in respect of children who do not enjoy the status of children of their marriage - whether by birth, by legitimation or by adoption - are not, in my opinion, amenable to regulation by a law for which the marriage power alone provides support. In Reg. v. Cook; Ex parte C. [4] this Court had to consider the validity of s. 5(1)(e)(i) in custody proceedings to which a stranger to the marriage was a party, but which were claimed to be a matrimonial cause within par. (ce) of the definition of that expression in s. 4(1). Paragraph (ce) is in the following terms: proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, being proceedings to which one party to the marriage is a party (whether or not the other party to the marriage is also a party to the proceedings) The majority of the Court (Deane J. dissenting) held, in accordance with the principles stated in In the Marriage of Cormick, that the provisions of s. 5(1)(e)(i) are not validly enacted, at least to the extent to which, in conjunction with par. (ce) of the definition of matrimonial cause in s. 4(1), they attempt to make provision for the rights of the parties to a marriage to the custody of an ex-nuptial child as against strangers to the marriage. Again the question whether a law made under the marriage power might validly regulate the rights and duties of the parties to the marriage as between themselves to the custody of a child who was not a child of the marriage was left open, except by Brennan J., who adhered to his previous opinion. A further question which was not decided in that case is whether a sufficient connexion with the marriage would exist in the case of a child who had been adopted de facto by the parties to a marriage; Gibbs C.J. and Mason J. left that question open, but Wilson and Brennan JJ. would have answered it in the negative. 1. (1984) 156 C.L.R. 170. 2. (1984) 156 C.L.R., at p. 183. 3. (1985) 156 C.L.R. 249.

[21]

Whichever of the powers given by s. 51(xxi) or s. 51(xxii) is invoked to sustain the validity of s. 5(1)(e)(i), the critical question is whether s. 5(1) can be given a distributive construction so that it applies only as between husband and wife. Section 15A of the Acts Interpretation Act has the effect of reversing the presumption which exists at common law that a statute is to operate as a whole, and of creating a new and contrary presumption: Bank of N.S.W. v. The Commonwealth [10] . However the statute itself may reveal an intention that the provisions sought to be given a divisible or a distributable operation should be inseverable and should have a general operation; if so, the new presumption will be rebutted. In the present case we are not concerned with an enactment which contains separate words, some of which considered by themselves would make the enactment valid while others would make it invalid, but with an enactment which contains a general word or expression comprising matters in respect of which legislation could be validly enacted and matters in respect of which it could not. It is easier to apply s. 15A to an enactment of the former kind than to one of the latter kind, although the section can be applied to give a distributive operation to general words: see Pidoto v. Victoria [11] ; Strickland v. Rocla Concrete Pipes Ltd. [12] . In either case, however, it is necessary to consider whether the reading down of the statute would alter its policy or operation because the enactment, when read distributively, must operate upon the persons and things affected by it in the same way as it would have operated if it had been entirely valid: Pidoto v. Victoria [13] ; Strickland v. Rocla Concrete Pipes Ltd. [14] ; and see Bank of N.S.W. v. The Commonwealth [15] ; Vacuum Oil Co. Pty. Ltd. v. Queensland [No. 2] [16] . Section 15A does not give to the Court power to rewrite the statute; indeed, the Parliament could not validly delegate to the Court "the legislative task of making a new law from the constitutionally unobjectionable parts of the old": Bank of N.S.W. v. The Commonwealth [17] ; Strickland v. Rocla Concrete Pipes Ltd. [18] .

[23]

It is not difficult to find in the Act criteria by which the provisions of the Act which went beyond power might be read down so as to render them constitutionally unobjectionable - namely the criteria provided by s. 51(xxi) and s. 51(xxii). However, if s. 5(1) of the Act were read down so as to render it applicable only as between husband and wife, the Act would have a very different operation from that which it has in its present form. An order for guardianship, custody or access is, by its nature, enforceable not only against the parties to the marriage but against other persons as well. Indeed, with a few exceptions, such as where a child is in prison or otherwise under statutory control or restraint, an order for custody is effective as against the whole world. That this is so is recognized by the Act, particularly by s. 64(9) which enables a custody order to be enforced by taking possession of the child - even from a natural parent who is a stranger to the marriage. An order for custody which is ineffective against a stranger to the marriage is quite a different thing from an order for custody effective against citizens generally. Moreover, the rights of the true parents of an ex-nuptial child (one of whom must necessarily not be a party to the marriage) must be affected by any order for custody or access. In many cases it would be contrary to the rules of natural justice if an order were made regarding the custody of a child without giving the true parent an opportunity to be heard. Section 92 of the Act provides a procedure by which a parent who was not made a party to custody proceedings brought between husband and wife could intervene, and, having intervened, would be deemed to be a party: s. 92(1A), (3). Proceedings which commenced between husband and wife in relation to the custody of an ex-nuptial child might readily be converted into proceedings to which a stranger to the marriage was a party. It would be impossible to give s. 5(1) a sensible operation if, in custody proceedings to which a stranger to the marriage was a party, the child was deemed to be a child of the marriage in so far as the proceedings concerned the parties to the marriage but not so far as they concerned the stranger.

[32]

There are many cases in the Court in which attention has been drawn to the width of the phrase "with respect to" in s. 51 of the Constitution. "No form of words has been suggested which would give a wider power": per Latham C.J. in Bank of N.S.W. v. The Commonwealth [28] "[W]hat [those words] require is a relevance to or connection with the subject assigned to the Commonwealth Parliament": per Dixon C.J., McTiernan, Webb and Kitto JJ. in Grannall v. Marrickville Margarine Pty. Ltd. [29] , (emphasis added). In Stenhouse v. Coleman [30] , Dixon J. referred to the important distinction between the legislative power conferred by s. 51(vi) with respect to defence and the legislative power conferred by most of the other paragraphs of s. 51. The defence power, like, to some extent, the external affairs power and the conciliation and arbitration power, is a purposive one. In contrast, as Dixon J. pointed out [30] , the subject of the grant of legislative power in most of the other paragraphs of s. 51 is "described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy)" (emphasis added). His Honour added the comment [30] that, in those cases where the subject-matter of legislative power is non-purposive, "it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case" - i.e. in the case of "a recognized category of legislation" - "answers the description, and to disregard purpose or object". That comment of Dixon J. was expressed to apply, and is properly applicable, to cases where a question arises about the validity of legislation passed in reliance upon the legislative power with respect to marriage. In such cases, the relevant law will ordinarily be properly characterized as being with respect to the subject-matter of marriage if it "operates upon or affects" that subject-matter [31] .

[35]

Where a law does not on its face directly operate upon or affect marriage, validity under s. 51(xxi) will depend upon the nature and strength of any connexion between what the law does and marriage: "for on the one hand the subject-matter may itself involve or include a penumbra of things that are incidental, consequential and ancillary and a law as to some aspects of these things would not be ultra vires, and on the other hand the operation of a law upon any subject may not be apparent on its face but yet be clear when the actual practical working of cause and effect is perceived": per Dixon C.J. in the Marriage Act Case [32] . Even in such a case, it is to the operation of the law that regard must be had for the purposes of characterization and that operation of itself can create or exhibit the relationship with marriage necessary to justify characterization as a law pursuant to s. 51(xxi) of the Constitution notwithstanding that the law directly and more obviously operates upon some other subject-matter which would lack any obvious independent connexion with marriage. All that is necessary is that any connexion between what the law does and "Marriage" is sufficient to enable the law to be fairly characterized not only as a law with respect to that other subject-matter but also as a law with respect to marriage. If the sufficient and necessary connexion does not exist and the particular law cannot fairly be so characterized, however, that does not mean that every law with respect to the subject-matter with which that law deals is necessarily denied characterization as being also a law with respect to marriage for the purposes of s. 51(xxi). The fact that one law dealing with a subject-matter that is not within a specific grant of legislative power cannot properly be characterized as a law with respect to marriage simply does not mean that a different law dealing with that same subject-matter must also be denied such characterization. If, e.g., that different law directly operates upon or affects marriage, it will be within the legislative power conferred by s. 51(xxi) regardless of whether its more obvious characterization may be as a law with respect to that other subject-matter. If that different law does not directly operate upon or affect marriage, it will be necessary to examine its operation for the purpose of determining whether the connexion between what it does and marriage is sufficient to justify its characterization as a law with respect to marriage notwithstanding that its primary or more obvious characterization may be as a law with respect to that other subject-matter.

[36]

Section 5(1) of the Family Law Act 1975 Cth ("the Act") provides that, for "the purposes of each application of this Act in relation to a marriage", a child answering any one of a number of specific descriptions "shall be deemed to be a child of the marriage". Such a provision cannot of itself serve the purpose of effecting an extension of Commonwealth legislative power by, e.g., extending the "penumbra of things that are incidental, consequential and ancillary" to the subject-matter of marriage with the consequence that a law with respect to a "deemed" child of a marriage will be within the legislative power conferred by s. 51(xxi) whenever a corresponding law with respect to an actual child of a marriage would be within that power. That being so, the abstract general validity of the assimilation of a child of a particular description and a child of the marriage must depend upon the existence of a connexion between a child of that description and the relevant marriage which is sufficiently comparable in strength to the connexion between an actual child of a marriage and the marriage for an application of a law to a child of that description to be within Commonwealth legislative power whenever the application of that law to an actual child of the marriage would be within that power. That is not to say, of course, that the application of a particular identified legislative provision to a child of that description by reason of the operation of such a deeming provision will only be within the legislative power with respect to marriage if there be such a sufficient independent connexion between such a child and a marriage. If the applied law, in its application to such a child, is properly to be characterized as a law with respect to marriage in the sense that it directly "operates upon or affects" the subject-matter of the institution of marriage, the "deeming provision" and the applied law, read together, will comprise a law with respect to marriage regardless of whether there is any independent connexion between such a child and marriage. In such a case, the operation of the law upon, or the effect which the law has upon, marriage itself suffices to create the necessary nexus and, subject to questions of severability or reading down, the "deeming" provision will be valid to the extent that it applies the particular law to children of that description.

[43]

In that common law context, it is difficult to see any proper basis for denying that the connexion between any child of a married woman and the subsisting marriage of his or her mother is such as to warrant characterization as a law with respect to marriage of a provision that such a child, even though in fact ex-nuptial, is, for the purposes of the application of the Act " in relation to [that] marriage ", to be deemed to be a child of the marriage. Since long before 1900, the traditional law of this country recognized that the obvious connexion between such a child and the mother's marriage was sufficient to give rise to the strong presumption that the child was, in fact, a child of the marriage. In significant respects, the operation and effect of the "deeming" provision of s. 5(1)(e)(i) in relation to such a child are more confined than that long-established common law presumption which was of general application and which other sections (see ss. 99 and 99A) effectively displace for the purposes of the Act. It is true that the common law presumption was not a conclusive one and that s. 5(1)(e)(i) of the Act ignores the presumption and starts with the fact of the child's ex-nuptial status. On the other hand, the effects of the "deeming" provisions of s. 5(1) are also essentially provisional in that their operation is confined to "the purposes of [the] application of [the] Act" to the particular marriage and the prima facie rights and obligations, as to custody and maintenance, which arise from that application are liable to be extinguished or overridden by order of the Family Court. Overall, it appears to us that the connexion between a child of a married woman, even though in fact ex-nuptial, and the mother's marriage is sufficient to sustain characterization, as a law with respect to marriage, of the provision that such a child is to be deemed to be a child of the marriage for the purposes of the application of the Act to that marriage. The added requirement that the child must have been ordinarily a member of the household of the parties to the marriage when they last cohabited (up to the institution of proceedings) serves to reinforce that conclusion.

[60]

"Marriage" as a subject of legislative power embraces those relationships which the law (leaving aside statutes enacted in purported exercise of the power) recognizes as the relationships which subsist between husband, wife and the children of the marriage. Statutes enacted in purported exercise of the power cannot extend the scope of the power: only those relationships which are already embraced within the subject are amenable to regulation by a law enacted in exercise of the power. The subject does not embrace the relationship between, on the one hand, the spouses and, on the other, a child born of an extra-marital association of a spouse with another person. To treat such a child as a child of the marriage of the spouses when he or she has not been adopted by them is to exclude or diminish the relationship between the child and the parent who is not one of the spouses. There is a web of obligations owed to, rights in respect of and authority over a child shared by the child's parents and there are reciprocal rights possessed by and duties owed by a child to his or her parents. The legal obligations of the child's parents to the child and their respective rights in respect of and authority over the child are inconsistent with the contemporaneous existence in the spouses of similar obligations, rights and authority, even if one of the parents is one of the spouses. The totality of the obligations, rights and authority shared by the child's parents and the reciprocal rights possessed by and duties owed by the child to his or her parents are not abrogated by the marriage of one parent to another person, unless the child is adopted by the spouses. Then the adoptive parents take the place of the natural parents. Even if the child lives with the spouses and is cared for by them, he or she does not become and, unless adopted, cannot become a child of the marriage. The familial identity of a child is not amenable to change by a marriage entered into by either of his or her parents to a person who is not the other parent.

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