V v V

V v V - [1985] HCA 45 - HCA 1985 case summary — Zoe

[14]

It is now well settled that "marriage" in s. 51(xxi) includes the relationship or institution of marriage and, since the protection and nurture of the children of the marriage is at the very heart of the relationship, that the power to make laws with respect to marriage enables the Parliament to define and enforce the rights of a party to the marriage with respect to the custody and guardianship of a child of the marriage. The rights and duties of the parties to a marriage, with respect to the children of the marriage, arise directly out of the marriage relationship, and a law defining, regulating or modifying the incidents of the marriage relationship is a law with respect to marriage. This is so, although the law defines the rights of the parties to the marriage to the custody and guardianship of a child of the marriage, not only as between themselves, or between them and the child, but also as against other persons. These principles are decisive of the present case. The power of the Parliament to define and make provision for the enforcement of the rights of the parties to a marriage with respect to the custody of, or access to, a child of the marriage is not restricted to the definition and enforcement of the rights of the parties to the marriage between themselves: see Reg. v. Lambert; Ex parte Plummer [5] . It is not limited to confirming and protecting the rights of the parties to the marriage, or of one of those parties. It extends to allow the Parliament to provide that the rights of the parties to the marriage, which arose from the marital relationship, may be defeated or diminished, e.g., by an order granting custody or access to a stranger. A law which provides for the adjudication of conflicting claims by a party to a marriage and a stranger to the custody of or access to a child of the marriage is a valid exercise of the marriage power, because such a law provides for the regulation of rights and duties (declared in the first instance by s. 61(1)) that arise out of the marriage relationship. This has already been expressly recognized in Vitzdamm-Jones v. Vitzdamm-Jones [6] and Fountain v. Alexander [7] . In those cases, importance was attached to the fact that there had been previous proceedings, but that was because the "matrimonial cause" in each case fell within par. (f) of the definition, which required the necessary connexion with the marriage to be found in the previous proceedings rather than in the fact that a party to the marriage was a party to the matrimonial cause. The fact that there have been previous proceedings cannot possibly be a necessary condition of the constitutional validity of a law made under the marriage power. 1. Ante, p. 175. 2. (1980) 146 C.L.R. 447, at p. 456. 3. (1981) 148 C.L.R., at p. 414. 4. (1982) 150 C.L.R., at pp. 625-626, 631-632, 646-647.

[32]

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. It was because there had been an order for custody of the child of the marriage in favour of the wife upon the dissolution of the marriage that the application in Fountain v. Alexander was held validly to fall within par. (f) of the definition of matrimonial cause. It was because of that order, which established the rights of the parties to the marriage to custody of the child, that jurisdiction over the sub-sequent application, which amounted to an application for custody, was held to have been validly conferred upon the Family Court under the marriage power. The connexion between those proceedings and the marriage was, as Gibbs C.J. put it [19] , the fact that the second proceedings sought to undo the effect of the order made in the first proceedings. In other words, the view was taken that, as in Dowal v. Murray, the order sought would, if granted, effect a reordering of the state of affairs brought about by an order made between the parties to the marriage and hence was itself sufficiently connected with the marriage to bring the jurisdiction to grant the order within the marriage power. That was the way in which the application in Fountain v. Alexander was viewed, but it should be noted at this point that, for reasons which will appear later, it by no means follows that the custody of a child of a marriage must for all purposes fall within "marriage" as a head of legislative power so that a general jurisdiction can be conferred upon the Family Court in relation to it. Custody, even of a child of a marriage, extends beyond marriage as a subject-matter and a law may be a law with respect to custody without being a law with respect to marriage. It is sometimes said that the protection and nurture of the children of a marriage is at the very heart of the relationship: see, e.g., In the Marriage of Cormick, per Gibbs C.J. [20] . If I may say so with respect, such a statement contains more rhetoric than meaning. The protection and nurture of children is basically a function of parenthood rather than marriage and, in any event, covers a much broader field than marriage. Whilst the marriage relationship and the regulation of that relationship may have an undeniable bearing upon the welfare of children of the marriage, the subject of children's welfare is different from the subject of marriage. I shall return to this by way of elaboration in a moment. 1. (1982) 150 C.L.R. 615. 2. (1982) 150 C.L.R., at pp. 624-625. 3. Ante, p. 175.

[35]

The exercise of the power cannot be restricted to a definition of, or to making provision for the enforcement of, the custodial rights of the parents inter se. It follows that the Parliament may in the exercise of the marriage power enact a law providing that the custodial rights of the parent of a child shall be paramount and that they shall prevail over the rights of any other person, whether he be a Minister or officer of the State or not. So also the Parliament may in the exercise of the power authorize a court to make an order for custody of a child in favour of a parent to the exclusion of the rights of any other person, including a Minister or officer of a State. So to define the rights of the parents is not to derogate from the character of the law as one which defines the rights of the parties to the marriage; it is merely to define the rights in such way as to give them a paramount and exclusive operation. These remarks were made in a case dealing with the jurisdiction of the Family Court to make an order for the custody of the child of a marriage who had been committed to the care and control of the Director of the Department of Children's Services in Queensland under s. 61(4)(a)(iii) of the Children's Services Act 1965 Q.. They were obiter because it was held by the whole Court that by reason of s. 10 of the Family Law Act the Court had no power to affect the rights of the Director. However, in a subsequent decision, Reg. v. Lambert; Ex parte Plummer [23] , the majority of the Court rejected the views which are contained in the passage which I have set out. Reg. v. Lambert; Ex parte Plummer was also concerned with the jurisdiction of the Family Court to affect the custody of the child of a marriage admitted to the care and protection of the Director of the Department of Children's Services in Queensland. Section 10 of the Family Law Act had by this time been amended so that it purported to authorize the Family Court by its order to interfere with the custody or possession of a child in respect of whom an order had been made under s. 49 of the Children's Services Act. Section 10 in this form was held to be beyond Commonwealth legislative power. 1. (1977) 137 C.L.R. 40, at p. 53. 2. (1980) 146 C.L.R. 447.

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