Vitzdamm-Jones v Vitzdamm-Jones

It is also clear that the plaintiff's application cannot be such a cause by reason of any of the paragraphs of that definition other than par. (f): not even by reason of par. (e) with its wide and ambiguous words. Paragraph (f) includes in its description of a matrimonial cause, "proceedings in relation to concurrent, pending or completed proceedings, being of a kind referred to in earlier paragraphs proceedings of such a kind completed before the commencement of the Act". Of course, in so far as the legislative power supporting it is claimed to come from s. 51 (xxii.), the statutory definition cannot be wider than the meaning of "matrimonial cause" in that provision of the Constitution. For the moment, however, I am dealing with the application of the definition as drawn, assuming its constitutional validity. That definition raises the question whether there are completed matrimonial proceedings, and whether in any case there are proceedings "in relation to" such completed matrimonial proceedings. The question under the definition therefore is whether the plaintiff's application is a proceeding in relation to completed matrimonial proceedings.

It is said that the magisterial proceedings in which orders for maintenance and custody were made are relevantly "completed" proceedings, i.e. completed matrimonial proceedings. There may well be a question whether, taken with other general words of the paragraph, constitutional power with respect to marriage or to matrimonial causes stretches so far as to enable federal jurisdiction to be given in relation to or to be founded upon such magisterial proceedings. But I have no need presently to pursue that question. So, for present purposes, I assume that the magisterial proceedings - apart from the effect of the death of the mother - may be regarded as completed proceedings within the definition.

But the magisterial proceedings and the order made therein lapsed on and by reason of the death of the mother. Nothing further could thereafter have been done in them, nor, in my opinion, "in relation" to them. They could not be reopened or the orders made therein varied. The proceedings were not merely completed but dead and incapable of resuscitation. In my opinion, they do not survive the mother so as to remain "completed" proceedings in relation to which other proceedings might be taken. The same is true, in my opinion, of the dissolution proceedings. To endeavour to build jurisdiction either on the magisterial or the dissolution proceedings is, in any case, highly artificial and bears the mark of unreality.

But, in any case, the plaintiff's proceedings are not, in any sense, "in relation to" the magisterial proceedings or, for that matter, to the dissolution proceedings. In truth, the plaintiff's proceedings are clearly disparate from and completely unconnected with and unrelated to either the magisterial proceedings or the dissolution proceedings. Nor, if it matters, does the father's objection - not itself, in my opinion, relevantly a proceeding - relate to either of the proceedings which are suggested to be the completed proceedings.

In my opinion, the plaintiff's application for guardianship and custody is not and cannot be a matrimonial cause. Nothing in it, nor in the facts which would be relevant to its resolution, is in any wise grounded on the matrimonial relationship of the parents of the child. That relationship has no bearing on the father's objection, even if the objection of one parent could, though I doubt if it could, in some circumstances provide warrant for the description of the application as a matrimonial cause: that is to say, even if the father's objection were capable of converting the plaintiff's application into something which apart from the objection it was not, that objection raises no matrimonial question for consideration. The objection raises no consideration based on the mutual relationship of husband and wife either as spouses or as parents. Put another way, the father raises no interest or concern of his own for adjudication in the proceedings. But, more fundamentally, the death of the mother renders it impossible, in my opinion, for the father to raise a matrimonial question.

In my opinion, therefore, apart from any question of constitutional validity, the father's objection cannot be sustained.

The views I have so far expressed in respect of each of the cases are sufficient to dispose of each, adversely to the applicant in the first and favourably to the plaintiff in the second.

But, having regard to the stated cases and the questions there asked, I feel bound to express myself on the constitutional validity of par. (f) of the definition of matrimonial cause in s. 4 and of s. 61 (4) as now amended.

The relevant constitutional power is to be found in par. (xxi.) and (xxii.) of s. 51 of the Constitution: par. (xxi.) Marriage; par. (xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.

Whilst it can properly be said that these paragraphs are not mutually exclusive, it must also be said that they are each to be construed in a document which includes both. There is thus a possible reaction of each on the other. In that connexion, the limited and incidental nature of the inclusion of parental rights, custody and guardianship in par. (xxii.) needs always to be borne in mind.

The topic "marriage" does not merely authorize legislation governing the formalities of entering the married state or the prescription of the qualifications to do so. Notwithstanding the limited reference to parental rights in par. (xxii.), legislation based on par. (xxi.) may provide for the relationship of the spouses to each other in relation to a child of the marriage and for the relationship of the child during their joint lifetime to both or to either of the parents.

Thus, clearly enough, the legislative power under par. (xxi.) extends to the specification of the rights inter se of the spouses to the guardianship and custody of a child of the marriage and to the provision of a tribunal to determine and implement those mutual rights which arise out of the matrimonial relationship. Thus, included in these rights are custodial rights in respect of children of the marriage. Though determined inter se, when determined the custodial right will be enforceable by the custodial parent against all the world: the right to custody, once granted, of necessity will be a right so enforceable. If given to one parent without limitation of time, it will endure not merely during the joint lives of the spouses but during the life of that one if the survivor. Again, this result flows from the nature of an order for custody of a child. Once validly made, such an order does not depend on the continuance of the marriage relationship: subject to any special terms on which it is made, it survives the termination of that relationship, whether by death or dissolution: it remains effective after the death of the other parent, not because the legislative power continues to support it but because that power did support it when made.

But, none the less, the power to award custody to a spouse springs out of the relationship of the parents as spouses and is expressed through a legislative or judicial decision as to the relative rights of each party to the marriage. It is the existence and nature of the marital relationship which, in my opinion, sets the parameters of the legislative power, both under par. (xxi.) and par. (xxii.). The power to deal with the custody of the child is a power to do so as an incident of the marital relationship of the parents, past or present, during their joint lives. On the death of one, and if anything more so on the death of both, there can no longer be mutual rights or rights inter se of the spouses.

Custody of a child as such is not in itself at any time a topic of Commonwealth legislative power. By the very disappearance of one of the parents, therefore, custody ceases to be a possible incident of that relationship and the legislative power derived from that relationship is at an end. The emphasis in par. (xxii.) on the incidental nature of the legislative power with respect to custody and guardianship and the association with parental rights in relation to matrimonial causes points strongly towards that conclusion.

A matrimonial cause is a cause pertaining to, connected with or derived from, marriage. This connotation determines the scope of the legislative power derived from the words "matrimonial cause" in par. (xxii.). Its limits must not be lost sight of when testing constitutional validity said to be supported by par. (xxii.). The name of the Family Law Act and of the court it called into being, whilst possibly convenient, though probably derived from a place where relevant legislative power is wider than the relevant power of the Parliament, is apt to obscure the relevant limitations to which the Parliament is subject. The constitutional power does not relate to family, but relevantly so far as concerns present matters only to marriage and matrimonial causes. A cause or proceeding which is not related to marriage or to the relationship of the spouses or former spouses after judicial dissolution, each to other, albeit in reference to a child or children of the marriage, will not, in my opinion, be a matrimonial cause within the constitutional concept. Thus, though a child be the product of a marriage, the child or its welfare is not itself an object of Commonwealth legislative power. Quite emphatically, par. (xxii.) limits the power with respect to guardianship and custody of children by reference to the matrimonial relationship of the parents. The topic marriage in par. (xxi.), quite apart from any influence of the terms of par. (xxii.), in my opinion, goes no further. Section 4 in its paragraphs other than par. (f) properly recognizes the constitutional need for the involvement of the spouses if the proceedings are to qualify as a matrimonial cause.

Historically, the paramountcy of the welfare of the child in a contest as to its custody developed in connexion with the inherent jurisdiction of the Supreme Court of a State. Its statutory enforcement was by a legislature unlimited by subject matter, free to make laws on any topic for the peace, order and good government of an area territorially circumscribed. Consequently, insistence on that paramountcy might easily be thought of as being derived from some right in the child not necessarily connected with or related to the mutual relationship of the parents. But, in the legislative areas in which the doctrine arose it was of no significance if the matter so developed.

Not unnaturally such paramountcy was readily transported into proceedings depending upon the legislative power with respect to marriage or to matrimonial causes: and the doctrine had been resorted to in determining the rights inter se of the parents to the guardianship and custody of their children. But, when that transference is made, that paramountcy of the child's welfare is not an expression of any right of the child or of the child's welfare as itself a topic of legislative power. It is merely a paramount consideration in the resolution of marital or matrimonial rights of the spouses as between themselves in their capacity as parents.

Thus, although the welfare of the child is a paramount consideration in determining custody as between the parents, the basis of the power remains and, in my opinion, is circumscribed by the marital relationship of husband and wife as parents of the child. The transference of the concept of the doctrine of the paramountcy of the child's welfare into the area of custody contests in the federal jurisdiction does not change or enlarge the nature of that jurisdiction or of the legislative power which supports it. It remains a legislative power relevantly confined to marriage and matrimonial causes.

What is involved in the plaintiff's application is the custody of the child. No doubt his welfare will be the ultimate determinant. But that welfare is not itself a matrimonial cause or related to it. This is so, in my opinion, even though that welfare would have been a paramount consideration in a contest between the parents in their lifetime as to the guardianship and custody of the child. While the rule is that welfare is to be the dominant consideration in such a contest and may determine which of the two parents succeeds in becoming the custodial parent, the matrimonial cause is not the child's welfare. It is the conflict of the parents' rights and interests. Absent a contest between the parents, the welfare of the child cannot be erected into itself a matrimonial cause. After the termination of the marriage by judicial dissolution it could only be so as an incident of a cause between the parents which is a matrimonial cause.

Assuming the view that proceedings which have lapsed by reason of the death of a party to them can be regarded as "completed" proceedings within the meaning and operation of par. (f) of the definition of matrimonial cause, and assuming that it can properly be said that the plaintiff's application is in relation to one or other of those lapsed proceedings, and further assuming that that application is not a matrimonial cause apart from the operation of par. (f), several questions of constitutional validity arise for decision.

First, there is the question whether s. 61 (4), as now amended, validly gives jurisdiction to the Family Court to determine the custody of a child one of whose parents has died, and to do so at the instance of a stranger.

Secondly, is par. (f) valid, or, if not, as enacted is it capable of reduction within power by the use of s. 15A of the Acts Interpretation Act, 1901, as amended?

I will deal with the last of these questions immediately and then pass to the other two in the order I have listed them.

In my opinion, s. 61 (1) is a valid exercise of the marriage power given by par. (xxi.). It does relate to the relative parental rights of the spouses. It is no objection to its validity that by providing for joint custody it determines by reason of survivorship the custody of the child on the death of one of the parents. As I pointed out earlier, it is no objection to a provision or order that the situation it creates will endure beyond the continuance of the marriage or even beyond the joint lives.

On the assumptions I have made, s. 61 (4) purports to give jurisdiction to the Family Court to determine the custody of a child of the marriage after the death of one of the parents and to do so at the instance of, and presumably to make an order in favour of, a stranger. This is a situation in which jurisdiction is exercised by the Supreme Courts of the States. That jurisdiction is not taken away by s. 8 unless the application under sub-s. (4) for custody is itself a matrimonial cause as defined. I have already indicated that, in my opinion, the plaintiff's application is not a matrimonial cause and the father's objection to the Supreme Court's jurisdiction insupportable.

But the question of validity remains. I have already indicated my view of the parameters of the legislative powers with respect to marriage and to matrimonial causes. Those powers, in my opinion, are grounded upon and circumscribed by the mutual rights and obligations of the spouses, either as such or as parents of a child or children of the marriage. The destruction by death of this mutual relationship must necessarily, in my opinion, put an end to the legislative power. There would be no such power with respect to the surviving parent and the child or children of the marriage. In the case of the termination of that relationship by dissolution by order of a court, the jurisdiction of the court to deal with the incidents and, to some extent, the consequences of that dissolution will enable orders which are incidental to the dissolution proceeding to be made. But, as I have indicated, neither the plaintiff's application nor the father's objection could possibly be regarded as incidental to any matrimonial proceedings.

I conclude therefore that s. 61 (4) as amended is invalid and that the Family Court cannot derive any jurisdiction from it to hear and determine an application for custody by a stranger to the marriage of the child's parents or, for that matter, by a surviving parent.

It is quite evident that in relation to the custody of a child some clear definition of the extent of Commonwealth power should, if possible, be expressed. The inherent and statutory jurisdiction of the State courts are well established and so far have appeared to be adequate for the protection of the child and the satisfaction of those who would claim custody. In relation to such a matter as custody where both parents are not alive, and strangers have claims to be resolved, and, more significantly, the welfare of the child, as itself the central matter, needs to be safeguarded, it is more than unfortunate that uncertainty as to the relevant jurisdiction should continue. The choice of the joint lives of the parents as setting the outward limits of the jurisdiction of the Family Court provides that certainty of jurisdiction. In my opinion, it is the correct constitutional basis and at the same time provides a clean cut division of jurisdiction between the Family Court and the courts of the States.

The view I have expressed as to the validity of s. 61 (4) answers the question as to the validity of par. (f) of the definition of "matrimonial cause". The paragraph purports to give jurisdiction in "any other proceedings" of the designated kind. Thus, in terms, the words would include a proceeding by a stranger and, indeed, a proceeding by a surviving parent for an order if the application satisfied the prescription.

Paragraph (f) of the statutory definition affects to make the plaintiff's application a matrimonial cause because it is a proceeding in relation to completed proceedings which in their time were matrimonial causes. The applicant's counsel faced the difficulties inherent in this definition and in the terms of sub-s. (4) of s. 61, and boldly asserted that an application by a total stranger for the custody of an orphan was within the competence of the Family Court and, indeed, exclusively so. But, if the language of the Act supports that view - and I must confess that it appears to do so - its relevant provisions must be invalid as in excess of the legislative power relevantly confined to marriage and matrimonial causes. Further, if, as is claimed, the paragraph includes the plaintiff's application for custody, it is quite obvious to me that the paragraph exceeds the legislative power.

Though in a sense it does not presently arise, I have considered whether it would be possible by the aid of s. 15A of the Acts Interpretation Act to reduce par. (f) within the bounds of legislative competence. In my opinion, conformably to settled doctrine in the use of s. 15A, it is quite impossible to do so. The paragraph, in my opinion, as it affects completed proceedings, is wholly invalid. It may well be that it is equally invalid as to other proceedings. The vice of the paragraph is the universal character of its opening words and, perhaps to a lesser degree, the generality of its use of the expression "in relation to". In neither instance could an acceptable criterion for reduction of the paragraph in operation be extracted from the Act itself.

It seems to me patent that neither the legislative power as to marriage nor that as to matrimonial causes can reach so far as to create a jurisdiction to entertain any proceedings by anyone in relation to completed matrimonial proceedings, whatever that description really encompasses. For this purpose, I continue the assumption that a matrimonial cause or proceeding which has lapsed by death of a spouse is none the less a completed proceeding.

There is, in my opinion, no means by which the generality of the paragraph in this respect could be confined to particular persons or to particular proceedings. Nor is there anything in the description of the matters to which the proceedings must "relate" which could effect any reduction in that generality. In particular, if it matters, the generality could not be confined to proceedings by the spouses. Being of this view, there is no need for me to deal with the matter of the expression "in relation to" as it may affect constitutional validity. But I can observe that it may well, in any case, be too wide if constitutional validity is to be maintained.

Being of the view I have expressed, I am not concerned to speculate or to indicate what, if any, proceedings as to completed matrimonial causes might be included in the Family Court's jurisdiction, nor to consider by whom such proceedings might be brought.

It does not seem to me to be profitable to review the opinions expressed by Justices in cases dealing with the validity of sections of the Family Law Act. My brother Aickin reviewed some of them in his reasons for judgment in Dowal v. Murray [22] . I fully agree with his analysis and with his conclusions in that case. I am unable to accept the view that s. 61 (4) is a valid exercise either of the power given by s. 51 (xxi.) or that given by s. 51 (xxii.). Of necessity, its purport is to give jurisdiction either directly or in combination with par. (f) of the definition of "matrimonial cause" to the Family Court in a matter arising after the death of one of the child's parents. As I have said, with that death the legislative power with respect to marriage and with respect to matrimonial causes must, in my opinion, be at an end.

In the first case, the application was made to the Family Court. I have indicated that there was no jurisdiction to entertain it. But, on the footing that the statute purported to give jurisdiction, it becomes necessary to apply what I have written on the constitutional question in connexion with the first matter. In this instance, the application is not by the child's mother, but by his stepmother: but the father is dead. In my opinion, that application cannot constitutionally be classed as a matrimonial cause. It is not concerned in any sense with the matrimonial relationship of the spouses. It is no more than an application for custody unrelated to such a relationship and, in my opinion, no more a matrimonial cause than is the plaintiff's application in the second matter. Paragraph (f) of the definition of "matrimonial cause" is, in any case, invalid and incapable of making either application a matrimonial cause.

I would answer the questions in the stated cases as follows:

In my opinion, s. 61 (4) is not a valid law of the Commonwealth. It purports to make provision for custody after the death of one parent. No matrimonial considerations remain relevant to the custody of the child.

2. Neither section is operative to make a proceeding within the terms of par. (f) a matrimonial cause within the legislative competence of the Commonwealth.

This Court has heard together two special cases each of which has been stated in a cause removed into this Court by order made on the application of the Attorney-General of the Commonwealth. Each case raises for consideration the question whether the Family Court of Australia has jurisdiction to entertain an application for custody of a child of a marriage, when the application is made by a person other than a party to the marriage.

In the first case a contest has arisen as to the custody of Felix Christian Vitzdamm-Jones, the child of the marriage between Alfred Athol Vitzdamm-Jones ("Alfred") and Bronwen Ruth Vitzdamm-Jones ("Bronwen"). The marriage was dissolved by decree of the Family Court, and thereafter Alfred married Wendy Jane Vitzdamm-Jones ("Wendy"). Subsequently, on 8 August 1978 Alfred filed an application in the Family Court seeking custody of the child and other orders. A cross-application was made by Bronwen. On 27 October 1978 the Family Court ordered by consent that Alfred and Bronwen have joint custody of the child. On 5 September 1979 Bronwen filed in the Family Court an application for an order that she have the sole custody of the child. Alfred was named as respondent to the application. Certain interim orders were made and the hearing of the application was adjourned to be heard after February 1980. However Alfred died on 1 December 1979. Wendy then made application to the Family Court for an order for custody of or access to the child, and named Bronwen as respondent. On hearing of the application Wendy applied for leave to intervene in the proceedings said to be on foot between Bronwen and Alfred. Bronwen objected that the Family Court had no jurisdiction to hear either Wendy's substantive application or her application to intervene.

The second case concerns an application made to the Supreme Court of New South Wales in its Equity Division by Ray Edward St. Clair seeking orders granting him the custody and guardianship of Shane Maxwell Sweep, a child of the marriage between Maxwell Francis Sweep and Judith Ann Sweep. During the continuance of the marriage between Mr. and Mrs. Sweep an order for custody of the child was made in favour of Mrs. Sweep at the Court of Petty Sessions at Blacktown in New South Wales under the provisions of the Maintenance Act 1964 N.S.W.. No order for custody was made when the decree dissolving the marriage was pronounced by the Supreme Court of New South Wales. After the dissolution of the marriage, Judith Ann Sweep married Mr. St. Clair. On 9 January 1980 Judith Ann St. Clair, formerly Sweep, died, leaving a will by which she appointed Mr. St. Clair, as guardian of the child Shane. Subsequently Mr. and Mrs. Nicholson, the parents of Judith Ann St. Clair, removed the child from the home of Mr. St. Clair. In the proceedings in the Equity Division commenced by Mr. St. Clair, Mr. and Mrs. Nicholson and Mr. Sweep are named as defendants. In those proceedings Mr. Sweep filed an affidavit in which he stated that by virtue of the Family Law Act 1975 Cth, as amended, ("the Act"), the Family Court has exclusive jurisdiction to deal with the matter.

It clearly appears from the provisions of ss. 8, 31, 39 and 40 of the Act that in each of the two cases now before the Court the Family Court would have jurisdiction if the proceeding were a "matrimonial cause" within the meaning of the Act, and that if the Family Court has jurisdiction that jurisdiction is exclusive. The expression "matrimonial cause" is defined in s. 4 (1) of the Act; it means, inter alia -

(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;

(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.

Neither of the proceedings now before the Court comes within par. (c) of the definition, for they are not proceedings between the parties to the marriage. However, 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). In deciding whether a sufficient relationship exists in the present case it is also necessary to consider s. 61 of the Act, the material provisions of which are in the following terms:

(1) 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.

(4) On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage -

(a) the other party to the marriage is entitled to the custody of the child only if the court so orders;

(b) the other party to the marriage or any other person may make an application to the court for an order placing the child in the custody of the applicant; and

(c) in an application under paragraph (b) by a person who does not, at the time of the application, have the care and control of the child, any person who, at that time, has the care and control of the child is entitled to be a party to the proceedings.

Section 61 (4) was inserted in the Act in its present form by Act No. 23 of 1979. The sub-section in its original form had been considered by this Court in Dowal v. Murray [23] and it had been held (by a majority) to be a valid law of the Commonwealth. However, a majority of the Court held that the original sub-section did not enable a person, other than a party to the marriage, who had the care and control of a child to make an application to the Family Court for an order for the custody of the child [1] . No doubt the amendment to the sub-section was prompted by that decision. Although the new sub-section differs from the old in a number of formal respects, the only difference in substance is brought about by the insertion of the words "or any other person" in what is now par. (b). The sub-section now enables any person, whether he or she had the care and control of the child or not, to apply for an order for custody in the circumstances mentioned in the sub-section. The main question that arises in the present case is whether the sub-section in its amended form is valid. Before I turn to consider that question, it is convenient to determine the effect of the sub-section, assuming its validity.

1. (1978) 143 C.L.R. 410. 2. (1978) 143 C.L.R., at pp. 416, 419, 438; cf. at pp. 426-427, 431.

In the first place, in my opinion, proceedings of the kind described in s. 61 (4) constitute a "matrimonial cause" within par. (f) of the definition. In Dowal v. Murray I held that proceedings resulting from an application made under s. 61 (4) in its original form came within par. (f) of the definition [2] . Stephen J. [3] was of the same opinion and it may I think, be inferred that Jacobs and Murphy JJ. also took the same view [4] . On the other hand Aickin J. held that the proceedings under s. 61 (4) do not relate to the divorce proceedings or prior custody proceedings between the husband and the wife and are therefore not within par. (f) [5] . I can appreciate that, if it were not for the presence of s. 61 (4), it would be a question whether proceedings brought by a spouse against a third party for the custody of a child of the marriage could be said to be proceedings in relation to earlier proceedings between the parties to the marriage for the custody of that child, but any doubt on that point is in my opinion removed by s. 61 (4) itself. Assuming the validity of s. 61 (4), there can be no doubt that the Family Court has jurisdiction to entertain proceedings brought under its provisions. If such proceedings do not come within the definition of matrimonial cause, s. 61 (4), which plainly proceeds on the assumption that the Family Court has jurisdiction, would perform the double function of creating the right to bring the proceeding and giving the court jurisdiction to hear them: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [6] ; Hooper v. Hooper [7] . The only importance of the question whether the proceedings are a "matrimonial cause" lies in the fact that s. 8 provides that proceedings by way of a matrimonial cause shall not be instituted except under the Act. The Family Court has jurisdiction in proceedings brought under s. 61 (4), whether or not those proceedings are within the definition of "matrimonial cause", but its jurisdiction is exclusive only if the proceedings come within that definition. As was pointed out in Dowal v. Murray, jurisdiction under s. 61 (4) is conferred only when a custody order has been made, and such an order can only have been made in proceedings of the kind mentioned in par. (c) of the definition. An application under s. 61 (4) is necessary because the custody order formerly made has come to an end on the death of a party in whose favour it was made. The presence of s. 61 (4) provides an indication that the Parliament considered that the relationship between the two proceedings was sufficient to satisfy par. (c) of the definition, for it is most unlikely that it was intended to confer on the Family Court an anomalous jurisdiction not within s. 31 and not exclusive under s. 8. I remain of the opinion which I expressed in Dowal v. Murray, and do not consider that the amendments made to the sub-section in 1979 can lead to any different conclusion on this aspect of the matter.

1. (1978) 143 C.L.R., at pp. 417, 581. 2. (1978) 143 C.L.R., at p. 425. 3. (1978) 143 C.L.R., at pp. 427, 431. 4. (1978) 143 C.L.R., at p. 437. 5. (1945) 70 C.L.R. 141, at pp. 154-155, 160, 165-166. 6. (1955) 91 C.L.R. 529, at pp. 535-538.

A second question which was mentioned in Dowal v. Murray, and on which conflicting opinions were tentatively expressed, is whether s. 61 (4) applies when a custody order has been made in favour of both spouses and one of them dies. I there said [8] that it appeared that the section does apply in such a case, whereas Stephen J. inclined to the contrary view [9] . When the Parliament amended the sub-section, it did not alter the words that give rise to this question. It will be observed that if the sub-section is construed as referring only to the death of a party who has been granted sole custody of a child of the marriage, a number of consequences will follow in the event of the death of a party where an order has been made providing for joint custody. Firstly, the surviving spouse would be entitled to the custody of the child. Secondly, the Family Court would appear to have no jurisdiction to entertain an application either by the surviving spouse or by any other person for the custody of the child - so far from conferring jurisdiction in such a case, the words of s. 61 (4) would, on ordinary principles of construction, indicate that none exists: expressio unius exclusio alterius. As to the first of these matters it is by no means obvious that the Parliament intended that the survivor of the spouses in whose favour a joint custody order had been made should be entitled to custody on the death of the other. If, for example, the child had lived for a good many years with (say) the wife and a close bond had developed between the child and the wife's parents, whereas, on the other hand, the husband, notwithstanding the order for joint custody, had taken no interest in and had had no association with the child, it might well be that in the event of the death of the wife the child's welfare would be best served if the child were placed in the custody of the wife's parents. It would be by no means a surprising result if the Parliament had intended that in cases of joint custody, as well as in cases where one party to the marriage only had been awarded custody, the surviving party should not automatically be entitled to custody unless the court so ordered, so that in each case the court should consider what was best for the child. As to the second of the consequences that I have suggested, it would be anomalous if the Family Court had jurisdiction in custody proceedings where the deceased party had been awarded sole custody but not where a joint custody order had been made. Thus, in the present case, on that view, assuming always the validity of s. 61 (4), the Family Court would have jurisdiction in the proceedings brought by Mr. St. Clair, but not in the proceedings brought by Wendy Vitzdamm-Jones, because in the former case the custody order was made in favour of one party only, and in the latter case the order was made in favour of both. The word "favour" may, in some contexts, suggest preference, but in its present context in my opinion the expression "in whose favour" means no more than "to whose advantage", or "for the benefit of whom" and does not signify that the order for custody has been made in favour of one party to the exclusion of the other; it may have been made in favour of both. For these reasons I conclude that s. 61 (4) is applicable where a custody order has been made in favour of both parties to the marriage.

1. (1978) 143 C.L.R., at p. 417. 2. (1978) 143 C.L.R., at pp. 419-420.

I then return to the question of the validity of s. 61 (4). The original section 61 (4) was a law with respect to the right of a surviving party to a marriage to the custody of a child of the marriage in the circumstances mentioned in the introductory words of the sub-section, and was also a law with respect to the procedure by which such a party to a marriage might apply for the custody of a child of the marriage. The sub-section in its present form remains a law with respect to the right of the surviving party to custody, but it is now also a law with respect to the procedure by which either the surviving party, or any other person, may apply for the custody of the child. The sub-section does not say in terms that the surviving party to the marriage should be a party to the proceedings if they are brought by a stranger to the marriage. However the proceedings would not be properly constituted if the surviving party to the marriage, that is the surviving lawful parent, were not joined as a party, unless perhaps it was impossible for practical reasons (such as, that the whereabouts of the party were unknown) to join him or her. The surviving party has an obvious prima facie claim to custody, which may of course be defeated in appropriate circumstances, but which entitles him or her to be heard in opposition to the application of a stranger to the marriage. The sub-section must be understood as referring to a properly constituted application, that is to an application either brought by the surviving party, or in which the surviving party is joined as a respondent. And the sub-section, by its twice repeated reference to "the other party to the marriage" indicates that it is intended to apply only when one spouse survives, not when both are dead. On this view the sub-section remains a provision with respect to the right of a surviving party to a marriage to the custody of the child of the marriage, although the procedure for which it provides not only permits the surviving party to apply for custody, but also permits any other person to make a claim for custody adverse to that of the surviving spouse.

The learned Solicitor-General for Victoria, in his attack on the validity of the sub-section, submitted that the power conferred by s. 51 (xxi.) of the Constitution does not empower the Parliament to enact laws which provide for the definition or enforcement of the rights of the parties to a marriage against third parties, and is restricted to defining or enforcing the rights and duties of the parties to the marriage between themselves and between themselves and the children of the marriage. The same argument was advanced in Reg. v. Lambert; Ex parte Plummer [10] , that case had been argued, but judgment had not been delivered, when the present case was before the Court. In my judgment in that case I expressed the opinion, to which I adhere, that the argument that the marriage power should be restricted in that way is contrary to Dowal v. Murray, and that there is no reason in principle why a power which extends to the creation, declaration or definition of the rights and duties which arise from the marriage relationship should be so confined that those rights and duties should exist only as between the parties to the marriage and the children of the marriage, and should not be enforceable against other persons. That does not mean that the Parliament, acting under the marriage power, can impose onerous obligations on third parties. Nor does it mean that every right which arises out of the marriage relationship is capable of being exercised against third parties. But the right of a party to a marriage to the custody of a child of the marriage is obviously capable of being enforced against third parties. Similarly, 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.

On the other hand it would in my opinion be beyond the power of the Parliament to make provision for the adjudication of contending claims by strangers for custody of a child of a marriage in a case where no right or claim of a party to the marriage is involved. Such a situation could ordinarily arise only after the death of both parties to the marriage of which the child was born, since the custodial rights of any living party to the marriage would necessarily be affected by an order giving custody of the child to a stranger. Proceedings between strangers to the marriage for the custody of a child of the marriage, when neither party to the marriage is a party to such proceedings, would not be brought to enforce rights or obligations which arose out of or were connected with the marital relationship; the fact that the child is the child of a marriage is, in such proceedings, merely an accidental incident rather than an essential circumstance. And as I have said a law is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage: Reg. v. Demack; Ex parte Plummer [11] .

I may sum up my views as follows. Section 61 (4) of the Act is a valid provision. However, it applies only where a custody order has been made in respect of a child of the marriage in favour of a party to the marriage (either alone or jointly with the other party) and that party has died. In those circumstances the Family Court has exclusive jurisdiction to entertain an application for the custody of the child of the marriage whether such application is made by the surviving party to the marriage or (provided that one party to the marriage is still alive and is made a party to the proceedings) by any other person. However, the Family Court has no jurisdiction to entertain an application for the custody of a child of the marriage which is brought by a person other than a party to the marriage if no custody order has been made in favour of a party to the marriage, or if both parties to the marriage are dead. Further, nothing that I have said is intended to reflect on the correctness of such cases as Reg. v. Demack; Ex parte Plummer and Reg. v. Lambert; Ex parte Plummer [12] .

I return to the particular cases before the Court. In the matter of Vitzdamm-Jones v. Vitzdamm-Jones the proceedings in which the applicant seeks to obtain custody of and access to a child of the marriage are brought by a stranger to the relevant marriage against the surviving party to the marriage. It follows from what I have said that the Family Court had jurisdiction to entertain the proceedings. However Wendy's application to intervene in the proceedings that were formerly pending between Bronwen and Alfred must be refused. Those proceedings abated on Alfred's death: see the authorities collected in such cases as Williams v. Williams [13] , Kemp v. Pearce [14] and King v. King [15] . There are no proceedings in which Wendy could intervene. It is not possible to intervene in proceedings that have concluded and are no longer on foot; the decision to the contrary in In the Marriage of Waters; Townsend Intervening [16] is based on the erroneous assumption that the definition of proceedings in s. 4 of the Act includes completed proceedings [17] and should be overruled.

1. [1951] V.L.R. 362. 2. [1972] V.R. 805. 3. (1973) 24 F.L.R. 269; [1974] Qd. R. 253. 4. (1978) 32 F.L.R. 492; [1978] F.L.C. 77,166. 5. (1978) 32 F.L.R., at p. 494; [1978] F.L.C., at p. 77,168.

In the second case the original disputants appear to have been Mr. St. Clair and Mr. and Mrs. Nicholson - all of whom are strangers to the marriage of which the child was born. But even if it were true that Mr. Sweep, the surviving party to the marriage, had displayed little interest in obtaining custody (a matter on which I express no opinion), he has rightly been made a party to the proceedings and his interests are at stake. For the reasons I have given the Family Court would have had jurisdiction if proceedings for the custody of Shane Maxwell Sweep had been instituted by Mr. St. Clair against Mr. and Mrs. Nicholson and Mr. Sweep in that court under s. 61 (4) of the Act. It follows that the Supreme Court has no jurisdiction.

In the matter of Vitzdamm-Jones v. Vitzdamm-Jones I would declare that the Family Court has jurisdiction to entertain the proceedings and would remit the matter to that court for hearing. In the matter of St. Clair v. Nicholson I would declare that the Supreme Court lacks jurisdiction to entertain the proceedings and would remit the matter to that court with a direction that it dismiss the proceedings for want of jurisdiction.

These cases are two more in what is now a line of cases in this Court in which the limited legislative powers of the Commonwealth over family law, combined with obscurities of drafting in the Family Law Act itself, have raised constitutional questions and also problems in statutory interpretation.

The detailed facts of each case and the circumstances in which each comes before us sufficiently appear from the judgment of Gibbs J. Subject to one reservation, of some importance since it affects the outcome in one of these cases, I agree with all that is said in the judgment of Gibbs J. I need therefore refer to the facts only to the extent necessary to focus attention upon the various matters of law to which they give rise.

In the case of Vitzdamm-Jones , following dissolution of their marriage in 1977, the divorced parents, Alfred and Bronwen, were granted joint custody of their child. Subsequently Alfred married again, this time to Wendy. Later Bronwen sought sole custody but before that application was disposed of Alfred died, whereupon Wendy sought as against Bronwen custody of the child and also applied for leave to intervene in Bronwen's application for sole custody. Bronwen denies the jurisdiction of the Family Court to entertain either of Wendy's applications.

In the St. Clair case, Judith Sweep, the wife of Maxwell Sweep, having separated from him in 1974, obtained in 1975 a magistrate's order under New South Wales law for custody of their child. The Sweeps were later divorced and Judith then married St. Clair. She died in 1980, having by her will appointed St. Clair the child's guardian. Later still Judith's parents, the child's maternal grandparents, took the child away from St. Clair, who instituted proceedings against them in the Equity Division of the New South Wales Supreme Court, also joining the father, Maxwell Sweep, as a defendant. The latter asserts that the State court lacks jurisdiction, the Family Court having exclusive jurisdiction.

Thus in Vitzdamm-Jones the contest for custody is in the Family Court between stepmother and mother, the latter denying the Family Court's jurisdiction. In St. Clair it arises in a state Supreme Court between stepfather and maternal grandparents, with the father being joined as a respondent and asserting that the Family Court alone has jurisdiction. In each case one parent is alive and the other dead. Some of the questions to which these two cases give rise are common to both, others are not; some depend upon interpretation of the Family Law Act, others upon its constitutional validity. In view of my substantial agreement with my brother Gibbs the only question which I need discuss relates to the effect of s. 61 (4) of the Act.

Sub-sections (1) and (4) of s. 61 of the Family Law Act are as follows:

(1) 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.

(4) On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage -

(a) the other party to the marriage is entitled to the custody of the child only if the court so orders;

(b) the other party to the marriage or any other person may make an application to the court for an order placing the child in the custody of the applicant; and

(c) in an application under paragraph (b) by a person who does not, at the time of the application, have the care and control of the child, any person who, at that time, has the care and control of the child is entitled to be a party to the proceedings.

A question arises whether sub-s. (4) has any application where, as in Vitzdamm-Jones , the relevant custody order was for custody jointly by the deceased and the other party to the marriage: in such a case is the deceased "a party to a marriage in whose favour a custody order has been made"? In Dowal v. Murray [18] I thought not; Gibbs J. inclined to the contrary view. In that case it was not necessary to decide the point but in Vitzdamm-Jones it may be decisive of the outcome: if sub-s. (4) is inapplicable the stepmother, Wendy, will have no right to apply for custody under par. (b) of that sub-section. If in addition she also cannot now intervene in Bronwen's application she will be wholly excluded from seeking custody of the child.

Argument has confirmed for me the tentative view which I expressed in Dowal v. Murray [19] . I regard the words "a party in whose favour a custody order has been made" as descriptive, according to common usage, of an order which prefers one party to the other, rather than of one which treats both parties alike. They convey a sense of preferring one at the expense of another rather than of equality of treatment.

The effect of s. 61, viewed as a whole, seems to me to lend support to this view of the operation of sub-s. (4). Sub-section (1) enacts a general custodial regimen for all children of marriages quite apart from any orders made in particular cases: the parents are to "have the joint custody of the child". On the death of one parent it follows that the custodial rights of the survivor will remain undisturbed. Where resort has been had to the courts to determine custody and the outcome has been the same as that prescribed by the general regimen, joint custody having bKen ordered, it seems unlikely that Parliament should have intended that death of one parent should automatically determine the custodial rights of the other. The more likely legislative intent seems to be that where joint custody applies the death of a parent will produce the same custodial consequences, whether that joint custody was the outcome of the general regimen created by sub-s. (1) or of a court order.

The logic of s. 61 (4) seems clear. If a court, having regard to the welfare of the child, has deprived one parent of custody, it seems appropriate enough that the child should not again pass into that parent's custody without scrutiny of the situation by a court. But where joint custody has been ordered the same need for scrutiny is not apparent. Indeed it seems quixotic that, pending some new order by a court, the death of one joint custodial parent should automatically determine all custodial rights of the other parent, with whom the child may have been living and who at all events has not been adjudged in any way unfit to have its custody.

Since I take the view, contrary to that of Gibbs J., that s. 61 (4) has no operation where the custody order in force at the death of a party to the marriage was an order for joint custody, it follows that in the case of Vitzdamm-Jones I regard Wendy's application based upon s. 61 (4) as not authorized by the Act. Agreeing as I do with the views of Gibbs J. concerning the abatement of the proceedings between Bronwen and Alfred in which Wendy has sought to intervene, I conclude that the Family Court has no jurisdiction to entertain either of Wendy's applications.

In the St. Clair case, which involved no question of joint custody, I do, as I have already indicated, agree with the judgment of Gibbs J.

Before concluding I should take this opportunity of correcting what may have been inaccurate, albeit convenient, use of language which I employed in Reg. v. Lambert; Ex parte Plummer [20] . In that case, feeling "custodian" to be inapt, I described one having custody of a child as its guardian. In the present case, the argument of the Solicitor-General of the Commonwealth has drawn attention to the distinction existing in Pt VII of the Act between guardianship and custody; it is clear that a guardian may not have custody. Part VII envisages proceedings being instituted and orders made "with respect to the custody or guardianship" of children: s. 61 (2) and (3), s. 64 (1) and s. 65. Consistently with this approach, s. 61 (1) deals with each as a distinct concept. Some provisions of Pt VII are no doubt applicable to both custody and guardianship - e.g. ss. 62, 64 (1) and (5) to (8), 65 and 66; while others appear to be confined to matters of custody only - e.g. ss. 61 (4), 64 (2) to (4) and (9) and ss. 67-70.

In In the Marriage of Newbery [21] Demack S.J. observed that neither "custody" not "guardianship", although treated by the Act as distinct concepts, were terms of art of invariable content. Their content depended upon the particular legislative context and in the Family Law Act guardianship was, he thought, "limited to the power to assert the rights of a child against some third party, e.g., to undertake litigation on behalf of the child" [22] . Certainly all matters of usual significance regarding the person of an infant are, in the Act, encompassed in the concept of custody. It is it which usually confers actual care and control and physical custody; this appears clearly enough from s. 64 (3), (4) (b) and (11) and s. 70. Little if anything by way of rights over the person of an infant seems to be left to be dealt with by the concept of guardianship. This no doubt explains why it is that applications for sole guardianship under the Act are virtually unknown.

1. (1977) 27 F.L.R. 246, at p. 248; 2 Fam. L.R. 11,652, at p. 11,654; [1977] F.L.C. 76,067, at p. 76,069. 2. (1977) 27 F.L.R., at p. 249; 2 Fam. L.R., at p. 11,659; [1977] F.L.C., at p. 76,069.

In the case of Vitzdamm-Jones I would declare that the Family Court lacks jurisdiction to entertain either of Wendy's applications.

In the St. Clair case I would declare that the Supreme Court of New South Wales lacks jurisdiction to entertain the proceedings.

For the reasons given by Gibbs J., I would make the following orders in these matters:

Declare that the Family Court has jurisdiction to entertain the proceedings and remit the matter to that Court for hearing.

Declare that the Supreme Court of New South Wales lacks jurisdiction to entertain the proceedings and remit the matter to that Court with a direction that it dismiss the proceedings for want of jurisdiction.

Section 61 (4) of the Family Law Act 1975 (inserted in this form by Act No. 23 of 1979) is valid. For the reasons given by Gibbs J., under the sub-section, a custody order may be "in favour" of one or both spouses.

Section 61 (4) is clearly within the Parliament's marriage and divorce powers in s. 51 of the Constitution. There is a rational connexion between s. 61 (4) of the Act and the subjects in s. 51 (xxi.), "marriage", and s. 51 (xxii.), "divorce, and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants".

Parliament's power to make laws with respect to marriage is not restricted to laws operative during marriage, and the legislative power in s. 51 (xxii.) is obviously not restricted to laws operative during the process of divorce. The proposition that neither the marriage nor the divorce powers extend to authorize laws dealing with the consequences of marriage or divorce after the death of one or both parties is untenable.

The power to make laws giving the custody or guardianship of a child of a marriage to a third party is ancillary to the power to make laws for the nurture of children of a marriage by the parties to the marriage. Where the parties to a marriage, or the survivor of them, fails or fail in the duty of nurture the rights which a law gives to them in respect of guardianship and custody may be taken away and given to another. Where the parties to a marriage are dead, a child of a marriage may still need the nurture which the parties to the marriage would or should have given him or her and it is ancillary to the power to make laws for the nurture of a child of a marriage by its parents to make laws for the care of a child of a marriage who is deprived by death of that care. 1. (1976) 134 C.L.R. 495, at p. 550.

The social aspects of marriage extend to the children born of the marriage and to the children of either party who become part of the family initiated by the marriage. The power to make laws with respect to marriage enables Parliament to protect the child if one or both parties die or become incapable of promoting or unwilling to promote the well-being of the child, or if the parties separate or divorce. 1. (1978) 143 C.L.R. 410, at p. 428.

The marriage power is not concerned only with the rights or obligations of the parties; it is also concerned with the interests (including rights and obligations) of the children of the marriage and of the community in relation to the marriage and its consequences. Parliament's power with respect to marriage (s. 51 (xxi.)) extends to authorize laws dealing with the consequences of marriage, including custody and guardianship of children; the power with respect to divorce, etc. (s. 51 (xxii.)), extends to authorize laws dealing with the consequences of divorce including provision for custody and guardianship of children.

Parliament is entitled to treat marriage as an institution concerning the community and the offspring as well as the parties. If it chooses, it may limit its laws to those dealing only with the mutual rights and obligations of the parties. However, it is not constitutionally limited to such a narrow approach, and may make laws on a much wider basis.

By s. 61 (1) Parliament provides a regime for custody of children of a marriage which drastically alters the previous law. Subject to any court order it places the child in joint custody of the husband and wife, and makes this regime operate until the child is eighteen. The Act authorizes judicial orders for placing custody in one or both spouses or a stranger and presumably a variety of other orders including orders for successive custody for example in one person until death or other event (such as end of schooling) then in another.

Parliament is entitled to provide for a modification of the provision for joint custody in s. 61 (1) as it has in the provision for judicial orders, and it may make special provision as it has in s. 61 (4) for breakdown (caused by death) of custody arrangements made by judicial order. Likewise, Parliament could legislate that a married or divorced parent may appoint another to exercise in his or her stead guardianship or custody of a child of the marriage during the life or after the death of the parent. These are examples of what fall easily within Parliament's constitutional powers under s. 51 (xxi.) and (xxii.).

The Court is invited to take a myopic view of the constitutional power - to hold that Parliament's power to make laws with respect to marriage ceases when the marriage terminates by death of one or both parties. The absurdity of this is shown when applied to the aspect of maintenance. Parliament has undoubted power to provide that, on death of one spouse, the other spouse is obliged to maintain the children of the marriage, and may require that in appropriate circumstances the estate of the deceased provide for maintenance of the children and the surviving spouse. It may also require that, on death of both spouses, their estates provide for the maintenance of children of the marriage. Yet the narrow view would leave Parliament powerless to provide for maintenance in these circumstances.

Section 61 (4) (a) provides that, on the death of a party to the marriage in whose favour a custody order has been made, the other party is entitled to custody only if the Family Court (or a court exercising jurisdiction under the Act) so orders. Therefore, s. 61 (4) effects an implied exclusion of any jurisdiction other than that of the Family Court (or other court under the Act) where a party to the marriage in whose favour a custody order has been made, has died. This is because it is highly improbable that Parliament would have intended to allow other courts to deal with custody on the basis that they could award it to anyone except the surviving party to the marriage.

It follows that in Vitzdamm-Jones v. Vitzdamm-Jones, the Family Court has jurisdiction and the matter should be remitted back for hearing.

In St. Clair v. Nicholson and Nicholson , it should be declared that the Supreme Court has no jurisdiction. The matter should be remitted to the Supreme Court with a direction to dismiss the proceedings for want of jurisdiction.

This matter was removed into this Court from the Supreme Court of New South Wales on the application of the Attorney-General for the Commonwealth. It comes before the Full Court by way of a case stated by my brother Gibbs. The material facts are set out in that Case and in other judgments and I do not repeat them.

The central question is whether the provisions of the Family Law Act 1975 Cth, as amended, operate to exclude the jurisdiction of the Supreme Court of New South Wales in the proceedings there commenced on 24 April 1980 by St. Clair against Mr. and Mrs. Nicholson seeking an order for custody of the child of his deceased wife's first marriage. The contest is thus between the stepfather and the maternal grandparents of the child. The father of the child was joined as a defendant to those proceedings. He has taken no step to obtain physical custody of the child or an order for custody in his favour but asserted in an affidavit sworn in the proceedings in the Supreme Court of New South Wales that the matter is within the exclusive jurisdiction of the Family Court. He has taken no part in the proceedings in this Court.

To come within that exclusive jurisdiction the proceedings must be a "matrimonial cause" within the definition in s. 4 (1) of the Family Law Act 1975. This is not a proceeding between the parties to a marriage and therefore falls outside par. (c) of that definition. The only basis which can be relied upon to found that jurisdiction is par. (f) of the definition which is as follows:

(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. Reliance was also placed on s. 61 (4) as itself giving jurisdiction to the Family Court. However it is desirable to consider first whether the proceedings in the Supreme Court of New South Wales fall within par. (f) of the definition of "matrimonial cause". The only basis for such a contention is that they are "in relation to completed proceedings of a kind referred to in" par. (c) completed before the commencement of the Family Law Act.

There have been two sets of proceedings between the parents of the child, namely custody proceedings in 1975 before the Court of Petty Sessions at Blacktown in New South Wales under the Maintenance Act 1964 N.S.W. and dissolution proceedings in 1976 in the Supreme Court of New South Wales.

The word "proceedings" is defined in s. 4 (1) to mean "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding". The word "court" is also defined in s. 4 (1) to mean in relation to any proceedings "the court exercising jurisdiction in those proceedings by virtue of this Act".

In the custody proceedings in the Blacktown Court of Petty Sessions an order in favour of the wife was made on 26 August 1975. Whether or not such proceedings were contested by the husband does not appear. The relevant provisions of the Family Law Act came into operation on 5 January 1976, i.e. after the making of that order. Paragraph (f) of the definition of "matrimonial cause", which I have quoted above, may apply where the proceedings referred to were completed prior to the date of the Act coming into operation. Paragraph (f) requires that the "other proceedings" must be "in relation to" proceedings falling within pars. (a) to (e) of the definition and par. (c) includes proceedings between the parties to a marriage with respect to the custody of a child of the marriage. The proceedings in the Blacktown Court of Petty Sessions were of that kind and they must be regarded as having been "completed" not later than the death of the wife.

I am however unable to discern any relationship between those completed proceedings and the present proceedings in the Supreme Court of New South Wales. The fact that each concerned the custody of the same child is not of itself enough to provide a sufficient relationship. The order made in the Blacktown Court of Petty Sessions was in proceedings between husband and wife; the wife is now deceased and the husband does not seek custody. The contestants here are strangers to the marriage. The presence of the husband as a defendant who makes no claim for custody also does not supply a relationship between the two sets of proceedings. The present proceedings do not arise out of anything decided or any order made in the Court of Petty Sessions and anything decided in these proceedings will not affect in any way the order made in that court.

The other earlier proceeding referred to in the Case Stated was in the Family Law Division of the Supreme Court of New South Wales. On 27 July 1976 a decree nisi for dissolution of the marriage was granted by that Court and that decree became absolute on 28 August 1976. No order for custody was made in those proceedings and so far as appears no such order was sought by either party.

The same question arises so far as those proceedings are concerned, that is, is the present application "in relation to" those proceedings. It is clear enough that without such proceedings the plaintiff's marriage could not have taken place but that cannot in my opinion provide any relationship between those sets of proceedings. The parties are different though the first husband is common to both proceedings. The issues are entirely unrelated as are the material facts. I am again unable to discern any relationship at all between the two sets of proceedings.

In the result therefore I am satisfied that the Family Court derives no jurisdiction in the present case from ss. 8, 39 and 40 of the Act. It was however argued that s. 61 (4) conferred a right upon "the other party to the marriage or any other person" to make an application to the Family Court for an order for custody on the death of a party to a marriage in whose favour an order for custody of a child of the marriage had been made and further that that sub-section conferred jurisdiction on the Family Court to make such an order. Provisions framed in that manner may in some contexts be construed to confer jurisdiction; see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [25] and Hooper v. Hooper [26] . Such jurisdiction however would not be exclusive of that of the courts of the States because it is only jurisdiction in matrimonial causes which is made exclusive by ss. 8 and 39 (1) of the Act. I respectfully agree with the reasons given by my brother Wilson for regarding such an implied grant of jurisdiction as contrary to the general scheme of the Act. I am therefore of opinion that s. 61 (4) does not confer jurisdiction on the Family Court to entertain proceedings such as the present proceedings.

1. (1945) 70 C.L.R. 141. 2. (1955) 91 C.L.R. 529.

Accordingly it is unnecessary for me to consider the validity of s. 61 (4) in its present form but it was fully argued and in the circumstances I think that I should express my opinion on it. I have had the advantage of reading the reasons for judgment of my brother Wilson and I agree with his conclusion that s. 61 (4) in its present form is beyond the power of the Parliament and with his reasons for that conclusion. I would only add that the additional words in the section as substituted in 1979, namely "or any other person", are plainly severable under s. 15A of the Acts Interpretation Act 1901. This sub-section in its original form was held valid by a majority of the Court in Dowal v. Murray [27] and we were not invited to re-examine that case.

In this case I would therefore declare that the Supreme Court of New South Wales has jurisdiction to hear and determine the application now before it. I would therefore answer the questions in the Case Stated as follows:

3. To the extent that par. (b) includes the words "or any other person", no.

This matter was heard together with St. Clair v. Nicholson in which the same principal issue arises. I find it convenient however to deal with each of these cases in separate reasons for judgment, avoiding repetition as far as possible. In this matter my brother Gibbs has referred to the Full Court of this Court three questions. The facts upon which those questions arise are set out in his reasons for judgment and I do not repeat them.

The Family Law Act 1975 by the operation of ss. 8 and 39 gives to the Family Court exclusive jurisdiction in matrimonial causes as defined in s. 4. The material provisions of that definition are pars. (c) and (f) which are as follows:

(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;

(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.

The present proceeding is not within par. (c) because it is not between the parties to a marriage. Paragraph (f) however does not require that proceedings must be between the parties to a marriage but merely that they should be "in relation to concurrent, pending or completed proceedings" of a kind referred to in pars. (a) to (e) of the definition. There were proceedings between the husband and wife (Alfred and Bronwen Vitzdamm-Jones) instituted in 1976 by the husband. The marriage was dissolved in 1977 without any order as to custody of the child of the marriage. In August 1978 the husband applied for an order for custody and in October of that year the wife made a similar application. On 27 October 1978 the Family Court made an order for joint custody of the child.

Both the dissolution proceedings and the custody proceedings may properly be described as "completed", though no order as to custody can be regarded as final. However the context suggests that an application for custody is a proceeding which is completed by an order, even though on further applications other orders may be made, which in turn are completed by the new orders. Then, while a new application by the wife was pending,, the husband died and those proceedings necessarily abated.

The present application is under s. 61 (4) and it is not material whether the relationship required by par. (f) is to be regarded as existing with the dissolution proceedings or the first custody proceedings. For present purposes it is necessary to set out s. 61 (1) and (4); they are as follows:

(1) 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.

(4) On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage -

(a) the other party to the marriage is entitled to the custody of the child only if the court so orders;

(b) the other party to the marriage or any other person may make an application to the court for an order placing the child in the custody of the applicant; and

(c) in an application under paragraph (b) by a person who does not, at the time of the application, have the care and control of the child, any person who, at that time, has the care and control of the child is entitled to be a party to the proceedings.

The first question which arises in this case is the construction of s. 61 (1) and (4). The operation of sub-s. (4) depends on whether or not the circumstances described in the opening words exist, i.e. whether it is a case in which there has been "the death of a party to a marriage in whose favour a custody order has been made ". It was argued for the applicant that an order for joint custody is one made in favour of the husband, and that on his death pars. (a), (b) and (c) of sub-s. (4) apply. However it does not appear to me that such an order is correctly described as one in favour of either party to the marriage. If it can be described as in favour of anybody it is in favour of both the husband and the wife. It is not in favour of either party to the marriage but merely continues the operation of the situation provided for in s. 61 (1), i.e. the parties to a marriage have joint custody "subject to any order of a court for the time being in force ", that is any order of the court to the contrary.

The use of the expression "joint custody" in sub-s. (1) involves the notion of survivorship so that if during a marriage one party dies the survivor is entitled to sole custody. That is the natural meaning of the words and sub-s. (4) does not detract from it. It follows that where the Family Court makes an order in, or after the completion of, divorce proceedings for joint custody, it is not otherwise ordered. In the result, either by virtue of sub-s. (1) alone, or by virtue of the combined operation of that sub-section and the order, the survivor of those who had joint custody will have sole custody.

Such a construction does not derogate from what is in my opinion the proper operation of s. 61 (4); rather it is a logical addition to the overall scheme of s. 61. What sub-s. (4) (a) ensures is that, on the death of one parent in whose favour an award of custody (i.e. sole custody) has been made, there is no automatic grant of custody to the other party to the marriage, whether wife or husband. Such defeated party must satisfy the Family Court that he or she is a proper person to whom custody should be awarded in the best interests of the child.

On this question therefore I am in agreement with the views expressed in the reasons for judgment of the Chief Justice and of Stephen J. On this view it is not necessary for me to consider in the present case the validity of the amended version of s. 61 (4) (b) of the Act. Because s. 61 (4) has no application in the present case and there is no other basis on which the jurisdiction of the Family Court could be based, the Family Court therefore has no jurisdiction to entertain the application by Wendy Jane Vitzdamm-Jones under s. 61 (4).

As to the application to intervene in the earlier proceedings between Bronwen Vitzdamm-Jones and Alfred Vitzdamm-Jones I think it is clear that those proceedings abated on the death of Alfred Vitzdamm-Jones. The authorities which make this abundantly clear are referred to in other judgments.

Accordingly I would answer the questions referred to the Full Court as follows:

The facts of these cases and the issues which they raise are set out in the reasons for judgment of Gibbs J. The principal question is the validity of s. 61 (4) of the Family Law Act 1975 ("the Act"). I agree, with respect, with the observation of Gibbs J. that if one assumes the validity of s. 61 (4), there can be no doubt that the Family Court must have jurisdiction to entertain proceedings brought under its provisions. But there may remain a question as to the source and effect of such a grant of jurisdiction. On the one hand, the proceedings may constitute a "matrimonial cause" within par. (f) of the definition of that term in s. 4 (1) of the Act, being "any other proceedings in relation to completed proceedings of a kind referred to in " the foregoing par. (c), which refers to proceedings between the parties to a marriage with respect to, inter alia, the custody of a child of the marriage. On the other hand, jurisdiction could possibly be grounded in the provisions of s. 61 (4) itself: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [28] ; Hooper v. Hooper [29] . The point of distinction between the two possible sources of jurisdiction is that the former would result in the jurisdiction of the Family Court being exclusive of State courts, because of s. 39 (1) and s. 8 of the Act, whereas the latter would confer on the Family Court a jurisdiction which is concurrent with any relevant jurisdiction exercised by State courts by virtue of State law. Viewed in the context of the Act as a whole, the last-mentioned result is so incongruous that in my opinion the intention to confer a jurisdiction of that character in that manner cannot be imputed to the Parliament. The decision of this Court in Dowal v. Murray [30] was to the effect that s. 61 (4) of the Act in its original form was a valid exercise by the Parliament of the power to legislate with respect to marriage (s. 51 (xxi.), Constitution) and that an application by the surviving spouse pursuant to that provision was a "matrimonial cause" within par. (f) of the definition in s. 4 (1), in respect of which the Family Court had exclusive jurisdiction. In the light of that decision, coupled with dicta in the reasons delivered in that case by two members of the Court (Jacobs J. [31] and Murphy J. [32] ), one may suppose that in amending s. 61 (4) in 1979 the Parliament intended that proceedings for custody initiated by a stranger to the marriage following the death of the party in whose favour a custody order had been made would constitute a "matrimonial cause" within the meaning of the Act.

1. (1945) 70 C.L.R. 141. 2. (1955) 91 C.L.R. 529. 3. (1978) 143 C.L.R. 410. 4. (1978) 143 C.L.R., at p. 427. 5. (1978) 143 C.L.R., at p. 431.

Nevertheless, I am bound to say, with all respect, that I find it impossible to accept such a proposition. Even simply as a matter of language, it seems remarkable to describe proceedings initiated by a person who is a stranger to a marriage as a matrimonial cause. More importantly, the words of par. (f) do not make the connexion any easier. One can understand the reasoning of the majority in Dowal v. Murray that an application for custody by a surviving spouse is "in relation to" earlier proceedings for custody between the parties to the marriage. The applicant in such a case was necessarily a party to the earlier proceedings when the custodial regimen now broken by the death of the other party was created. But it seems to me to be very much more difficult to discover the necessary relationship between an originating application for custody by a stranger to the marriage following the death of a party and the earlier custody proceedings between the parties to the marriage. I would adopt the words of Aickin J. in Dowal v. Murray [33] :

Such an application does not arise out of those proceedings, nor does it seek any variation of any order in, or consequential upon, those proceedings. The orders for dissolution and for custody are now wholly spent and nothing that can be done thereafter as to custody can have any relation to those proceedings. These words were written in a dissenting opinion with respect to an application by the surviving spouse, but they apply a fortiori, in my opinion, to an application by a stranger to the marriage. I am not convinced that the surviving spouse is a necessary party to proceedings instituted by a stranger in exercise of the right purported to be given by s. 61 (4). That provision appears to deny to the surviving spouse any right to the custody of the child, and it does not in terms require the applicant to join him or her as a respondent to the application. If, independently of s. 61 (4), the proper construction of s. 39 of the Act, coupled with par. (f) of the definition of "matrimonial cause", leads to the conclusion that the Family Court has jurisdiction to hear and determine applications by strangers in the circumstances of the cases now before the Court, then in my opinion their constitutional validity would necessarily be called into question. My reasons for this view will appear in my consideration of the validity of s. 61 (4) to which I shall come shortly. 1. (1978) 143 C.L.R., at p. 436.

The case of Vitzdamm-Jones raises at the outset a question of the proper construction of s. 61 (4). It will have been noted that the circumstance which attracts the operation of the provision is "the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage". The question is whether the provision has any application to this case, in which a joint order for custody was operative when Mr. Vitzdamm-Jones died. Mr. Searby, for Wendy Vitzdamm-Jones, answers that question in the affirmative, relying on what he asserts to be the plain meaning of the words and the passing observation of Gibbs J. in Dowal v. Murray [34] . I am unable to agree. It seems to me, with respect, that the plain meaning of the words points to the opposite conclusion. The words "in whose favour" suggest that one party has been favoured over the other, not that both parties have been equally favoured. I find support for this view in the wording of pars. (a) and (b) of s. 61 (4) which refer to "the other party to the marriage" in terms which seem to be inconsistent with the notion that that party may already have had custody, albeit joint custody, by order of the court in force at the time of the death of the other party. Furthermore, one would expect to find a consistency in the legislative intent expressed in sub-s. (1) and sub-s. (4) of s. 61. Sub-section (1) declares the general rule in terms of joint custody subject to any order of a court for the time being in force. In a case where there is no order of a court, the death of one party will result automatically in the surviving spouse retaining the custody of the child. Why should the result be any different in a case where a court has made an order to the same effect? The position is quite different where a proceeding has resulted in an order of a court granting custody to one parent in preference to the other. Such an order could reflect a finding that the other parent is wholly unfit to have the custody of the child, whereupon s. 61 (4) ensures that custody will not revert automatically to the surviving party.

In the course of argument Mr. Searby relied, inter alia, on s. 51 (xxii.) of the Constitution, which confers power on the Parliament with respect of "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". As Gibbs J. points out in Dowal v. Murray [35] , it seems that s. 61 (4), even in its original form, has a wider operation than could validly be given to a law enacted under this power. In terms, it does not refer to proceedings for principal relief, and there is nothing to suggest an operation which is limited to cases where the marriage has been dissolved or annulled. Clearly it may be given an operation in such circumstances, as where an order for custody is made in proceedings which are ancillary to proceedings for dissolution, but equally it may apply in respect of an order made in proceedings between the parties to a marriage where there is no question of dissolution. In either case, when the party in whose favour the order for custody was made dies, the subsequent proceedings contemplated by s. 61 (4) are related, if at all, to the earlier proceedings for custody. I conclude therefore that s. 61 (4), if it is within power, is valid because it is a law with respect to "marriage": s. 51 (xxi.). This is a power which, on the authorities, is a broader power than s. 51 (xxii.), and will provide more support for s. 61 (4) than the latter.

I come now to the question of the validity of s. 61 (4) in its amended form. It is clear from the earlier authorities that the validity of a law with respect to marriage will depend on the strength of the connexion which the law has with respect to the marriage relationship. In Reg. v. Lambert; Ex parte Plummer [36] , I had occasion to review the earlier decisions of the Court bearing on the scope of the legislative power of the Commonwealth in this regard. I have no need to repeat what I wrote in that context, relevant though it is to the present cases. The precise question of the effect of the death of a party to the marriage on the scope of the legislative power with respect to marriage is not free of authority. If it were, I would have thought it essential to the preservation of the connexion with marriage that both parties to the marriage be alive and that proceedings directed to the definition and enforcement of the rights and obligations of the parties with respect to the custody of a child of the marriage be proceedings between such parties.

The death of a parent who has custody of a child of the marriage radically alters the context in which the welfare of that child falls to be considered. The focus is no longer on the existence of a marriage relationship to which there are parties, whether or not that relationship has long since been dissolved. There may be a surviving party to the marriage, but whether this be the case or not there are likely to be others, grand-parents, step-parents or relatives and friends concerned with the welfare of the child. The focus must necessarily be on the child, not on the marriage of his parents, leading to the expectation that the jurisdiction most capable of meeting the potentially diverse needs of a particular situation will be the traditional inherent or statutory jurisdiction of the Supreme Courts of the States. There is no suggestion that this is not so in the case where by virtue of s. 61 (1) both parents have had joint custody of the child and one parent dies, or, whatever the circumstances, where both parents have died. In such cases presumably the Supreme Court and not the Family Court will have jurisdiction. As Gibbs J. said in Reg. v. Demack; Ex parte Plummer [37] , "a law is not a law with respect to marriage simply because it has some operation with respect to the custody of a child of a marriage."

But, as I have said, the question is not free of authority. Dowal v. Murray, as I understand it, is authority for the proposition that s. 61 (4) in its original form was a valid law of the Commonwealth. However, in my opinion, that case does not require a finding that the new provision is also valid. The question raised by one of the cases before us is whether a provision which authorizes a person who is not a party to the marriage to apply for the custody of a child of the marriage, citing as respondents to the application not only the surviving party but persons who have the present care and control of the child while not being themselves in any way relevantly connected with the marriage is a law with respect to marriage. With all respect to those who are of a different opinion, I do not think so. The contest in the case of St. Clair v. Nicholson and Sweep is not concerned with the rights of Mr. Sweep, the father of the child. He has not sought the custody of his child. The contest is between the step-father of the child and the child's grand-parents. If Mr. Sweep were to institute proceedings for custody in the Family Court, then on the authority of Dowal v. Murray that Court would have exclusive jurisdiction to hear and determine the application; but unless and until he does, I see no obstacle to the Supreme Court of New South Wales determining the application that is before it. Nor is a different conclusion open in the case of Vitzdamm-Jones , notwithstanding that in that case the respondent is the surviving party to the marriage. A person who is not a party to the relevant marriage cannot, by a law with respect to marriage, be authorized to invoke the jurisdiction of the Family Court to determine whether she should have the custody of a child of the marriage.

I can appreciate that jurisdictional conflicts of the kind exposed by these cases produce a great deal of distress and expense to the litigants and inconvenience to the courts. It is a consideration, however, which cannot be allowed to lead to a construction of legislative power with respect to marriage which does not attempt faithfully to reflect the application of the established principles of constitutional interpretation. The sad fact is that however broad an operation is conceded to the marriage power, the general field of custody and welfare of children remains to be shared between Commonwealth and State legislatures, and jurisdictional lines must therefore be drawn. As judges we can only hope that they be drawn in a manner that is least productive of confusion. Of course, I cannot forbear to mention that the establishment of a State Family Court pursuant to s. 41 of the Act, as has been done in Western Australia, mitigates much of the difficulty.

It remains to refer to the questions raised by the case stated in Vitzdamm-Jones with respect to the applications of Wendy Vitzdamm-Jones to intervene in proceedings instituted by Alfred and Bronwen respectively. There is no problem so far as any proceedings instituted by Alfred are concerned. It is not altogether clear what proceedings, if any, were still on foot at the time of his death, but if it is the case that any such proceedings were pending then they would have abated on his death: see, generally, Supreme Court Practice 1979 (U.K.), vol. 1, par. 15/7/2. There is no jurisdiction in the Family Court to entertain an application for leave to intervene in such a case. I find the question regarding intervention in the proceedings instituted by Bronwen more difficult. The effect on proceedings of the death of a party may vary with particular circumstances. When it was instituted, Bronwen's application was within the jurisdiction of the Family Court as a matrimonial cause within par. (c) of the definition in s. 4 (1) of the Act. When Alfred died it ceased to be a proceeding between the parties to the marriage and unless it satisfied some other character grounding jurisdiction it necessarily abated. I have already indicated my opinion that s. 61 (4) has no application to Bronwen because that provision does not refer to cases where an order for joint custody has been made. The only question remaining is whether her proceedings fell within par. (f) of the definition of "matrimonial cause". But whether or not in other circumstances this paragraph could apply, it must be academic in the present case. The effect of Alfred's death is to leave Bronwen with sole custody of the child. In these circumstances, I conclude that Bronwen's application for sole custody abated with the death of Alfred, with the result that there are no proceedings to which Wendy's application to intervene could relate.

In the case of Vitzdamm-Jones I would therefore declare that the Family Court has no jurisdiction to entertain any of Wendy's applications.

In the case of St. Clair, I would declare that the Supreme Court of New South Wales has jurisdiction to hear and determine the application before it.