Vitzdamm-Jones v Vitzdamm-Jones

Vitzdamm-Jones v Vitzdamm-Jones - [1981] HCA 8 - HCA 1979 case summary — Zoe

[59]

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.

[61]

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.

[63]

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.

[64]

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.

[144]

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.

[148]

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.

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