The Role of the Family Court of Australia in Child Welfare Matters
| Author | John Seymour |
| Published date | 01 March 1992 |
| Date | 01 March 1992 |
| DOI | http://doi.org/10.1177/0067205X9202100101 |
| Published By | Sage Publications, Inc. |
1992]
Role
of
the Family Court
of
Australia in Child Weld/are Matters 1
THE
ROLE OF
THE
FAMILYCOURT OF AUSTRALIA IN
CHILD
WELFARE
MATTERS
JOHN SEYMOUR·
This paper examines the recent expansion
of
the powers
of
the Family
Court
of
Australia with regard
to
children. The nature
of
the change was
underlined in Marion's case,l in which amajority
of
the High Court confmned
that the Family Court had jurisdiction to hear an application relating to the
performance
of
ahysterectomy on aseverely retarded girl. No matrimonial
dispute was involved. The fact that the Court may deal with children's cases in
the absence
of
such adispute
has
implications for State Children's Courts
(which apply child welfare legislation) and for State Supreme Courts (in the
exercise
of
the parens patriae jurisdiction). It is these implications which are
the principal concern
of
this paper.2Before they are explored, however, it is
necessary to consider the Family Court's constitutional and legislative
foundations.
For those familiar with developments in family law which occurred in the
1980s, it should
be
pointed out that one
of
the central arguments
of
this paper
is that these developments do not obviate the need to examine the nature and
source
of
the Family Court's jurisdiction over children. As will
be
shown, the
1983 amendment to the Family Law Act (which gave the Court abroad
welfare jurisdiction) and the reference
of
powers and cross-vesting legislation
raise numerous questions. Many
of
these questions can
be
understood only
against the background
of
an analysis
of
the Commonwealth's powers
respecting children.
1THE MARRIAGE POWER
Paragraphs (21) and (22)
of
s
51
of
the Constitution empower the
Commonwealth Parliament to make laws with respect to:
(21) Marriage
(22) Divorce and matrimonial causes; and
in
relation thereto, parental rights,
and the custody and guardianship
of
infants.
The major statutes enacted in these areas have been the Matrimonial Causes
Act 1959 (now repealed) and the Family Law Act 1975. The former Act was
"primarily adivorce
Act";3
questions relating to children arose only as ancillary
2
BA. LLB. PhD(Auckland). Dip Crim (Cantab). Reader in Law. Australian National
University. Canberra. Igratefully acknowledge the assistance of my colleagues -Juliet
Behrens. Geoff Lindell and David Hambly -in commenting on an earlier draft
of
this
paper. Richard Chisholm.
of
the University of New South Wales. also gave helpful advice
and Iappreciate the information provided by Robyn Mills. of the Family Court library.
Brisbane and by James Claremont
of
the Commonwealth Attorney-General's DepartmenL
Secretary. Department
of
Health
and
Community Services v1MB
and
5MB (1992)
15
Fam
I.R.
392. on appeal from adecision
of
the Full Court
of
the Family Court in
Re
Marion
(1990)
14
Fam
LR
427 (hereafter "Marion's case").
Since this paper deals with the relationship between the Family Court
of
Australia and State
court systems, no mention is made
of
procedures in Western Australia. which has aState
Family Court.
ADickey. Family Law (2nd ed 1990) 25.
2Federal Law Review [VOLUME
21
4
5
6
matters.
The
Family Law Act departed from this approach. It allowed the
Family Court to
deal
with awide range
of
children's matters, whether
or
not
they were associated with divorce
or
separation proceedings.4This free-standing
jurisdiction
over
children does
not
have its source in s51(22)
of
the
Constitution, which refers to divorce and matrimonial causes and matters in
relation thereto. In the absence
of
amatrimonial cause, therefore, the Family
Court's jurisdiction in respect
of
children derives from the marriage power
referred to in s51(21).5 The limits
of
this power must
be
examined.
It
is clear
that, when children are concerned, the power restricts the Commonwealth to
the making
of
laws with respect
to
children
of
amarriage and much
of
the
controversy about the scope
of
the marriage power has focused on derming the
categories
of
children
who
fit this description. This aspect will
not
be
considered here.6Rather, the aim is to explore the nature
of
the jurisdiction
which
the
Family Court may exercise in respect
of
children
of
amarriage.
The
High Court has adopted abroad interpretation
of
the character
of
the
jurisdiction which may
be
exercised under the marriage power. In Attorney-
General (Viet.) vCommonwealth, Dixon
CJ
stated that the power "should
receive no narrow
or
restrictive construction", while Taylor Jdescribed it as
being "entitled to as wide an interpretation as
it
can reasonably bear".' This
decision was one
of
anumber in which the High Court considered and rejected
possible limitations
on
the power. It has been held to
be
wide enough to
validate Commonwealth legislation defining and enforcing "the respective
rights, duties and obligations
of
the parties arising out
of
or in consequence
of
marriage".· This includes rights and duties arising from parents' relationships
with their children.' In In the Marriage
of
Cormick the following principles
were accepted by six members
of
the High Court:
It
is now well settled that "marriage" in s
51
(21) includes the relationship or
institution
of
marriage and, since the protection and nurture
of
the children
of
the marriage is at the very heart
of
the relationship, that the power to make laws
with respect
to
marriage enables the Parliament
to
derme and enforce the rights
of
aparty to the marriage with respect to the custody and guardianship
of
achild
of
the marriage. The rights and duties
of
the parties
to
amarriage, with respect
to
the children
of
the marriage, arise directly out
of
the marriage relationship, and a
law defining, regulating or modifying the incidents
of
the marriage relationship
is alaw with respect to marriage.
to
"(I]n contrast
to
the
fonner
Matrimonial Causes Act 1959 (Cth) which dealt with the
questions
of
guardianship and custody
of
children only in the context
of
what might be
called traditional matrimonial causes, the Family Law Act
1975
goes much further and
intrudes
into
the
area
of
guardianship and custody
of
children
in
cases in which no
traditional matrimonial
cause
has
been
or
is intended to be instituted": Meyer vMeyer
(1978)
FLC
90-465, 77,379
per
Powell J.
An
abernalive source
is
areference
of
powers by some or all
of
the States; see infra
18.
The limitations inherent in the marriage power are reflected in the defmition
of
achild
of
a
marriage contained in s
60A
of
the
Family Law Act
1975
(Cth). For adiscussion
of
some
of
the issues raised
by
the problem
of
defining what is meant
by
achild
of
amarriage, see
o
Jessep
and
RChisholm, "Children, the Constitution and the Family Court" (1985) 8
UNSWU
152.
,(1962)
107
CI.R 529, 543 and 560.
•Russell yRussell (1976)
134
CLR 495,
538
per
Mason J.
,Ibid
524-525.
10 (1984) 156 Cl.R
170,
175-176 per Gibbs CJ.
1992]
Role
of
the Family Court
of
Australia in Child Weldfare Matters 3
The
exercise
of
the Commonwealth's powers with regard
to
the children
of
a
marriage need not
be
confined to proceedings relating to divorce
or
some other
matrimonial cause.
This
is
another
way
of
saying that the
scope
of
the
marriage power is not
to
be
read down
or
restricted
by
reference to the
tenns
of
s51(22). This was decided
by
the majority in Russell vRussell,ll where
it
was held that the Family
Court
had jurisdiction
to
make acustody
order
as
between husband
and
wife even though
no
proceedings for principal reliefhad
been instituted. Nor must the opemtion
of
laws made under the marriage power
be
confmed to disputes between spouses:
The exercise
of
the power cannot be restricted to adefmition of, or to making
provision for the enforcement of, the custodial rights
of
the parents inter se.
l2
Thus astranger to amarriage
may
institute
Family
Court proceedings in
respect
of
the custody
of
achild
of
that marriage. There is, however,
one
limitation
as
to
parties.
In
Vitzdamm-Jones vVitzdamm-Jones, the High
Court
upheld the validity
of
aprovision allowing any person to
seek
the
custody
of
the child
of
amarriage when one partner
to
the marriage was dead.
l3
In doing so, the majority held that the surviving partner should
be
joined
as
a
party to the proceedings.
It
thus required the proceedings to relate
to
aright
or
claim
of
aparty to the marriage
and
so underlined the need for aconnexion
between these proceedings
and
the marital relationship.
Afurther -and particularly important -limitation
on
the marriage
power
was identified in the decision in RvLambert;
ex
parte Plummer.
l4
This
case
involved adispute
over
the custody
of
agirl aged three.
The
parents
were
separated and her custody
had
been granted to her mother under the Family
Law
Act. Doubts then
arose
about
the mother's competence and the
Mount
lsa
Children's Court, acting under s
49
of
the Children's Services
Act
1965(Qld),
admitted the girl to the care
of
the Queensland Director
of
Children's Services.
As
aresult
of
this decision, the Director acquired the custody and guardianship
of
the child. Thereupon the father sought
and
obtained aFamily
Court
order
awarding him the custody
of
the girl. There thus arose aconflict
as
to who was
entitled to
her
custody, aconflict brought to ahead
by
the Director's refusal
to
surrender the girl to her father.
The
relevant provisions were amendments to s10
of
the Family
Law
Act;
the object
of
the changes was, in special circumstances,
to
allow acustody
order under that
Act
to over-ride aguardianship order made under aState child
welfare statute.
The
majority
of
the High Court held the section invalid to the
extent that
it
purported
to
authorise
an
order under the Act
to
prevail
over
a
custody order made under State law.
In
the words
of
Gibbs J:
[Section]
10
seems
to
me
to
go beyond merely defming, and providing for the
enforcement of, the custodial rights that flow from the marriage relation. The
connexion between the operation
of
s
10
as
amended and marriage is so slight
and incidental that the section in its amended form cannot, in my opinion,
11
(1976) 134 CLR 495.
See
also Re F; ex parte F(1986)
161
CLR 316, 387 per Mason and
Deane
11.
12 Rv
DemacJc;
ex parte
PlU11l11U!r(1977)
137
CLR
40, 53 per Mason
1.
See
also Dowal v
Murray (1978) 143
ClR
410; Vitzdamm-Jones v
Vitzdamm-J01Ies
(1981) 148
CLR
383; and
FOunl4in
vAlexander (1982) 150
CLR
615.
13 (1981) 148 CLR 383.
The
provision was s61(4)
of
the Family
Law
Act.
14 (1980) 146
CLR
447.
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