R v Demack; Ex parte Plummer [1977] HCA 37

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. R v Demack; Ex parte Plummer [1977] HCA 37

ORDER Order nisi discharged. Prosecutor to pay respondents' costs of the proceedings including the costs of the application.

Cur. adv. vult.

The following written judgments were delivered:—

1977, June 27 Barwick C.J.

This application for prohibition raised the question whether s. 10 (3) of the Family Law Act 1975 Cth ("the Act") is a valid law of the Parliament, and the question whether s. 31 of the Act read with the definition of matrimonial cause in s. 4 (1) could validly apply to proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, which were not proceedings between the parents of the child.

The Court in Russell v. Russell [9] gave a wide construction to s. 51 (xxi.) of the Constitution. In my reasons for judgment in those cases, I expressed my dissent from the view espoused by the majority of the Court. But, whilst maintaining myself the view there expressed, I have come to the conclusion that, conformably to the reasons given by the majority in those decisions, ss. 10 and 31 of the Act can be held validly to operate according to their terms except that the jurisdiction derived from them should, by construction, be limited to proceedings between the parents of the child whose custody or guardianship is in question. As I have formed that opinion, its application to the facts and circumstances of this case, which may be found in the reasons for judgment of my brother Mason, means that the order nisi ought to be discharged. The proceedings in the Family Court are in substance, if not in form, proceedings to which both parents are contesting parties. Because of the provisions of s. 10 (3), the interest of the prosecutor cannot be affected by the result of these proceedings—a matter to which I shall later advert. Having had the advantage of reading those reasons, I find myself, bearing in mind the Court's decisions on the validity of the Act, in general agreement with the reasons he expresses for concluding, on the premises adopted by the majority, that a writ of prohibition for want of jurisdiction should be refused. I agree that the amendments made in the Act after the commencement of the proceedings in the Family Court have no consequence in the resolution of this case.