R v Lambert; Ex parte Plummer [1980] HCA 52

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. R v Lambert; Ex parte Plummer [1980] HCA 52

ORDER Order nisi discharged. Declare that the order made by the Honourable Mr. Justice Lambert on 4th May 1979 has no effect on the rights or powers of the Director of the Department of Children's Services for the State of Queensland pursuant to the order made by the Children's Court on 28th June 1978 in respect of Paula Ann Shonhan. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs in this matter.

I agree with his conclusion that s. 10 of the Family Law Act, 1975 Cth, as amended, in so far as it would authorize the Family Court by its order to interfere with the custody or possession of a child in respect of whom an order has been made under s. 49 of the Children's Services Act, 1965-1979 Q. is invalid as not being a law with respect to marriage and thus beyond the constitutional competence of the Commonwealth Parliament. I agree with my brother's reasons for so concluding. I would add that, whilst I would not think the Court should reconsider its decision in Russell v. Russell [1] , I am of opinion that that decision should be strictly confined and not used as a base for any extension of what is comprised within the concept of a law with respect to marriage. I regard that case as deciding no more than that the Family Court can make an order operative and enforceable as between husband and wife as to the custody between themselves of a child of the marriage, even though no proceedings for principal relief under that Act are current.

1. (1976) 134 C.L.R. 495.

Provision for the making of such an order may be regarded as a law with respect to marriage: but, in my opinion, it clearly approaches the outer margins of the power. Certainly a law authorizing interference with the lawful possession by a State official of a child committed to his care and custody exceeds that margin.