W v W [1982] HCA 73

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. W v W [1982] HCA 73

ORDER Order that the question asked in the case stated be answered as follows:—Question: Has the Supreme Court of New South Wales jurisdiction to entertain the proceedings in that Court and to make the declarations sought in proceedings No. 4292 of 1981? Answer: No.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 16 Gibbs C.J.

The question which is raised for decision by this case stated is whether the Supreme Court of New South Wales has jurisdiction to entertain certain proceedings brought in that court and to make the declarations and orders and give the directions sought in those proceedings. The proceedings in relation to which the question is asked were commenced in the Equity Division of the Supreme Court by D.M.W. and R.C.H. as plaintiffs against C.G.W. as defendant. In those proceedings the plaintiffs claimed as follows:

1. A declaration that the plaintiff R.C.H. is the father of the child K.J.W. born 4 October 1973.

2. A direction that the defendant submit to a blood test for the purpose of ascertaining whether the defendant is the father of the said child.

3. An order that the plaintiffs have the custody of the said child K.J.W.

4. An order that the defendant pay the plaintiffs' costs in these proceedings.

5. Such further and other relief as to the Court may seem appropriate.

The defendant opposes the order sought.

D.M.W. and C.G.W. were married on 9 June 1966. On 4 October 1973 Mrs. W. gave birth to a female child, K.J.W. On 31 October 1980 Mrs. W. commenced to live with Mr. H. and on 7 November 1980 Mr. W. issued an application for the custody of K.J.W. On 28 January 1981 the Family Court ordered, in proceedings brought by Mr. W. against Mrs. W., "that until further order of the Court the husband have the care and control of K.J.W. the child of the marriage on an interim basis". Further orders were made giving access to Mrs. W. No appeal was brought from that order and the Family Court has not varied or revoked it. Subsequently Mrs. W. applied to the Family Court for dissolution of the marriage. The application alleged, but the husband's answer denied, that K.J.W. was a child of Mrs. W. and Mr. H. On 4 December 1981 the Family Court pronounced a decree nisi for the dissolution of the marriage. The Court noted an undertaking by the husband and the wife to do all things necessary to give effect to the provisions for the care and control of K.J.W. contained in a document which bore the heading "Consent Orders", and which dealt with the care and control of the child during a period which ended on 1 February 1982. Mrs. W. married Mr. H. on 9 December 1981. The proceedings in the Supreme Court were commenced on 4 December 1981. That part of the cause that raises the question now asked has been removed into this Court.