Lawlink NSW: 15. Parents and Children

15.1 The law governing the custody, guardianship and maintenance of the children of a de facto relationship is complex and widely regarded as unsatisfactory. The complexity arises from both the constitutional division of legislative powers between the Commonwealth and States and the fragmented nature of the State law on this topic. In this section we examine the existing Commonwealth and State law with a view to identifying its major deficiencies. We refrain, however, from making substantial recommendations since our terms of reference require us to take account of the proposed reference of family law powers to the Commonwealth (paragraphs 1.1, 2.13). As we shall explain the proposed reference, if it proceeds, should overcome the major deficiencies in the existing law and should ensure that questions of custody, guardianship and maintenance are no longer matters of State law. In preparing this Chapter we have assumed that the reference of powers will proceed. If it does not, further consideration will have to be given to the means of overcoming the deficiencies in State law.

15.2 One preliminary point needs to be made if the deficiencies of the existing law are to be fully appreciated. Children living within the household of de facto partners fall into several categories. Without being exhaustive, the following cases may arise in relation to a child whose custody or maintenance is in dispute:

In addition to households of de facto partners Containing children born to the partners, a further 18 per cent of de facto households contain children (paragraph 3.26). In all 36 percent of de facto couples have dependent children living in the family. Some are families with children of the relationship only, some have only children born of a previous marriage or relationship of one or both partners; some have children in both categories. However, for present purposes, the major distinction that needs to be drawn is between children who are born within a marriage and those who are not. This, subject to certain qualifications, determines whether questions of custody, guardianship and maintenance are to be governed by Commonwealth or by State law.

15.3 The Family Law Act is concerned with custody disputes relating to a “child of the marriage”. The structure of the legislation is, however, rather complex The Family Law Act provides that any “matrimonial cause” must be instituted under the act. A matrimonial cause may be heard only in the Family Court or, in certain cases, in a State court of summary jurisdiction invested with federal jurisdiction under the act. ¹ The term “matrimonial cause” includes proceedings between current or former spouses with respect to

It also includes “any other proceedings ... in relation to concurrent, pending or completed proceedings” of a kind referred to specifically in the definition of a matrimonial cause. ³ A “child of the marriage”, for the purposes of custody and maintenance proceedings, refers only to the natural and adopted children of both parties, ⁴ although important changes have been proposed in the Family Law Amendment Bill 1983 (paragraph 15.37).

15.4 There are therefore clear limitations on the scope of the Family Court’s jurisdiction to deal with disputes relating to the custody and maintenance of children. For example, a child born to de facto partners and residing with them is not a “child of the marriage” and a dispute between the partners relating to the custody of the child can be dealt with only by State courts applying State law. Similarly, under the current definition of a “child of the marriage”, a dispute between spouses over the custody or maintenance of one spouse’s ex- nuptial child (such as a child born during a previous de facto relationship) falls outside the scope of the Act and must be determined under State law. Again, a claim instituted by a third party against a married couple for custody of a child of the marriage (such as a claim by the former de facto partner of one spouse) is nota matrimonial cause since the proceedings are not “between” the spouses. ⁵

15.5 Other limitations are not so clear. There has been considerable uncertainty, for example, as to when custody proceedings can be said to be “in relation to” prior custody proceedings between spouses. ⁶ Thus, doubts have arisen where, after the death of a spouse, a surviving spouse is in dispute with a third party such as a grandparent (a custody order under the Family Law Act having previously been made in proceedings between the spouses); ⁷ or where a third party wishes to seek a variation of orders made in the original custody proceedings, ⁸ or to obtain a specific type of order not available in the Family Court, ⁹ or to dispute an implied finding of paternity reflected in the original order. ¹⁰ We return later to some of these questions.

15.6 Where a custody dispute does not constitute a “matrimonial cause” within the meaning of the Family Law Act, it will be determined by a State court, in accordance with State law. We consider the relevant State law later in this Chapter (paragraph 15.9).

15.7 The general principle stated in the Family Law Act is that each of the parties to a marriage is a guardian of any child of the marriage, and the parties have the joint custody of the child. ¹¹ Of course, this principle may be modified by an order of the court. The Act uses the word “custody” in a broad sense, to include not only the power of physical control over an infant but for example, the power to control education, the choice of religion and the administration of property. ¹² The word “guardian” is interpreted more narrowly. In general, it refers to the person having the responsibility to assert the rights of the child against third parties, for example, by undertaking litigation or consenting to medical treatment. In practice the distinction between custody and guardianship is not often of significance for the purposes of the Family Law Act, although the terms are not always used consistently by legislatures and courts.

15.8 Where proceedings are brought to contest custody or guardianship of, or access to, a child, the court is required to “regard the welfare of the child as the paramount consideration”. ¹³ The court has power to require the parties to attend a conference with a welfare officer or court counsellor and may also obtain a report from a court counsellor for use in the proceedings. ¹⁴ The Act specifically permits the court to order that the child be separately represented in those proceedings. ¹⁵ Custody disputes involving children of a marriage are therefore generally processed and determined by a specialist court which has wide ranging powers and can call on the services of counsellors and welfare officers in an effort to minimise the disruption inherent in family breakdown. While some parties may still face difficulties because of delays in obtaining a hearing date or the expense of legal representation ¹⁶ the Family Law Act nevertheless represents a concerted attempt to resolve custody disputes using procedures which cause the least harm to the child.

15.9 In contrast State law concerning custody and guardianship is complex and confusing, with several courts having power to hear and decide cases. First custody orders (including orders relating to the guardianship of a child) may be made by the Supreme Court in what is variously referred to as its inherent or prerogative or wardship or parens patriae jurisdiction. These terms are often used synonomously to describe a wide and unrestricted jurisdiction, derived from the Chancery Court in England, to intervene to protect the welfare and interests of children. ¹⁷ Indeed, the Supreme Court may make a custody order which is inconsistent with and which has the effect of superseding an order of a Children’s Court. The Supreme Court has said that an order of this kind would be justified only in special circumstances. On the other hand, the court does not require special circumstances to make an order, pursuant to its prerogative jurisdiction, of a kind a Children’s Court is not empowered to make, if the purpose of the order is to aid or supplement an order of a Children’s Court An example would be an application for an injunction to aid in the enforcement of an access or custody orders. ¹⁸ While the court may hear applications from any person with an interest in the childs welfare the jurisdiction apparently does not extend to making maintenance orders. ¹⁹ There is also some difference of opinion as to whether the making of a wardship order, whereby the court technically becomes the childs “guardian”, is a necessary precondition to the making of other orders, such as those relating to access or care and control. ²⁰

15.10 Secondly, custody proceedings may be brought under the Infants’ Custody and Settlements Act, 1899, the terms of which are derived from English legislation of 1839 and 1891. ²¹ Section 5 of the act confers jurisdiction on the Supreme Court to determine disputes, but proceedings may be instituted only by the mother or father of the child, or by a relative seeking access on the death of a parent. An order for periodic child maintenance maybe made, but only against the father in conjunction with a custody order in favour of the mother. Section 10A extends this jurisdiction to the District Court and to courts of petty sessions (soon to become Local Courts), sitting as a Children’s Court, in each case being the court nearest to the respondents place of residence. The submissions of chamber magistrates show that this latter requirement causes inconvenience and expense to a person seeking custody of a child who has been taken to a remote part of the State. ²² In addition, it is not unknown for simultaneous applications to be made by both parents with respect to the same child in different courts. Magistrates’ powers under the Act are further restricted in that any maintenance order made in conjunction with a custody order may not exceed two dollars per week. ²³ Magistrates are also not given powers to punish breach of an order as a contempt of court.

15.11 Proceedings under section 5 of the Infants’ Custody and Settlements Act, 1899, were originally restricted to those concerning a child born within a marriage. However, the court of Appeal has now held that one effect of the Children (Equality of Status) Act, 1976, is to allow claims concerning ex-nuptial children (such as the children of de facto partners) to be brought under section 5. ²⁴

15.12 Thirdly, the Testator’s Family Maintenance and Guardianship of Infants Act, 1916, provides for the guardianship of minors after the death of either the father or mother. Section 13 states the, general rule that the surviving parent is the guardian of the minor, either alone or jointly with any guardian appointed by the deceased parent. Where there are joint guardians, and they are unable to agree upon a question affecting the welfare of a minor, they may apply to the Supreme Court for directions. The court, by virtue of section 17, has power to make such order as it thinks proper, including, where one of the guardians is the child’s mother or father, orders for periodic maintenance, custody and access. Section 21 also allows the court to order access in favour of grandparents if either of the parents has died. Of course, where children of a marriage are concerned, the Act can only apply to disputes which do not amount to a “matrimonial cause” under the Family Law Act.

15.13 Finally section 22 of the Maintenance Act 1964, permits a Children’s Court to make a custody order, on application by a married parent of a “child of the family”, provided that the applicant has also received an order for maintenance. “Child of the family” includes “any child of either party who has been accepted as one of the family by the other party”, that is, step-children. The term “child of the family” therefore may extend to a child born within a previous de facto relationship of one of the spouses.

15.14 The law concerning the custody and guardianship of ex-nuptial children has been affected in a number of respects by the Children (Equality of Status) Act, 1976 (in addition to that noted in paragraph 15.11). Section 6, the key section of the Act, provides that

Before the passage of this legislation the position of a father claiming custody of an ex-nuptial child was not altogether clear, but was generally less advantageous than that of a father of a nuptial child, even where the ex- nuptial child had lived in a stable de facto household. ²⁵ The authorities recognised that the mother of an ex-nuptial child had the right-to custody and guardianship until a contrary court order was made, and although the presumption was weakened in recent times it was still commonly felt that the court should lean in favour of granting custody to the mother. The High Court has now held that the equality of status legislation has the effect of “equating the relationship between an ex-nuptial child and its parents”. ²⁶ The Court of Appeal has recently decided, on the basis of this principle, that section 6 of the Children (Equality of Status) Act

15.15 There is now little doubt that the general principles applicable to a custody dispute between de facto partners in relation to their ex-nuptial child will be very similar, if not identical to those governing a custody dispute between married spouses over a child of the marriage. ²⁸ This is so notwithstanding the antiquated language of parts of the Infants’ Custody and Settlements Act, 1899. Like the Family Law Act, this act refers to the importance of the welfare of the child in determining custody disputes, unlike the Family Law Act, it also contains a number of provisions directing attention to the conduct of the parties, or implying that parental rights should be paramount (especially where a third party may be involved) unless forfeited by neglect or misconduct. ²⁹ However, recent Supreme Court decisions have applied similar principles to those applicable in the Family Court, ³⁰ and thus give support to the recommendation contained in the submission from the Australian Council of Social Service that references to misconduct in the Act should be deleted, with conduct only being taken into account by the court to the extent that it relates to parental capacity. ³¹

15.16 To summarise, custody orders in State courts may be made by several courts pursuant to several enactments, with varying restrictions on the parties who may apply and the form in which orders may be made. Furthermore, as will become clear, while custody orders may be obtained from a variety of courts, not all those courts have power to, make appropriate child maintenance orders. The legislation is clearly out of date and contains much language that reflects principles of law no longer regarded as acceptable. While custody cases between married persons are usually determined by the Family Court, which is a specialist court with counselling facilities and special procedures, these facilities are not available to any of the State courts which have custody jurisdiction Consequently it is fair to say that, in so far as court proceedings can advance the welfare of children, children of de facto relationships in general are at a significant disadvantage compared with children of a marriage. If the reference of powers to the Commonwealth does not proceed, it will clearly be necessary to decide how the State law of custody and guardianship should be changed to accord with modern notions of the welfare of children (see paragraphs 15.49-15.51).

15.17 In respect of children of a marriage, section 73 of the Family Law Act provides that both spouses are liable accord in to their respective financial resources, to maintain children of the marriage, under the age of 18 years. In determining whether to make an order for child maintenance, and if so for how long and for what amount, the Family Court is directed to consider a number of matters. ³² These include the financial resources and needs of the child and the manner in which the child is being or is expected to be educated, as well as the needs and financial resources and earning capacity of the parent or parents, and any other orders made under the Act affecting the parties. Claims for child maintenance are usually brought by the custodial parent on behalf of the child, although the Act contemplates that a child of the marriage May also bring maintenance proceedings in his or her own right against one or both of the parties to the marriage. ³³ Interim maintenance maybe awarded in a situation of urgency and maintenance orders may take the form of a lump sum, periodic payment, transfer of property by way of security, or other arrangement. ³⁴ A maintenance order may continue to apply to a child over the age of 18 years if it is necessary for the completion of education or if the child is mentally or physically handicapped. ³⁵

15.18 Maintenance orders for children are often made in the course of adjusting the property interests of the spouses. Indeed, the court s power to order a settlement of property or a lump sum payment may be exercised in a way that takes account of the parties’ obligation to maintain their children. For example, in one case, a lump sum payment to a wife was reduced in recognition of the fact that the husband had custody of the children and had accepted responsibility for their support. The reduction in the lump sum payment was said “to liquidate the wife’s, maintenance obligation to the children”, although the court acknowledged that the order could not rule out altogether the possibility of a future application for maintenance on behalf of the children if circumstances changed. ³⁶ An order settling the parents’ property interests may therefore operate, in effect, to discharge one parent’s future responsibility to maintain a child of the marriage, although in recent times the Family Court has been reluctant to make such orders. ³⁷

15.19 The courts power to order a settlement or transfer of property extends to making an order for the benefit of a child of the marriage. However, the Full Court of the Family Court has made it clear that

The Full Court noted that, unless there are exceptional circumstances, the creation of a trust by the court for the benefit of children should be restricted to such purposes as securing maintenance where there is a likelihood that a spendthrift parent might dissipate substantial assets. ³⁹

15.20 Maintenance cases in State courts in New South Wales generally proceed in a fashion and according to principles different from those prescribed by the Family Law Act, Maintenance orders can be made under the Infants’ Custody and Settlements Act, 1899, and the Testator’s Family Maintenance and Guardianship of Infants Act, 1916, although those Acts do not specify the principles to be applied by the court. Most State maintenance cases, however, are brought under the Maintenance Act, 1964. Under this Act a Children’s Court (constituted by a Stipendiary Magistrate) may hear a complaint against a parent on behalf of an ex-nuptial child that the child “has been left without adequate means of support” without “just cause or excuse”. ⁴⁰ It follows that a child born of a de facto union has a right to claim maintenance against each of his or her parents, if the child has been left without adequate means of support and the parent has no “just cause” for so leaving the child. Further, a child whose parent marries and who is accepted by the parents spouse as a “child of the family” may also claim maintenance against that step parent. ⁴¹ However, where a child’s parent enters a de facto relationship, the child has no claim for maintenance against the “de facto step parent”.

15.21 In determining whether a child has been left without adequate means of support, the court is directed to take account of the “accustomed condition in life” of the child. ⁴² In deciding the amount of any order, the court is also to consider the means and earning capacity of the child, and of the parents. ⁴³ Orders for child maintenance are normally made on a periodic basis and cease when the child turns 18, but may be extended for limited periods up to the age of 21 where necessary for education or training. ⁴⁴ There is no provision for the court to require the transfer of property by way of security for the payment of maintenance. Ex parte orders for preliminary maintenance, and interim orders for child maintenance appear to be available only for a child living within a marital household. ⁴⁵

15.22 If a question of paternity arises, the issue may be decided by the Supreme Court under the Children (Equality of Status) Act, 1976, or by the Children’s Court under the Maintenance Act, 1964. The 1976 Act provides for presumptions as to parenthood, including a presumption in relation to a child born during or after a period of cohabitation between the mother and a man to whom she was not married. The presumption is in the following terms: ⁴⁶

Thus, a child born t o a woman living in a de facto relationship will have the benefit of the presumption of paternity in respect of the woman’s partner, if the relationship was in existence during the relevant period. The Act provides also for acknowledgement of paternity, the evidentiary effect of maintenance orders and the use of blood tests to assist in determining paternity or maternity. ⁴⁷

15.23 The State law of child maintenance suffers from the same confusing fragmentation as the law of custody. There is a clear need for rationalisation of the legislation. In addition, there are several differences between the conduct of child maintenance proceedings under State law and maintenance proceedings under the Family Law Act which indicate the need to reconsider the principles embodied in State law. These differences are as follows:

As with State laws relating to custody, it will be necessary, if the intended reference of powers does not proceed, to consider how State maintenance law should be rationalised and brought into line with developments in other areas of Australian family law (see paragraphs 15.49-15.51).

15.24 We have referred to the jurisdictional difficulties created by the Constitution and by the terms of the Family Law Act which have, of course, been influenced by the scope of the Commonwealths legislative power. These difficulties have provoked strong judicial criticisms and calls for reform to remedy an unacceptable position. The problems are not confined to disputes relating to the children of persons living in de facto relationships, but they frequently affect such cases. We refer below to some examples.

15.25 In the recent High Court case of Fountain v. Alexander, ⁴⁸ the mother of a child had been awarded custody when she was divorced from the father in 1971. She later entered a de facto relationship, which resulted in the birth of a second child. When the de facto relationship broke up in 1975, both children stayed with the de facto husband. In 1981 the de facto husband, who had since married another woman, commenced proceedings in the Supreme Court of New South Wales asking that both children be made wards of court (that is, be brought under the protection and supervision of the court), and that care and control of the children be given to him and his wife.

15.26 It was clear that the Supreme Court had jurisdiction to determine the custody of the child of the de facto relationship, since there was no basis for holding that child to be a “child of the marriage” within the Family Law Act (but compare paragraph 15.37). However the High Court unanimously held that the Family Court had exclusive jurisdiction to determine the custody of the other child. The application in respect of that child constituted proceedings “in relation to” the custody proceedings decided ten years previously between the former spouses, and was therefore within the definition of “matrimonial cause” in the Family Law Act (paragraph 15.3). The Chief Justice commented on the unfortunate position of the litigants:

Earlier, in the Supreme Court, the Chief Judge in Equity had used even stronger language, referring to the “disgraceful state” of the law and apologising to the parties for the entirely unsatisfactory situation that had arisen. ⁵⁰

15.27 A further source of confusion has arisen in cases where one spouse or a third party disputes paternity of a child. In a recent case, the wife’s second husband claimed paternity of a child born during the wife’s first marriage and instituted proceedings in the Supreme Court of New South Wales in respect of that child. The first husband invoked the jurisdiction of the Family Court in relation to the children of the first marriage, including the child whose paternity was disputed. The Supreme Court judge held that he had jurisdiction to determine paternity of the child, but made these observations:

15.28 Where the Family Court has already made a maintenance or custody order on the basis that a child is a “child of the marriage”, a question arises as to whether the implied finding of paternity can be challenged by proceedings in a State court. The High Court by a majority, has recently held that, where the State proceedings are brought for the, purpose of contesting custody of a child who is subject to an order of the Family Court, they come within the definition of “matrimonial cause” because they relate to the earlier Family Court proceedings. ⁵² Accordingly, the issue cannot be determined by a State court and the proper course is to challenge the custody order in the Family Court itself. The result in the particular case was that the proceedings were found to have been instituted in the wrong court.

15.29 Further examples of difficulties are provided by two cases, Vitzdamm-Jones v. Vitzdamm-Jones and St. Clair v. Nicholson, decided by the High Court at the same time. ⁵³ In each case a separately constituted majority decided that the proceedings had been commenced in the wrong court. The cases, although not concerned with children of de facto relationships, illustrate the problems confronting professional advisers in determining the court in which proceedings should be commenced.

15.30 It is clear that on any view, the jurisdictional difficulties in cases involving the custody, guardianship and maintenance of children are intolerable. It is bad enough that children of a marriage are generally dealt with under one system and ex-nuptial children, including children born within a de facto relationship, under another. As we have seem the principles and procedures applied in the Family Court are different from those in State courts, which lack the specialised facilities (including counselling and support services) provided under the Family Law Act Consequently, despite the formal abolition of the legal disabilities of ex-nuptial children the legal system does less to protect their welfare when custody disputes arise than it does to protect the welfare of children of a marriage.

15.31 When it is considered that the jurisdictional division sometimes prevents a single court dealing with all the children within the one household the position becomes, to use the word of the Chief Judge in Equity, “disgraceful”. The uncertainty and confusion that has arisen from the drawing of the line between State and federal jurisdiction has only served to emphasise the urgent need for reform to avoid inconvenience, waste of resources and distress to the parties involved.

15.32 A number of remedies have been proposed to overcome or alleviate the problems caused by the divided Jurisdiction. The more significant proposals include the following: ⁵⁴

15.33 The Joint Select Committee on the Family Law Act discounted the possibility of a constitutional amendment, because of the low success rate of referendums held to approve proposals to amend the Australian Constitution. ⁵⁵ However, a proposal to this effect was considered but not endorsed at the Constitutional Convention held in Adelaide in April 1983. ⁵⁶ The experience of the Convention shows the difficulties facing attempts to amend the Constitution.

15.34 When the Family Law Act came into force, each State was invited to set up a State Family Court which could then be given federal jurisdiction under the act. ⁵⁷ This arrangement not unlike that which occurred under the Matrimonial Causes Act 1959 in relation to State Supreme Courts, has to date been adopted only by Western Australia. ⁵⁸ In that State, the judges exercise federal jurisdiction under the Family Law Act, in addition to exercising State jurisdiction over ex- nuptial children, adoption and other family law matters governed by State law. This has the advantage that disputes over custody or maintenance of all the children within a single household can be heard in the one court at the same time, even though “children of the marriage” will be covered by the Family Law Act and other children b State law. Difficulties may, of course, still arise because of differences in the relevant provisions of federal and State legislation and in relation to appeals, with different courts hearing appeals from decisions on questions of State and federal law. The Joint Select Committee concluded that a State Family Court was at best only a partial solution to the jurisdictional problems, given what it saw as the advantages of a uniform federal family law jurisdiction for Australia, and the practical and political difficulties of dismantling the present Family Court. ⁵⁹ As far as we are aware, there has been no suggestion that New South Wales would view favourably the establishment of a State Family Court. However, one of our submissions included a paper by the Chief justice of New South Wales arguing in favour of such action. ⁶⁰

15.35 The Joint Select Committee on the Family Law Act referred to a scheme under which judges of the Family Court would receive dual commissions under Commonwealth and State law. This would enable the judges to exercise powers granted under State law and thus overcome jurisdictional difficulties. The Committee did not consider the scheme in depth since there was no evidence that the States, whose co-operation would be required, were prepared to participate. ⁶¹ However, the Committee did publish an opinion that a scheme of this kind would be constitutionally valid. ⁶² Because of the proposed reference of powers (detailed in Chapter 2), we do not consider the suggestion further in this Report. If that reference does not proceed, the proposal should be reconsidered.

15.36 We have considered the possibility of the New South Wales Parliament legislating directly to confer jurisdiction on the Family Court in respect of family law matters within the State’s control such as the custody, guardianship and maintenance of ex-nuptial children Such a solution appears not to be constitutionally feasible, since the Commonwealth has exclusive power, under Chapter III of the Constitution to determine the jurisdiction of federal courts. ⁶³

15.37 The proposals embodied in the Family Law Amendment Bill 1983 reflect the view that the Commonwealth should exercise its existing constitutional powers to the full. The proposed amendments, if enacted, would have two important consequences in the present context. First, in many cases it would be open to strangers to a marriage, such as a grandparent or the de facto partner of one spouse, to initiate proceedings in relation to a child of that marriage. ⁶⁴ Secondly, the definition of “child of the marriage” would be extended to include a child born to or adopted by one spouse if the “child was ordinarily a member of the household of the husband and wife”. The definition would also include any other child who was “treated by the husband and wife as a child of their family” and at the relevant time, was ordinarily a member of their household. ⁶⁵

15.38 These amendments if enacted and found to be constitutionally valid would extend the jurisdiction of the Family Court significantly. This can be seen by referring to the facts of Fountain v. Alexander (paragraph 15.25). In that case a child born during a de facto relationship remained in the care of the father. Later the man married a woman other than the child s mother. The child became a member of the household of the man and his new wife. Such a child would come within the extended definition of “child of the marriage” and therefore be subject to the jurisdiction of the Family Court. Nonetheless, the amendments cannot overcome all the difficulties created by the divided jurisdiction. In particular, they do not permit the Family Court to make orders in respect of ex-nuptial children who have never formed part of a marital household.

15.39 The final proposal to consider is the reference of powers by the State to the Commonwealth discussed in Chapter 2. The draft agreement under discussion by several States and the Commonwealth provides that the States concerned will refer to the Commonwealth powers in respect of

As we have noted (paragraphs 2.17-2.20) the reference of powers, if it proceeds, would not, as presently drafted, give the Commonwealth power over all matters relating to children. Under the terms of the agreement, State laws of adoption, wardship, and child welfare would not be affected. Further, certain restrictions are contemplated in relation to those powers which are referred to the Commonwealth. For example, any Commonwealth law made under the referred power to deal with custody, guardianship or maintenance of children is not, “so far as practicable” to differentiate between nuptial and ex-nuptial children. Maintenance obligations are to be imposed only on parents and step-parents of children, and are not to be enforceable (except as to arrears) against a deceased person’s estate. The draft agreement also provides that a State court s powers to make a child a ward of court are not to be affected where the order is sought for a purpose “other than ... providing for the maintenance, custody or guardianship of the child”. The most important restriction is that the terms of any Commonwealth law proposed to be enacted pursuant to the reference of powers must have the approval of each participating State. Each State would retain the right to revoke the, reference of powers by giving the appropriate notice to that effect.

15.40 Since we have been directed to take into account the proposed reference of powers and since the agreement has reached the stage of an advanced draft we think the most appropriate course is to assume, for the purposes of this Report, that the reference will proceed. It is not possible to identify all the consequences (and potential difficulties) of the reference until the agreement is concluded and the necessary legislation passed. However, the clear purpose of the reference is to expand Commonwealth legislative power so that federal law governs the resolution of disputes relating to the custody, guardianship and maintenance of all children whether or not they were born within a marriage and whether or not they have formed part of a marital household. Accordingly, for the purposes of the Report, we assume that the Commonwealth will enact legislation (probably by way of amendments to the Family Law Act) pursuant to the reference of powers. If enacted, this legislation, no doubt will confer jurisdiction on the Family Court to determine disputes relating to the custody, guardianship and maintenance of children other than the “children of a marriage”. The Family Court, under the terms of the draft agreement, will be required to apply the same principles in resolving such disputes as it applies in proceedings relating to the children of a marriage. Moreover, all litigants will have access to the Family Court’s counselling and support services.

15.41 One consequence of Commonwealth legislation of the kind referred to in the preceding paragraph is that much State legislation will be displaced. In New South Wales most if not all the operative provisions, relating to custody and maintenance of the Maintenance Act, 1964, the testator’s Family Maintenance and guardianship of Infants Act, 1916, and the Infants’ Custody and Settlements Act, 1899, will cease to have effect. The impact on other State legislation and on the jurisdiction of State courts will depend on the scope of the reservations of State power embodied in the final agreement. ⁶⁶

15.42 It is clear that the present divided jurisdiction in relation to the custody, guardianship and maintenance of children is intolerable. The problems must be overcome as a matter of urgency. This should occur if the proposed reference of powers to the Commonwealth takes place, although this is not the only solution For reasons we have explained, we think that this Report should be presented on the assumption that the proposed reference will proceed and will be followed by Commonwealth legislation. On the subject matter of the reference. Should this assumption prove to be incorrect the problems of the divided jurisdiction will require reconsideration in order to ensure that the present intolerable situation is rectified. We could undertake this task, if necessary, in a supplementary report.

15.43 We do, however, wish to refer to one problem which may be created by the reference of powers. If Commonwealth legislation enacted pursuant to the reference of powers, confers exclusive jurisdiction on the Family Court (and Local Courts exercising federal jurisdiction) to determine custody or maintenance disputes relating to ex- nuptial children there may be no single court with power to determine all disputes arising out of the breakdown of a de facto relationship. This is because, on our recommendations, disputes between de facto partners involving claims for the adjustment of property will usually be determined by the Supreme Court. Consequently, the situation may arise whereby disputes between de facto partners relating to custody are determined by one court, and disputes relating to property or other financial adjustment are determined by another court.

15.44 This problem may not be quite as serious as it seems at first glance. Parties may be in conflict over financial matters without being in dispute over the custody or maintenance of children. Similarly, custody disputes may arise between the parties without financial adjustment being in issue. Moreover, the Family Court often decides custody disputes separately from disputes over financial matters (although for obvious reasons the two may be closely connected). Nonetheless we think it would be ironic, and unacceptable, if a proposal designed to overcome jurisdictional difficulties were to create a fresh set of jurisdictional problems capable of inflicting inconvenience and hardship on litigants.

15.45 We think the potential difficulty could be overcome if the Supreme Court were to be granted concurrent jurisdiction with the Family Court (and Local Courts) to determine disputes relating to the custody, guardianship and maintenance of children covered by the reference of powers. To avoid frustrating the major purpose of the reference, which is to allow the Family Court to deal with claims concerning all children, it would be important that the Supreme Court exercise its concurrent jurisdiction only where it is clearly desirable to do so. One case we have in mind is where the court has before it a claim for financial adjustment involving the same parties as the custody dispute and the latter is related to the former. In these circumstances, it is likely to be convenient and in the interests of the children that all matters affecting the family be resolved in the one set of proceedings. In practice this would mean that the Supreme Court would deal with custody claims only where de facto partners are involved and those partners are already contesting financial proceedings.

15.46 In order to achieve this result, we recommend that New South Wales should require the Commonwealth, when enacting legislation pursuant to the reference of powers, to confer jurisdiction on the Supreme Court to determine disputes relating to the custody, guardianship and maintenance of children covered by the reference. This recommendation can be implemented most conveniently by the Commonwealth investing t ie Supreme Court with federal jurisdiction to determine such disputes. ⁶⁷ The Supreme Court would then be bound to apply the substantive law enacted pursuant to the reference. We would hope that in those circumstances arrangements could be made to allow the Supreme Court to utilise the services of counsellors and welfare officers who assist the Family Court. We note that under the terms of the agreement relating to the reference of powers, the State must approve of proposed legislation by the Commonwealth so that it would be open to New South Wales to require legislation of the kind we recommend. ⁶⁸

15.47 Mr Justice Nygh does not join in this recommendation. In his view the investment of the Supreme Court with concurrent jurisdiction will continue the risk of forum shopping which already exists. Since custody and property disputes raise different issues, it is extremely rare for them to be dealt with in the same hearing if they are both disputed. They are often raised in litigation but usually one of them is not pressed at the hearing. Should a situation occur in which both property and custody matters are actually in issue, the Supreme Court should adjourn the hearing of the property application until the custody dispute has been resolved in the Family Court, subject to a discretion to proceed with the hearing if the custody proceedings are unduly delayed in the Family Court.

15.48 In the majority view, it is not necessary that the investment of jurisdiction in the Supreme Court should be expressly limited to cases where the custody dispute is related to a claim for financial adjustment. To do so may give rise to wasteful technical arguments in borderline cases. However, we intend that the Supreme Court will exercise jurisdiction only in such cases and only when a reference of the matter to the Family Court would cause delay or inconvenience to the parties or impair the welfare of the child. The legislation should, therefore, confer power on the Supreme Court to transfer a custody dispute to the Family Court. The legislation should indicate that in exercising this power the court should take into account whether the custody proceedings relate to other proceedings before the Supreme Court and whether a transfer to the Family Court can be made without causing significant delay or hardship to the parties and without detracting from the welfare of the child. In some cases it will be appropriate for the Supreme Courtto transfer proceedings even though claims for financial adjustment are before the court. To minimise the opportunities for “forum shopping” the Family Court should also be given power to transfer matters to the Supreme Court, taking into account the same criteria.

15.49 We have referred earlier in this Chapter to the deficiencies in the existing State law concerning custody, guardianship and maintenance of children of de facto relationships. In New South Wales, as we have seer there is no single statute covering all aspects of the legal relationship between parents and children Questions of custody, access, guardianship and maintenance of children are dealt with in different ways in several different Acts. This legislation bears the stamp of several stages of development, reflecting its ancient origins followed by piecemeal uncoordinated amendment. Moreover, the basic principles of the legislation have yet to be reconsidered in the light of modern thinking concerning the role of the law in family disputes and the best means of promoting the welfare of children. The overlapping jurisdiction of the various State courts can lead to inefficient use of judicial resources, as well as confusion expense and delay for litigants in determining the most appropriate court in which to pursue a particular case. ⁶⁹

15.50 If the proposed reference of powers proceeds, the deficiencies of State legislation are likely substantially to be overcome by Commonwealth legislation enacted pursuant to the reference. Since we have been directed to take the proposed reference of powers into account, we consider it inappropriate to analyse the measures that could be adopted by New South ‘Wales, acting alone, to remedy the deficiencies identified in this Chapter.

15.51 It is, however, possible that the reference of powers will not proceed, or that Commonwealth legislation will not be enacted pursuant to its terms. We have said that if the reference does not proceed (and the Commonwealth does not acquire power over the field by other means, such as a constitutional amendment), a detailed examination of the State law relating to custody and maintenance would clearly be warranted. A number of issues would reserve attention in any such examination

15.52 As we have noted, the proposed reference of powers agreement would leave the States with exclusive power to make laws on adoption (paragraphs 2.17-2.20). In the Issues Paper we noted that the Adoption of Children Act, 1965, does not permit de facto partners jointly to adopt a child, even where one partner is the natural parent of the child. ⁷³ Adoption orders may generally only be made in favour of a husband and wife jointly, ⁷⁴ or in exceptional circumstances, in favour of one person. ⁷⁵

15.53 We asked in the Issues Paper whether the State law on adoption should permit joint adoption by de facto partners; and if so, whether this should be permitted generally, or only where there are special circumstances. As an example of special circumstances, we suggested the case where one partner is a parent of the child, and the other partner has accepted the child within the household. Fifteen submissions commented on the question of adoption. Most of these opposed changes to the existing laws, although it was not always clear whether they were concerned with a general provision permitting joint adoption by de facto partners, or whether they would also oppose adoption in the special circumstances already described. ⁷⁶ Some submissions favoured change to permit de facto partners jointly to adopt a child, particularly where one partner is the child’s natural parent. ⁷⁷

15.54 The arguments against permitting de facto partners to adopt were expressed in several ways. One argument was that a de facto relationship lacks legal status and it would be incongruous to permit the partners to establish the relationship of parent and child through the adoption laws. ⁷⁸ Similarly, one submission argued that it is right and proper for State law to prefer married partners to others when “distributing benefits or determining policy connected with the family”, giving adoption as a principal example for the application of this principle. ⁷⁹ Another frequent objection to adoption by de facto partners was that their relationships may lack permanence, or at least a public commitment to permanence, and that adoption would be contrary to the best interests of the child. ⁸⁰

15.55 Submissions arguing for a change in the law referred to the special difficulties which may arise where one partner is the child’s natural parent, and the partners seek joint adoption. One submission cited the case of a man who had lived with a woman and her child for 18 years but was unable to adopt the child jointly with the mother. In these circumstances, the submission urged, the law should be regarded as defective. ⁸¹

15.56 We do not recommend that de facto partners should generally be eligible to make joint applications for the adoption of children We note that any such recommendation would seem to be so far ahead of current public opinion that it would offend many people. It may also divert attention from the injustices which the other recommendations made in this Report are intended to alleviate. The problem must of course, be seen in proper perspective. It is one of strictly limited scope. We understand that few children become available for adoption and that the married couples already approved as adopting parents are more than sufficient to satisfy the limited number of available placements.

15.57 The question of adoption by de facto partners of a child of one of the partners is, in our view, different Here there is no question of the child being available for adoption generally, ⁸² and hence no suggestion that the priority listing of approved persons may be disrupted by the inclusion of de facto partners in the category of persons eligible to adopt. A change permitting adoption in these circumstances would have the advantage of enabling the partner of a child’s parent to establish a legal relationship with a child who has been living with the couple as a member of the family. An adoption order made in favour of that partner alone, which is possible under the Act, would not achieve this aim. The order would sever the relationship of parent and child between the child and his or her natural parent. The objection could be made that if the partners wish jointly to adopt a child, they should be prepared to marry. However, there may be cases, for example, where de facto partners object to marriage as an institution and wish to maintain their relationship outside the legal constraints applicable to married couples. While we do not think, at this stage, that such partners ought to be able to adopt children on the same basis as married couples, we think they should be permitted jointly to adopt the child of one of them. As noted in paragraph 15.60, an adoption order could be made only if a court is satisfied that the welfare of the child will be promoted by the order.

15.58 It is therefore our view that the inability of de facto partners jointly to adopt children may lead to hardship in some cases. Consequently, the prohibition on joint adoption by de facto partners should be modified in limited circumstances. We recommend that section 19 of the Adoption of Children Act, 1965, should be amended to provide that the court may make an adoption order in favour of de facto partners jointly, with respect to a child of either of the partners. It is obviously in the best interests of the child that an adoption order should not be made in favour of de facto partners unless their relationship is relatively stable and permanent. The court will of course, take a number of factors into account in assessing the suitability of the couple as adopting parents, Nevertheless, we think it desirable that the legislation should impose a minimum period of cohabitation before an adoption application may be made. A period of three years is recommended. Elsewhere in this Report we have noted a division of opinion among us on the length of the “specified period” of cohabitation for the purpose of invoking the financial adjustment jurisdiction. Two of us recommend a period of two years, two of us propose three years (paragraphs 9.8-9.9). In the context of adoption applications, we are agreed on the period of three years. The overriding consideration here is the welfare of the child. In the view of all of us this will be best served by requiring the longer period of cohabitation as evidence of the stability of the de facto relationship. We therefore recommend that de facto partners seeking a joint adoption order of the kind specified should be required to show that, at the time of the application for adoption, they have been living together in a de facto relationship for a period of not less than three years.

15.59 There is one other special case where it may be desirable to permit de facto partners to adopt a child. This is where a child, who is not the child of either of the partners but is a relative of one of them (for example, a grandchild, niece or nephew), ⁸³ has been living in the same household as the partners over a lengthy period, and the partners wish to adopt the child. As in the case where one of the de facto partners is the parent of the child, there is normally no question of such a child being available for adoption generally. ⁸⁴ In this instance, we think that the court should also be empowered to make a joint adoption order in favour of the partners. We therefore recommend that section 19 of the Adoption of Children Act, 1965, should be amended to provide that the court may make an order in favour of de facto partners jointly, with respect to a child who is. a relative of one of the partners and who has been brought up, maintained and educated by the partners as their child, where there are special circumstances which justify the making of the order. Again, the recommendation is intended to apply only to partners who have been living together in a de facto relationship for a period of not less than three years.

15.60 It must be stressed that the effect of these changes to the law is limited to removing, in the circumstances described, the present barrier to joint adoption by de facto partners. Before making an adoption order, the court must satisfy itself of the suitability of the prospective adoptive parents, and that the welfare and interests of the child will be promoted by the adoption. ⁸⁵ The welfare and interests of the child are always to be regarded as the “paramount consideration”. ⁸⁶ The court may take the view that it Is not in the best interests of the child to permit adoption, for example, because the relationship of the de facto partners is not sufficiently stable, or because it is desirable for the child to maintain his or her legal relationship with both natural parents. ⁸⁷

15.61 Although of no great persuasive force, one further point should be noted. It may be possible at present for de facto partners jointly to adopt a child in another country where the law permits such an adoption. The Adoption of Children Act, 1965, provides a procedure for the recognition of foreign adoptions, giving them the same effect in New South Wales as an adoption under the Act. ⁸⁸ Foreign adoptions may be recognised so long as certain requirements, such as local validity and similarity with the legal effect of adoption in New South Wales, are complied with.

15.62 A second issue relating to adoptions was raised in the Issues Paper. Before an adoption order may be made, the consent of relevant persons must be obtained. Unless dispensed with by the court in the case of a child whose parents were not married to each other, the relevant persons are “every person who is the mother or guardian of the child.” ⁸⁹ The Supreme Court has recently held that the father of an ex-nuptial child is not a “guardian” of the child for the purposes of a consent under this section, despite the effect of the Children (Equality of Status) Act 1976, on the legal position of parents of ex-nuptial children generally. ⁹⁰ For this reason his consent is not required before the child may be adopted.

15.63 Amendments to the 1965 Act passed in 1980 but not yet in force, reproduce the effect of this decision. ⁹¹ The 1980 amendments provide that the father of an ex nuptial child who does not have custody of the child under a court order, or who is not the guardian of the child under the laws of the Commonwealth or another State, is not a guardian for the purposes of the Adoption of Children Act. Therefore his consent to the adoption of the child is not required. When the amendments come into force the father will be entitled to be given notice of an application for, or a consent to, the adoption of the child. He will then have 14 days in which to apply to the Adoption Tribunal created by the Act for a “custody, care and guardianship” order. If he is out of time, or is unsuccessful in his application to the Tribunal, his only recourse will be to apply to the tribunal to be joined as a party to oppose the making of the adoption order. ⁹²

15.64 These provisions will apply to a father of an ex-nuptial child who has never been married to the child’s mother, irrespective of whether there has been, or is, any other relationship between the parents. We think that the position of a father who has lived in a de facto relationship with the mother in a household of which the child was part, is clearly distinguishable from that of a father who has had no continuing relationship with either mother or child. We think it is wrong that the relationship which exists between this father and child may be severed by adoption without the consent of the father. Nor are we convinced that his interests will be adequately protected by the procedure which would require him to obtain an order for custody or guardianship before his consent becomes necessary. If for any reason he does not receive notification of the adoption process in time to make application for custody, any rights he may have to oppose the making of an adoption order will depend on the discretion of the Tribunal. We think that his position can only be secured by a requirement that his consent should be necessary before an order for adoption may be made. Since we are limiting our recommendation to the case of parents who have lived together in a de facto relationship in a household of which the child formed part, we do not think it unreasonable to require that the father’s actual consent be sought. There are already provisions in the Act which allow for consents to be dispensed with in certain circumstances (section 32). No doubt these provisions could be extended to dispense with the consent of the father if that would promote the best interests of the child. We have two reasons for not including in the draft Bill attached to this Report any provision relating, to consents. First, our recommendation will require many consequential amendments to be made to the Adoption of Children Act, 1965, and to the 1980 amending Act. Secondly, we are aware that policy in the area of adoption proceedings may be in some state of flux. Nonetheless, we recommend that the position of the father of an ex nuptial child, who has lived with the child’s mother in a de facto relationship in a household of which the child formed part, should be protected by requiring that his consent shall be necessary before the court may make an adoption order in respect of that child.

15.65 We have discussed in this Chapter the problems of a divided jurisdiction which arise in cases involving the custody, guardianship and maintenance of children. These problems arise partly from the constitutional division of legislative power between the Commonwealth and the States, and partly from the provisions of the Family Law Act This jurisdictional division sometimes leads to the “disgraceful” result that a single court is unable to deal with all the children living within one household.

15.66 We have discussed the proposed reference of powers by some States to the Commonwealth. Because of our terms of reference, we have taken the view that, for the purposes of this Report, we should assume that the reference of powers will take place. On this assumption we have discussed the difficulties which may arise if the Supreme Court has jurisdiction to deal with financial disputes between de facto partners (as we have recommended in this Report), and the Family Court has jurisdiction to determine disputes concerning their children. To overcome this difficulty, we recommend that the Supreme Court should have a concurrent jurisdiction with the Family Court to determine disputes relating to the custody, guardianship and maintenance of children. Our intention is that the Supreme Court should exercise this jurisdiction only when a reference of the matter to the Family Court for determination would cause delay or inconvenience to the parties, or be detrimental to the welfare of the child.

15.67 If our assumption that the proposed reference of powers will take place proves to be incorrect a further and more detailed examination of State law relating to custody and maintenance of children will be needed. We have indicated in this Chapter some of the principal matters which will need to be examined. These include:

15.68 State law on adoption will not be affected by the proposed reference of powers. We have recommended that the prohibition on joint adoption by de facto partners be removed so as to enable the court to permit joint adoption of a child of either of the partners, where the couple have been living together for a minimum period of three years. We further recommend that, in special circumstances, de facto partners should be permitted to adopt a child who is a relative of either partner, and who has lived in their household. We do not recommend that de facto partners should be eligible to adopt children with whom there has been no previous relationship. We also recommend that the consent of the father of an ex-nuptial child who has lived in a de facto relationship with the child s mother should be required before an adoption order may be made with respect to the child.

6. It should be noted that the wording of para.(f) of the definition of “matrimonial cause” (see note 3 above), does not require that the subsequent proceedings should be between the spouses.

7. See eg. Dowal v. Murray (1978) 143 CLR 410; St. Clair v. Nicholson (1981) 55 ALJR 192.

8. See eg. E. and E. [1979] FLC 90-645, Chalker and Chalker [1981] FLC 91-017.

9. See eg. the discussion in Fountain v. Alexander [1982] FLC 91-218, at pp.77,187-77,188, per Gibbs CJ, and p.77,192, per Mason J: cf. Meyer v. Meyer [1978] 2 NSWLR 36.

10. See eg. A v. HM and WM (1979) 4 Fam LR 776; Harris v. Harris [1979] 2 NSWLR 252; Robinson v. Field (1982) 7 Fam LR 866.

12. Newbery and Newbery [1977] FLC 90-205: cf Bishop and Bishop [1981] FLC 90-016. The Family Law Amendment Bill 1983, cl.22. proposes to redefine “guardianship” and “custody”. Broadly speaking. it is intended that a person who is a guardian of a child under the Act will have the responsibility for the long-term welfare of the child together with all other incidents of guardianship under other law. except for the right to possession of the child and the responsibility for the daily care and control of the child. A person granted “custody” will have this right and responsibility. The proposed amendment follows a recommendation of the Family Law Council, Watson Committee Report (Wardship, Guardianship, Custody, Access, Change of Name) (1982).

13. Family Law Act 1975 (Cth), s.64(l) (a). Clause 25 of the Family Law Amendment Bill 1983 proposes to amend section 64 by specifying matters which must be taken into account by the court in proceedings with respect to the custody, guardianship or welfare of a child. These include, among other things. the nature of the relationship the child has with each parent or other persons, the effect of separation on the child and the capacity of parents or other persons to care adequately for the child.

16. Joint Select Committee on the Family Law Act, Family Law in Australia (1980), vol.1. chs,4. 9.

17. See eg. The various judgments in Fountain v. Alexander [1982] FLC 91-218; and Robinson v. Field (1982) 7 Fam LR 866, at p.874.

18. Ping v. Van Der Kroft 3 December 1982, Supreme Court of New South Wales, McLelland J.; Re J.H. Weir (1953) 70 WN (NSW) 78.

20. See Robinson v. Field (1982) 7 Fam LR 866; at pp.873-4, per Holland Cf. The comments of Powell J; In A v. F. (1981) 7 Fam LR 14. See also K v. Minister for Youth and Community Services [1982] 1 NSWLR 311.

21. See Gorey v. Griffin [1978] 1 NSWLR 739, at pp.747 ff.; per Mahoney JA, for a history of the legislation.

24. Gorey v. Griffin [1978] 1 NSWLR. 739, at p.744, per Hutley JA; at p.741, per Moffitt P.

25. The principles are discussed at length in Chignola v. Chignola (1974) 9 SASR 479.

26. Douglas v. Longano (1981) 55 ALJR 352, a case concerned with the Status of Children Act 1974 (Vic), s.3(1).

28. See eg. Douglas v. Longano (1981) 55 ALJR 352, per Gibbs CJ; Mason and Murphy JJ; Holland v. Cobcroft [1980] 2 NSWLR 483.

30. Eg. Holland v. Cobcroft [1980] 2 NSWLR 483; Smith v. Swinfield (1981) 7 Fam LR 757; Harrington v. Hynes (1982) 8 Fam LR 295.

33. See para.(cb) of the definition of “matrimonial cause” in s.4 of the Act. The question would be put beyond doubt by clause 3 of the Family Law Amendment Bill 1983, which makes it clear that a child of a marriage may bring proceedings for maintenance: see proposed para. (cc) of the definition of “matrimonial cause”.

37. V. and G. [1982] FLC 91-207; Zdravkovic and Zdravkovic [1982] FLC 91-220.

50. Fountain v. Alexander, 16 February 1982, Supreme Court of New South Wales.

54. All but one of these proposals (the fourth) were considered by the joint Select Committee on the Family Law Act Family Law in Australia (1980), vol.1, ch.2.

56. As to the agenda for the Convention, see 7 Commonwealth Record 1781 (December 1982).

60. Mr Justice M H McLelland, Submission No.5. The Chief Justice’s paper was prepared in September 1975.

61. Joint Select Committee, note 54 above, vol.1, pp.17-19. Cf. the dissenting report of Senator A J Missen; Id., pp.205-206.

62. Id., vol.2, pp.88-90 (Professor P H Lane). The same view was expressed in an opinion provided for us in December 1982 by Associate Professor M. Coper of the University of New South Wales.

63. This conclusion was reached by Associate Professor Coper in his opinion of December 1982.

64. Family Law Amendment Bill 1983, cl.3, proposing the addition of paras.(cd) and (ce) to the definition of “matrimonial cause”. A stranger can institute proceedings where the party in whose favour a custody order was made has died, or where a party to the marriage is a party to the proceedings.

66. The preservation of the jurisdiction of a State court to make a child a ward of the court for a purpose other than providing for the child’s custody, guardianship or maintenance (para.2.18) may raise particularly difficult issues. It is arguable, for example, that any exercise of court wardship powers involves a question of guardianship, in which case the reservation in the agreement would be meaningless. Cf. Fountain v. Alexander [1982] FLC 91-218, at p.77.187-77,188, per Gibbs CJ; at p.77,193, per Mason J. Other questions which require consideration include the power of the Family Court to order blood tests where the paternity of a child is in issue: Lamb and Lamb [1977] FLC 90-225; Family Law Council; Annual Report 1980-81, p.17. See now Family Law Amendment Bill 1983, cl.48, inserting new s.99A. detailing procedures for blood tests and other medical tests in relation to the question of paternity.

68. The agreement contemplates that a provision should not differentiate “so far as practicable” between children who are and who are not legitimate. We think that our recommendation is consistent with this requirement.

69. In Holland v. Cobcroft [1980] 2 NSWLR 483, for example, the Supreme Court was strongly of the view that custody applications under the Infants’ Custody and Settlements Act 1899 were more appropriately brought in either the District Court or Children’s Court, on grounds of speed. convenience and cost.

71. As suggested eg. by the New South Wales Women’s Advisory Council, Submission No. 10; Women’s Co-ordination Unit. Submission No.35.

72. See eg. G Johnson, Submission No.12: P.J. Pascoe, Submission No.14: Australian Council of Social Service, Submission No.26, p.12, Redfern Legal Centre,. Submission No.53.

76. Comments on adoption were made by. Mountain Women’s Resource Centre, Submission No.6; Anglican Home Mission Society, Submission No.6; Sutherland Shire Information Service, Submission No.9, New South Wales Women’s Advisory Council, Submission No.10; Anglican Parish of St. Mark’s, Avalon, Submission No.18; E J Merrington, Submission No.22; Australian Catholic Social Welfare Commission, Submission No.27, Council for Civil Liberties, Submission No.31; Anglican Diocese of Sydney, Social Issues Committee(majority response), Submission No.34; New South Wales Catholic Social Welfare Committee, Submission No.36: Australian Federation of Festival of Light, Submission No.38, Catholic Women’s League of NSW, Submission No.39; Anglican Diocese of Newcastle, Submission No.43; Legal Aid Commission of Victoria, Law Reform Committee, Submission No.50; Catholic Women's League of SA Inc., Submission No.52.

77. Comments favouring change in the law were made by Mountain Women’s Resource Centre, Submission No.1, Sutherland Shire Information Service. Submission No.9; New South Wales Women’s Advisory Council, Submission No.10; Council for Civil Liberties, Submission No.31: Legal Aid Commission of Victorian Law Reform Committee, Submission No.50.

78. Catholic Women’s League of NSW, Submission No.39; Australian Catholic Social Welfare Commission, Submission No.27.

79. Anglican Diocese of Sydney, Social Issues Committee (majority response), Submission No.34a.

80. Lack of permanence was stressed by, among others, Australian Federation of Festival of Light, Submission No.38, and Anglican Home Mission Society, Submission No.6.

81. Legal Aid Commission of Victoria, Law Reform Committee, Submission No.50, p.2.

85. Adoption of Children Act, 1965, s.21. Under amendments to the Act passed in 1980 but not yet in force, the jurisdiction of the Supreme Court will be exercised by the Adoption Tribunal. Adoption of Children (Amendment) Act, 1980, Schedule 1.

87. See the comments on this point in Legal Aid Commission of Victoria, Law Reform Committee. Submission No.50, p.9.

90. C. v. Director-General of Youth and Community Services [1982] 1 NSWLR 65; cf. Youngman v. Lawson [1981] 1 NSWLR 439, where the Court of Appeal held that the effect of s.6 of the Children (Equality of Status) Act, 1976, was to constitute both parents of an ex-nuptial child its joint guardians.

91. Adoption of Children (Amendment) Act, 1980, Schedule 3(8), inserting s.26(3A).