Shaw v Shaw [1965] HCA 39; (1965) 113 CLR 545 (29 July 1965)

HIGH COURT OF AUSTRALIA

SHAW v. SHAW [1965] HCA 39; (1965) 113 CLR 545

Matrimonial Causes

High Court of Australia

Barwick C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Matrimonial Causes - Maintenance - Order - Power of Court to vary - Terms of settlement of claim for maintenance - Consent order pursuant thereto - Purported sanctioning of terms by Court - Validity - Whether terms an agreement within s. 87 (1) (k) - Nature and mode of enforcement of agreement within paragraph - Matrimonial Causes Act 1959 (Cth), s. 87 (1) (j), (k).

Matrimonial Causes - State courts - Invested with federal jurisdiction - Right of judge to refer matter to Full Court in matrimonial cause - Matrimonial Causes Act 1959 (Cth).

HEARING

Sydney, 1965, July 2, 5, 29. 29:7:1965

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

July 29.

The following written reasons for judgment were delivered:-

BARWICK C.J. I am of opinion that special leave should be refused in this right. I would place the answers which it gave to the questions upon which its opinion was sought upon the ground that the agreement of the parties, which was placed before the Court for sanction, is clearly not an agreement within the scope and operation of s. 87 (1) (k) of the Matrimonial Causes Act 1959. It is an agreement that orders should be made under s. 87 (1) of the Act by consent of the parties if the Court is prepared so to do. The agreement contains no express term that any rights it may have conferred are to be accepted in lieu of rights under an existing order or of any right to seek an order under Pt VIII of the Act: nor does the agreement contain an express term that no variation shall be sought of the orders for which it provides. In my opinion, it is impossible to imply either of these terms. In particular, in my opinion, neither can be implied, as was suggested in argument, from the circumstance that the parties sought the Court's sanction to their agreement under s. 87 (1) (k). What they seem to have contemplated was that by sanctioning their agreement the Court would make the orders which it made in accordance with that agreement insusceptible of variation under s. 87 (1) (j). But no court is able under the Matrimonial Causes Act to make an order under s. 87 which is incapable of variation under s. 87 (1) (j): see Johnston v. Johnston decided by the Full Court of Victoria (unreported) and affirmed in this Court on that point: see [1965] HCA 15; (1965) 113 CLR 572 . The agreement which s. 87 (1) (k) contemplates is an agreement to accept the agreed benefits in lieu of rights under an existing order (which presumably will thereupon be discharged if it would otherwise have any further operation), or if there is no such order, in lieu of the right to seek an order under Pt VIII. The Court is given power to sanction such an agreement so that it will be binding on the parties according to its terms so far as they relate to matters within that part of the Act. No doubt, a Court asked to sanction such an agreement will consider closely its provisions realizing not merely that the parties are foregoing rights to the Court's immediate intervention but that they must thereafter rely upon the contractual rights which the agreement gives. The Court, in my opinion, under the Matrimonial Causes Act has no power of enforcement of the agreement. That must be done, if occasion arises, in some other appropriate Court. (at p549)

2. Having come to this clear conclusion there is no need for me to express any view as to the correctness of the decision in Horne v. Horne (1963) SR (NSW) 121; (1962) 80 WN 169 as to the power of a Judge of a State Supreme Court to refer to a Full Court a question of law arising in a matrimonial cause. Suffice it to say that as at present advised I have considerable doubt as to the validity of its reasoning and of its conclusions on that point. (at p549)

KITTO J. I am of the same opinion for the same reasons. (at p549)

TAYLOR J. I agree that special leave to appeal should be refused and I have nothing to add to the observations of the Chief Justice. (at p549)

MENZIES J. The only order which can be made under the authority of s. 87 (1) (k) of the Matrimonial Causes Act 1959 is one sanctioning an agreement of the sort therein described. A consent order for maintenance is not within the scope of the provision and such an order made, as it must be, under s. 84 of the Act is subject to discharge, modification or variation under s. 87 (1) (j) of the Act. (at p549)

2. An examination of the order of the Supreme Court of New South Wales made on 11th December 1961 discloses some confusion in the minds of those who framed it. In the first place, there is a consent order for maintenance for the petitioner and the two children of the marriage; there is also an order "that the agreement between the parties dated 11th December 1961 and filed herein be sanctioned and approved pursuant to s. 87 (1) (k) of the Matrimonial Causes Act 1959 and that all orders be and the same are hereby made as are necessary to carry the said deed into effect". A decree absolute follows with a declaration that the Court is satisfied with the arrangements for the welfare and advancement and education of the children of the marriage and that those arrangements are set out in the foregoing orders. (at p550)

3. In accordance with the rule already stated, the consent order for maintenance is subject to variation under s. 87 (1) (j) and is so subject notwithstanding the "sanctioning" of what is called "the agreement between the parties dated 11th December, 1961". This agreement was as follows:-

"Terms of Settlement

By consent order as follows:-

1. Respondent to pay to the petitioner by way of permanent

maintenance 15 pounds per week.

2. Respondent to pay to the petitioner the sum of 4 pounds

per week

for each of the children by way of maintenance until the

age of sixteen years. If warranted tertiary education to

be provided for by the respondent.

3. The respondent to transfer to the petitioner freed from

all encumbrances and liabilities the matrimonial home

at 783 Barrenjoey Road, North Avalon.

4. The respondent do cause to be put into proper state of

repair the septic system the tiling in the bathroom and

the garage door in the said matrimonial home.

5. The petitioner do transfer to the respondent or as he may

direct the land being lot 2 Crescent Road, Newport.

6. The respondent do pay the petitioner's costs of these

proceedings and all costs expenses duties fees and other

outgoings in and about the implementation of these terms

of settlement.

Dated the eleventh day of December 1961." (at p550)

4. It is clear that the foregoing terms of settlement did not constitute an agreement falling within the description to be found in s. 87 (1) (k) of the Act. The parties agreed upon the terms of an order to be made by consent; they did not make an agreement to be submitted for the sanction of the Court. It was obviously intended that the rights to maintenance and other benefits set out in the terms of settlement should depend upon an order; they were not to be left as obligations arising out of an agreement. Accordingly, not only was there no express agreement to accept the maintenance and other benefits referred to in lieu of rights under an order or in lieu of an order under s. 84, but no such agreement could possibly be implied, for the express agreement was that there should be such an order. (at p551)

5. The Full Court's decision that the order sanctioning and approving the agreement in pursuance of s. 87 (1) (k) of the Matrimonial Causes Act had no effect was, for the foregoing reasons, clearly right. Accordingly, the application for special leave to appeal from this decision should, on this ground, be refused. (at p551)

WINDEYER J. I agree that special leave to appeal should be refused on the ground that the decision of the Supreme Court was clearly right. (at p551)

ORDER

Application for special leave refused.