Approved maintenance agreements may be enforced through State Supreme Court proceedings for specific performance, damages, and other contractual remedies, rather than through the limited enforcement mechanisms available in Family Court under the Act and regulations.
Later decisions that cite Perlman v Perlman
Decisions cited by Perlman v Perlman
PERLMAN v. PERLMAN [1984] HCA 4; (1984) 155 CLR 474
Matrimonial Causes
High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4), Brennan(5), Deane(6) and
Dawson(7) JJ.
CATCHWORDS
Matrimonial Causes - Family Court of Australia - Exclusive jurisdiction - Maintenance agreement - Proceedings for enforcement - Proceedings in State Supreme Court - Whether matrimonial cause - Family Law Act 1975 (Cth), ss. 4(1) "maintenance agreement", "matrimonial cause", 8, 40(3), (4), 87, 88.
HEARING
1983, October 12, 13; 1984, February 14. 14:2:1984DECISION
1984, February 14.2. There is of course no doubt that the Supreme Court has jurisdiction to entertain proceedings for the enforcement of contractual obligations, and to grant the remedies of specific performance and damages as a means of such enforcement, unless it has been effectively divested of that jurisdiction by a statutory provision. The Supreme Court has been divested of jurisdiction to hear and determine certain proceedings under the Act, by the combined effect of ss. 8(1), 40(3) and 40(4) and a proclamation made under s. 40(3) on 27 May 1976 and published in Australian Government Gazette No. S 86 of 27 May 1976. As a result, the Supreme Court no longer has jurisdiction to hear and determine proceedings of a kind referred to in pars. (a), (b), (c), (d), (e) or (f) of the definition of "matrimonial cause" in s. 4(1) of the Act, except those pending before 1 June 1976 or relating to certain other proceedings pending before that date. The question for decision on the present appeal therefore is whether the proceedings in the Supreme Court were proceedings of a kind referred to in any of those paragraphs of the definition of "matrimonial cause", if so, the court had no jurisdiction. (at p482)
3. "Matrimonial cause" is defined by s. 4(1) of the Act to mean -
"(a) proceedings between the parties to a marriage for a decreeParagraphs (c), (ca), (cb) and (e) of the definition were inserted in their present form by an amendment which took effect after 1 June 1976, the date mentioned in the proclamation under s. 40(3). It may however be assumed in favour of the appellant that the proclamation is ambulatory in effect and refers to proceedings of the kind described in pars. (c) and (e) of the definition in their present form. If that were not so, the proclamation would be invalid at least in so far as it applied to proceedings of the kind referred to in pars. (c), (e) and (f) of the definition, since those paragraphs in their original form went beyond constitutional power: Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495 . The proclamation does not, however, expressly refer to proceedings of the kinds described in pars. (ca) and (cb), and it is impossible to construe it as though it did contain a reference to those paragraphs. In Reynolds v. Reynolds (1977) 2 NSWLR 295, at p 300 . Waddell J. accepted the correctness of a concession that the proclamation takes effect in relation to matrimonial causes as defined by par. (ca). O'Bryan J. followed that decision in McCullough v. Hemphill Supreme Court of Victoria; 6 September 1979; Unreported. although Menhennitt J. had doubted it in Cacek v. Cacek [1979] VicRp 41; (1979) VR 385, at p 389; [1979] VicRp 41; 45 FLR 44, at p 48 . No reasons were given in those cases in support of the view that the proclamation takes effect as though it referred to par. (ca). Before us, it was argued by the learned Solicitor-General, intervening on behalf of the Attorney-General for the Commonwealth, that par. (c)(ii) of the definition, in its unamended form, included proceedings of the kind now described in par. (ca), so that the reference in the definition to "proceedings of a kind" referred to in par. (c) includes those proceedings now within par. (ca). The difficulty about this submission is that it requires the proclamation to be read as though it refers to par. (c) in its original form, which, as I have said, was too wide to be constitutionally valid. For these reasons it appears to me that the Supreme Court retains jurisdiction to hear and determine proceedings of the kinds mentioned in pars. (ca) and (cb), provided, of course, that they are not also proceedings of a kind described in another paragraph of the definition. (at p483)
of -
(i) dissolution of marriage; or
(ii) nullity of marriage;
(b) proceedings for a declaration as to the validity of a
marriage or of the dissolution or annulment of a marriage
by decree or otherwise;
(c) proceedings between the parties to a marriage with respect
to -
(i) the maintenance of one of the parties to the marriage;
or
(ii) the custody, guardianship or maintenance of, or
access to, a child of the marriage;;
(ca) proceedings between the parties to a marriage with respect
to the property of the parties to the marriage or of either of
them, being proceedings in relation to concurrent, pending
or completed proceedings for principal relief between those
parties;
(cb) proceedings by or on behalf of a child of a marriage against
one or both of the parties to the marriage with respect to
the maintenance of the child;
(d) proceedings between the parties to a marriage for the
approval by a court of a maintenance agreement or for the
revocation of such an approval or for the registration of a
maintenance agreement;
(e) proceedings between the parties to a marriage for an order
or injunction in circumstances arising out of the marital
relationship; or
(f) any other proceedings (including proceedings with respect
to the enforcement of a decree or the service of process) in
relation to concurrent, pending or completed proceedings
of a kind referred to in any of paragraphs (a) to (e),
including proceedings of such a kind pending at, or
completed before, the commencement of this Act;".
4. The primary submission of the appellant was that the present proceedings in the Supreme Court fell within par. (f) of the definition of "matrimonial cause". It was said that they were other proceedings in relation to completed proceedings of a kind referred to in par. (d) of the definition, i.e., that they were proceedings in relation to completed proceedings for the approval of the maintenance agreement. Two aspects of this argument may be noted, although they are only of peripheral significance. First, the argument assumes that the proceedings are not of a kind described in any other paragraph of the definition. It would appear to be fatal to the appellant's case if the proceedings fell within par. (ca) of the definition, since they would then not be "other proceedings", and so not within par. (f), and since, as I have said, proceedings of the kind described in par. (ca) are not within the proclamation made under s. 40(3). Secondly, it was submitted that the words in parenthesis in par. (f) indicate that proceedings with respect to the enforcement of a decree are proceedings in relation to the completed proceedings in which the decree was made and therefore illustrate the sort of proceeding that it was contemplated would be "in relation to" completed proceedings. There is no doubt a sufficient relationship between proceedings with respect to the enforcement of a decree, and the proceedings in which the decree was made, to bring the former within par. (f) of the definition, but it does not follow that a sufficient relationship exists between proceedings for the enforcement of a maintenance agreement and the proceedings in which the maintenance agreement was approved. (at p484)
5. The words "in relation to" import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind: see Reg. v. Ross-Jones; Ex parte Beaumont [1979] HCA 5; (1979) 141 CLR 504, at p 510 An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings (so that, e.g., an application by a divorced wife for a settlement and transfer of property is a proceeding in relation to the completed proceedings for the divorce: Reg. v. Ross-Jones; Ex parte Beaumont (1979) 141 CLR, at pp 510-511, 520 ). It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former (e.g., where an application under s. 61(4) of the Act is brought by a surviving parent for custody of a child when that custody has been awarded to the other parent, since deceased: Dowal v. Murray [1978] HCA 53; (1978) 143 CLR 410, at pp 417, 423, 427 ; or where an application for custody of a child of a marriage since dissolved is made by a stranger to the marriage against a party to the marriage who has been granted custody by an order in previous proceedings: Fountain v. Alexander [1982] HCA 16; (1982) 150 CLR 615, at pp 624, 629, 645 . Proceedings brought to revoke an approval, in the limited circumstances permitted by s. 87(6) of the Act, would be proceedings in relation to the completed proceedings for the approval. However, an application to enforce the maintenance agreement in the present case (i.e., the deed) was not consequential on or incidental to the order approving of the maintenance agreement and it did not vary, reverse or otherwise affect the order giving the approval. The approval of the court had three relevant effects: (1) it rendered the agreement effective (s. 87(2)); (2) thereafter no court having jurisdiction under the Act could make an order with respect to the financial matters dealt with in the agreement (i.e. with respect to any of the financial matters between the parties) except in the circumstances mentioned in s. 87(9) which has no relevance to the present case (s. 87(3)); and (3) it rendered the agreement enforceable as if it were an order of the Family Court (ss. 87(7) and 88). The present proceedings do not affect that position - whether the present proceedings succeed or fail, the approval remains valid, and the deed remains effective; the deed continues to oust the jurisdiction of courts under the Act to make orders with respect to financial matters between the parties and it remains enforceable as if it were an order of the Family Court. Although a grant of approval was a condition of the efficacy of the maintenance agreement, the subject of the present proceedings is not the approval but the agreement. There is a connexion between the present proceedings and the deed, since the present proceedings are brought to enforce the deed; there is none, except of a remote and indirect kind, between the present proceedings and the proceedings brought to obtain the approval. So far as the present proceedings are concerned, the proceedings brought to obtain the approval simply form part of the historical background. The proceedings in the present case are not proceedings in relation to the proceedings for the approval. (at p485)
6. In the alternative it was submitted on behalf of the appellant that the present proceedings are within par. (f) of the definition, in that they are proceedings in relation to completed proceedings of a kind referred to in par. (c)(i) or par. (ca) of the definition. It may be assumed (although it does not appear from the material before us) that the proceedings between the parties for the dissolution of the marriage involved claims for maintenance and with respect to property and that the deed was made in settlement of such claims. However, the relationship between the present proceedings for the enforcement of the deed and any earlier proceedings for maintenance or with respect to property is even more remote than that between the present proceedings and the proceedings brought to obtain the approval. The conclusion that the proceedings in the Supreme Court were not proceedings in relation to completed proceedings with respect to maintenance or with respect to property is strengthened by the fact that it does not appear from the material whether there were any such proceedings. (at p485)
7. For these reasons, the proceedings in the Supreme Court were not, in my opinion, proceedings of the kind referred to in par. (f) of the definition of "matrimonial cause". (at p485)
8. In the further alternative it was submitted that the present proceedings directly answered the description contained in par. (c)(i) or par. (ca) of the definition. As I have already said, if the proceedings do fall within the description contained in par. (ca) it would nevertheless appear that the Supreme Court had jurisdiction, because no proclamation has been made under s. 40(3) to exclude the jurisdiction of the Supreme Court in proceedings of the kind mentioned in that paragraph. Since it was conceded that if the proceedings answered the description contained in par. (c)(i) they equally answered the description contained in par. (ca), the argument that the proceedings were of a kind referred to in par. (c)(i) or par. (ca) is a dangerous one for the appellant. However, in my opinion, it is a misdescription to say that the proceedings are proceedings with respect to maintenance or with respect to property. They are proceedings for the enforcement of the rights given by the maintenance agreement. Indeed, as I have already pointed out, once the deed was approved no order could thereafter be made by a court having jurisdiction under the Act with respect to the financial matters between the parties - i.e., no order could be made by any such court with respect to the maintenance of the respondent or with respect to the property of the parties. If proceedings brought to enforce the deed could correctly be described as proceedings between the parties to the marriage with respect to maintenance or property, it would be impossible to reconcile ss. 87(3) and 88, since the former provision would forbid the Family Court to make an order of the kind which the latter section envisaged that it might make. (at p486)
9. Finally it was submitted that the proceedings are a matrimonial cause of the kind referred to in par. (e), i.e., proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship. If the wide words of par. (e) were read without any limitation, they would cover the cases described in pars. (a), (c), (ca), (cb) and (d) of the definition, thus rendering those paragraphs superfluous. That is a sufficient reason for rejecting the construction which the appellant seeks to put on par. (e). In Reg. v. Dovey; Ex parte Ross (1979) 141 CLR 526, at pp 532-3 , I indicated my opinion that the mere fact that the circumstances of the case involve the parties to a marriage does not mean that the proceedings arise out of the marital relationship. It is unnecessary for present purposes to consider whether a temporal limitation is provided by the words "'in circumstances' arising out of the marital relationship", as Hutley J.A. thought in McLean v. McLean (1979) 1 NSWLR 620, at p 627;37 FLR 440, at p 448 . The proceedings in the present case clearly do not arise out of a marital relationship; they arise from the fact that the divorced husband has failed to fulfil his obligations under the deed. (at p487)
10. For these reasons, in my opinion, the present proceedings are not a
matrimonial cause within the meaning of the Family Law Act.
I agree with the
conclusion reached in New South Wales by the Court of Appeal in Ellinas v.
Ellinas (No. 2) (1979) 1 NSWLR 431;37
FLR 435 and in Queensland by the Full
Court of the Supreme Court in Noble v. Noble (1983) 48 ALR 157; 9 Fam LR 55;
(1983) FLC 78,293
. The contrary conclusion was reached by the Full Court of
the Family Court in In the Marriage of Carew (1979) 37 FLR 452; (1979)
FLC
78,721 . In that case the court said that the words "proceedings with respect
to the enforcement of a decree" in par. (f) of
the definition of "matrimonial
cause" ought to be read as including the enforcement of a maintenance
agreement (1979) 37 FLR, at
p 454; (1979) FLC, at p 78, 724 . With all respect
I cannot agree. There is nothing in the Act that converts a maintenance
agreement
that has been approved or registered into an order of the court and
nothing that deems such an agreement to be an order. As Hutley
J.A. said in
Ellinas v. Ellinas (1979) 1 NSWLR, at p 433; 37 FLR, at p 437 : "s. 88 does
not make the agreement an order of the court,
it merely gives to the person
who has the benefit of the agreement certain procedures
for its enforcement":
see also Noble v. Noble
(1983) 48 ALR, at p 166; (1983) FLC, at p 78,300 . In
In the Marriage of Carew, the
court proceeded to consider whether the
proceedings
for the enforcement of the maintenance agreement were proceedings
in relation
to completed proceedings, and said (1979) 37 FLR, at
p 456;5 Fam
LR, at p 517; (1979) FLC, at pp 78,724 - 78,725. :
"The words in sec. 88 'or is deemed to have been registered'If, in this passage, their Honours were intending to suggest that the Family Court would not have jurisdiction to enforce a maintenance agreement that has been registered, or is deemed to have been registered, unless the proceedings for enforcement were a matrimonial cause within the definition, they overlooked the fact that the Family Court has jurisdiction in matters which are not matrimonial causes: see s. 31(1)(d) and s. 39(5)(c) of the Act. There is no doubt that the Family Court may enforce a maintenance agreement which it has approved in the same way that it can enforce an order of its own. However, its powers of enforcement, under s. 106 of the Act and Pt XV of the regulations, are quite inadequate to enable it effectively to enforce the wide variety of arrangements which might be embodied in a maintenance agreement. This was pointed out in Noble v. Noble (1983) 48 ALR, at pp 159-160;(1983) FLC, at pp 78,295, 78,299 , as well as by the Court of Appeal in the present case. The view apparently taken in Harding and Gibson (1979) FLC 78,543, at p 78,547 and Makin and Makin (1980) 5 Fam LR 825; (1980) FLC 75,159 , that the Family Court can apply the remedies available under the general law of contract, is erroneous; it was correctly said in Power and Power (1980) FLC 75,552, at p 75,556 that the only remedies for enforcement which may be exercised by the Family Court are those expressly provided by the Act itself. It was submitted on behalf of the appellant that this circumstance is not of assistance in deciding whether the jurisdiction of the Family Court to enforce a maintenance agreement is intended to be exclusive because, it was said, the deficiency in the powers of the Family Court could readily be remedied by an amendment to the regulations. I do not agree with that submission. There may be parties to a maintenance agreement besides the parties to the marriage; the enforcement of the agreement may involve the winding up of companies or the execution of trusts, and the Act does not contemplate that the regulations may confer on the Family Court powers of that kind. In any case, an order for specific performance, or an award of damages, is not a mode of execution of the order of a court. I therefore agree with the observations of Glass J.A. in the present case, and with those of the Court in Noble v. Noble (1983) 48 ALR, at pp 159, 165-166; (1983) FLC, at pp 78,295, 78,299, 78,300. , that it cannot be accepted that the Parliament intended to deprive the parties to a maintenance agreement of the armoury of remedies which the general law provides leaving them only with the comparatively inefficacious remedies available under the Act. Finally, I agree with the statement of McPherson J. in Noble v. Noble (1983) 48 ALR, at p 159; (1983) FLC, at p 78,295 that: "Once the marriage has been dissolved, and the financial matters between the parties have been resolved by such an approved agreement, there is no reason either of logic, policy, or social philosophy which should deny to those parties, who have chosen (or been compelled) to become strangers to each other, a right of access to the ordinary civil courts of the land for the purpose of enforcing the financial arrangements that they have made." These considerations fortify me in the conclusion that I have already reached, that proceedings for the enforcement of a maintenance agreement are not themselves a matrimonial cause within the exclusive jurisdiction of the Family Court. I would overrule In the Marriage of Carew (1979) 37 FLR 452; 5 Fam LR 513; (1979) FLC 78,721 . (at p489)
have no meaning except in relation to sec. 87(7). Unless
agreements deemed to have been registered under subsec.(7)
can be enforced under sec. 88 those words are meaningless. It
would be contrary to the express intention of the legislature to
hold that proceedings for the enforcement of an approved
maintenance agreement are not a matrimonial cause. Such
proceedings should be regarded both as proceedings with
respect to the enforcement of a decree, and as proceedings in
relation to completed proceedings (i.e. the proceedings for the
approval of the agreement). They are, therefore, a matrimonial
cause in respect of which the Family Court may exercise
jurisdiction."
11. I hold that the Supreme Court had jurisdiction in the present case. I would dismiss the appeal. (at p489)
MASON J. The facts and statutory provisions are comprehensively set out in the judgment of Wilson J. Notwithstanding some reservations, I agree with his Honour's conclusion that the proceedings commenced by the respondent in the Supreme Court of New South Wales for damages and specific performance of a maintenance agreement entered into between the parties and approved by the Family Court of Australia pursuant to s. 87 of the Family Law Act 1975 (Cth) ("the Act") do not fall within the definition of "matrimonial cause" in s. 4(1) of the Act and consequently were not outside the jurisdiction of the Supreme Court by virtue of the proclamation on 27 May 1976 made pursuant to s. 40(3). (at p489)
2. There is some strength in the argument that there exists a sufficient relationship between proceedings for the approval of a maintenance agreement pursuant to s. 87, which themselves fall within par. (d) of the definition of "matrimonial cause" in s. 4(1), and proceedings for the enforcement of an approved maintenance agreement so as to bring the latter within the terms of par. (f) of the definition as proceedings "in relation to" completed proceedings of a kind referred to in par. (d). As I stated in Fountain v. Alexander [1982] HCA 16; (1982) 150 CLR 615, at p 629 , the expression "in relation to" is one of wide and general import and should not be read down in the absence of some compelling reason for so doing. The question is whether there is good reason for limiting the relationship to the exclusion of enforcement proceedings. (at p489)
3. The relationship between proceedings for the enforcement of a maintenance agreement and completed proceedings for the approval of that agreement is by no means obvious when the two proceedings are viewed in the abstract. So viewed proceedings to enforce a maintenance agreement do not have a precise relationship with the earlier proceedings in which the court was asked to approve the agreement. But when we examine the provisions of s. 87 and take account of the nature and effect of the grant of approval by a court to a maintenance agreement which is expressed to operate in substitution for the rights of parties under Pt VIII of the Act, a different picture begins to emerge. First, the agreement has no effect unless it is approved by the court - approval gives the agreement binding effect on the parties (s. 87(2)). Secondly, so long as the approval stands, orders made under Pt VIII or under the repealed legislation cease to have effect in relation to financial matters dealt with in the agreement and, subject to sub-s. (9), no court having jurisdiction under the Act may make an order with respect to those matters (s. 87(3)). Thirdly, a court granting approval must satisfy itself that the provisions with respect to financial matters are proper and unless it does so it cannot grant approval (s. 87(4)). And finally, the agreement once approved is deemed to be registered in the court (s. 87(7)) and may be enforced as if it were an order of that court (s. 88). (at p490)
4. The effect of the order granting approval is to bring into existence rights and obligations of the parties with respect to financial matters, after a judgment has been made by the court that the provisions relating to them are proper, to remove the rights and obligations from the operation of Pt VIII so long as the approval stands and to enable the rights and obligations created by the agreement to be enforced as if the agreement were an order of the court. In this setting proceedings for approval bear some resemblance to proceedings for a maintenance order itself. They result in the creation, by virtue of a curial order, of rights and obligations with respect to maintenance enforceable as if the rights and obligations arose under a curial order. The relationship between proceedings in the enforcement of those rights and obligations and proceedings for approval is not unlike the relationship between proceedings for the enforcement of a maintenance order and proceedings for the making of the order itself. The differences are that in one case (1) the rights and obligations are created by a contract approved by the court, and (2) it is the contract that is enforced, whereas in the other case the rights and obligations are created by curial order and it is the curial order that is enforced. (at p490)
5. These differences are significant. This is because proceedings to enforce the order of a court may be regarded as an extension of the proceedings in which the court makes that order. In the later proceedings the court compels compliance with its earlier order or punishes for non-compliance with it. I do not think that it is possible to take the same view of proceedings to enforce a maintenance agreement. They cannot be regarded as an extension of the proceedings for approval - there is no element of compelling a party to comply with a court order or of punishment for non-compliance with it. (at p491)
6. I agree with Wilson J. in thinking that proceedings for the enforcement of a maintenance agreement are not proceedings for the enforcement of an order. Section 88 does not deem the agreement to be an order of a court; it merely enables the agreement, which is deemed to be registered, to be enforced as if it were an order of a court. I am therefore unable to accept the basis on which the Full Court of the Family Court in In the Marriage of Carew (1979) 37 FLR 452, at p 456; 5 Fam LR 513, at p 517; (1979) FLC 78, 721, at p. 78,724. has held that proceedings to enforce a maintenance agreement are a "matrimonial cause" within par. (f) of s. 4(1) of the Act. (at p491)
7. For these reasons the requisite relationship contemplated by par. (f) of the definition of matrimonial cause between proceedings for the approval of a maintenance agreement and proceedings for its enforcement is lacking. For the same reasons there is no requisite relationship between the proceedings to bring it within pars. (f) and (c)(i) and pars. (f) and (ca). (at p491)
8. And for the reasons given by Wilson J. the respondent's proceedings in the Supreme Court are not "proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the matrimonial relationship" within the meaning of par. (e). (at p491)
9. The effect of s. 88 is to bring maintenance agreements registered or deemed to be registered under ss. 86 and 87 within the area of powers of enforcement conferred upon the courts pursuant to s. 106 by the regulations. Garnishee proceedings, seizure of property and sequestration of the estate of a party are the remedies currently made available by the regulations in relation to the enforcement of maintenance agreements. It is common ground that the regulations do not empower the courts exercising jurisdiction under the Act to order specific performance of a maintenance agreement. (at p491)
10. The result is that the proceedings for the specific performance of the agreement taken in the Supreme Court do not constitute a matrimonial cause within s. 4(1) of the Act. This, in the light of the present incapacity of the Family Court to grant the relief sought by the respondent in the Supreme Court, is a satisfactory result. (at p492)
11. Accordingly, I would dismiss the appeal. (at p492)
MURPHY J. The Family Law Act 1975 has been recently amended in relation to the provisions which give the Family Court of Australia certain exclusive jurisdiction. Those amendments could not be taken into consideration on this appeal, which fell to be decided on the Act as it stood. (at p492)
2. For substantially the reasons of Mason J., I agree that the appeal should be dismissed. (at p492)
WILSON J. The marriage of the parties to this appeal was dissolved by decree
of the Family Court of Australia on 4 July 1978. On
10 July 1978 they executed
a deed setting out their agreement as to financial matters. Clause 11 of the
deed read as follows:
"Both parties agree that the agreement herein contained is aOn the same day, by order of the Family Court, the agreement contained in the deed was approved pursuant to s. 87 of the Family Law Act 1975 (Cth), as amended, prior to the enactment of Act No. 72 of 1983 ("the Act"). It thereupon became an effective agreement. It is sufficient to refer briefly to the provisions of cll. 4 and 10 of the deed. Clause 4 obliged the husband to provide a total sum of $50,000 to be expended in the purchase of income-producing real estate suitable for letting to tenants and to appoint the wife by power of attorney to be his agent for the letting and management of the property, she being entitled to enjoy the net profit from the letting during her lifetime or until her remarriage or until her entering into a de facto relationship. By cl. 10 the husband undertook, until the sum of $50,000 was invested pursuant to cl. 4, to pay to the wife a weekly amount of $81. The husband has not provided the investment referred to in cl. 4 and has made no payment under cl. 10 since 17 April 1979. On 10 January 1980 the wife applied to the Family Court for an order that cl. 4 of the deed be complied with within six weeks or such further time as the court might order. The court held that it had no jurisdiction to make the order sought. (at p493)
maintenance agreement for the purposes of Section 87 of the
Family Law Act and that is (sic) relates to the whole of the
financial matters between them personally and that it is
intended to operate in relation to such financial matters in
substitution for any rights of either of the parties under
Part VIII of the said Act including the right to seek a
revocation of the approval of this agreement except by the
consent of the parties."
2. On 21 December 1981 the wife instituted the present suit against the husband in the Equity Division of the Supreme Court of New South Wales. She sought a declaration that the provisions of the deed ought to be specifically performed. She also sought orders that the defendant provide $50,000 to be expended in accordance with the provisions of cl. 4 of the deed and pay all arrears of income under cl. 10 together with damages and interest. At first instance she succeeded, judgment being entered in her favour in the sum of $61,153.56 made up of arrears of payments under cl. 10, damages in respect of the husband's failure to comply with cl. 4 and interest. In addition it was ordered that the defendant comply with cl. 4 within three months. (at p493)
3. On appeal to the Court of Appeal the husband argued that the proceedings were a matrimonial cause within the meaning of the Act and therefore fell outside the jurisdiction of the Supreme Court. It is common ground that if the first limb of the argument is made out the second proposition follows as a matter of course. There can be no doubt that by virtue of ss. 8(1)(a), 39, 40(3) and the proclamation published pursuant to the last-mentioned provision on 27 May 1976 proceedings which fall within the definition of "matrimonial cause" in s. 4(1) of the Act cannot now be pursued in the Supreme Court. The Court of Appeal ruled against the husband, holding consistently with its earlier decision in Ellinas v. Ellinas (No. 2) (1979) 1 NSWLR 431; 37 FLR 435; 5 Fam LR 114; (1979) FLC 78,422 that the proceedings did not answer the definition of a matrimonial cause. This question now forms the sole issue in the present appeal. (at p493)
4. Before turning to the submissions of the appellant, it is necessary to
understand the provisions of the Act relating to a s.
87 agreement. Both that
section and s. 86 refer to a "maintenance agreement". That term is defined
very broadly in s. 4(1) of the
Act to mean -
"an agreement in writing made, whether before or after theIt will be noted that the subject-matter of the agreement need not be limited to financial matters and that there may be parties who are not parties to the marriage. (at p494)
commencement of this Act, between the parties to a marriage,
being an agreement that makes provision with respect to
financial matters, whether or not there are other parties to the
agreement and whether or not it also makes provision with
respect to other matters, and includes such an agreement that
varies an earlier maintenance agreement".
5. Section 86 provides that a maintenance agreement, other than one to which s. 87 applies, may be registered in any court having jurisdiction under the Act and thereupon the court may, in relation to that agreement, exercise any of the powers of variation conferred by s. 83 as if the agreement were an order of the court. (at p494)
6. So far as material, s. 87 provides:
"(1) Subject to this section, a maintenance agreement maySection 88 provides that a maintenance agreement that has been registered, or is deemed to have been registered, in a court may be enforced as if it were an order of that court. It therefore applies to both s. 86 and s. 87 agreements. Part XIII of the Act (ss. 105-112) is headed "Enforcement of Decrees". Section 106 authorizes regulations "for and in relation to the enforcement of decrees, made under this Act" including, inter alia, provision for conferring jurisdiction on the Family Court or on courts of the Territories or investing State courts with federal jurisdiction. Remedies currently available under the regulations to an aggrieved party to a maintenance agreement such as that under consideration in this case appear to be limited to garnishment, seizure of property and sequestration of the estate of a party (regs. 132(5), 134-136). There is, of course, no power in the court to vary the terms of a s. 87 agreement (save as provided in s. 87(9)) to meet changed circumstances. It is conceded for the appellant that the present regulations do not equip the Family Court to give the wife the relief she now seeks but it is argued that the power to make regulations is wide enough to enlarge the armoury of available remedies, certainly to secure specific performance through perhaps falling short of an award of damages. In this regard, it must be emphasized that a s. 87 agreement is not itself a decree or order made under the Act with the consequence that there is no direct correspondence between the range of remedies that might be appropriate in respect of such an agreement and the regulation-making power conferred by s. 106. (at p495)
make provision to the effect that the agreement shall operate, in
relation to the financial matters dealt with in the agreement, in
substitution for any rights of the parties to the agreement under
this Part.
(2) A maintenance agreement that makes provision as
mentioned in sub-section (1) does not have any effect unless it
has been approved by the court.
(3) If -
(a) a maintenance agreement makes provision as mentioned
in sub-section (1); and
(b) the agreement has been approved by the court and the
approval has not been revoked,
any order having effect under this Part or any order made
under Part VIII of the repealed Act and continued in effect by
virtue of paragraph 3(2)(c) ceases to have effect in so far as it
relates to the financial matters dealt with in the agreement and,
subject to sub-section (9), no court having jurisdiction under
this Act may make an order with respect to those financial
matters.
(4) In proceedings for the approval of a maintenance
agreement, if the court is satisfied that the provisions of the
agreement with respect to financial matters are proper, the
court shall, by order, approve the agreement, but, if the court is
not so satisfied, it shall, by order, refuse to approve the
agreement.
. . .
(6) A court may, by order, revoke the approval of a
maintenance agreement under this section if, and only if, the
agreement is registered or deemed to be registered in that court
and that court is satisfied that the approval was obtained by
fraud, that the concurrence of a party was obtained by fraud or
undue influence or that the parties to the agreement desire the
revocation of the approval and, where an approval is so
revoked, the agreement ceases to be in force.
(7) Where a court has approved a maintenance agreement,
the agreement shall be deemed to be registered in that court.
. . .
(9) Where the court is satisfied that the arrangements in a
maintenance agreement that has been approved by the court
relating to a child of the marriage who has not attained the age
of 18 years are no longer proper, it may make an order under
this Part.
(10) Nothing in this Act affects the operation of an
agreement
sanctioned under paragraph 87(1)(k) of the repealed Act
or the rights and obligations of a person under such an
agreement.
. . . ."
7. With respect to an agreement approved in accordance with s. 87, it will be
observed that with one important qualification it
bears a strong similarity to
its predecessor, namely, a maintenance
agreement sanctioned by the court under
s. 87(1)(k) of the Matrimonial
Causes Act 1959 (Cth), as amended. In Shaw v.
Shaw [1965] HCA 39; (1965) 113 CLR 545, at p 549 , Barwick C.J. described the operation
of
that Act
in relation to such an agreement as follows:
"The agreement which s. 87(1)(k) contemplates is anThe important qualification is provided by s. 88, enabling a registered agreement to be enforced as if it were an order of the court. (at p496)
agreement
to accept the agreed benefits in lieu of rights under an
existing order . . . 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."
8. I turn now to consider the submissions advanced for the appellant. The
primary submission is that the wife's claim falls within
par. (f) of the
definition of "matrimonial cause" in s. 4(1) of the Act. Lest that submission
should fail, subsidiary arguments are
advanced directed to attracting the
application of certain other paragraphs of the definition. It is convenient to
set out the provision
in its entirety. It reads as follows:
"'matrimonial cause' means -respect
(a) proceedings between the parties to a marriage for a
decree of -
(i) dissolution of marriage; or
(ii) nullity of marriage;
(b) proceedings for a declaration as to the validity of a
marriage or of the dissolution or annulment of a
marriage by decree or otherwise;
(c) proceedings between the parties to a marriage with
respect to -
(i) the maintenance of one of the parties to the
marriage; or
(ii) the custody, guardianship or maintenance of, or
access to, a child of the marriage;
(ca) proceedings between the parties to a marriage with
respect to the property of the parties to the marriage or
of either of them, being proceedings in relation to
concurrent, pending or completed proceedings for
principal relief between those parties;
(cb) proceedings by or on behalf of a child of a marriage
against one or both of the parties to the marriage with
respect to the maintenance of the child;
(d) proceedings between the parties to a marriage for the
approval by a court of a maintenance agreement or for
the revocation of such an approval or for the registration
of a maintenance agreement;
(e) proceedings between the parties to a marriage for an
order or injunction in circumstances arising out of the
marital relationship; or
(f) any other proceedings (including proceedings with
to the enforcement of a decree or the service ofMr. Bennett, for the appellant, submits that the proceedings fall within par. (f) because they are proceedings in relation to completed proceedings of a kind referred to in par. (d) of the definition, or alternatively in par. (c)(i) or par. (ca). He expressly disclaims any direct reliance on the words appearing in the parenthesis in par. (f), thereby distancing his submission from the opinion expressed by the Family Court (Evatt C.J., Ellis S.J. and Baker J.) in In the Marriage of Carew (1979) 37 FLR 452; 5 Fam LR 513; (1979) FLC 78, 721 . In their reasons for judgment in that case, their Honours said (1979) 37 FLR, at p 455; 5 FamLR, at p 516; (1979) FLC, at p 78,724 :
process) in relation to concurrent, pending or completed
proceedings of a kind referred to in any of paragraphs (a)
to (e), including proceedings of such a kind pending at,
or completed before, the commencement of this Act."
"Section 88 provides expressly for the enforcement of aOpinions to a contrary effect have been expressed in a number of cases in the Supreme Courts of New South Wales and Queensland: Ellinas v. Ellinas; Re Masterton (1978) 37 FLR 75; 4 Fam LR 660 ; Noble v. Noble (1983) 48 ALR 157; 9 Fam LR 55; (1983) FLC 78, 293 ; cf. also In re Stehbens (1982) 40 ALR 420; 8 Fam LR 91; (1982) FLC 77,243 . Although the appellant does not rely directly on these words, it is desirable that I form a view on the point because if the opinion expressed in In the Marriage of Carew is correct then it may help to lay the ground for finding the necessary relation between the present proceedings and the completed proceedings of a kind referred to in the earlier paragraphs of the definition. With respect to their Honours, I am unable to see how proceedings which are directed to the enforcement of the terms of an approved agreement can be said to be proceedings with respect to the enforcement of a decree. The only relevant order which the court is empowered to make in relation to a s. 87 agreement is an order approving the agreement. Where such an order is made, the agreement shall be deemed to be registered in the court and then may be enforced as if it were an order of the court. It seems to me that the clear effect of s. 88 is that the agreement is likened to an order of the court for the purpose of attracting the provisions of the Act which deal with the enforcement of orders of the court. What it plainly does not do is to deem the agreement to be an order of the court. It follows that, in my opinion, the present proceedings are not proceedings with respect to the enforcement of a decree. (at p498)
maintenance agreement that has been registered or is deemed to
have been registered 'as if it were an order of that court'. Unless
there is some inconsistency with any other provision or
principle of the Act, the words in para. (f) of the definition of
matrimonial cause - 'proceedings with respect to the
enforcement
of a decree' ought to be read as including the enforcement
of a maintenance agreement. No such inconsistency is
apparent."
9. Nevertheless this conclusion does not advance the case against the appellant very far. The issue is whether the present proceedings, however they be described, are in relation to the completed proceedings wherein the agreement was approved. Mr. Bennett argues for an affirmative answer to that issue. He submits that the words "in relation to" are words of wide import and there is no reason to construe them restrictively in this case. I readily accept the first limb of that proposition. I have more difficulty with the second. I do not think the words oblige me to strive to find a connexion, however tenuous and illogical, particularly when the conclusion would be in conflict with the legislative intent which appears from other provisions of the Act. As I shall endeavour to show later in these reasons, there are provisions of the Act which clearly distinguish between matrimonial causes and enforcement proceedings and raise the question whether enforcement proceedings were ever intended to be capable of constituting a matrimonial cause. However, I direct my attention first to the construction of the definition of matrimonial cause and Mr. Bennett's submissions in that regard. I do not think that proceedings directed to the enforcement of a s. 87 agreement (assuming the present proceedings do satisfy that description) bear any relation to the proceedings for the approval of the agreement. Those proceedings focus on the fact of approval. Once the approval is given, s. 87(3) takes effect. Unless and until the approval is revoked, no court having jurisdiction under the Act may make any order with respect to those financial matters which are dealt with in the agreement. Save for the one exception referred to in the sub-section - which is contained in s. 87(9) - s. 87(3) is tantamount to a clear declaration that there can be no further proceedings under the Act in relation to the financial matters contained in the approved agreement. In this respect the agreement is analogous to the agreement which was dealt with in Shaw v. Shaw. Section 87(9) provides the one exception to that state of affairs. Where the court is satisfied that the arrangements made in the agreement relating to a child of the marriage who has not attained the age of eighteen years are no longer proper, it may make an order under Pt VIII. Proceedings brought with respect to such a child would clearly constitute a matrimonial cause because they would be proceedings in relation to the completed proceedings wherein the agreement was approved. They may at the same time be a matrimonial cause by reason of par. (c)(ii), being proceedings between the parties to a marriage with respect to the maintenance of a child of the marriage but the possibility of overlap between the paragraphs which define a matrimonial cause is not to the point. Proceedings to enforce a registered agreement fall within the jurisdiction of the Family Court because of the express operation of s. 31(1)(d) and s. 88. The distinction is, of course, highly significant because the jurisdiction of the Family Court is exclusive of that of the Supreme Courts only in respect of matrimonial causes: see the terms of the proclamation published pursuant to s. 40(3) on 1 June 1976. (at p499)
10. For these reasons, I reject the appellant's primary submission that the wife's proceeding satisfies the description of "any other proceedings . . . in relation to . . . completed proceedings" for the approval of a maintenance agreement (pars. (f) and (d)). As I have mentioned, Mr. Bennett advances further arguments in support of a finding that the proceeding constituted a matrimonial cause. The first is that it falls within pars. (f) and (c)(i), being proceedings in relation to completed proceedings with respect to the maintenance of one of the parties to the marriage; the second is that it falls within pars. (f) and (ca), being proceedings in relation to completed proceedings with respect to the property of the parties or either of them. It seems to me that each of these arguments must fail for the same reason that prevents my acceptance of the primary submission. If either of these formulations is an accurate description of the present proceeding then s. 87(3) expressly denies the jurisdiction of the Family Court to deal with them. The effect of a s. 87 agreement being approved is to remove from the jurisdiction of the Family Court any power to make an order with respect to the financial matters dealt with in the agreement. This is not to deny the jurisdiction of the court to enforce the agreement so far as the regulations permit it to do so. It simply denies to such a proceeding the character of a matrimonial cause. (at p499)
11. In a final effort to bring the wife's proceeding within the definition of "matrimonial cause", Mr. Bennett submits that it falls within par. (e), as being "proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship". It is neither necessary nor helpful to attempt any abstract definition of the limits of this paragraph. If such a definition were attempted there may well be difficulty in drawing the line but a solution will often be found in a particular case by recalling "the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night": per Lord Simonds L.C., in Chapman v. Chapman [1954] UKHL 1; (1954) AC 429, at pp 445-446 . It is sufficient for me to express the opinion that on no reasonable construction of the paragraph could it be said that the wife's claims focus on circumstances arising out of the marital relationship. The marriage was dissolved in 1978 and the financial relationships of the parties were finally determined by the approved agreement. The husband's failure to respect his obligations under the agreement has nothing whatever to do with the marital relationship. (at p500)
12. For these reasons I conclude that the appeal must fail. However, having regard to s. 15AA of the Acts Interpretation Act 1901 (Cth), as amended, I wish to make some general observations on the apparent objects of the Act with respect to the exercise of jurisdiction under it. I emphasize that the sole issue in the present case is whether the Supreme Court of New South Wales has jurisdiction to entertain the wife's claims. The jurisdiction of the Family Court to enforce a registered maintenance agreement in accordance with the Act and regulations has never been denied, either in the present case or, so far as I am aware, in any of the Supreme Court cases in which the problem of the jurisdiction of Supreme Courts has arisen. What I have described as the sole issue falls to be determined by reference to the question whether those claims constituted a matrimonial cause. If they do, then the jurisdiction of the Family Court is exclusive. If they do not, then, if and so far as they constitute proceedings to enforce the agreement pursuant to the Act, the Family Court has jurisdiction but not a jurisdiction exclusive of that which remains invested in Supreme Courts and courts of summary jurisdiction pursuant to s. 39(5) and s. 39(6) of the Act. (at p500)
13. Mr. Bennett opened his argument for the appellant with the submission
that, save for the specific power with respect to contempt
conferred by s. 35
of the Act, no powers are given to the Family Court by the Act which are not
encompassed by the definition of
matrimonial cause. A similar view would seem
to be implied in a passage of the reasons for judgment of the Family Court in
In the
Marriage of Carew (1979) 37 FLR 452, at p 456; 5 Fam LR 513, at p 517;
(1979) FLC, at pp. 78, 724-78, 725. where their Honours find
a relation
between enforcement proceedings and proceedings for the approval of a s. 87
agreement. Their Honours say:
"The words in sec. 88 'or is deemed to have been registered'With all respect, I do not think that Mr. Bennett's submission will withstand even a brief scrutiny of the Act. Section 31(1) describes the jurisdiction of the Family Court in terms which distinguish between "matrimonial causes instituted or continued under this Act" (par. (a)), and "matters in which jurisdiction is conferred on it by a law made by the Parliament" (par. (d)). The words last quoted are clearly apt to refer to any law of the Parliament, including the Act. The distinction is then developed in Pt V of the Act which, curiously as will appear, is headed "Jurisdiction in Matrimonial Causes". Section 39(5) reads as follows:
have no meaning except in relation to sec. 87(7). Unless
agreements deemed to have been registered under subsec. (7)
can be enforced under sec. 88 those words are meaningless. It
would be contrary to the express intention of the legislature to
hold that proceedings for the enforcement of an approved
maintenance agreement are not a matrimonial cause. Such
proceedings should be regarded both as proceedings with
respect to the enforcement of a decree, and as proceedings in
relation to completed proceedings (i.e. the proceedings for the
approval of the agreement). They are, therefore, a matrimonial
cause in respect of which the Family Court may exercise
jurisdiction."
"Subject to this Part, the Supreme Court of each State isSection 39(6) invests the courts of summary jurisdiction of each State with federal jurisdiction in respect of the same collocation of matters as is described in s. 39(5). Section 39(7) empowers the Governor-General, by proclamation, to extinguish the jurisdiction of courts of summary jurisdiction but, as I understand the position, this power has not been exercised save with respect to the metropolitan area of Perth in Western Australia. Section 40(3) relates to the jurisdiction which is invested in Supreme Courts by s. 39(5) and is of great significance to the present topic. It reads as follows:
invested with federal jurisdiction, and jurisdiction is conferred
on the Family Court and on the Supreme Court of each
Territory, to hear and
determine
(a) matrimonial causes instituted under this Act;
(b) matrimonial causes continued in accordance with
section 9; and
(c) proceedings instituted under regulations made for the
purposes of section 106, 109, 110 or 111."
"The Governor-General may, by Proclamation, fix a date as
the date on and after which proceedings under this Act may not
be instituted in or transferred to the Supreme Court of a State
or Territory specified in the Proclamation, or may be so
instituted or transferred only where specified conditions are
complied with, and such a Proclamation may be expressed to
apply only to proceedings of specified classes and may be
expressed to apply only to the institution of proceedings in, or
the transfer of proceedings to, a particular Registry or
Registries of a Supreme Court referred to in the Proclamation." (at p502)
14. It will be observed that the sections of the Act which are referred to in
s. 39(5) and s. 39(6) are contained in Pt XIII of
the Act, that Part which
deals with the enforcement of decrees made under the Act. It seems to me that
the clear intention of the
legislature - indeed, the only possible intention -
was to draw a distinction between matrimonial causes instituted or continued
under the Act and proceedings for the enforcement of decrees. This distinction
was then observed by the Governor-General in making
the proclamation to which
I have referred. That proclamation leaves intact the invested federal
jurisdiction of Supreme Courts with
respect to the matters categorized in
pars. (b) and (c) of s. 39(5). Nor does it assist Mr. Bennett's case if, as he
suggested, par.
(a) of s. 39(5) be confined to matrimonial causes instituted
under the Act itself, as distinct from proceedings for the enforcement
of
decrees (on his argument, themselves constituting matrimonial causes)
instituted under the regulations. The argument is then confronted
with the
difficulty that if a distinction is to be drawn between proceedings under the
Act and proceedings under the regulations,
s. 40(3) only allows the
Governor-General to terminate the jurisdiction of Supreme Courts with respect
to proceedings "under this
Act". In any event, the proclamation itself is
clearly confined to matters referred to in par. (a) of s. 39(5). (at p502)
15. It is unnecessary here to consider whether any problem of construction of the proclamation arises from the fact that shortly before its publication the definition of "matrimonial cause" in s. 4(1) was amended by re-wording par. (c) and adding two new paragraphs, namely, pars. (ca) and (cb). (at p502)
16. It remains to say that the discernment of a legislative intent to allow proceedings for the enforcement of decrees and proceedings for the enforcement of a maintenance agreement to continue to be taken as may be convenient to the aggrieved party in either the Supreme Courts or the Family Court is entirely congruent with the overall objectives of the legislation. There is both a substantial and a logical distinction between those proceedings which allow for the hearing and determination of those issues which divide the parties and which culminate in the making of a decree or order and those proceedings which seek an enforcement of the decree or order so made. The latter proceedings are concerned only with matters which arise after the resolution of the matrimonial causes which have divided the parties. They are concerned with the default of one of the parties in circumstances which ordinarily have nothing to do with the marital relationship. It is a concern of the Act where a marriage has ceased to subsist to bring the financial relationships of the parties to finality as soon as practicable (s. 81). The law governing a s. 87 type of agreement under the Matrimonial Causes Act is not irrelevant. It was recognized (Shaw v. Shaw [1965] HCA 39; (1965) 113 CLR 545 ) that the enforcement of such an agreement fell altogether outside the matrimonial causes jurisdiction. Once such an agreement was sanctioned by the court, the parties were free, and indeed obliged, to pursue their rights and fulfil their obligations under that agreement in accordance with the general law of contract. The present Act builds on that history by providing in s. 88 that a registered agreement may be enforced as if it were an order of the court. This provision should be seen as enlarging the remedies available to an aggrieved party to such an agreement. There is nothing in the Act to confine the aggrieved party to those remedies which the Act offers, whether by recourse to the Family Court or to a court exercising invested federal jurisdiction. Certainly, so far as those remedies are concerned, the provisions of s. 106(1)(a) define the power to make regulations relating to the enforcement of decrees in terms which recognize the possible merit of investing State courts with federal jurisdiction. But the issue is not confined to the question of remedies provided under the Act. Having regard to the breadth of the definition of "maintenance agreement", permitting a wide range of subject-matter and parties to fall within the concept, the necessity of allowing the whole range of common law and statutory remedies available to a litigant in the superior courts of common law and equity is imperative. In my respectful opinion, the Act wisely allows it. (at p503)
17. Apart from these considerations, there may be another aspect of the problem which would have warranted some attention by the parties. The claim by the wife for moneys due in respect of the husband's failure to comply with cl. 10 of the agreement could well be described as proceedings to enforce the agreement. But could the same description be applied to her other claims, in particular the claim for damages for breach of contract? It would seem to me to be arguable that, to the extent that the proceedings instituted in the Supreme Court cannot accurately be described as proceedings to enforce the agreement, the provisions of the Act have nothing whatever to do with them. In that case and to that extent the court would not be exercising a federal jurisdiction which it possesses concurrently with the Family Court. It would be exercising its own State jurisdiction. It is unnecessary to pursue the question. (at p504)
18. I return now to the question, to which I alluded earlier, of conflict between the legislative intent evidenced in the provisions of Pt V of the Act and the inclusion of the words in parenthesis in par. (f) of the definition of "matrimonial cause". One assumes that ordinarily a decree is made in the course of proceedings which fall within one or other of the categories described in pars. (a) to (e) inclusive of the definition. If this is so, then proceedings for the enforcement of the decree will ordinarily exhibit the necessary relationship to concurrent, pending or completed proceedings of a kind referred to in one or other of those paragraphs and therefore constitute a "matrimonial cause". The result would appear to be that, if it were not for the express inclusion in par. (f) of the words in parenthesis, the proper construction of par. (f) would necessarily exclude from it proceedings for the enforcement of a decree in order to maintain consistency with and give effect to the distinction which is drawn in Pt V of the Act. However, the words in parenthesis are there. Happily, I do not have to resolve the problem because, as I have said, the present proceedings even when put at their highest in favour of the appellant are not proceedings for the enforcement of a decree. The most that the appellant can say is that they are "proceedings instituted under regulations made for the purposes of section 106". If he is right, then the Supreme Court retains invested federal jurisdiction pursuant to s. 39(5)(c) to deal with them. (at p504)
19. I would dismiss the appeal. (at p504)
BRENNAN J. I would dismiss the appeal. I agree with the reasons of my brother Deane. (at p504)
DEANE J. The question raised by this appeal is one of construction. It is whether, upon the proper construction of its provisions, the Family Law Act 1975 (Cth) ("the Act") has deprived the Supreme Court of New South Wales of jurisdiction to make the orders which it has purportedly made for the enforcement of a maintenance agreement ("the agreement") between the appellant and the respondent who were formerly husband and wife. The agreement contained a provision (cl. 11) to the effect that it was intended to operate, in relation to "the whole of the financial matters between" the parties personally, in substitution for any rights of either of the parties under Pt VIII of the Act. That being so, it had no effect unless it was approved by the Family Court (the Act, s. 87(2)). Proceedings were brought in the Family Court for the approval of the agreement and it was duly approved. Upon such approval, the provisions of s. 87(2) ceased to apply to deprive the agreement of any effect. Under s. 88 of the Act, the agreement could thereafter be enforced "as if it were an order of" the Family Court. (at p505)
2. If the proceedings in the Supreme Court come within the definition of a "matrimonial cause" contained in s. 4 of the Act, it is plain that the Supreme Court lacked jurisdiction to make the orders which it purported to make. The reason is that the effect of a 1976 Proclamation made pursuant to s. 40(3) of the Act is that, subject to certain exceptions which are not presently relevant, proceedings of a kind referred to in pars. (a), (b), (c), (d), (e) or (f) of that definition "may not be instituted in or transferred to the Supreme Courts of the States of New South Wales, Victoria, Queensland, South Australia and Tasmania and of the Australian Capital Territory and Norfolk Island". The primary argument advanced on behalf of the appellant is that the Supreme Court proceedings were of a kind referred to in par. (f) of that definition which includes, in a "matrimonial cause", "proceedings (including proceedings with respect to the enforcement of a decree . . .) in relation to . . . completed proceedings of a kind referred to in paragraphs (a) to (e)" of the definition. It is said that the Supreme Court proceedings were proceedings "in relation to" completed proceedings of a kind referred to in par. (d) which includes, in the proceedings to which it refers, proceedings "for the approval by a Court of a maintenance agreement". Plainly, the completed proceedings in the Family Court answered that description. The question which arises is whether the proceedings in the Supreme Court for the enforcement of the approved agreement can, for relevant purposes, properly be characterized as proceedings "in relation to" those completed Family Court proceedings. In my view, they cannot. (at p505)
3. The approval of a s. 87(1) agreement by the Family Court has a threefold effect: (i) the bar to enforcement contained in s. 87(2) is lifted; (ii) any order under Pt VIII of the Act ceases to have effect in so far as it relates to the financial matters dealt with in the agreement and no court having jurisdiction under the Act may make an order with respect to those financial matters (the Act, s. 87(3)); and (iii) the approved agreement becomes enforceable "as if it were an order" of the Family Court. There is obviously a relationship between the actual approval by the Family Court of a s. 87(1) agreement and proceedings for the enforcement of such an agreement in that the enforcement proceedings must fail unless the approval has been obtained. In that sense, there is some relationship between the proceedings for the approval of such an agreement and proceedings for enforcement of it: the latter cannot succeed unless and until the former have reached the stage where the requisite approval has been obtained. The approved agreement is not however made or deemed to be an order of the Family Court and proceedings in the Supreme Court to enforce it are not proceedings to enforce either an order or deemed order of the Family Court. They are proceedings to enforce the agreement which has ceased to be subjected to statutory unenforceability. (at p506)
4. The Supreme Court proceedings can properly be characterized as proceedings in relation to the maintenance agreement itself or as proceedings in relation to the approved maintenance agreement. If a genuine issue or dispute had arisen in the Supreme Court proceedings about the existence or validity or effect of the Family Court's approval of the agreement or about any aspect of or step involved in the Family Court proceedings in which such approval was obtained, there would be strong grounds for arguing that the Supreme Court proceedings could also properly be described as proceedings "in relation to" the completed proceedings for approval of the agreement. It is not, however, suggested that any such issue or question arose in the Supreme Court proceedings in the present case. As has been mentioned, the fact that the maintenance agreement had been approved was a condition precedent of its enforceability in the Supreme Court proceedings. In circumstances where it was common ground that such approval had been obtained, however, the proceedings in the Supreme Court cannot properly be characterized as proceedings in relation to the proceedings in which such approval had been obtained. It follows that the argument that the proceedings in the Supreme Court came within par. (f) of the definition of "matrimonial cause" in that they were proceedings "in relation to" completed proceedings for the approval of a maintenance agreement must be rejected. (at p506)
5. It was not argued on behalf of the appellant that the proceedings in the Supreme Court were a "matrimonial cause" in that they were, within the words in parenthesis in par. (f) of the definition, proceedings "with respect to the enforcement of a decree" of the Family Court: cf. In the Marriage of Carew (1979) 37 FLR 452, at pp 454-456; 5 Fam LR 513, at pp 515-517; (1979) F .L.C. 78,721, at pp. 78,723-78,724. . It should, however, be apparent from the foregoing that any such argument must, in my view, be rejected. There is nothing in the Act which has the effect of making an approved s. 87(1) agreement either a decree or a deemed decree of the Family Court. In that regard, the provisions of s. 88 of the Act to the effect that such an approved agreement may be enforced "as if it were" an order of the Family Court underline, rather than undermine, the fact that it is not such an order. (at p507)
6. The appellant also sought to justify a conclusion that the proceedings in the Supreme Court were of a kind referred to in one or other of the relevant paragraphs of the definition of "matrimonial cause" by a number of subsidiary arguments. Thus, it was said that the proceedings in the Supreme Court were proceedings "in relation to" completed "proceedings . . . with respect to . . . the maintenance of one of the parties to the marriage" (pars. (f) and (c)(i) of the definition) or proceedings "in relation to" completed "proceedings . . . with respect to the property of the parties to the marriage or of either of them" (pars. (f) and (ca)). The reasoning which leads me to reject the appellant's primary argument leads me also to reject these subsidiary arguments. The conclusion that the proceedings in the Supreme Court cannot properly be characterized as proceedings "in relation to" the completed proceedings in the Family Court destroys the link between the Supreme Court proceedings and the Family Court proceedings which is necessary to bring the Supreme Court proceedings within par. (f) of the definition, regardless of which of the other paragraphs of the definition are said to include the Family Court proceedings. Nor am I able to accept the argument, advanced on behalf of the appellant, that the Supreme Court proceedings came within par. (e) of the definition of "matrimonial cause" in that they were proceedings "for an order or injunction in circumstances arising out of the marital relationship". The agreement itself may properly be regarded as "arising out of the marital relationship". In my view, however, the Supreme Court proceedings for the enforcement of that completed and approved agreement cannot properly be regarded as so arising. (at p507)
7. Finally, it was argued that the proceedings in the Supreme Court for the enforcement of the maintenance agreement were of the kind referred to in pars. (c)(i) and (ca) of the definition in that they were proceedings with respect to "the maintenance of one of the parties to the marriage" (par. (c)(i)) and proceedings . . . with respect to the property of the parties to the marriage or of either of them" (par. (ca)). If the argument that the Supreme Court proceedings were within par. (ca) were to be accepted, it would be of no avail to the appellant since the 1976 Proclamation does not exclude proceedings of the kind referred to in that paragraph from the jurisdiction of the Supreme Court. The Supreme Court proceedings cannot, however, properly be characterized as being of the kind referred to in either par. (c) or par. (ca). They were proceedings for the enforcement of an agreement between the parties in which the Supreme Court was not concerned either with the maintenance of, or the property owned by, either party. (at p508)
8. The appeal should be dismissed. (at p508)
DAWSON J. The facts which raise the question of construction in this case and the relevant statutory provisions are set out elsewhere and I shall not repeat them. (at p508)
2. The question is whether the Supreme Court of New South Wales had jurisdiction to make orders, as it did, for the specific performance of a deed and for damages for breach of its terms. The point is one of construction for it is to be determined by reference to the provisions of the Family Law Act 1975 (Cth). (at p508)
3. The deed, which was made between the parties to a marriage which was dissolved, made provision for financial matters and was approved pursuant to s. 87 of the Family Law Act. It constituted a maintenance agreement within the definition in s. 4 of the Act. The effect of approval was that it was deemed to be registered in the Family Court (s. 87(7)) and might be enforced as if it were an order of that Court (s. 88). The Act did not, however, make the agreement an order of the court and, as will be seen, that distinction is important. The means of enforcement of decrees made under the Family Law Act, which by definition include orders, are those provided by regulation and do not include damages or specific enforcement. Nevertheless, if the proceedings in the Supreme Court of New South Wales constituted a matrimonial cause, that Court did not have jurisdiction to make the orders which it did. This is because s. 8 of the Family Law Act provides that proceedings by way of a matrimonial cause shall not be instituted or continued except under that Act. Section 39(1) provides that a matrimonial cause under the Act may be instituted in the Family Court or the Supreme Court of a State or a Territory, but that section is subject to s. 40(3) under which the Governor-General may, by proclamation, fix a date as the date on and after which proceedings under the Act may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the proclamation. A proclamation dated 27 May 1976 fixed 1 June 1976 as the date on and after which (subject to exceptions not presently material) matrimonial causes might not be instituted in or transferred to, amongst others, the Supreme Court of New South Wales. Section 40(4) provides that the Supreme Court of a State or Territory shall not hear and determine proceedings under the Act instituted in or transferred to that Court otherwise than in accordance with any proclamation in force under sub-s. (3). (at p508)
4. The appellant's main submission was that the proceedings in the Supreme
Court were proceedings in relation to completed proceedings
between the
parties to a marriage for the approval by a court of a maintenance agreement.
This, it was said, brought the proceedings
within par. (f) of the definition
of matrimonial cause which, so far as is relevant, reads:
"any other proceedings (including proceedings with respect toThere can be no question that the proceedings for the approval of the deed were proceedings between the parties to a marriage for the approval by a court of a maintenance agreement within the meaning of par. (d) of the definition of matrimonial cause and were completed proceedings. The real question is, however, whether the proceedings in the Supreme Court for damages and specific performance were in relation to the proceedings in the Family Court for the approval of the deed. In my view they were not. The proceedings in the Supreme Court had, at the most, a remote and indirect connexion with the proceedings for the approval of the deed and, even giving the widest meaning to the words "in relation to", it is not possible to discern any relationship between the two sets of proceedings. Sections 87 and 88 of the Act provide for the effect of approval of a maintenance agreement, such as the deed in question, which is entered into in substitution for rights under the Act. Sub-section (2) of s. 87 deprives such an agreement of any effect unless it is approved and sub-s. (3) provides that previous orders relating to the financial matters dealt with by the agreement shall cease to have effect. The same sub-section provides that, subject to one exception, no court having jurisdiction under the Act may make an order with respect to those financial matters. As I have said, s. 88 provides for the enforcement of the agreement as if it were the order of a court, in this case the Family Court. But once approval is given to a maintenance agreement under s. 87, the agreement is dependent upon its own terms for its efficacy and proceedings for the enforcement of those terms are a matter of contract, unrelated to the proceedings for approval. In so far as the Family Court in In the Marriage of Carew (1979) 37 FLR 452; 5 Fam LR 513; (1979) FLC decided the contrary, the decision cannot in my view be regarded as correct: cf. Ellinas v. Ellinas (1979) 1 NSW LR 431; 37 FLR 435; 5 Fam LR 114; (1979) FLC 78, 422 ; Noble v. Noble (1983) 48 ALR 157;9 Fam LR 55;(1983) FLC 78,293 (at p509)
the enforcement of a decree . . . ) in relation to . . . completed
proceedings of a kind referred to in any of paragraphs (a) to (e)".
5. That is enough to dispose of the first submission, but I should add at this point that in my view it would be erroneous to regard the proceedings in the Supreme Court as proceedings with respect to the enforcement of a decree within the meaning of par. (f) of the definition of matrimonial cause or otherwise. In this respect also, the decision in In the Marriage of Carew cannot be regarded as correct. True it is that s. 88 of the Act makes an agreement approved by a court under s. 87 (and thus deemed to be registered in that court) enforceable as if it were an order of the court. But that is merely to make available the remedies open in that court; it does not make the agreement a decree of the court and does not make proceedings for the enforcement of a maintenance agreement approved under s. 87 a matrimonial cause or proceedings with respect to the enforcement of a decree. There are methods of enforcement of decrees provided by regulations, made under s. 106 of the Act, but they do not include specific performance and do not, and perhaps could not, include damages. (at p510)
6. Even if the remedies which are available under the regulations were appropriate and were sought, the proceedings in which they were sought would not be a matrimonial cause within the meaning of par. (f) of the definition for the same reason as the proceedings in the Supreme Court were not. That does not mean that the Family Court would not in those circumstances have jurisdiction to entertain such proceedings; its jurisdiction is not limited to matrimonial causes and extends to matters in which jurisdiction is conferred on it by a law made by the Parliament: see s. 31(1)(d). But a clear distinction is drawn in the Act between matrimonial causes and other proceedings (see s. 39) and that distinction is observed in the proclamation excluding the Supreme Court from hearing and determining proceedings under the Act by limiting the exclusion to matrimonial causes. (at p510)
7. The appellant made a number of subsidiary submissions in the alternative in an effort to bring the proceedings in the Supreme Court within the definition of a matrimonial cause. He argued that the proceedings in the Supreme Court were proceedings in relation to completed proceedings with respect to the maintenance of one of the parties to the marriage, or with respect to the property of the parties to the marriage, or either of them. Alternatively, he argued that the proceedings were themselves proceedings with respect to the maintenance of one of the parties to the marriage, or with respect to the property of the parties to the marriage, or either of them. This was an attempt to invoke pars. (c)(i) and (ca) of the definition of matrimonial cause either in conjunction with par. (f) or independently. (at p510)
8. Some difficulty is encountered in relation to (ca) which is a new paragraph, inserted by amendment, which extracts part of the original par. (c) and reshapes it apparently in the light of the decision of this Court in Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495 . The difficulty is that the proclamation, having been made before the amendment, refers only to par. (c). However, it is unnecessary for the purposes of this case to resolve that difficulty and it can be assumed without deciding that in some way the proclamation includes par. (ca) as well as par. (c). For it is clear in my view that the proceedings in the Supreme Court were neither in relation to the maintenance of one of the parties to the marriage nor in relation to proceedings with respect to the property of the parties to the marriage, nor were they themselves proceedings of those descriptions. They were proceedings for the enforcement of a contract and for damages for its breach. The scheme of ss. 87 and 88 of the Act is to enable parties to enter into an agreement in substitution for rights under the Act, including any claim to property and any claim to maintenance, and upon the agreement being approved by a court the parties are confined to their contractual rights. The jurisdiction of the court is ousted in relation to the financial matters dealt with by the agreement: cf. Shaw v. Shaw [1965] HCA 39; (1965) 113 CLR 545 . That does not, of course, mean that any jurisdiction which the court possesses to enforce the agreement is excluded by the Act, as s. 88 makes clear. But if the appellant's contention were correct that the present proceedings are proceedings with respect to, or in relation to completed proceedings with respect to, the maintenance of one of the parties to the marriage or the property of the parties to the marriage or either of them, the anomalous result would seem to follow that any order in these proceedings must be with respect to the financial matters dealt with in the agreement and the jurisdiction of the Family Court to make such an order would be excluded by s. 87(3) of the Act. That of itself is, I think, an indication that it was not intended that proceedings to enforce an agreement approved under s. 87 should constitute a matrimonial cause. (at p511)
9. It was also submitted that the proceedings in the Supreme Court were proceedings for an order in circumstances arising out of the marital relationship within the meaning of par. (c) of the definition of matrimonial cause and for that reason excluded by the proclamation from the jurisdiction of that Court. Clearly, that submission cannot be sustained. The proceedings arose out of a contractual relationship entered into after the marital relationship had been concluded by the dissolution of the marriage. The dissolution of the marriage was the occasion for the contract but the circumstances in which relief was sought arose out of the contract and its breach and not the marital relationship. (at p512)
10. I would dismiss the appeal. (at p512)
ORDER
Appeal dismissed with costs.