Dougherty v Dougherty

In proceedings with respect to the property of the parties to a marriage or either of them [to] make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.

The expression "child of the marriage" is apt to refer to the issue of a marriage, regardless of the age of such issue. It seems to have been so used consistently in the Act, with express provision being made in the relevant sections when the provisions thereof are not intended to apply to, or in relation to, a child over the age of eighteen years: see, e.g., ss. 60, 61, 62, 62A, 63, 70A, 70B, 72, 73, 75, 76, 87 and 110. In sub-s. (8) of s. 70A, there is express provision that in that section, "child" means a person who has not attained the age of eighteen years. There thus arises a necessary inference that the same expression when used in s. 79, without limitation to children under the age of eighteen years, includes an adult who is the issue of a marriage. That inference is reinforced by the terms of s. 79(4) which requires the Court to take into consideration "the financial contribution made directly or indirectly by or on behalf of a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them ".

Accordingly, in my view, s. 79 empowers the Family Court in proceedings with respect to the property of the parties to a marriage or either of them, to alter property interests in favour of an adult child. An adult child who has been granted leave to intervene in such proceedings may invoke the power so conferred. It remains to be considered whether, so construed, s. 79 is a valid exercise of the legislative power of the Commonwealth.

The powers conferred by s. 79 upon the Family Court are powers which may only be exercised in proceedings with respect to the property of the parties to a marriage or either of them. Section 79 itself provides no foundation for the institution of such proceedings. The foundation lies in a matrimonial cause instituted or continued under the Act (s. 31(1)(a)) which constitutes a proceeding with respect to the property of the parties to a marriage or either of them. Jurisdiction may validly be conferred upon the Family Court to entertain such proceedings where the proceeding arises out of the marital relationship: Russell v. Russell [20] . So too, power to alter the property rights of parties to a marriage may validly be conferred upon the Family Court where the power is invoked and exercised by reference to matters arising out of the marital relationship: Fisher v. Fisher [21] .

1. (1976) 134 C.L.R. 495, at pp. 510, 511, 524, 525, 528, 541-542, 552-553. 2. (1986) 161 C.L.R. 438, at pp. 445-446, 452, 456, 461.

Although s. 79 does not expressly limit the invocation and exercise of the power thereby conferred by reference to matters arising out of the marital relationship, it is clear that the section is relevantly so confined when it is invoked by a party to the marriage by the institution of proceedings (constituting a matrimonial cause) with respect to their property. A proceeding falling within par. (ca) of the definition of "matrimonial cause" must satisfy the limitation that it arises either out of the marital relationship, or one of the other two limitations therein specified. So too, a proceeding with respect to such proceeding falling within par. (f) of the definition is relevantly confined by the limitations in par. (ca). These aside, the only other proceedings which may constitute a matrimonial cause as defined in the Act (which may also constitute proceedings between the parties to a marriage with respect to the property of the parties to a marriage or either of them) are those falling within par. (e) of the definition being "proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ".

As s. 79 provides no criterion for differentiating as between parties to a marriage and children of a marriage in relation to the invocation and exercise of the power thereby conferred upon the Family Court, the power must be construed in its operation in relation to a child of the marriage as similarly confined by reference to matters arising out of the marital relationship.

The marital relationship extends to the relationship of the parties to a marriage with the children of that marriage. In Attorney-General (Vict.) v. The Commonwealth [22] , Menzies J. regarded as within the marriage power laws which "relate to the effect of marriage upon the relationship of those who marry and their children". Windeyer J. [23] stated that:

Even if the Constitution had not contained an express power to legislate with respect to divorce and matrimonial causes, I would have thought that laws prescribing consequences for breaches of the personal obligations that are inherent in the marriage relationship were within the power of the Commonwealth Parliament. And, I am inclined to think, the Commonwealth power would extend to matters concerning the support and care of children, duties that are commonly considered to be inherent in the institution of matrimony. So too, Owen J. [24] considered the power "wide enough to enable the relationship between those who marry and their children to be defined and regulated ". See also Fisher v. Fisher [25] . The scope of the relationship between the parties to the marriage and the children of the marriage is not limited by the obligation to provide nurture and protection and those rights consequent thereon: V. v. V. [26] ; Reg. v. Cook; Ex parte C. [27] . Rather, the obligation to provide nurture and protection is but an aspect of the relationship between the parties to a marriage and the children of that marriage. This relationship comprises a complex of rights, duties, obligations and responsibilities, which Murphy J. in Reg. v. Demack; Ex parte Plummer [28] enunciated as including "custody, access, guardianship, maintenance, advancement and security". The nature of the rights, duties, obligations and responsibilities entailed in this relationship, and the manner of their enforcement and discharge, will generally vary according to the age and abilities of the children of the marriage, such that it may fairly be said that it will only be in exceptional circumstances that the marital relationship will support a claim by or on behalf of an adult independent child of the marriage as against the parties to the marriage, or in respect of the property of the parties to the marriage. However, the fundamental and all-embracing obligation of the parties to a marriage to the children of the marriage is (e.g., as expressly provided in s. 60A(1) of the Act in relation to a guardian) to accept responsibility for the long-term welfare of such children. Normally that responsibility will be fully discharged in relation to each such child during the child's infancy or soon thereafter. However, the Act itself contemplates that such an obligation may endure beyond infancy; s. 76, e.g., makes provision for the maintenance of a child who has attained the age of eighteen years, but who requires continuing maintenance by reason of the circumstances therein set forth. Normally, too, the obligation to provide for the welfare of a child of a marriage will be discharged personally by the parties to the marriage, or the party to the marriage having guardianship of the child. This, however, is not always the case, and it may be accepted that in some family units, some of the obligations of the parties to a marriage in relation to the children of the marriage are, to some extent, discharged by others, including other (usually, older) children of the marriage. Without being exhaustive of the circumstances which will confer upon a claim by a child of the marriage the relevant nexus with the marital relationship, it seems to me that claims advanced by reference to an unmet obligation of parties to a marriage to provide for the long-term welfare of a claimant child of the marriage, or claims made by reference to the obligation to provide for the long-term welfare of other children of the marriage when that obligation has devolved upon the claimant child of the marriage, would constitute claims which can be said to arise out of, or have the relevant nexus with, the marital relationship. 1. (1962) 107 C.L.R. 529, at p. 574. 2. (1962) 107 C.L.R., at p. 580. 3. (1962) 107 C.L.R., at p. 602. 4. (1986) 161 C.L.R., at pp. 452, 455-456. 5. (1985) 156 C.L.R. 228. 6. (1985) 156 C.L.R. 249. 7. (1977) 137 C.L.R. 40, at p. 57.

In the present case, Michael has deposed that he had a discussion with his father concerning his future when he was in his final year of schooling. As a result of this discussion, he agreed to forgo the opportunity to acquire a trade qualification in order to work on the farms when he left school. He has also deposed that he has received only pocket money, lodgings and payment of some holiday expenses in return for his efforts. The inference is available that his efforts contributed to the generation of income for the discharge of the marital obligations of his parents, including, in this case, the maintenance of the younger children of the marriage. In these circumstances his claim is capable of being viewed as a claim arising out of the marital relationship and as providing a relevant foundation for the invocation of the Court's powers pursuant to s. 79 of the Act. Whether the claim is properly so characterized depends upon a consideration of all the available evidence. If, upon analysis, the evidence supports a finding that the claim arises out of the marital relationship, then the Family Court is empowered to make such orders as are just and equitable in all the circumstances.

I would declare that Michael was entitled, as intervener in the proceedings between his mother and father, to make application for an order in his favour under s. 79(1) of the Act; and that s. 79(1) empowers the Family Court in such proceedings to alter the interests in the property of parties to a marriage or either of them for the benefit of an adult child of the marriage where the claim of the child arises out of the marital relationship. That part of the cause which has been removed into this Court should be remitted to the Family Court in Brisbane for further hearing.

I would make no order as to costs of the proceedings in this Court.