In the Marriage of Smith [1986] HCA 36

(b) Each of the parties covenant to join in and support any request or application of the other (whether made in the lifetime or after the death of either or both of the parties) to the Supreme Court of New South Wales for the approval of that Court under Section 31 of the said Family Provision Act to the releases herein contained or for any similar or like approval or sanction under any other applicable Act.

(c) The effect and operation of the agreement evidenced by this Deed (including the releases contained in this Clause except to the extent that the same are rendered ineffective by the said Family Provision Act) are in no way subject to or dependent upon any approval or sanction as referred to in sub-clause (b) to the intent that such agreement and all of its provisions (including such releases except as aforesaid) become fully operative and binding upon the parties and their heirs, executors, administrators and assigns upon the approval thereof under Section 87 of the Family Law Act 1975 and quite independently of whether or not:

(i) any application for approval or sanction of the said releases is ever made under Section 31 of the said Family Provision Act or any other Act, and

(ii) any such approval or sanction is ever granted or given.

By cl. 8 each party agreed to seek the approval of the court to the agreements contained in the deed.

The wife thereupon applied to the Family Court for the following orders:

(a) that the maintenance agreement embodied in a Deed of Settlement executed by the parties hereto be approved by the Court pursuant to Section 87(4) of the Act;

(b) that the Court approve pursuant to Section 31 of the Family Provision Act 1982 the release contained in paragraph 7(a) of the said Deed of Settlement; or alternatively

(c) that pursuant to Section 94A of the Family Law Act 1975 the Court state a case in respect of any question of law that arises in relation to such approval to the Full Court of the Family Court of Australia.

On 18 November 1983 the application came before Nygh J., who on that day approved the agreement under s. 87 of the Family Law Act, but stood over that part of the application which sought approval under s. 31 of the Family Provision Act 1982 NSW of the release contained in par. 7(a) of the deed. He stated a case for the Full Court of the Family Court and raised two questions of law, namely:

(1) Whether in the light of the provisions of the Family Law Act 1975 (as amended) and the provisions of sections 79(8) and 87(10) in particular and the terms of the Agreement presently before the Court the application of the Family Provision Act 1982 of the State of New South Wales has been excluded in its operation to: -

(b) the parties to this particular Agreement in particular.

(2) If the answer to the above question is in the negative, whether the Family Court of Australia by virtue of its accrued extended pendent or associated jurisdiction whether arising under section 33 of the Family Law Act or under the inherent powers of the Court or both has jurisdiction to exercise the powers conferred by section 31 of the Family Provision Act 1982 upon the Supreme Court of New South Wales if incidental to or arising in proceedings under section 87.

The Family Court, by a majority (Evatt C.J. and Fogarty J., Pawley J. dissenting) held that question (1)(b) should be answered in the negative and by a different majority (Evatt C.J. and Pawley J., Fogarty J. dissenting) that question (2) should be answered in the affirmative. There has now been removed into this Court that part of the cause pending in the Family Court which raises the following questions:

(a) whether, by reason of the operation of section 109 of the Constitution, upon approval of the Family Court of Australia pursuant to sub-section 87(3) of the Family Law Act 1975, the release comprised in clause 7 of the Deed dated 18 November 1983 between the parties was effective, notwithstanding the provisions of section 31 of the Family Provision Act 1982 NSW and (b) whether if the said release was not effective as aforesaid, the Family Court of Australia nevertheless has accrued or pendent or associated jurisdiction in the present matter itself to exercise the powers of approval set out in section 31 of the said New South Wales Act.

The Family Provision Act came into operation in New South Wales on 1 September 1983. It replaced the testator's family's maintenance legislation formerly in force in that State and gave to the Supreme Court more extensive powers than those conferred by the former legislation. Section 7 provides inter alia that on an application in relation to a deceased person in respect of whom administration has been granted, "if the Court [i.e., the Supreme Court of New South Wales: s. 6(1)] is satisfied that the [applicant] is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person". The expression "eligible person" is defined in s. 6(1) to mean:

(i) was the wife or husband of the deceased person at the time of the deceased person's death;

(ii) where the deceased person was a man, was a woman who, at the time of his death, was living with the deceased person as his wife on a bona fide domestic basis; or

(iii) where the deceased person was a woman, was a man who, at the time of her death, was living with the deceased person as her husband on a bona fide domestic basis;

(c) a former wife or husband of the deceased person; or

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

Section 9(1) provides in effect that where an application for an order under s. 7 is made by (inter alios) a former wife or husband of the deceased person, the Court shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are "factors which warrant the making of the application". Section 9(2) provides in effect that the Court shall not make an order under s. 7 in favour of an eligible person unless it is satisfied that the provision made in favour of the eligible person by the deceased either during his lifetime or out of his estate is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. Sub-section (3) of s. 9 sets out the matters which the Court may take into consideration in determining what provision, if any, ought to be made in favour of the eligible person; they include the character and conduct of the eligible person before and after the death of the deceased person, and circumstances existing before and after the death of the deceased person and any matter which the Court considers relevant in the circumstances. Sections 21-29 contain elaborate and sweeping provisions under which the Court may treat certain property which does not in truth form part of the estate of the deceased person as part of that person's notional estate. Section 31 deals with the release of rights; its provisions are as follows:

(1) A reference in this section to a release by a person of his rights to make an application in relation to a deceased person is a reference to a release by a person of such rights, if any, as he may have to make such an application and includes a reference to -

(a) an instrument executed by the person which would be effective as a release of those rights if approved by the Court under this section; and

(2) A release by a person of his rights to make an application in relation to a deceased person has no effect except as provided in subsection (3).

(3) A release by a person of his rights to make an application in relation to a deceased person, being a release in respect of which the Court has given its approval under this section, shall have effect to the extent to which the approval has been given and not revoked and shall, for the purposes of this Act, be binding on the releasing party.

(4) Proceedings for the approval of a release of rights to make an application in relation to a deceased person may be commenced before or after the death of the person.

(5) In proceedings for the approval of a release, the Court shall have regard to all the circumstances of the case, including whether -

(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release;

(b) it is or was, at that time, prudent for the releasing party to make the release;

(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable; and

(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.

(6) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a deceased person.

(7) Except as provided in subsections (8) and (9), the Court shall not revoke its approval of a release given under this section.

(8) The Court may revoke its approval of a release given under this section if it is satisfied -

(b) that the release was obtained by fraud or undue influence.

(9) The Court may revoke its approval of a release given under this section or that approval in so far as it affects the whole or part only of the estate or notional estate of a deceased person if it is satisfied that all such persons as, in the opinion of the Court would be sufficiently affected by the revocation of the approval, consent to the revocation.

It is not necessary, for the purpose of considering whether there is any inconsistency between the Family Provision Act and the Family Law Act, to discuss all of the provisions of the latter statute. It will be enough to refer to some of those provisions of the Family Law Act which deal with maintenance and property and which confer jurisdiction on the Family Court in relation to those matters. The Family Law Act was amended by the Family Law Amendment Act 1983, and the amendments to the provisions which are material in the present case did not come into force until 25 November 1983, seven days after the execution of the deed. However, s. 44(2) of the Family Law Amendment Act 1983 has the effect that s. 87 of the Family Law Act as amended in 1983 and now in force applies to the maintenance agreement embodied in the deed as if it had been approved under s. 87 as so amended. Further, it was assumed in argument that we are concerned to decide what jurisdiction the Family Court will have in future and that it is therefore necessary to look at the amended provisions of s. 31 and s. 39 of the Family Law Act and the amended definition of matrimonial cause in s. 4.

By s. 4 of the Family Law Act "matrimonial cause" is widely defined to mean, inter alia, the following:

(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings -

(ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief;

(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;

(ii) if one of the parties to a marriage has died - the other party to the marriage and the legal personal representative of the deceased party to the marriage,

(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;

(iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or

(v) with respect to the enforcement under this Act of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89;

(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 (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

"Maintenance agreement" is defined in s. 4 to mean: an agreement in writing made, whether before or after the commencement of this Act and whether within or outside Australia, 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. "Financial matters" is defined, in relation to the parties to a marriage, to mean: matters with respect to -

(b) the property of those parties or of either of them; or

Section 31 of the Family Law Act defines the original jurisdiction of the Family Court. By s. 31(1), jurisdiction is conferred on that Court with respect to a number of matters, of which it is necessary to mention only the following:

(a) matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act;

(d) matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.

There are no matters within par. (d) which have any bearing on the present case. Section 33 provides as follows: To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court. Section 34(1) provides: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. The effect of ss. 39 and 40, and of proclamations S288 and S289 which were gazetted on 24 November 1983, is (inter alia) that on and after 25 November 1983 the jurisdiction of the Family Court may be exercised in respect of all proceedings in New South Wales with respect to matters in which that Court has jurisdiction by virtue of s. 31(1)(a), and that proceedings that are matrimonial causes instituted under the Family Law Act may not be instituted in or transferred to the Supreme Court of New South Wales.

Part VIII of the Family Law Act deals with maintenance and property. Section 72 confers on a spouse a limited right to maintenance, and s. 74 empowers the Family Court, in proceedings with respect to maintenance, to make such order as it thinks proper for the provision of maintenance in accordance with Pt VIII.

By s. 78(1) the Court may, in certain proceedings between the parties to a marriage, declare the title or rights, if any, that a party has in respect of property. By s. 79(1) the Court may, in proceedings with respect to the property of the parties to the marriage or either of them, make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property. Section 79(1A) provides:

An order made under sub-section (1) in proceedings with respect to the property of the parties to a marriage or either of them may, after the death of a party to the proceedings, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. By s. 79(8) it is provided as follows: Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies -

(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(i) that it would have made an order with respect to property if the deceased party had not died; and

(ii) that it is still appropriate to make an order with respect to property,

the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and

(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

Section 80 states what the Court may do in exercising its powers under Pt VIII; it may, inter alia:

(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice.

Section 81 provides as follows: In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. Sub-sections (2) and (3) of s. 82 provide:

(2) Subject to sub-section (3), an order with respect to the maintenance of a party to a marriage or a child of a marriage ceases to have effect upon the death of the person liable to make payments under the order.

(3) Sub-section (2) does not apply in relation to an order made before the date of commencement of section 38 of the Family Law Amendment Act 1983 if the order is expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the time of the death of the person liable to make payments under the order and, in that case, the order is binding upon the legal personal representative of the deceased person.

Section 87 is the most important section for the purposes of the present case. The material provisions of that section are the following:

(1) Subject to this section, a maintenance agreement may 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) Where a maintenance agreement makes provision as mentioned in sub-section (1), the maintenance agreement has no effect, and is not enforceable in any way, unless it has been approved by the court.

(3) 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.

(4) Where a maintenance agreement that makes provision as mentioned in sub-section (1) is approved by the court -

(a) 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, whether or not the approval of the agreement is revoked, has no further effect; and

(b) subject to sub-sections (13) and (14), no court having jurisdiction under this Act may make an order (other than an order under this section or an order in connection with the enforcement of the agreement) with respect to those financial matters unless the approval of the agreement is revoked.

(5) Notwithstanding any rule of law or equity, an approved maintenance agreement shall not be taken to be void, voidable or unenforceable by reason that it makes provision as mentioned in sub-section (1).

(8) 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 the court is satisfied that -

(b) the parties to the agreement desire the revocation of the approval;

(c) the agreement is void, voidable or unenforceable; or

(d) in the circumstances that have arisen since the agreement was approved it is impracticable for the agreement to be carried out or impracticable for a part of the agreement to be carried out.

(10) Where a maintenance agreement has been approved by a court as provided by this section, then -

(a) unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and

(b) if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments.

(11) Apart from the provision made by sub-sections (2), (5), (9) and (10), the validity, enforceability and effect of an approved maintenance agreement shall be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings of the kind referred to in sub-paragraph (ea)(iii) of the definition of matrimonial cause in sub-section 4(1), being proceedings instituted in a court in which the approved maintenance agreement is registered or deemed to be registered, the court -

(a) subject to paragraph (b), has the same powers, may grant the same remedies and shall have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction;

(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable pursuant to the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the Rules of the Court; and

(c) in addition to, or instead of, making an order or orders pursuant to paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

It is apparent that the Family Law Act and the Family Provision Act are not inconsistent in the way described by Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn [1] - i.e., the State legislation does not enter upon a field which the Commonwealth legislation has evinced an intention wholly to cover. The nature of that test of inconsistency has recently been discussed in Viskauskas v. Niland [2] , and it was there pointed out that it may sometimes be difficult to ascertain the precise limits of the field which the Commonwealth legislation reveals an intention to cover. The extent of the relevant field in the present case can more easily be revealed by description than by definition. The Family Law Act, so far as material for present purposes, deals with the provision of maintenance for a party to a marriage, the determination of property rights in proceedings between the parties to a marriage and the variation of the interests of either or both parties to a marriage in the property of either or both of them. Although a party to a marriage is defined by s. 4(2) of the Family Law Act to include a reference to a person who was a party to a marriage that has been dissolved, annulled or terminated by death, it appears quite clearly from the provisions of Pt VIII that no order for maintenance may be made against the personal representative of a deceased person who, while alive, was a party to a marriage and that, with the exceptions about to be mentioned, no order for the variation of property rights may be made against the personal representative of any such deceased person. Those exceptions are provided by s. 79(8), which enables proceedings with respect to the property of the parties to a marriage or either of them which were pending at the death of a party to be continued by or against the personal representative of the deceased party and, subject to the conditions in s. 79(8)(b), for an order to be made with respect to the property, and by s. 79A(1C) which makes similar provision with regard to pending proceedings to set aside or vary an order made under s. 79. The Part does make provision for the enforcement, against the estate of a deceased party, of an order varying property rights (s. 79(1A)) or varying an order made under s. 79 (s. 79A(1B)) and, subject to exceptions, for the continued operation, after the death of a party, of a maintenance agreement registered under s. 86 (s. 86(3A)) or approved under s. 87: s. 87(10). Maintenance orders made after 25 November 1983, on the other hand, cease to have effect on the death of the person liable to make payments under an order (s. 82(3)), although orders made before that date continue in force against the personal representative of the deceased party if expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the time of the death of the person liable to make payments under the order: s. 82(3). If no order has been made, and no proceedings were pending at the time of the death of a party to a marriage, nothing in Pt VIII enables proceedings of any kind respecting maintenance or property to be brought against the personal representative of a deceased party to a marriage.

1. (1926) 37 C.L.R. 466, at p. 489. 2. (1983) 153 C.L.R. 280, at pp. 291-292.

The Family Provision Act, on the other hand, operates only after the death of a person whose estate (actual or notional) is sought to be made liable for the maintenance, education or advancement in life of an "eligible person", an expression which includes a former spouse. That Act may be regarded as a statute governing succession, or as one which relates to the administration of deceased estates. It places restrictions upon the power of testamentary disposition which at common law was unfettered and enables the Court to alter the ordinary course of intestate succession. To prevent evasion or avoidance of its objectives, it enables the Court to have recourse to property which was not part of the deceased's actual estate at his death, but which has been disposed of in circumstances which, under the Act, cause it to be treated as the notional property of the deceased.

In Johnston v. Krakowski [3] this Court held that there was no inconsistency between the provisions of the Matrimonial Causes Act 1959 Cth and Pt IV of the Administration and Probate Act 1958 Vict. There are dissimilarities between those statutes and the Acts now in question, although they are not in our opinion material for present purposes. Certainly it is as true in this case as it was in that to say that the Commonwealth Act and the State Act deal with "entirely different problems": see Johnston v. Krakowski [4] . The former deals with the adjustment of rights to property and maintenance on the breakdown of a marriage; the latter enables persons (including former spouses) regarded as having a moral claim against a testator or an intestate to enforce that claim against his estate after his death. The situation with which the State Act is concerned arises at a different time, and in different circumstances, from those with which Pt VIII of the Commonwealth Act deals, and the respective criteria provided by the State and the Commonwealth Acts for the grant of relief are different. Ultimately the question is whether the Parliament, in enacting the Family Law Act, revealed an intent "completely, exhaustively or exclusively" to state the law regarding claims by a surviving spouse (whether divorced or not) against the estate of a deceased spouse: cf. Johnston v. Krakowski [5] . It is clear that it did not, because under the Family Law Act proceedings may be taken against the personal representative of a deceased spouse with respect to the property of that spouse only to enforce an existing order or an approved maintenance agreement or to continue proceedings already commenced, and, except in relation to certain orders made before 25 November 1983, no proceedings at all may be taken with respect to an order for payment of periodic sums by way of maintenance. At the time when the Family Law Act was passed, legislation providing for testators' family maintenance was a familiar feature of the law in every State and Territory. It is quite impossible to suppose that the Parliament, in enacting the Family Law Act, intended to deprive a spouse of the right to make application under that legislation for provision out of the estate of the deceased spouse, when the Family Law Act did not at the same time allow any application for maintenance to be made by the surviving spouse and an application with respect to property could be made only if proceedings had been commenced before the death had occurred. Counsel for the wife was driven to contend that the field covered by the Commonwealth law was that which related to financial provision for one party to a marriage when proceedings had been commenced under s. 79 of the Family Law Act or an agreement had been approved under s. 87 of that Act, during the lives of both parties. There is nothing in the provisions of Pt VIII to suggest that the Parliament intended exclusively to cover a field so arbitrarily defined, and the very description of the field in that way indicates that the Family Law Act reveals no intention to express exhaustively what the law should be governing the provision of maintenance or other benefits for one spouse out of the deceased estate of the other spouse. Some reliance was placed in argument on s. 81 of the Family Law Act; however, although that section requires that some orders under Pt VIII should finally determine the financial relationships between the parties to a marriage inter vivos and avoid further proceedings between them, it reveals no intention to prevent or inhibit proceedings by a spouse against the personal representative of a deceased spouse. Indeed, the very scope and object of the Family Law Act suggests that it was not intended that all disputes between spouses regarding matters affecting their property should be dealt with under Pt VIII. For example, a claim by one spouse against another for contribution as a joint tortfeasor, or an application to approve the settlement of an action by a spouse who was an infant, would not fall within the scope of the Family Law Act. However, it is unnecessary to pursue that aspect of the matter, since for the reasons given there is no general inconsistency between the Family Law Act and the Family Provision Act.

1. (1965) 113 C.L.R. 552. 2. (1965) 113 C.L.R., at pp. 566, 569. 3. (1965) 113 C.L.R., at p. 560.

Further, there is no direct inconsistency or actual contrariety between the two statutes, at least in so far as they apply to the present case. It is possible to imagine a case in which property which had been the subject of an order made under the Family Law Act in favour of one spouse might, after the death of the other spouse, be liable, under the Family Provision Act, to be treated as part of the notional estate of the deceased, so that provision might be made out of that property in favour of some other eligible person, e.g., a person with whom the deceased had been living. In such a case a direct inconsistency might arise. However, it is unnecessary to consider that question, for it does not arise in the present case. The Family Law Act says nothing as to applications of the kind mentioned in s. 31 of the Family Provision Act. Neither the making nor the refusal of an order approving of a release by a party to a marriage of his or her rights to make an application for provision out of the estate of the other party to the marriage after the death of that party would "alter, impair or detract from the operation of" the Family Law Act, to use the words of Dixon J. in Victoria v. The Commonwealth [6] . If the Supreme Court approved of the release, no application for provision out of the estate could be made and obviously no order which had been made under Pt VIII with respect to the maintenance or property of either party could be affected. If the Supreme Court refused to approve of the release, the only consequence would be that a potential barrier to the making of an application for provision out of the estate of the other spouse, after his or her death, would be removed. The position then would be exactly the same as if s. 31 did not appear in the Family Provision Act, for a line of cases, including, in this Court, Lieberman v. Morris [7] , would support the view that in the absence of statutory authority an attempt to contract out of the benefits of the Family Provision Act would be ineffective. The fact that an order made thereafter under s. 7 of the Family Provision Act for provision out of the estate of the deceased spouse might possibly, in some circumstances, affect the operation of an order previously made under the Family Law Act means that an inconsistency might arise between those two orders, but does not mean that there is any direct inconsistency between s. 31 of the Family Provision Act and any provision of the Family Law Act.

1. (1937) 58 C.L.R. 618, at p. 630. 2. (1944) 69 C.L.R. 69.

The fact that the deed, which contains, in cl. 7(a), what purports to be a release by each party of his or her rights to make any application under the Family Provision Act for provision out of the other's estate, has been approved under s. 87 of the Family Law Act, does not create any inconsistency with s. 31 of the Family Provision Act. The effect of an approval under s. 87 is very limited. By s. 87(4) certain orders made under the Family Law Act, or under the Act which it repealed, will cease to have effect in so far as they relate to financial matters dealt with in the approved agreement and, subject to certain exceptions, the approval of the agreement will prevent any court having jurisdiction under the Act from making any order with respect to those financial matters. Thus, s. 87(4) gives the approved agreement no effect relevant to s. 31 of the Family Provision Act. Nor does s. 87(5) give the approved agreement any relevant effect. That sub-section, when read together with s. 87(1), has the effect that notwithstanding any rule of law or equity, an approved maintenance agreement shall not be taken to be void, voidable or unenforceable by reason that it makes provision that it 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 Pt VIII. Section 87(5) was no doubt intended to prevent the deed from being held to be void as contrary to public policy, in accordance with the principle applied in such decisions as Hyman v. Hyman [8] and Brooks v. Burns Philp Trustee Co. Ltd. [9] . It is unnecessary to consider whether, having regard to s. 87(3), the provisions of s. 87(5) were necessary or whether they were inserted merely out of an abundance of caution. However, when s. 87(5) is read in the context provided by s. 87(1) it is apparent that it was not intended to deal with any question which arises under s. 31 of the Family Provision Act. An agreement is protected from being rendered void, voidable or unenforceable by reason of the circumstance to which s. 87(5) specifically refers. It is not protected from being or becoming invalid, unenforceable or ineffective for some other reason. If s. 31(2) of the Family Provision Act renders an agreement ineffective, s. 87(5) does not render it effective. The provisions of s. 87(11) carry the matter no further. Under that sub-section the validity, enforceability and effect of an approved maintenance agreement is to be determined according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts. However, if the ordinary law (which in New South Wales includes s. 31 of the Family Provision Act) is applied, the provisions of cl. 7(a) will be ineffective unless they have been approved by the Supreme Court under s. 31. For these reasons, the release contained in cl. 7(a) of the deed did not become effective when the maintenance agreement embodied in the deed was approved by the Family Court.

The next question is whether the Family Court itself has jurisdiction to exercise the power of approval given by s. 31 of the Family Provision Act to the Supreme Court of New South Wales. The Solicitor-General for the Commonwealth, and counsel for the wife, in contending for an affirmative answer to that question, submitted that an application by one spouse for approval of the release of his or her rights to make an application under the Family Provision Act in relation to the estate of a deceased person is part of the same matter as the application to the Family Court for approval of a maintenance agreement containing such a release. The foundation of the argument is the proposition that when jurisdiction is conferred on a federal court in a matter within the meaning of s. 75 or s. 76 of the Constitution, the court has jurisdiction to determine all the questions which form part of the matter, including questions which in themselves are not federal questions, i.e. not questions which would answer one or other of the descriptions contained in s. 75 or s. 76. Quite clearly, under the Constitution, the jurisdiction conferred on a federal court cannot be wider than the matters mentioned in s. 75 and s. 76. However, the view that has been accepted by the majority of the court in a line of cases commencing with Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. [10] is that the grant of jurisdiction to determine a matter carries with it jurisdiction to determine the whole matter, and that "a "matter" is a justiciable controversy which must either be constituted by or must include a claim arising under a federal law but which may also include another cause of action arising under another law, provided it is attached to and is not severable from the former claim": Fencott v. Muller [11] . In Stack v. Coast Securities (No. 9) Pty. Ltd. [12] , Mason, Brennan and Deane JJ. affirmed the view that the Constitution gave power to the Parliament "to give authority to federal courts to decide the whole of a single justiciable controversy of which a federal issue forms an integral part". For present purposes, these propositions may be accepted as being correct.

1. (1981) 148 C.L.R. 457. 2. (1983) 152 C.L.R. 570, at p. 606. 3. (1983) 154 C.L.R. 261, at p. 293.

The word "controversy" is hardly apt to describe the present situation between the parties, who are in agreement in seeking orders from the Family Court. If, however, one inquires what was the subject-matter for determination in the proceedings in the Family Court, the answer to that question must be that two separate matters fell for determination - first, whether the maintenance agreement should be approved and secondly, whether the Family Court, acting for the purposes of s. 31 of the Family Provision Act, could and should approve of the release contained in cl. 7(a) of the agreement. That the questions are clearly severable is shown by the fact that they are committed by federal and State laws respectively to the decision of two different tribunals, and by the fact that approval under the Commonwealth Act is fully effective for the purposes of that Act although it has no effect whatever on the rights given by the State Act. If, however, contrary to our opinion, it be assumed that the two issues form part of a single justiciable controversy, of which the approval of the agreement forms an integral part, it does not follow that the Parliament has given the Family Court jurisdiction to resolve the whole of that controversy. Although, on the authority of the cases mentioned, the Parliament would on that assumption have power to invest the Family Court with jurisdiction, the question whether it has done so depends on the effect of the Family Law Act. For reasons we shall give, the jurisdiction of the Family Court does not extend to a "matter" of which the grant of approval under s. 31 of the Family Provision Act is a part. Such a "matter" would have to be described as one in which the parties sought finally to determine the financial relations not only between themselves, but also between each party and the personal representatives of the other.

It has been shown that the only provision relevant to the conferral of jurisdiction in the present case is s. 31(1)(a) of the Family Law Act. A matter within that provision must satisfy two criteria: it must arise under the Family Law Act and it must be a matter in respect of which a matrimonial cause was instituted under that Act. (The paragraph refers also to the repealed Act, and to matters continued under the Family Law Act, but that is irrelevant to the present case.) The matter does not arise under the Family Law Act, because, as has already been pointed out, the Family Law Act has nothing to say about claims made by a surviving spouse against the estate of a deceased spouse, except in cases where an order has been made or an agreement has been approved before the death of the spouse or in certain circumstances where proceedings have been commenced but not concluded before the death.

Since the application for approval under s. 31 does not arise under the Family Law Act, it is unnecessary to decide whether if it did it would be in respect of a matrimonial cause as defined in s. 4(1). That definition has been amended since it was held in Perlman v. Perlman [13] that a proceeding to enforce a maintenance agreement approved by the Court was not a matrimonial cause - such a proceeding will now fall within par. (ea) of the definition in s. 4(1). However, the present proceedings are not proceedings for the enforcement of the maintenance agreement. Further, in our opinion, they are not proceedings "in relation to" the maintenance agreement within the meaning of the definition. The deed does not contain any agreement to request the Family Court to grant approval under s. 31. On the contrary, the parties agreed to join in and support any application seeking such approval from the Supreme Court. No doubt some connexion can be discerned between the agreement and the present proceedings, but the fact that a topic is dealt with in a maintenance agreement does not mean that proceedings in relation to that topic will be proceedings in relation to the maintenance agreement. A maintenance agreement must make provision with respect to financial matters, but may make provision with respect to other matters, and the fact that it does so does not necessarily mean that proceedings in relation to those other matters will be proceedings in relation to the maintenance agreement. Some examples may be given. If a maintenance agreement provided that it would operate of its own force as a conveyance, and was to be registered as a transfer of the land mentioned in it, the Family Court would not have jurisdiction to entertain proceedings seeking an order that the agreement be registered under State legislation relating to the registration of title. If one spouse owned premises subject to a liquor licence, or had an interest in leasehold that could be assigned only with the consent of the lessor, and the maintenance agreement provided that the premises and the licence should be transferred, or that the leasehold should be assigned, to the other spouse, the Family Court would have no jurisdiction to entertain proceedings seeking approval of the transfer of the liquor licence or seeking an order that the lessor should consent to the assignment of the lease or that the Court should give consent in his stead. The relationship between proceedings of this kind and the maintenance agreement would be too tenuous to bring the proceedings within par. (ea) of the definition. Similarly, the relationship between the maintenance agreement and the proceedings for approval of the release for the purposes of s. 31 of the Family Provision Act was not sufficiently close to bring the proceedings within the description of "proceedings in relation to a maintenance agreement". In determining the effect of particular words in the Family Law Act which give jurisdiction to the Family Court, it is necessary to have regard to the subject-matter and object of that Act and to the context which it provides. Thus, it has been held that wide general words in the Family Law Act do not give the Family Court jurisdiction or power to order the appointment of a receiver of the assets of a partnership of which the parties to the marriage were members (see Reg. v. Ross-Jones; Ex parte Beaumont [14] ) or to entertain proceedings for the issue of a writ of fieri facias to enforce a judgment of a Supreme Court, or bankruptcy proceedings against a husband or a wife: see Reg. v. Ross-Jones; Ex parte Green [15] . For these reasons the application for approval under s. 31 does not come within par. (ea) of the definition; even more clearly it is not within any other paragraph of the definition.

1. (1984) 155 C.L.R. 474. 2. (1979) 141 C.L.R. 504. 3. (1984) 156 C.L.R. 185, at p. 199.

It is hardly necessary to add that the jurisdiction of the Family Court is not relevantly enlarged by the provisions of s. 33 of the Family Law Act. At best that section could validly do no more than give the Family Court jurisdiction in associated matters arising under some other federal law (see Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. [16] ); since, at first sight, it is difficult to envisage matters under other federal laws that might be associated with matters arising under the Family Law Act, the effect of the section is far from clear: see Reg. v. Ross-Jones; Ex parte Beaumont [17] .

1. (1981) 148 C.L.R. 457. 2. (1979) 141 C.L.R., at p. 509.

There is a further, and quite independent, reason for concluding that the Family Court cannot give an approval for the purposes of s. 31 of the Family Provision Act. That section makes a release effective only if the Supreme Court has given its approval to it. An approval by the Family Court is not an approval by the Supreme Court, and would not satisfy s. 31(3). The Solicitor-General for the Commonwealth, and counsel for the wife, sought to surmount this difficulty by relying on a line of American authorities, of which the most notable is Chicago & Northwestern Railway Co. v. Whitton [18] . In that case, proceedings were brought in a federal court for damages under a statute of Wisconsin which was modelled on Lord Campbell's Act but which contained a proviso that the action should be brought in some court established by the Constitution and laws of the State. The action was between citizens of different States, and so attracted federal jurisdiction. It was held that the proviso did not affect the jurisdiction of the federal court. The judgment of the Supreme Court was delivered by Field J. who said [19] :

In all cases where a general right is thus conferred, it can be enforced in any Federal court within the state having jurisdiction of the parties. It cannot be withdrawn from the cognizance of such Federal court by any provision of state legislation that it shall only be enforced in a state court. Whenever a general rule as to property or personal rights, or injuries to either, is established by state legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to state limitation. That case establishes in the United States that State statutes cannot limit federal jurisdiction: see also Wright, Handbook of the Law of Federal Courts, 3rd ed. (1976), p. 197. The principle on which it was decided is not relevant to the present case. Section 31(3) of the Family Provision Act does not withdraw from a federal court jurisdiction which that federal court might otherwise have exercised and does not otherwise limit the exercise of federal jurisdiction. It provides a condition precedent, the fulfilment of which is necessary to render a particular type of agreement effective. The condition is one which is not fulfilled by an order of the Family Court; only an order of the Supreme Court satisfies the statutory requirement. 1. (1872) 13 Wall. 270. 2. (1872) 13 Wall., at p. 286.

The Solicitor-General for the Commonwealth submitted that s. 31 of the Family Provision Act performs the double function of dealing with substantive rights and liabilities, and giving jurisdiction to the Supreme Court in respect of those rights and liabilities: see Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. [20] , and cases there cited. That may be true, but it is irrelevant. The fact remains that s. 31(2) and (3) makes the efficacy of the agreement depend on approval by the Supreme Court. The provisions of those two sub-sections are analogous to an enactment that makes the effectiveness of a contract depend on a seal or a stamp. Absent the seal or the stamp, the agreement is not effective, whether it is sought to be enforced in a State court or in a federal court.

The result is that notwithstanding the approval of the maintenance agreement by the Family Court, the agreement would not operate as an effective release and either party to the agreement might, after the death of the other party, make an application to the Supreme Court under the Family Provision Act for provision out of the deceased's estate. The fact that the maintenance agreement had been made and approved would however be a relevant matter, and probably a very important matter, for consideration on any such application. It is rather difficult to understand why parties, with apparently quite modest estates, think it necessary to make an application under s. 31 of the Family Provision Act as well as under s. 87 of the Family Law Act, since it is possible that no application for provision under s. 7 of the Family Provision Act will ever be made and that if an application is made it will fail either because of the importance attached to the agreement or for some other reason. However, the jurisdiction of the Supreme Court to give approval of a release under s. 31 of the Family Provision Act remains unaffected by the Family Law Act.

We would accordingly hold: (a) that the release comprised in cl. 7 of the deed dated 18 November 1983 was not effective for the purposes of s. 31(3) of the Family Provision Act 1982 NSW, notwithstanding the approval of the deed by the Family Court; and (b) that the Family Court has no accrued, pendent or associated jurisdiction in the present matter itself to exercise the power of approval given by s. 31 of the Family Provision Act 1982 NSW.

We would remit the matter to the Family Court to proceed in accordance with this judgment.

At first glance the prospect of an inconsistency arising between the provisions of the Family Law Act 1975 Cth and the Family Provision Act 1982 NSW seems somewhat remote. The Family Law Act, as described in its long title, deals with marriage, divorce and matrimonial causes, parental rights and the custody and guardianship of infants. On the other hand the Family Provision Act assures to the family of a deceased person, and to certain other persons, adequate provision out of his or her estate. The concepts of family which underlie the two statutes are slightly different. This difference may be partly, or perhaps wholly, attributable to the limitations on the legislative powers of the Commonwealth Parliament under s. 51(xxi) and (xxii) of the Constitution. True it is that both statutes provide remedies for family-related problems by authorizing the making of curial orders, in one case for maintenance, for the declaration of property rights and for the alteration of property rights, and in the other for financial provision out of the estate of the deceased person. But the problems to which each statute is directed are different in kind and arise out of very different circumstances.

Apart from maintenance and the declaration of the rights of the parties to a marriage with respect to property, the relevant provisions of the Commonwealth Act are designed to bring about, in case of dispute, an adjustment of the property interests of the parties which is just and equitable having regard to their financial and other contributions and to the other matters referred to in s. 79(4)(d), (e) and (f). The State Act, on the other hand, is aimed at ensuring that the legitimate claims of an "eligible person", which includes members of the family of a deceased person, upon the deceased person's bounty are satisfied out of his or her estate upon death. Unlike the Commonwealth Act, the State Act involves no mutual adjustment of interests and it operates, not during the lifetime of the parties, but on the death of one of them.

It is this difference in the operation of statutes dealing with matrimonial causes and testator's family maintenance that has led to the traditional view that they are separate and independent legal topics. So it was that this Court held in Johnston v. Krakowski [21] that there was no inconsistency between the provisions of the Matrimonial Causes Act 1959 Cth and Pt IV of the Administration and Probate Act 1958 Vict, and that, accordingly, there was no inconsistency which precluded the making of an order under the State legislation providing for the maintenance and support of a divorced wife out of the estate of a deceased former husband. There it was argued that the Commonwealth Act exhibited an intention to lay down exhaustively and exclusively the law which was to govern the subject of the making of orders for the maintenance of divorced wives out of the deceased estates of their former husbands. The argument was rejected on the ground that the powers conferred by the Commonwealth legislation in relation to maintenance were powers exercisable only during the joint lives of the parties and that the Act did not authorize an order for the making of maintenance payments, or for the giving of security, after the death of the party: per Kitto J. [22] (with whom Windeyer and Owen JJ. agreed); per Taylor J. [23] , (with whom Owen J. also agreed). Taylor J. [23] regarded the two statutes as dealing with "entirely different problems" and Menzies J. [24] considered that an order for maintenance and support out of the estate of a deceased former husband under the State legislation was "something entirely different" from an order for maintenance against a husband or former husband under the Matrimonial Causes Act which could or did operate after his death. It was, he said, "made against a different person, in different circumstances, and by reference to different criteria".

1. (1965) 113 C.L.R. 552. 2. (1965) 113 C.L.R., at pp. 561-562. 3. (1965) 113 C.L.R., at p. 566. 4. (1965) 113 C.L.R., at p. 566. 5. (1965) 113 C.L.R., at p. 569.

However, Kitto J. [25] thought that, if, contrary to his own conclusion, the Matrimonial Causes Act had authorized an order against the legal personal representatives of the deceased former husband requiring payments for the maintenance of the former wife to be made out of his estate after his death, it would be difficult to resist the conclusion that there was inconsistency between the two Acts, in the absence of any question of constitutional power.

Three points of significance emerge from Johnston v. Krakowski. The first is that maintenance and the determination and adjustment of property interests on the breakdown of a marriage is, generally speaking, a legal topic which is separate and distinct from testator's family maintenance. The second point, which follows from the first, is that legislation dealing with maintenance and the determination and adjustment of property interests on the breakdown of marriage is unlikely to evince an intention to occupy the general field of testator's family maintenance. The third point, which flows from the second, is that the inconsistency, if any, between legislation dealing with the two topics will be limited to the interaction of such of the particular provisions of the State law with the Commonwealth law as "alter, impair or detract from the operation" of so much of the Commonwealth law as authorizes orders or agreements for maintenance and declarations or alterations of interests in property: see the judgment of Dixon J. in Victoria v. The Commonwealth [26] .

The Family Law Act, in accordance with the traditional view of maintenance expounded in Johnston v. Krakowski, specifically provides that an order for maintenance shall cease to have effect upon the death of the party to a marriage or child of a marriage for whose benefit it was made (s. 82(1)) and, subject to s. 82(3), upon the death of the person liable to make payments under the order: s. 82(2). Section 82(3), which has no relevance to the present case, relates to certain orders for lifetime maintenance made before the commencement of s. 38 of the Family Law Amendment Act 1983 Cth. Furthermore, the Family Law Act does not authorize the making of a maintenance order against the legal personal representative of a party or former party to a marriage.

Proceedings for a declaration of the rights of the parties to a marriage in respect of property and for an alteration of the interests of the parties in property stand in a somewhat different position. Proceedings with respect to the property of parties to a marriage or either of them, pending at the death of a party, may be continued by or against his or her legal personal representative, but the making of an order in the proceedings is subject to certain conditions set out in s. 79(8)(b). Similar provision is made by s. 79A(1C) with respect to pending proceedings to vary or set aside an order made under s. 79. And orders made under ss. 79(1), 79(8)(b) or 79A(1C)(b) may be enforced on behalf of, or against, the estate of the deceased party: see ss. 79(1A), 79(8)(c) and 79A(1C)(c) respectively.

The provisions governing the continuation of proceedings and the enforcement of orders against the estate of a deceased person merely lead to the creation and enforcement of liabilities and obligations binding on the estate, the effect of which is to diminish the value of the estate. There is no inconsistency in the co-existence with these provisions of testator's family maintenance legislation of the kind found in the Family Provision Act.

The principal ground of inconsistency put forward is based on the existence of the jurisdiction of the Family Court under s. 79 of the Family Law Act to make such orders as it thinks fit altering the interests of the parties in property and on the provisions of s. 87 relating to maintenance agreements entered into in substitution for rights under the Act. The suggestion is that the object of the exercise of the jurisdiction and the grant of liberty to enter into such maintenance agreements is to bring about a permanent and final resolution of the property and financial claims of the parties to a marriage. Reliance is placed on s. 81 of the Family Law Act which, in proceedings under Pt VIII other than proceedings under s. 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, commands that:

the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. The combination of s. 79 and s. 81 is not enough to sustain an implication that Parliament intended to cover exhaustively or exclusively the making of claims by a former party to a marriage against the estate of the deceased party of the kind provided for by the Family Provision Act. If we make the assumption that Parliament's legislative powers extend to the creation of a jurisdiction which enables a court to make an order barring claims of that type, the language of s. 81 nevertheless does not travel this distance. The expressed object of the section is to empower the Court to make such orders as will avoid further proceedings between the parties to the marriage, not proceedings between a party to the marriage and the estate of the other party to the marriage. There is in our view no compelling reason why we should read s. 81 otherwise than in accordance with its terms. Indeed, there are persuasive reasons which might well have prompted Parliament to insist on the preservation of a party's entitlement to make an application under a statute such as the Family Provision Act.

There are differences in the nature of the claims arising under the two Acts and in the criteria by which they are to be determined, and there is the possibility that the circumstances of the parties might change substantially between the date of a determination under s. 79 and the death of a party. These are all factors which favour the preservation of the entitlement under State legislation.

One example of the differences in the criteria to be applied is that the character and conduct of the applicant is expressed to be a relevant consideration in s. 9(3)(b) of the State Act, whereas the character and conduct of the parties as such is not expressed to be a relevant consideration in proceedings under Pt VIII of the Commonwealth Act, and will only be relevant in so far as it bears upon the considerations which the court is required to take into account.

The case for inconsistency turns very largely on the provisions of s. 87 relating to the operation of maintenance agreements entered into in substitution for rights under the Family Law Act. Section 87(1) provides that a maintenance agreement:

may 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 [Pt VIII of the Act]. The agreement has no effect, and is not enforceable in any way, unless approved by the Court: s. 87(2). In proceedings for the approval of an agreement, if the Court is satisfied that the provisions 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: s. 87(3). Once an agreement that makes provision as mentioned in s. 87(1) is approved, any order made under Pt VIII ceases to have effect in so far as it relates to the financial matters dealt with in the agreement and, subject to certain qualifications not presently material, no court may make an order (except under s. 87 or for the enforcement of the agreement) with respect to those financial matters unless the approval is revoked: s. 87(4). Notwithstanding any rule of law or equity, an approved maintenance agreement shall not be taken to be void, voidable or unenforceable by reason that it makes provision as mentioned in s. 87(1): s. 87(5). This provision displaces the rule, founded on public policy, that an agreement which attempts to nullify the Court's discretion as to maintenance by substituting the agreement of the parties for the Court's determination is not binding on the parties: see Brooks v. Burns Philp Trustee Co. Ltd. [27] . Where a court approves a maintenance agreement, the agreement shall be deemed to be registered in that court (s. 87(6)), and it may be registered in another court having jurisdiction under the Family Law Act: s. 87(7). 1. (1969) 121 C.L.R. 432.

Where a maintenance agreement has been approved by a court as provided by this section, then -

(a) unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and

(b) if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments.

Section 87(11) is an important provision. It states that, apart from the provision made by s. 87(2), (5), (9) and (10):

the validity, enforceability and effect of an approved maintenance agreement shall be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts . It goes on to provide that in proceedings of the kind referred to in par. (ea)(iii) of the definition of matrimonial cause in s. 4(1), being proceedings instituted in a court in which the approved maintenance agreement is registered or deemed to be registered, the court has certain powers. The sub-section enables the Court to order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the Court: s. 87(11)(c).

In order to understand the operation of these provisions it is necessary to take note of the definition of "financial matters" and of par. (ea) of the definition of matrimonial cause in s. 4(1) of the Act. "Financial matters" is defined to mean:

in relation to the parties to a marriage matters with respect to -

(b) the property of those parties or of either of them; or

Paragraph (ea) of the definition of "matrimonial cause" is in these terms: proceedings between -

(ii) if one of the parties to a marriage has died - the other party to the marriage and the legal personal representative of the deceased party to the marriage,

(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;

(iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or

(v) with respect to the enforcement under this Act of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89.

The point of these provisions is that an approved maintenance agreement continues to operate, notwithstanding the death of a party, and to be binding on the surviving party and the legal personal representative of the deceased party. So, if an approved maintenance agreement contains a release by one or both parties of all claims he or she may have against the estate of the other under the Family Provision Act, or contains a covenant not to make an application under that Act (and cl. 7(a) of the deed executed by the parties in the present case so provides), the release or covenant continues to be binding notwithstanding the death of either party. Such a release or covenant relates to "financial matters" within the meaning of s. 4(1). Subject to the operation of s. 31 of the Family Provision Act, the release or covenant may be enforced because it is part of an agreement whose validity, enforceability and effect is, with certain exceptions, to be determined according to the general principles of law and equity relating to contracts.

The critical question then is whether s. 31 of the Family Provision Act is inconsistent with s. 87 read in the light of the Family Law Act taken as a whole. A release by a person of his rights under the Family Provision Act to make an application in relation to a deceased person has no effect unless approved by the Court and then only to the extent to which approval is given: s. 31(2) and (3). Section 31(5) provides that in proceedings for such approval the Court is to have regard to all the circumstances of the case, including whether:

(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release;

(b) it is or was, at that time, prudent for the releasing party to make the release;

(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable; and

(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.

The reference to "Court" is a reference to the Supreme Court of New South Wales: s. 6(1).

The crux of the problem is best illustrated by supposing (1) an approved maintenance agreement, such as the agreement in the present case, containing mutual releases and covenants in respect of all claims which each party might have under the Family Provision Act; (2) the subsequent death of one party; and (3) the making of an application by the other party under that Act for provision out of the deceased's estate. By virtue of s. 31(2) and (3) of the State law, the release and the covenant would have no effect because they would not have been approved by the State Supreme Court. In this respect s. 31 gives expression to a statutory policy discovered, though not expressed, in the Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW, the predecessor of the Family Provision Act: see Lieberman v. Morris [28] . However, s. 87(11) of the Commonwealth Act provides that, apart from the provision made by s. 87(2), (5), (9) and (10), the validity, enforceability and effect of such an agreement shall be determined according to the principles of law and equity applicable to contracts.

The question whether the provisions of s. 31(2) and (3) of the Family Provision Act form part of the relevant principles of law and equity which govern the validity and enforceability of an approved maintenance agreement pursuant to s. 87(11) depends on the effect of s. 87(5). As we have seen, the purpose of that sub-section is to displace the common law rule, founded on public policy, which struck down agreements which fettered the Court's discretion to determine a person's statutory right to apply for maintenance. The rationale underlying this common law rule is in substance the same as that underlying the common law rule applied in Lieberman v. Morris, prohibiting a person from contracting out of the benefits conferred by the Testator's Family Maintenance and Guardianship of Infants Act. The latter rule now finds expression in s. 31 of the Family Provision Act and may be avoided only by obtaining Court approval. But the similarity in the public policy underlying the two rules does not mean that the effect of s. 87(5) is to negate s. 31(2) and (3) of the State Act. All that s. 87(5) does is to displace the application which the common law rule would otherwise have had in relation to the statutory rights to apply for orders under the Family Law Act. Section 87(1) enables the parties to contract out of rights under Pt VIII of that Act. Section 87(5), which is ancillary to s. 87(1), reinforces that entitlement by displacing the common law rule which would have prevented them from making such a contract. There is no reason for giving the sub-section a wider operation by applying it to the very different problem of contracting out of the provisions of the State Act. Accordingly, the provisions of s. 31(2) and (3) form part of the relevant principles of law and equity which govern the validity and enforceability of a release, such as that in cl. 7(a) in the present case, contained in an approved maintenance agreement.

The conclusion that there is no inconsistency between the State Act and the Commonwealth Act does not mean, however, that the Parliament of the Commonwealth necessarily lacks the legislative power to confer jurisdiction upon the Family Court to make orders prohibiting the bringing of an application under the Family Provision Act by a party to an approved maintenance agreement. That question does not arise in the present case because the Parliament has not purported to confer such jurisdiction upon the Family Court.

The second question removed into this Court is whether the Family Court has accrued, pendent or associated jurisdiction in the present matter to exercise the power of approval conferred by s. 31 of the State Act. The answer to this question turns in the first instance on s. 31(1)(a) of the Family Law Act, for, apart from the duplication of that provision with respect to the Family Court in virtually identical terms in s. 39(5)(a), that is the only provision giving the Court jurisdiction which might embrace an exercise of the relevant powers conferred by the State Act, there being no suggestion that the Family Court possesses any relevant inherent power. The submission is that the claim made for approval of a maintenance agreement under s. 87(3) of the Family Law Act and the claim made for approval of a release (forming part of such a maintenance agreement) under s. 31(3) of the Family Provision Act constitute but one single justiciable controversy, the matter for determination in the second claim being an attached and inseverable aspect of the matter for determination in the first claim: see Fencott v. Muller [29] ; Stack v. Coast Securities (No. 9) Pty. Ltd. [30] .

1. (1983) 152 C.L.R. 570, at p. 606. 2. (1983) 154 C.L.R. 261, at p. 293.

The submission encounters many difficulties. The power of the Supreme Court to approve a release under s. 31 is incidental to the exercise of the principal jurisdiction of the Court under s. 7 to order provision out of the estate of the deceased person. The authority given to the Supreme Court to approve a release qualifies the old principle, which we have already discussed, that contracting out of the statutory benefits was prohibited. To acknowledge that the Family Court possessed accrued jurisdiction under s. 31 of the Family Law Act would be to treat the power to approve a release as if it were incidental to the Family Court's jurisdiction under s. 87(3), whereas in truth, the considerations to be taken into account under s. 87(3) of the Commonwealth Act and s. 31(5) of the State Act are different and are directed to different ends.

The Solicitor-General for New South Wales submitted that, in order to validly invest a federal court with accrued jurisdiction to determine a non-federal claim, the accrued jurisdiction must involve the exercise of the judicial power of the Commonwealth or something incidental to that exercise. The next step in the argument was to say that the object of a proceeding for approval of a release under s. 31 of the State Act is to ascertain and declare, but not to enforce, what, in the opinion of the Court, ought to be the rights of the parties under a State law: see Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. [31] . This function, so the argument ran, stands outside the judicial power of the Commonwealth and outside the concept of "matter" in s. 76 of the Constitution.

It is unnecessary to decide whether this submission is well founded. It is sufficient for us to say that if the Family Court assumed an accrued jurisdiction to make an order under s. 31 of the Family Provision Act approving a release in a maintenance agreement, the order would none the less not be an order of the Supreme Court. It therefore would not amount to an approval by the "Court" which is referred to in s. 31(3), with the consequence that the release would have no effect by virtue of s. 31(2). It is quite impossible to read the reference to "Court" in s. 31, viewed in the light of the definition of Court in s. 6(1), otherwise than as a reference to the Supreme Court. It follows that the Family Court does not possess accrued jurisdiction to approve a release for the purposes of the State Act.

Apart from the questions specifically removed into this Court there is the question whether the jurisdiction of the Supreme Court to approve the release contained in cl. 7 of the deed is excluded by the provisions of the Family Law Act.

The Supreme Court of each State is invested with federal jurisdiction, by s. 39(5) of the Family Law Act, with respect to matters arising under the Act in respect of which any of pars. (a) to (e) of that sub-section apply. However, s. 40(3) empowers the Governor-General to end the jurisdiction of a Supreme Court by making a proclamation fixing a date on and after which proceedings referred to in s. 39(5) may not be instituted in or transferred to that Court. Such a proclamation has been made in relation to the Supreme Court of New South Wales, fixing 25 November 1983 as the date on which the jurisdiction of that Court was terminated in all proceedings under s. 39(5)(a)-(e): see Commonwealth of Australia Gazette No. S288, 24 November 1983. The combined effect of s. 39(5), s. 40(3) and the proclamation is to exclude the jurisdiction of the Supreme Court to approve the release only if it be shown that the Act (1) conferred such jurisdiction on the Supreme Court and (2) then terminated that jurisdiction by virtue of the proclamation. An examination of the terms of the legislation shows that the first proposition is not made out. Section 39(5) of the Act confers jurisdiction on the Supreme Court only "with respect to matters arising under this Act". However an application for approval of a release under s. 31 of the Family Provision Act is not a "matter" arising under the Family Law Act. Clearly it is a matter arising under the State Act, and the fact that the Family Court may, under the Commonwealth Act, approve a maintenance agreement which includes releases in respect of claims under the State Act does not lead to the conclusion that an application for approval of a release, as contemplated by the State Act, is a matter arising under the Commonwealth Act, when the different criteria involved in each approval are properly borne in mind. Although the provisions of the Family Law Act relating to the jurisdiction of the Family Court and of the State Supreme Courts do not appear to have been thought through, it is inconceivable that Parliament intended to exclude from the Supreme Court of a State the jurisdiction to entertain an application arising under State law for approval of a release.

In the result we would answer the questions in the part of the cause removed into this Court as follows: (a) No (b) No.