Lansell v Lansell

Lansell v Lansell - [1964] HCA 42 - HCA 1964 case summary — Zoe

[13]

It follows in my opinion that Sholl J. took the correct course. But I am unwilling to leave the subject without observing that views upon s. 40A which were formerly entertained as to the stage of a case which must be reached before an inter se question may be said to "arise" in a cause, e.g. in In re Drew [3] and Ex parte King; Re University of Sydney [4] , seem to require reconsideration in the light of the decisions of the Privy Council in the Banking Case [5] , Nelungaloo Pty. Ltd. v. The Commonwealth [6] and Grace Bros. Pty. Ltd. v. The Commonwealth [7] upon s. 74 of the Constitution. See also Nelungaloo Pty. Ltd. v. The Commonwealth [8] and Nelungaloo Pty. Ltd. v. The Commonwealth [No. 4] [9] . There is much now to be said for the view that an inter se question "arises" in a cause pending in the Supreme Court of a State as soon as it appears, either upon a contention advanced by a party (whether by means of a pleading or otherwise) or upon the Supreme Court's own consideration of its jurisdiction (see e.g. Hooper v. Hooper [10] and contrast Nelungaloo Pty. Ltd. v. The Commonwealth [11] where the inter se question did not go to jurisdiction and therefore might be withdrawn by the party who raised it) that judgment cannot be pronounced in favour of one of the parties without a decision being given upon the inter se question; and it is immaterial that the possibility has not been exhausted of deciding other questions in such a way that a judgment may be pronounced which will dispose of the cause without the inter se question having had to be decided. The evident purpose of s. 40A, after all, is to supplement the provision made by s. 74 of the Constitution in furtherance of the "high policy" of reserving "for the jurisdiction of (the) High Court the solution of those inter se questions which were of such vital importance to Commonwealth and States alike" [1] . I take it to be the purpose of s. 40A to prevent the Supreme Court of a State from pronouncing a judgment (which may be carried by direct appeal to the Privy Council) in any cause in which it has become apparent that s. 74 of the Constitution would have precluded an appeal to the Privy Council in the absence of a certificate if the court had been the High Court. Unless the view above suggested as to when an inter se question arises is correct, this purpose must largely fail. The present case may be taken as an illustration. Suppose that Sholl J. had proceeded with the application as regards questions not inter se, and had dismissed it on the merits without considering the inter se question. On an appeal by the petitioner to the Privy Council the respondent would be entitled to rely upon that question in order to retain his judgment. Then their Lordships, if they were to disagree with the decision on the merits, would be under the necessity of deciding the inter se question, notwithstanding that by reason of s. 74 they would have had no jurisdiction to do so if the appeal had come from the High Court. Their decision upon the question would not be binding on the High Court in other cases, and, as happened before s. 40A was enacted, a situation of uncertainty and embarrassment would result. The Privy Council's judgments in the three cases abovementioned make it clear that without a certificate an appeal from the High Court must be dismissed as soon as the fact appears that an inter se question is really involved in it, in the sense that one party relies upon an inter se argument which would have to be met and answered by the Board before the appeal could be decided against that party. Where that appears the appeal must be dismissed at once: the Board has no jurisdiction to proceed, even to the extent of discovering whether the appeal may be disposed of without touching the inter se question. This having been made clear by their Lordships in regard to s. 74, it seems to me by parity of reasoning that where a cause is pending in a State Supreme Court that Court is required by s. 40A to proceed no further with any question in the cause, once the fact has emerged that an inter se question is really involved.

[16]

The first observation to make upon the terms of s. 86 (1) is that the power conferred is a power exercisable "in proceedings under this Act". If this expression meant "in proceedings under this sub-section", so that the intention appearing were to create a jurisdiction exercisable independently of proceedings for divorce or any other matrimonial cause, there might well be strength in a contention that the enactment could not be supported under any head of federal power. No doubt it would properly be characterized only as a law with respect to property, notwithstanding that the persons whose interests might be affected are confined to spouses and children; and the Parliament has no general power to make laws with respect to property. But I think it is clear that the sub-section creates only a power to make an ancillary order in substantive proceedings which themselves are within the constitutional concept of "divorce and matrimonial causes". In order to demonstrate that this is so, reference must be made to several provisions of the Act. The expression "the court" is defined in s. 5 (1) to mean, in relation to any proceedings, the court exercising jurisdiction in those proceedings by virtue of the Act. By s. 23 (2), the Supreme Court of each State is invested, subject to certain provisions which there is no need to mention here, with federal jurisdiction to hear and determine matrimonial causes instituted under the Act. The expression "matrimonial cause" is given by s. 5 (1) an exclusive definition, extending it, but at the same time confining it, to proceedings described in five paragraphs lettered from (a) to (e). The kinds of proceedings comprised in pars. (a) and (b) are of a substantive character, having no necessary relation to any other proceedings. They are (a) proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights or jactitation of marriage, and (b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage, or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation. Paragraph (c) comprises proceedings of various descriptions, including proceedings "with respect to settlements", but all the descriptions are qualified by the words "being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act". Paragraphs (d) and (e) need not be here considered.

[19]

All these provisions combine to emphasize that an order for a settlement of property under s. 86 is provided for only as a form of incidental relief in proceedings for what s. 89 calls the principal relief, that is to say of the kinds described in pars. (a) and (b) of the definition of matrimonial cause. That, indeed, is the conclusion which seems the more likely on the face of s. 86 (1) itself; for upon the most natural reading of its terms it postulates the existence of antecedent proceedings to identify what it is content to call "the marriage". The conclusion is reinforced by the consideration that sub-s. (2) of the same section empowers the court, again "in proceedings under the Act", to make an order with respect to the application for the benefit of all or any of the parties to, and the children of, "the marriage" of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to "the marriage" or either of them. Finally, there is sub-s. (3), which provides that the power of the court to make orders of the kind [sic] referred to in the section shall not be exercised for the benefit of a child who has attained the age of twenty-one years, unless the court is of opinion that there are special circumstances that justify the making of the order. Perhaps this provision should be read as meaning that in the absence of special circumstances an order may not be made under which a benefit may arise in favour of a child after he has attained twenty-one. But, even if this be too narrow a construction, the inference is clear enough that both sub-s. (1) and sub-s. (2), so far as they relate to the provision of benefits for children, are concerned predominantly with the presumptive dependence of children under twenty-one upon parental assistance, and that therefore the relief they authorize is in the nature of consequential relief in proceedings by which a marriage (or a purported marriage: see. s. 83) is made the subject of principal relief of the kinds mentioned in pars. (a) and (b) of the definition of matrimonial cause.

[30]

Prima facie I should have thought that a law which empowers a court to direct a settlement of property as a provision for either party to a marriage which has been dissolved may fairly be described as a law with respect to "matrimonial causes" in the sense in which that expression must be taken to have been used in the Constitution. "Divorce and matrimonial causes" is intended to denote broadly a head of legislative power and it is not susceptible of any narrow interpretation. The argument for the respondent, however, proceeds to examine the extent to which Courts exercising jurisdiction in matrimonial causes in the various States of the Commonwealth were, at the time of Federation, authorized to direct settlements, or resettlements, of property and it was pointed out that in no case was authority given to direct a settlement of any part of a guilty husband's property in favour of his wife. The power to direct a settlement of property, it was said, was limited to directing a reasonable settlement for the benefit of the husband and the children of the marriage of property of a wife when the marriage was dissolved or a decree for judicial separation was made on the ground of her adultery and to the resettlement of property subject to an ante-nuptial or post-nuptial settlement. It was not contended that proceedings of the character contemplated by the statutory provisions pursuant to which this jurisdiction was exercised were extraneous to the concept of "matrimonial causes". But it was contended that the statutory provisions which authorized Courts to exercise these powers marked the relevant limits of the concept of "matrimonial causes" at that time and that the constitutional provision could not be taken to authorize any wider power to direct a settlement of the property of either party to a marriage. Further, it was argued that the constitutional power does not authorize provisions under which a settlement may be directed of property acquired by one of the parties to the marriage after the marriage has been dissolved.

[32]

It is, of course, reasonably clear that the expression matrimonial cause cannot be taken to comprehend every application by one spouse for the settlement of some part of the property of the other. Nor can it be taken to comprehend every such application made at any time simply because the parties have at some time been married and the marriage has been dissolved or a decree of nullity or for judicial separation has been pronounced in the past. But the jurisdiction conferred by s. 86 is not a jurisdiction to direct settlements at large or simply because the applicant was once married to the respondent. It is a jurisdiction which is exercisable only "in proceedings under this Act", that is to say, in applications for orders directing settlements in relation to proceedings of the character specified in pars. (a) and (b) of the definition of matrimonial cause. In such applications the Court may require the parties to a marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of the marriage, such a settlement of property to which the parties are, or either of them is, entitled, as the Court considers just and equitable in the circumstances of the case. The phrase, "in relation to" and the succeeding words of par. (c) of the definition of matrimonial cause indicate the limits which are set to the jurisdiction conferred by s. 86 (1). It is a jurisdiction which is exercisable only where the application bears an appropriate relationship to substantive proceedings which admittedly constitute a matrimonial cause, that is to say, where the application can fairly be said to be incidental to the relief obtainable or already obtained in the substantive proceedings. As such it appears as a provision designed to deal with situations brought about by the granting to one or other of the parties to a marriage of substantive relief of the character referred to in pars. (a) and (b) and which the legislature may well have thought to call for some provision enabling appropriate financial readjustments to be made as occasion might require. I do not myself see how it can be said that a law which authorizes a court in applications of such a character to direct such a settlement as it considers just and equitable in the circumstances of the case transcends the limits of the constitutional power.

[40]

Before the Constitution was enacted the courts exercising matrimonial jurisdiction in the Australian Colonies were empowered to modify settlements and to direct settlements of the property of a wife guilty of adultery. These provisions were derived from English legislation. Section 86 empowers courts exercising jurisdiction under the Commonwealth Act to go further in affecting the proprietary rights of spouses. That does not affect its validity. The content of a constitutional power is determined by the connotation of the words in which it is expressed, not limited by their denotation at any particular time. I adopt here a sentence of Higgins J.; that it was said in the course of a dissenting judgment and in relation to different subject matter does not affect its aptness here: "The usage of 1900 gives us the central type; it does not give us the circumference of the power": The Brewery Labels Case [1] . In Dewar v. Dewar [2] , this Court (Dixon C.J., Kitto and Menzies JJ.), speaking of a provision in the Queensland Act (The Matrimonial Causes Act of 1875), said that its "essential purpose is to enable the Court to inquire into post-nuptial and ante-nuptial dispositions of property in favour of one or other or both of the parties to the marriage which because of the dissolution of that marriage should be reconsidered and to empower the Court to make orders for what appears in the changed circumstances a just application of the property" [3] . That sentence states the ambit of the power there being considered. It limits it to circumstances arising "because of the dissolution of the marriage". The Commonwealth enactment that we have to consider in this case is, in my opinion, likewise restrained. Properly construed, giving due weight to the words "in proceedings under this Act", s. 86 (1) is within the constitutional power. I agree in the reasons for this conclusion that are more fully set out in the judgments of my brothers Taylor and Menzies and with the order proposed.

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Parties