(v) The 3rd plaintiff accepted a position as trustee of the G.K. and F. Liveris Foundation, a unit trust, on the 18th December 1981 as evidenced by a Deed of Trust dated the 18th December 1981. (vi) The first and second plaintiffs executed a Deed dated the 15th January 1982 described as a "Maintenance Agreement", sections 4 and 86Family Law Act (Commonwealth)". The defendant has at all times denied and continues to deny that the Agreement constitutes a maintenance agreement for the purposes of the Family Law Act. (vii) The second plaintiff, Florence Liveris, executed and affidavit verifying the said agreement on the 15th January 1982. The defendant only admits that the affidavit was executed. (viii) The first plaintiff, George Kailis Liveris, executed an affidavit verifying the said agreement on the 15th January 1982. The defendant only admits that the affidavit was executed. (ix) A Memorandum of Transfer transferring Lots 1650, 1651 and 1654 to Liveris Nominees Pty Limited pursuant to the said Deed was executed on the 15th January 1982. The defendant only admits that the transfer was executed. The Deed was registered pursuant to section 86 on the 15th day of January 1982. (x) On the 29th January 1982, the plaintiffs through their solicitors, Messrs Waters James and O'Neil forwarded the Memorandum of Transfer, a sealed copy of the said Deed, a copy of the affidavits referred to in paragraphs (vii) and (viii) to the defendant with a request that the documents be stamped 'exempt' from stamp duty. (xi) On the 19th February 1982 a letter was received from the defendant advising the plaintiff's solicitors that the Memorandum of Transfer would be stamped as a conveyance transfer under item 5(i) of the Stamp Duty Act at a value to be assessed by the Valuer-General and that, in addition, the said Deed called a Maintenance Agreement would be stamped as a Deed assessed at $5.00. (xii) On the 5th May 1982 a Notice of Assessment was received by the plaintiffs' solicitors Messrs Waters James and O'Neil from the defendant assessing the market value of the property to be transferred at $535,000 as at the transfer date, and assessing stamp duty on the said transfer to be $14,050- 00 and, in addition, on the said Deed called a Maintenance Agreement, at $5-50. (xiii) On the 13th May 1982 by letter written by Messrs Waters, James and O'Neil to the defendant, formal objection to the assessment of the defendant was made setting out the basis of objection. (xiv) By letter dated 22nd April 1983 from the defendant to Messrs Waters James and O'Neil disallowance of the objection was made. (xv) The duty so assessed was paid without prejudice to these proceedings. B. Questions for determination by the Court are:- (i) Is the Deed of the 15th January 1982 by the first and second plaintiffs a maintenance agreement for the purposes of the Family Law Act and is the Memorandum of Transfer of the 15th January 1982 an instrument executed for the purposes of such an agreement? (ii) If yes, is section 90 of the Family LawAct as in force on the 15 January 1982 valid in its application to the stamp duty or other duties or charges imposed on those documents under the law of the Northern Territory of Australia? DATED this 31 day of March 1989." 2. It will be noted that Question B(ii) involves a matter arising under the Constitution or involving its interpretation. I am assured that the appropriate notices under s.78B of the Judiciary Act have been sent to all State Attornies-General and to the Federal Attorney-General and that none wish to intervene. I therefore proceed with the matter. 3. S.90, as in force at the time of the execution of the Deed referred to in paragraph A (vi) of the Statement read as follows:- "SECTION 90 INSTRUMENTS NOT LIABLE TO DUTY 90 A maintenance agreement, or a deed or other instrument executed by a person for the purposes of such an agreement or for the purposes of, or in accordance with an order under, this Part, is not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory." 4. The Deed referred to in paragraph A (vi) of the Statement is Exhibit A, and is made between the husband and wife. It recites that they were married on 8 May 1948 and "desire to enter into this agreement to make provision for the various matters herein agreed to in consideration of their natural love and affection for each other". It then sets out the names and dates of birth of the children of the marriage (c.f. paragraph A (iv) of the Statement) and describes the property of which the husband and wife are the registered proprietors. See also paragraph (i) of the Statement which gives the additional information that they are proprietors as tenants in common and equal shares. The Deed then continues:- "NOW THEREFORE THIS AGREEMENT WITNESSETH ASFOLLOWS:-

1. The parties shall continue to live together in mutual love and respect.
2. The husband confirms his obligations to maintain the wife and the children in the manner appropriate to their station in life and consonant with his love and affection for them.
3. Both the husband and the wife shall at all times have the joint custody, guardianship and control of such children still residing in the matrimonial home.
4. To make provision for the family, the husband and wife shall transfer the property to Liveris Nominees Pty Ltd as trustees of the G.K. and F. Liveris Foundation, and the husband and wife shall execute a Memorandum of Transfer of the property under the RealProperty Act in favour of Liveris Nominees Pty Ltd forthwith for the purposes of giving effect to this agreement." The Deed is headed as follows:- "FAMILY LAW ACT (COMMONWEALTH) Sections 4 and 86 Maintenance Agreement" As I have commented in an earlier ruling in this case, (17/2/88) the fact that the Deed was registered pursuant to s.86 of the Family Law Act as a maintenance agreement does not prevent the Court from examining whether it is in fact such. Nor, of course, does the fact that it is described in the heading as a maintenance agreement under the Act. The question must be determined by examining the Deed in the light of the definitions supplied by the Act. These definitions have since, in part, been amended - although I do not think to any relevance on this question. However I proceed under the Act as it stood on the date of the registration of the Deed which was 15 January
5. At that time the definition of "maintenance agreement" was as follows:- " 'Maintenance Agreement' means an agreement in writing made, whether before or after the commencement of this Act, between the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes provision with respect to other matters, and includes such an agreement that varies an earlier maintenance agreement;". "Financial matters" is defined as:- " 'Financial Matters', in relation to the parties to a marriage, means matters with respect to - (a) the maintenance of one of the parties; (b) the property of those parties or of either of them; or (c) the maintenance of children of the marriages;".
6. I say at once that clauses 1, 2 and 3 of the Deed of 15 January 1982 cannot in my view come within the definition of "financial matters".
7. Clause 1 merely recites that the parties shall continue to live together in mutual love and respect. While that is a desirable state of affairs it does no more than express an intent that the marriage continue. No doubt in a very broad sense it may be argued that mutual love and respect imply a promise to maintain each other; but that obligation is recognised, within defined limits, by s.72 of the Family Law Act whether or not mutual love and respect prevail. At most, and so far as any legal obligations are concerned, Clause 1 can go no further than s.72. Merely to set out that obligation does not thereby make provision for financial matters or make the Deed a matter "with respect to" the maintenance of one of the parties.

On the other hand in Bowlas v Bowlas (1965) 1 All ER 803 at 806 Scarman J. delivering the judgment of the Divisional Court saw the act of marriage as marking the advent of a new social unit

• the family.

11. In the context of this Deed I consider that the expression "family" in clause 4 includes husband, wife and children. I think one may for this purpose look at Clauses 1, 2 and 3 which, however ineptly expressed, recognise an interaction between husband, wife and children as a family unit. Furthermore in the discretionary trust, of which Liveris Nominees Pty Ltd is the trustee, the husband, wife and all the children are mentioned as unit holders.
12. Clause 4 of the Deed recites that the husband and wife shall execute a Memorandum of Transfer of the property to Liveris Nominees Pty Ltd "forthwith for the purpose of giving effect to this agreement". The transfer to that effect was duly executed by the parties on 15 January 1982 is Exhibit "C".
13. While one must acknowledge and lament the loose and unsatisfactory phraseology contained in the Deed, its purpose is sufficiently clear to give it operation as a Deed under seal. That purpose is to transfer certain designated property of the spouses to a trustee to hold that property for the benefit of the family, being the husband, wife and all the children.
14. Therefore, within the definitions of the Act, the Deed makes provision "with respect to" financial matters, financial matters meaning, inter alia, matters with respect to the property of the parties. In my view it must be regarded as a "maintenance agreement" within the meaning of the Act, and the transfer executed as a result must be regarded as "a deed or other instrument executed for the purposes of such an agreement", within the meaning of s.90.
15. It is submitted that it cannot be shown that this Deed arises out of any duty by either spouse to maintain the other; and that the existence of such a duty is necessary before the Deed can be regarded as a maintenance agreement. I do not accept that. It is not what the definition sections say; and the use of the word "maintenance" in the expression "maintenance agreement" need not connote a duty to maintain in the sense used in s.72. Many such agreements are postulated on rights or claims to property under s.79; or are settlements of both maintenance and property. The width of the definitions is in my view deliberate, to encourage settlement rather than court disputes as part of the general conciliation policy of the Act. See, for example, Parts II and III.
16. Gibbs C.J. observes in Gazzo v Comptroller of Stamps(1981) [1981] HCA 73; 149 CLR 227 at 232 that the definition is "very wide in its scope and includes many agreements that could not be described as maintenance agreements in the ordinary sense". At p 233 His Honour gives an instance of the spouses agreeing to sell the matrimonial home and divide the proceeds equally. That sort of transaction does not in itself connote a duty to maintain. See also p 263, where Aickin J. after referring to the definitions of "maintenance agreement" and "financial matters" says, " An examination of the interaction of those two definitions demonstrates that the prima facie operation of the expression 'maintenance agreement' is extremely wide and goes far beyond what would be the ordinary meaning of the term 'maintenance agreement' as between the parties to a marriage, whether in respect to a period when the marriage was still on foot or in respect to a period after the marriage had been dissolved."

The definition of "matrimonial cause" includes (d) proceedings between the parties to a marriage for ... the registration of a maintenance agreement". Such "proceedings" which are defined as "a proceeding in a court" are sufficiently achieved under s.86(1) by registration "in any court having jurisdiction under this Act". If it were, therefore, necessary to link the agreement to a proceeding in a court, the link is there; without any suggestion that a condition precedent of such proceeding is some element of marital discord. 20. Mr Pauling QC for the Commissioner of Taxes submits that parliament could never have intended the wide results that might flow from a literal interpretation of the definitions. He may well be correct in submitting that there must be something more than a merely incidental connection between the marriage and a particular property transaction. An agreement by spouses to purchase shares jointly or to lend money jointly to a third party may be transactions which are not "with respect to" the property of the parties; or may not be transactions which arise out of the marital relationship; though the circumstances would need to be considered in every case. But it is not necessary to decide in this case how far or near the boundaries must be drawn. Insofar as Mr Pauling suggests that in this case there is no substantial connection between the Deed and the marital relationship I must disagree. The Deed is between the parties only, it makes provision for the "family", which in the context includes the husband and the wife, and it contemplates the transfer of the property to a trustee for the benefit or presumed benefit of the husband wife and children. Save for the trustee, no parties outside the immediate family are involved. As a rearrangement of marital assets it seems to me a transaction which arises out of the marital relationship or is at least sufficiently connected with it to bring this agreement within the class of agreements contemplated under the Act as a "maintenance agreement". Further than that I need not go. 21. On a constitutional argument, Mr Pauling makes the rather courageous submission (in view of certain dicta in Gazzo's case [1981] HCA 73; (1981) 149 CLR 227) that once s.90 had been held not to be a valid law of the Commonwealth vis-a-vis the States (Gazzo's case) it must be held not to be a valid law with respect to the Northern Territory. He submits that on a proper construction of s.90 the intention of Parliament was to legislate to exempt the specified instruments from duties and charges Australia-wide (including Territories) or not at all. I think that argument must fail for three reasons:-

1. Although it is correct that in Gazzo's case the High Court were determining whether s.90 of the Family Law Act was sufficiently within federal power to apply to stamp duty imposed by a State on transfers of land executed in accordance with orders under Part VIII of the Family Law Act, it would be surprising if the High Court had not at least commented on the fact that their reasoning embraced duties imposed in all parts of Australia (i.e. including the Territories). The specific answer given by the High Court was that "s.90 in its attempted application to stamp duties imposed under the Stamps Act (Victoria) on transfers of land executed by a person in accordance with an order under Part VIII of the Family Law Act 1975 is not a valid law of the Commonwealth". (See p 280).
2. Mr Pauling relies on the comments of Windeyer J. in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 278 where His Honour says, " ... in my view when the Parliament makes a law intended to be of general application throughout the whole of the Commonwealth and its Territories it does so in the exercise of all powers it thereunto enabling. If the law be within power under s.51 it will, by the combined effect of that section and of s.122, be law in and for States and the Territories alike. If it be invalid as beyond s.51 then, in the absence of a clear indication that it should nevertheless apply in the Territories, it will I consider fail

altogether of effect. Whether a particular Act is intended to extend to the Territories, or to a particular Territory, as well as to the States then becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature". 22. The short answer to Mr Pauling's submission, and well in accordance with what His Honour Windeyer J. is saying, is that it seems clear that s.90 does express a clear intention that it should nevertheless apply to a Territory. It uses the terms "any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory". 3. In Gazzo's case both Gibbs C.J. and Aickin J. express unequivocal opinions of the validity of s.90 so far as it applies to a Territory. At p 232 Gibbs C.J. says:- "In so far as s.90 exempts instruments from a duty or charge under a law of a Territory or a law of the Commonwealth it is clearly valid". At p 266 Aickin J. says:- "Section 90 of the Family Law Act, so far as presently material, purports to ensure that certain instruments executed by married or divorced persons pursuant to an order of the Family Court shall be exempt from duties imposed upon them by State or Territorial laws. Section 122 of the Constitution leaves no doubt as to the validity of that provision so far as laws of the Territories are concerned ...". 23. While it seems that no other judge specifically addressed the question, it is equally true that no other judge specifically dissented from those observations; and one might reasonably assume that the two dissenting judges (Mason and Murphy JJ.) would have agreed (and, of course, gone further). In those circumstances, and although it may be that the observations of Gibbs C.J. and Aickin J. were, strictly, obiter dicta, as Mr Pauling urges, I am not disposed to be as bold as Mr Pauling would wish me to be, to disagree with those observations; particularly because, if I may say so with very great respect, it appears to me that the observations are correct. 24. I therefore answer the questions asked in the Statement as follows:- B(i) Is the Deed of 15 January 1982 by the first and second plaintiffs a maintenance agreement for the purposes of the Family Law Act and is the Memorandum of Transfer of 15 January 1982 an instrument executed for the purposes of such an agreement? Answer. Yes B(ii) If yes, is s.90 of the Family Law Act as in force on 15 January 1982 valid in its application to the stamp duty or charges imposed on those documents under the law of the Northern Territory of Australia? Answer. Yes. 25. Although it seems that certain results flow from those answers in respect of the pleadings between the parties I have not, as I understand it, been asked to resolve those matters other than by answering the questions posed in the Statement. 26. I therefore give liberty to apply on such further proceedings or orders as may be sought consequentially. 27. The defendant must pay the costs of these proceedings.