Mullane v Mullane

The application of the wife which provoked these proceedings seeks an order that on the expiration of her right to occupancy the property be sold and the net proceeds thereof be divided as to two-thirds to her and one-third to the respondent. The application clearly seeks an alteration of the interests of a party in the property within s. 79. Special leave to appeal was granted in order to examine the question whether the Full Court was correct in denying jurisdiction to Hogan J. to deal with the application for the reason that the exclusive occupancy order made in 1967 should be treated as if it had been made under s. 79. It follows from the reasons we have outlined that in our opinion the Full Court erred in coming to that conclusion and that the denial of jurisdiction on that ground was not justified.

The appeal should be allowed. It was agreed between the parties that the appropriate course to be adopted in that event is to remit the matter to the Full Court of the Family Court for reconsideration in accordance with the judgment of this Court.