Perlman v Perlman

[1984] HCA 4

High Court of Australia|1978-07-04|Before: Dawson JJ

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Court

High Court of Australia

Decision date

1978-07-04

Before

Dawson JJ

Source

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Judgment (106 paragraphs)

[1]

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. Perlman v Perlman [1984] HCA 4

[2]

The appellant and the respondent were husband and wife. Their marriage was dissolved by a decree made by the Family Court on 4 July 1978. On 10 July 1978 they entered into a deed which made provision with respect to financial matters, and was accordingly a "maintenance agreement" within the definition of that expression in s. 4(1) of the Family Law Act 1975 Cth, as amended ("the Act"). The deed recited that the parties had determined to enter into financial arrangements once and for all, and provided (by cl. 11) that it was intended to operate in relation to the whole of the financial matters between the parties in substitution for any rights of either of the parties under Pt VIII of the Act. It is necessary to mention only two of the substantive provisions of the deed - cl. 4, by which the appellant undertook to provide $50,000 to be expended in the purchase of income-producing real estate, the profits from which were to be paid to the respondent during her lifetime or until she remarried or entered into a de facto relationship, and cl. 10, by which the appellant was required to pay a weekly amount of $81 to the respondent until the sum of $50,000 had been invested in the manner provided by cl. 4. The deed was approved by the Family Court on the same day. The appellant did not provide the sum of $50,000 for investment and after April 1979 he failed to make the payments provided by cl. 10. On 10 January 1980 the respondent applied to the Family Court for an order that cl. 4 of the deed be complied with within six weeks or such further time as the court might order. The Family Court held that it had no jurisdiction to make the order sought. On 21 December 1981 the respondent commenced proceedings by summons in the Equity Division of the Supreme Court of New South Wales seeking, in effect, orders that the appellant specifically perform cl. 4 of the deed and that he pay arrears of income under cl. 10 and damages for his breaches of the provisions of the deed. The appellant moved to strike out the summons on the ground that the Family Court had exclusive jurisdiction to entertain proceedings of that kind. His motion was dismissed and subsequently the hearing of the summons proceeded and the respondent obtained orders of the kind which she sought. The appellant appealed to the Court of Appeal, on the ground, amongst others, that the Supreme Court had no jurisdiction because the proceedings were a "matrimonial cause" within the meaning of the Act. The Court of Appeal held that the court had jurisdiction, and dismissed the appeal. From that decision an appeal has been brought to this Court, on the sole ground that the proceedings constituted a matrimonial cause and that the Supreme Court therefore had no jurisdiction to hear them.

[15]

Paragraphs (c), (ca), (cb) and (e) of the definition were inserted in their present form by an amendment which took effect after 1 June 1976, the date mentioned in the proclamation under s. 40(3). It may however be assumed in favour of the appellant that the proclamation is ambulatory in effect and refers to proceedings of the kind described in pars. (c) and (e) of the definition in their present form. If that were not so, the proclamation would be invalid at least in so far as it applied to proceedings of the kind referred to in pars. (c), (e) and (f) of the definition, since those paragraphs in their original form went beyond constitutional power: Russell v. Russell [1] . The proclamation does not, however, expressly refer to proceedings of the kinds described in pars. (ca) and (cb), and it is impossible to construe it as though it did contain a reference to those paragraphs. In Reynolds v. Reynolds [2] , Waddell J. accepted the correctness of a concession that the proclamation takes effect in relation to matrimonial causes as defined by par. (ca). O'Bryan J. followed that decision in McCullough v. Hemphill [3] although Menhennitt J. had doubted it in Cacek v. Cacek [4] . No reasons were given in those cases in support of the view that the proclamation takes effect as though it referred to par. (ca). Before us, it was argued by the learned Solicitor-General, intervening on behalf of the Attorney-General for the Commonwealth, that par. (c)(ii) of the definition, in its unamended form, included proceedings of the kind now described in par. (ca), so that the reference in the definition to "proceedings of a kind" referred to in par. (c) includes those proceedings now within par. (ca). The difficulty about this submission is that it requires the proclamation to be read as though it refers to par. (c) in its original form, which, as I have said, was too wide to be constitutionally valid. For these reasons it appears to me that the Supreme Court retains jurisdiction to hear and determine proceedings of the kinds mentioned in pars. (ca) and (cb), provided, of course, that they are not also proceedings of a kind described in another paragraph of the definition. 1. (1976) 134 C.L.R. 495. 2. [1977] 2 N.S.W.L.R. 295, at p. 300. 3. Supreme Court of Victoria; 6 September 1979; Unreported. 4. [1979] V.R. 385, at p. 389; 45 F.L.R. 44, at p. 48.

[17]

The words "in relation to" import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind: see Reg. v. Ross-Jones; Ex parte Beaumont [5] . An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings (so that, e.g., an application by a divorced wife for a settlement and transfer of property is a proceeding in relation to the completed proceedings for the divorce: Reg. v. Ross-Jones; Ex parte Beaumont [6] ). It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former (e.g., where an application under s. 61(4) of the Act is brought by a surviving parent for custody of a child when that custody has been awarded to the other parent, since deceased: Dowal v. Murray [7] ; or where an application for custody of a child of a marriage since dissolved is made by a stranger to the marriage against a party to the marriage who has been granted custody by an order in previous proceedings: Fountain v. Alexander [8] . Proceedings brought to revoke an approval, in the limited circumstances permitted by s. 87(6) of the Act, would be proceedings in relation to the completed proceedings for the approval. However, an application to enforce the maintenance agreement in the present case (i.e., the deed) was not consequential on or incidental to the order approving of the maintenance agreement and it did not vary, reverse or otherwise affect the order giving the approval. The approval of the court had three relevant effects: (1) it rendered the agreement effective (s. 87(2)); (2) thereafter no court having jurisdiction under the Act could make an order with respect to the financial matters dealt with in the agreement (i.e. with respect to any of the financial matters between the parties) except in the circumstances mentioned in s. 87(9) which has no relevance to the present case (s. 87(3)); and (3) it rendered the agreement enforceable as if it were an order of the Family Court (ss. 87(7) and 88). The present proceedings do not affect that position - whether the present proceedings succeed or fail, the approval remains valid, and the deed remains effective; the deed continues to oust the jurisdiction of courts under the Act to make orders with respect to financial matters between the parties and it remains enforceable as if it were an order of the Family Court. Although a grant of approval was a condition of the efficacy of the maintenance agreement, the subject of the present proceedings is not the approval but the agreement. There is a connexion between the present proceedings and the deed, since the present proceedings are brought to enforce the deed; there is none, except of a remote and indirect kind, between the present proceedings and the proceedings brought to obtain the approval. So far as the present proceedings are concerned, the proceedings brought to obtain the approval simply form part of the historical background. The proceedings in the present case are not proceedings in relation to the proceedings for the approval.

[25]

The words in sec. 88 "or is deemed to have been registered" have no meaning except in relation to sec. 87(7). Unless agreements deemed to have been registered under subsec. (7) can be enforced under sec. 88 those words are meaningless. It would be contrary to the express intention of the legislature to hold that proceedings for the enforcement of an approved maintenance agreement are not a matrimonial cause. Such proceedings should be regarded both as proceedings with respect to the enforcement of a decree, and as proceedings in relation to completed proceedings (i.e. the proceedings for the approval of the agreement). They are, therefore, a matrimonial cause in respect of which the Family Court may exercise jurisdiction. If, in this passage, their Honours were intending to suggest that the Family Court would not have jurisdiction to enforce a maintenance agreement that has been registered, or is deemed to have been registered, unless the proceedings for enforcement were a matrimonial cause within the definition, they overlooked the fact that the Family Court has jurisdiction in matters which are not matrimonial causes: see s. 31(1)(d) and s. 39(5)(c) of the Act. There is no doubt that the Family Court may enforce a maintenance agreement which it has approved in the same way that it can enforce an order of its own. However, its powers of enforcement, under s. 106 of the Act and Pt XV of the regulations, are quite inadequate to enable it effectively to enforce the wide variety of arrangements which might be embodied in a maintenance agreement. This was pointed out in Noble v. Noble [18] , as well as by the Court of Appeal in the present case. The view apparently taken in Harding and Gibson [19] and Makin and Makin [20] , that the Family Court can apply the remedies available under the general law of contract, is erroneous; it was correctly said in Power and Power [21] that the only remedies for enforcement which may be exercised by the Family Court are those expressly provided by the Act itself. It was submitted on behalf of the appellant that this circumstance is not of assistance in deciding whether the jurisdiction of the Family Court to enforce a maintenance agreement is intended to be exclusive because, it was said, the deficiency in the powers of the Family Court could readily be remedied by an amendment to the regulations. I do not agree with that submission. There may be parties to a maintenance agreement besides the parties to the marriage; the enforcement of the agreement may involve the winding up of companies or the execution of trusts, and the Act does not contemplate that the regulations may confer on the Family Court powers of that kind. In any case, an order for specific performance, or an award of damages, is not a mode of execution of the order of a court. I therefore agree with the observations of Glass J.A. in the present case, and with those of the Court in Noble v. Noble [22] , that it cannot be accepted that the Parliament intended to deprive the parties to a maintenance agreement of the armoury of remedies which the general law provides leaving them only with the comparatively inefficacious remedies available under the Act. Finally, I agree with the statement of McPherson J. in Noble v. Noble [23] that: "Once the marriage has been dissolved, and the financial matters between the parties have been resolved by such an approved agreement, there is no reason either of logic, policy, or social philosophy which should deny to those parties, who have chosen (or been compelled) to become strangers to each other, a right of access to the ordinary civil courts of the land for the purpose of enforcing the financial arrangements that they have made." These considerations fortify me in the conclusion that I have already reached, that proceedings for the enforcement of a maintenance agreement are not themslves a matrimonial cause within the exclusive jurisdiction of the Family Court. I would overrule In the Marriage of Carew [24] . 1. [1979] 1 N.S.W.L.R. 431; 37 F.L.R. 435. 2. (1983) 48 A.L.R. 157; 9 Fam. L.R. 55; [1983] F.L.C. 78,293. 3. (1979) 37 F.L.R. 452; [1979] F.L.C. 78,721. 4. (1979) 37 F.L.R., at p. 454; [1979] F.L.C., at p. 78,724. 5. [1979] 1 N.S.W.L.R., at p. 433; 37 F.L.R., at p. 437. 6. (1983) 48 A.L.R., at p. 166; [1983] F.L.C., at p. 78,300. 7. (1979) 37 F.L.R., at p. 456; 5 Fam. L.R., at p. 517; [1979] F.L.C., at pp. 78,724-78,725. 8. (1983) 48 A.L.R., at pp. 159-160; [1983] F.L.C., at pp. 78,295, 78,299. 9. (1979) F.L.C. 78,543, at p. 78,547. 10. (1980) 5 Fam. L.R. 825; [1980] F.L.C. 75,159. 11. [1980] F.L.C. 75,552, at p. 75,556. 12. (1983) 48 A.L.R., at pp. 159, 165-166; [1983] F.L.C., at pp. 78,295, 78,299, 78,300. 13. (1983) 48 A.L.R., at p. 159; [1983] F.L.C., at p. 78,295. 14. (1979) 37 F.L.R. 452; 5 Fam. L.R. 513; [1979] F.L.C. 78,721.

[72]

Mr. Bennett, for the appellant, submits that the proceedings fall within par. (f) because they are proceedings in relation to completed proceedings of a kind referred to in par. (d) of the definition, or alternatively in par. (c)(i) or par. (ca). He expressly disclaims any direct reliance on the words appearing in the parenthesis in par. (f), thereby distancing his submission from the opinion expressed by the Family Court (Evatt C.J., Ellis S.J. and Baker J.) in In the Marriage of Carew [29] . In their reasons for judgment in that case, their Honours said [30] : Section 88 provides expressly for the enforcement of a maintenance agreement that has been registered or is deemed to have been registered "as if it were an order of that court". Unless there is some inconsistency with any other provision or principle of the Act, the words in para. (f) of the definition of matrimonial cause - "proceedings with respect to the enforcement of a decree" ought to be read as including the enforcement of a maintenance agreement. No such inconsistency is apparent. Opinions to a contrary effect have been expressed in a number of cases in the Supreme Courts of New South Wales and Queensland: Ellinas v. Ellinas; Re Masterton [31] ; Noble v. Noble [32] ; cf. also In re Stehbens [33] . Although the appellant does not rely directly on these words, it is desirable that I form a view on the point because if the opinion expressed in In the Marriage of Carew is correct then it may help to lay the ground for finding the necessary relation between the present proceedings and the completed proceedings of a kind referred to in the earlier paragraphs of the definition. With respect to their Honours, I am unable to see how proceedings which are directed to the enforcement of the terms of an approved agreement can be said to be proceedings with respect to the enforcement of a decree. The only relevant order which the court is empowered to make in relation to a s. 87 agreement is an order approving the agreement. Where such an order is made, the agreement shall be deemed to be registered in the court and then may be enforced as if it were an order of the court. It seems to me that the clear effect of s. 88 is that the agreement is likened to an order of the court for the purpose of attracting the provisions of the Act which deal with the enforcement of orders of the court. What it plainly does not do is to deem the agreement to be an order of the court. It follows that, in my opinion, the present proceedings are not proceedings with respect to the enforcement of a decree. 1. (1979) 37 F.L.R. 452; 5 Fam. L.R. 513; [1979] F.L.C. 78,721. 2. (1979) 37 F.L.R., at p. 455; 5 Fam. L.R., at p. 516; [1979] F.L.C., at p. 78,724. 3. (1978) 37 F.L.R. 75; 4 Fam. L.R. 660. 4. (1983) 48 A.L.R. 157; 9 Fam. L.R. 55; [1983] F.L.C. 78,293. 5. (1982) 40 A.L.R. 420; 8 Fam. L.R. 91; [1982] F.L.C. 77,243.

[73]

Nevertheless this conclusion does not advance the case against the appellant very far. The issue is whether the present proceedings, however they be described, are in relation to the completed proceedings wherein the agreement was approved. Mr. Bennett argues for an affirmative answer to that issue. He submits that the words "in relation to" are words of wide import and there is no reason to construe them restrictively in this case. I readily accept the first limb of that proposition. I have more difficulty with the second. I do not think the words oblige me to strive to find a connexion, however tenuous and illogical, particularly when the conclusion would be in conflict with the legislative intent which appears from other provisions of the Act. As I shall endeavour to show later in these reasons, there are provisions of the Act which clearly distinguish between matrimonial causes and enforcement proceedings and raise the question whether enforcement proceedings were ever intended to be capable of constituting a matrimonial cause. However, I direct my attention first to the construction of the definition of matrimonial cause and Mr. Bennett's submissions in that regard. I do not think that proceedings directed to the enforcement of a s. 87 agreement (assuming the present proceedings do satisfy that description) bear any relation to the proceedings for the approval of the agreement. Those proceedings focus on the fact of approval. Once the approval is given, s. 87(3) takes effect. Unless and until the approval is revoked, no court having jurisdiction under the Act may make any order with respect to those financial matters which are dealt with in the agreement. Save for the one exception referred to in the sub-section - which is contained in s. 87(9) - s. 87(3) is tantamount to a clear declaration that there can be no further proceedings under the Act in relation to the financial matters contained in the approved agreement. In this respect the agreement is analogous to the agreement which was dealt with in Shaw v. Shaw. Section 87(9) provides the one exception to that state of affairs. Where the court is satisfied that the arrangements made in the agreement relating to a child of the marriage who has not attained the age of eighteen years are no longer proper, it may make an order under Pt VIII. Proceedings brought with respect to such a child would clearly constitute a matrimonial cause because they would be proceedings in relation to the completed proceedings wherein the agreement was approved. They may at the same time be a matrimonial cause by reason of par. (c)(ii), being proceedings between the parties to a marriage with respect to the maintenance of a child of the marriage but the possibility of overlap between the paragraphs which define a matrimonial cause is not to the point. Proceedings to enforce a registered agreement fall within the jurisdiction of the Family Court because of the express operation of s. 31(1)(d) and s. 88. The distinction is, of course, highly significant because the jurisdiction of the Family Court is exclusive of that of the Supreme Courts only in respect of matrimonial causes: see the terms of the proclamation published pursuant to s. 40(3) on 1 June 1976.

[84]

It remains to say that the discernment of a legislative intent to allow proceedings for the enforcement of decrees and proceedings for the enforcement of a maintenance agreement to continue to be taken as may be convenient to the aggrieved party in either the Supreme Courts or the Family Court is entirely congruent with the overall objectives of the legislation. There is both a substantial and a logical distinction between those proceedings which allow for the hearing and determination of those issues which divide the parties and which culminate in the making of a decree or order and those proceedings which seek an enforcement of the decree or order so made. The latter proceedings are concerned only with matters which arise after the resolution of the matrimonial causes which have divided the parties. They are concerned with the default of one of the parties in circumstances which ordinarily have nothing to do with the marital relationship. It is a concern of the Act where a marriage has ceased to subsist to bring the financial relationships of the parties to finality as soon as practicable (s. 81). The law governing a s. 87 type of agreement under the Matrimonial Causes Act is not irrelevant. It was recognized (Shaw v. Shaw [36] ) that the enforcement of such an agreement fell altogether outside the matrimonial causes jurisdiction. Once such an agreement was sanctioned by the court, the parties were free, and indeed obliged, to pursue their rights and fulfil their obligations under that agreement in accordance with the general law of contract. The present Act builds on that history by providing in s. 88 that a registered agreement may be enforced as if it were an order of the court. This provision should be seen as enlarging the remedies available to an aggrieved party to such an agreement. There is nothing in the Act to confine the aggrieved party to those remedies which the Act offers, whether by recourse to the Family Court or to a court exercising invested federal jurisdiction. Certainly, so far as those remedies are concerned, the provisions of s. 106(1)(a) define the power to make regulations relating to the enforcement of decrees in terms which recognize the possible merit of investing State courts with federal jurisdiction. But the issue is not confined to the question of remedies provided under the Act. Having regard to the breadth of the definition of "maintenance agreement", permitting a wide range of subject-matter and parties to fall within the concept, the necessity of allowing the whole range of common law and statutory remedies available to a litigant in the superior courts of common law and equity is imperative. In my respectful opinion, the Act wisely allows it.

[100]

any other proceedings (including proceedings with respect to the enforcement of a decree ) in relation to completed proceedings of a kind referred to in any of paragraphs (a) to (e). There can be no question that the proceedings for the approval of the deed were proceedings between the parties to a marriage for the approval by a court of a maintenance agreement within the meaning of par. (d) of the definition of matrimonial cause and were completed proceedings. The real question is, however, whether the proceedings in the Supreme Court for damages and specific performance were in relation to the proceedings in the Family Court for the approval of the deed. In my view they were not. The proceedings in the Supreme Court had, at the most, a remote and indirect connexion with the proceedings for the approval of the deed and, even giving the widest meaning to the words "in relation to", it is not possible to discern any relationship between the two sets of proceedings. Sections 87 and 88 of the Act provide for the effect of approval of a maintenance agreement, such as the deed in question, which is entered into in substitution for rights under the Act. Sub-section (2) of s. 87 deprives such an agreement of any effect unless it is approved and sub-s. (3) provides that previous orders relating to the financial matters dealt with by the agreement shall cease to have effect. The same sub-section provides that, subject to one exception, no court having jurisdiction under the Act may make an order with respect to those financial matters. As I have said, s. 88 provides for the enforcement of the agreement as if it were the order of a court, in this case the Family Court. But once approval is given to a maintenance agreement under s. 87, the agreement is dependent upon its own terms for its efficacy and proceedings for the enforcement of those terms are a matter of contract, unrelated to the proceedings for approval. In so far as the Family Court in In the Marriage of Carew [38] decided the contrary, the decision cannot in my view be regarded as correct: cf. Ellinas v. Ellinas [39] ; Noble v. Noble [40] . 1. (1979) 37 F.L.R. 452; 5 Fam. L.R. 513; [1979] F.L.C. 78,721. 2. [1979] 1 N.S.W.L.R. 431; 37 F.L.R. 435; 5 Fam. L.R. 114; [1979] F.L.C. 78,422. 3. (1983) 48 A.L.R. 157; 9 Fam. L.R. 55; [1983] F.L.C. 78,293.

[104]

Some difficulty is encountered in relation to (ca) which is a new paragraph, inserted by amendment, which extracts part of the original par. (c) and reshapes it apparently in the light of the decision of this Court in Russell v. Russell [41] . The difficulty is that the proclamation, having been made before the amendment, refers only to par. (c). However, it is unnecessary for the purposes of this case to resolve that difficulty and it can be assumed without deciding that in some way the proclamation includes par. (ca) as well as par. (c). For it is clear in my view that the proceedings in the Supreme Court were neither in relation to the maintenance of one of the parties to the marriage nor in relation to proceedings with respect to the property of the parties to the marriage, nor were they themselves proceedings of those descriptions. They were proceedings for the enforcement of a contract and for damages for its breach. The scheme of ss. 87 and 88 of the Act is to enable parties to enter into an agreement in substitution for rights under the Act, including any claim to property and any claim to maintenance, and upon the agreement being approved by a court the parties are confined to their contractual rights. The jurisdiction of the court is ousted in relation to the financial matters dealt with by the agreement: cf. Shaw v. Shaw [42] . That does not, of course, mean that any jurisdiction which the court possesses to enforce the agreement is excluded by the Act, as s. 88 makes clear. But if the appellant's contention were correct that the present proceedings are proceedings with respect to, or in relation to completed proceedings with respect to, the maintenance of one of the parties to the marriage or the property of the parties to the marriage or either of them, the anomalous result would seem to follow that any order in these proceedings must be with respect to the financial matters dealt with in the agreement and the jurisdiction of the Family Court to make such an order would be excluded by s. 87(3) of the Act. That of itself is, I think, an indication that it was not intended that proceedings to enforce an agreement approved under s. 87 should constitute a matrimonial cause.