Yule v Junek

Then, in January 1976, came the Family Law Act, repealing the Matrimonial Causes Act and providing for the institution of all future matrimonial causes before the new Family Court of Australia. Perhaps its most striking feature was that it did away with fault as any ingredient in divorce and set up as the sole ground for dissolution the irretrievable breakdown of the marriage. It perforce contained complex transitional provisions designed to deal with proceedings already on foot before State courts. Many might be continued and dealt with in the State courts, unaffected by the new legislation. Three forms of proceeding were superseded: decrees for restitution of conjugal rights, for jactitation of marriage and for judicial separation were not to be "instituted or continued after the commencement of this Act" (s. 8 (2)). Others again might be continued in the State courts but were to be dealt with as if instituted under the Family Law Act. A petitioner or cross-petitioner might in certain circumstances elect to have pending proceedings dealt with as if instituted under the new Act and upon the new ground of irretrievable breakdown (s. 9 (2)).

The wife in the present case, as a cross-petitioner, so elected and both suits then came before Woodward J. in the Supreme Court in April 1976. His Honour thus had before him the husband's petition seeking divorce upon the ground of his wife's adultery with the co-respondent, Junek, together with a claim for damages against the latter, and also the wife's cross-petition, by then deemed to be grounded upon irretrievable breakdown. His Honour decided to have argued before him a number of questions of law, including the competency of the husband's claim to damages. After hearing argument he concluded that that claim was competent but reserved upon the other points argued. They still remain undetermined. An appeal was taken to the Full Court of the Family Court, which reversed the primary judge. The husband now appeals to this Court.

Before Woodward J. the argument appears to have turned upon what was said to be the effect of s. 120 of the Family Law Act, which reads:

After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage. His Honour, after some critical reference to the wording of this section, concluded that on its proper construction it did not deprive the husband of his rights in his existing suit to claim damages from Junek; its operation was prospective only. He rejected a subsidiary submission that s. 9 of the Family Law Act should be understood as requiring s. 120 to be given a retrospective operation.

When the matter came before the Full Court of the Family Court it was disposed of on rather different grounds [10] . The appeal was allowed without reference to the effect of s. 120; instead the members of the Court took as their starting point the assumption that the husband's claim to damages was something for which independent authority for its continuance under the Family Law Act must be found in the terms of that Act. Only s. 9 (4), with its reference to "pending proceedings constituting a matrimonial cause, not being proceedings for principal relief", could conceivably provide such authorization. However it required the proceedings in question to be a "matrimonial cause" and, since a claim for damages was not, s. 9 (4) could not aid the appellant. Even had s. 9 (4) been applicable the Full Court would not have regarded it as supporting the appellant's case; it requires continued proceedings to be dealt with as if they were "proceedings instituted under this Act", and a claim for damages against a co-respondent could not be accommodated in that way.

I approach this appeal bearing in mind that the husband, when he originally instituted his divorce proceedings, had a right to claim damages from the co-respondent (Matrimonial Causes Act s. 44 (1)), and that the repeal of that Act by the Family Law Act will not, unless a contrary intention appears, affect that right (Acts Interpretation Act 1901 Cth, s. 8), a similar result no doubt flowing from the operation of the general law, unaided by express statutory provision.

The question is, then, whether, either from any particular provision of the Family Law Act or from the general effect of its provisions, particularly those having transitional operation, a contrary intention sufficiently emerges.

The most obvious place to look for such an intention is, of course, in s. 120, which alone of the sections of the Act deals expressly with damages for adultery. This provision, despite its infelicities of language, should, I think, be understood as dealing with a claim such as the present claim to damages against Junek. But far from expressing any contrary intention it has, rather, the opposite effect, suggesting that the husband's claim is maintainable. Its language - "After the commencement of this Act, no action lies " is to be contrasted with that used in s. 8 (2), which speaks of the three types of superseded proceedings to which I have earlier referred as proceedings which are not to be "instituted or continued". The very words of s. 120 are, according to their ordinary meaning, only prospective in operation. Whether the section's prospective operation is as to proceedings or only as to events, so that proceedings may be instituted at any time so long as the events giving rise to them occurred before the Act's commencement, need not now be determined. What is clear is that the section does not purport to affect proceedings already on foot when s. 120 came into operation. The contrast of language with that found in s. 8 (2) confirms what is already clear from the words of s. 120.

If no contrary intention is to be found in s. 120 I am equally unable to discern any in the transitional provisions in ss. 8 and 9 of the Act. The husband's proceedings instituted under the Matrimonial Causes Act were "proceedings by way of a matrimonial cause" within s. 8 (1) (b) of the present Act and hence could only be continued "in accordance with s. 9". I would understand the entirety of his proceedings, including his claim for damages, to fall within s. 8 (1) (b) and to be a matrimonial cause within par. (a) of the definition of that term, that is "proceedings between the parties to a marriage for a decree of dissolution of marriage". A claim to damages, if made in a petition for a decree of dissolution pursuant to s. 44 of the Matrimonial Causes Act, is not any matrimonial cause distinct from the petition itself; there are not two such causes but one only, aptly enough described as being between the parties to a marriage. To include in such a petition a claim for damages against a co-respondent is not to change its character as a cause; its essential character and description remains, both according to common legal usage and for the purposes of the definition of matrimonial cause in s. 4 (1) of the Family Law Act, as ever it was - a proceeding between the parties to a marriage for a decree of dissolution of marriage.

Accordingly, when s. 8 (1) (b) directs one to s. 9 of the Act to see whether, and, if so, in what manner, the husband's petition is to be continued, the answer will be found explicit in sub-s. (1). That sub-section legislates for pending proceedings for a decree of dissolution of marriage, which precisely describes the nature of the husband's petition. Of such a proceeding it says that "Subject to sub-section (2)" it "may be continued and shall be dealt with as if this Act had not been passed". Leaving aside for the moment the reference to sub-s. (2), the interaction of s. 8 (1) and s. 9 (1) provides nothing in the way of a contrary intent. Instead an intention is disclosed that pending proceedings for a decree of dissolution should proceed, unaffected by the Family Law Act. Thus the husband's pending proceedings, which include his claim for damages, will not to this point have been in any way affected by the new Act.

It remains, then, to look at s. 9 (2), to which s. 9 (1) is made subject. As already mentioned, an important feature of the Family Law Act is that by s. 48 (1) it provides one ground only for a decree of dissolution, that of irretrievable breakdown of the marriage. Section 48 (2) operates in aid of sub-s. (1) and provides for the making of such a decree if the parties have separated and have lived apart continuously for twelve months before application. Section 9 (2) as originally enacted permitted this circumstance, of having lived separately and apart for twelve months, to be applied to cases of pending proceedings under the former legislation. With its aid a petitioner or cross-petitioner could request that the proceedings be dealt with as if instituted by application under the Family Law Act on the ground of irretrievable breakdown, s. 48 (2) also being made applicable.

In the present case the husband, naturally enough, made no such request. The wife did apparently make such a request very soon after the Act came into effect. The effect of her request was, as the Act then stood, confined to those proceedings which she had initiated, namely her cross-petition, and in no way affected her husband's petition. This follows, I think, from the definition of applicant in s. 4 of the Act and from the terms of s. 9 (2).

Accordingly, what has occurred so far under s. 9 (2) has in no way affected the husband's proceedings: s. 9 (1) continues to apply to them and they "may be continued and shall be dealt with as if this Act had not been passed".

Section 9 (2) of the Act was amended in 1976, after Woodward J. had given judgment. It now enables "either party", and not only, as before, "the applicant", to make the relevant request which sets its provisions in motion. The wife has not, so far as one is aware, made a further request since that amendment. It seems that she would be free to do so and, as I read the sub-section in its amended form, the effect of such a request would no longer be confined to her own proceedings, her cross-petition, but would operate upon her husband's initiating petition. It would require that petition to be dealt with as if it had been instituted under the Family Law Act upon the ground of irretrievable breakdown.

In the particular circumstances of this appeal, and the effect of the amendment having been discussed in argument before us, the operation of sub-s. (2), as amended, should not, I think, be allowed to pass unnoticed, despite the fact that as yet nothing has occurred to make it applicable to the present case.

It may seem curious that, by this seemingly minor amendment to s. 9 (2) of the Act, involving no more than the substitution of "either party" for "the applicant", the legislature should have permitted a respondent to alter the whole course of a petitioner's pending proceedings. Yet this seems to be its effect. By making the necessary request a respondent can now require that the grounds originally alleged in the petition should be treated as if they consisted of the single ground of irretrievable breakdown. This is, no doubt, in one sense a result very much in conformity with the philosophy apparent from the whole scheme of the Act. If a respondent exercises this new right it will perhaps usually mean no more than that the resultant decree will be granted upon the Act's new simple, "fault-free" ground. However if the petitioner has alleged adultery and is seeking damages against a co-respondent it is hard to resist the conclusion that the effect of a respondent's request will be to put an end to a petitioner's claim to damages. For my part I am unable to see how there could be any award of damages under s. 44 of the Matrimonial Causes Act once effect was given to a request by the respondent that the petitioner's proceedings be dealt with as contemplated by s. 9 (2).

Whether what I have said will be of any relevance to the present case depends upon what action, if any, the respondent wife may take. It is only in deference to the arguments of counsel on this aspect and in view of the obvious practical importance of the point that I have thought it proper to refer to this aspect.

I am, for the reasons already stated, of the view that the Full Court was wrong in reversing the primary judge. The competency of the appeal to the Full Court of the Family Court was called in question in the course of argument on this appeal. For the reasons stated in the judgment of my brother Mason I conclude that in fact no appeal lay to the Full Court. However, special leave having been granted and it being my view that the Full Court was, in any event, in error, the proper course would appear to be to allow this appeal and set aside the order of the Full Court accordingly.

On 26th April 1974 the petitioner husband commenced proceedings against the respondent wife under the Matrimonial Causes Act 1959 for dissolution of the marriage on the ground of adultery, claiming damages against the co-respondent for adultery pursuant to the provisions of s. 44 of that Act. Before the Family Law Act 1975 came into force on 5th January 1976 the wife filed an answer and a cross-petition seeking dissolution of the marriage. The wife made a request under s. 9 (2) of the Family Law Act 1975 that the proceedings be heard and determined under the Family Law Act. On 28th April 1976 the proceedings came on for hearing before Woodward J. in the Supreme Court of New South Wales when it was submitted that the claim for damages could no longer be maintained, having regard to the provisions of the Family Law Act. His Honour then invited submissions on the following issues:

(1) Whether the claim of the petitioner for damages against the co-respondent was competent.

(2) Whether the application of the respondent for dissolution made pursuant to s. 9 (2) of the Family Law Act should be dealt with forthwith.

(3) Whether the petitioner was entitled to proceed with his claim for dissolution on the ground of adultery despite the respondent's application and thus for him to retain the carriage of the proceedings.

His Honour reserved judgment on issues (2) and (3) but held that the claim of the petitioner for damages was competent and directed that the matter proceed pursuant to s. 9 (1) of the Family Law Act.

From this decision an appeal was taken to the Full Court of the Family Court. That Court disagreed with the conclusion reached by Woodward J. and held that the Family Law Act terminated the cause of action for damages for adultery [11] . The matter now comes to this Court by way of special leave to appeal.

Mr. McGregor for the husband relied initially on the common law presumption that a right which has accrued under a repealed statute and which is the subject of pending proceedings at the time of the repeal may continue to be enforced after the repeal. It is unnecessary to discuss separately what the petitioner's rights at common law would have been because the topic is now dealt with in s. 8 of the Acts Interpretation Act 1901, as amended. But for the specific provisions of the Family Law Act, it might have been readily concluded that the petitioner's right to claim damages was an accrued right and that legal proceedings to enforce that right would continue by virtue of s. 8.

Section 44 (1) of the Matrimonial Causes Act 1959, as amended, provides that a party to a marriage may, in a petition for dissolution on the ground of adultery, claim damages from the stranger to the marriage on that ground and that the court may award damages accordingly. The right to recover damages pursuant to that sub-section, though contingent upon a finding of adultery by the court and subject to quantification in amount, is nevertheless to be considered as a right "acquired" or "accrued" under the repealed Act within the meaning of s. 8 (c) and therefore the repeal does not affect "any legal proceeding or remedy in respect of" that right within the meaning of s. 8 (e) and that "legal proceeding or remedy" may be "continued as if the repealing Act had not been passed" (see the closing words of s. 8). However, the provisions of s. 8 are expressed to be subject to the existence of any contrary intention and I must therefore examine the Family Law Act, in particular ss. 8 and 9 of that Act which contain comprehensive transitional provisions.

It is convenient to begin with s. 8 (1) (b) which provides that after the commencement of the Family Law Act proceedings "by way of a matrimonial cause" instituted before the commencement of the Act shall not be continued except in accordance with s. 9. There is a formidable definition of matrimonial cause contained in s. 4 (1). In the 1975 Act it was defined so as to mean, among other things,

(a) proceedings between the parties of a marriage for a decree of -

(e) proceedings for an order or injunction in circumstances arising out of a marital relationship; or

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

The word "proceedings" is also defined by the same sub-section. It means "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding".

Following the decision of this Court in Russell v. Russell and Farrelly v. Farrelly [12] , par. (e) of the definition of "matrimonial cause" was amended by s. 3 of the Family Law Amendment Act (No. 63 of 1976) so that it now reads:

(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the matrimonial relationship;

Although a proceeding includes an incidental proceeding, to come within par. (a) the incidental proceeding must itself be "between the parties to a marriage". For this reason the claim for damages for adultery does not fall within the paragraph. In some contexts it would be correct to say that the petition itself is a proceeding. However, the word "proceedings" appears here to be employed in a more precise and limited sense so as to denote that part of the overall proceedings which is directed to the obtaining of relief of a designated kind. Thus the claim to relief by way of damages, contained though it is in a petition which seeks a dissolution of marriage, cannot be described with accuracy as "proceedings between the parties to a marriage for a decree of dissolution". The appellant's case for relief by way of damages constitutes proceedings for different relief which stand outside the description contained in par. (a).

Nor does the claim for damages fall within par. (e) either in its original or in its amended form. Even before its amendment I should not have read the paragraph as extending to proceedings for damages against a co-respondent on the ground of adultery. They are not in my view proceedings for an order "arising out of a matrimonial relationship". And the amendment by limiting the proceedings to those "between the parties to a marriage" effectively excludes the claim in question.

On the other hand, the claim for damages against the co-respondent appears to fall conveniently within par. (f). Proceedings within that paragraph are not limited to proceedings between the parties to a marriage. All that is required is that a relationship should subsist between the proceedings in question and current, pending or completed proceedings of a kind referred to in the preceding paragraphs. In my opinion there is such a relationship between the claim for damages and the proceedings for dissolution of marriage which, of course, come within par. (a). The claim for damages constitutes "other proceedings" in relation to proceedings for dissolution of marriage. Not only were the two proceedings commenced in association, but success in the proceedings for damages is dependent and contingent upon success in the proceedings for dissolution of marriage on the ground of adultery. Damages for adultery is not a separate tort; it is a statutory cause of action different from the old action for criminal conversation (Oliver v. Oliver [13] ).

The case for damages against the co-respondent therefore constitutes proceedings "by way of a matrimonial cause". As such it cannot be continued except in accordance with s. 9 of the Family Law Act 1975 (s. 8 (1) (b)). So far as it is relevant s. 9, as enacted in 1975, provided:

(1) Subject to sub-section (2), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and shall be dealt with as if this Act had not been passed.

(2) Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of commencement of this Act, pending proceedings for a decree of dissolution of marriage shall, if the applicant so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, sub-section 48 (2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of commencement of this Act.

(3) Pending proceedings for a decree of nullity of marriage on the ground that the marriage is void or proceedings of a kind referred to in paragraph (b) of the definition of matrimonial cause in sub-section 4 (1) may be continued and shall be dealt with as if they were proceedings instituted under this Act.

(4) Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act.

By the Family Law Amendment Act (No. 63 of 1976) the words "either party" were substituted for the words "the applicant" in s. 9 (2).

None of the first three sub-sections of this section has any application to the claim for damages. Sub-section (1) deals with pending proceedings for dissolution of marriage, as does sub-s. (2). Sub-section (3) has no application, with the result that we are left then with sub-s. (4). As proceedings for principal relief are confined to proceedings that fall within pars (a) and (b) of the definition of "matrimonial cause", the petitioner's claim for damages comes within the sub-section. The proceedings for damages "may be continued and shall be dealt with as if they were proceedings instituted under" the Family Law Act. No doubt the words "as if" relate back to the word "continued" as well as to the words "dealt with".

But the Family Law Act itself makes no provision for the recovery of damages for adultery. Indeed, by s. 120 it makes provision to the contrary:

After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage. It does not in terms say that no action shall be brought or continued after the commencement of the Act, a formula which is employed in s. 8 (2) which provides that proceedings for restitution of conjugal rights, jactitation of marriage and judicial separation shall not be instituted or continued after the commencement of the Act. Instead s. 120 says that no action of the kinds mentioned in the section is admissible or sustainable after the commencement of the Act. Although it is understandable that proceedings against a stranger to the marriage are dealt with separately rather than in s. 8, it is not apparent why it was thought necessary to adopt a different formula.

Had s. 120 been so expressed as to make no reference to the commencement of the Act I should have been disposed to read it as applying to events which occurred in the past as well as to events occurring in the future. The question is complicated by the presence of the words "After the commencement of this Act" which may have been intended to confine the operation of the section to the future, despite the use of the present tense in the expression "no action lies". The reference to an action for criminal conversation is not inconsistent with s. 120 having a prospective operation only. As earlier statutes abolishing the action for criminal conversation have been repealed it was necessary to deny the possibility that it would be available in the future. There was no need to express the provision so as to apply it to the past because, by virtue of s. 8 (b) of the Acts Interpretation Act, the repeal does not affect the previous operation of the Matrimonial Causes Act 1959. An immunity from action, once it accrued under the repealed Act, is not displaced by the repeal (Australian Iron & Steel Ltd. v. Hoogland [1] ; Mathieson v. Burton [2] ). On this view a proceeding for damages for adultery, arising out of adultery committed before the commencement of the Act, could be instituted or continued, provided that the Family Law Act offered no other obstacle to such a proceeding.

1. (1962) 108 C.L.R. 471, at p. 480. 2. (1971) 124 C.L.R. 1, at p. 13.

But it is at this point that we must return to s. 9 (4) for it provides that pending proceedings are to be continued and dealt with under the Act and yet in fact the Act makes no provision for them. How in these circumstances are the proceedings to be continued and dealt with as if they were instituted under the Act? I do not see how they can be continued and dealt with according to such an hypothesis. The law as it now exists in the shape of the Family Law Act does not provide for the institution of proceedings for damages for adultery; nor does it authorize a court to award damages for adultery. This, so it seems to me, is an end of the matter.

This conclusion supplies a reason for giving s. 120 an operation which is not merely prospective. Then the absence of a provision governing the institution and continuation of proceedings for damages for adultery committed before the commencement of the Act is to be seen, not as a matter which has been overlooked by those who framed the Act, but as the natural consequence of the abolition of the cause of action.

The provisions of s. 9 dealing with pending proceedings when read in conjunction with s. 8, are so comprehensive in their operation in relation to pending proceedings which are matrimonial causes as to compel the conclusion that they were intended to deal exhaustively with that topic, thereby excluding the possibility that s. 8 of the Acts Interpretation Act was to have an independent or additional application in connexion with such proceedings. On the view which I have expressed the effect of s. 120 was to bring the proceedings to an end but, even if this were not so, the failure of the Act to make specific provision for pending cases of damages for adultery would not induce me to think that s. 9 of the Family Law Act was less than a comprehensive law on the subject of pending proceedings in respect of matrimonial causes as defined.

One matter remains to be mentioned. Under s. 94 (1) of the Family Law Act as it was originally framed an appeal lay at the suit of a person aggrieved by a decision of a judge of the Supreme Court of a State to the Full Court of the Family Court. By s. 30 of Act No. 63 of 1976 the section was amended so as to provide for an appeal by a person aggrieved by a decree instead of a decision, but this amendment came into force on 1st July 1976, after the respondent had filed a notice of appeal from Woodward J.'s judgment. Although the sub-section in its original form spoke of the appellant as a person aggrieved by a "decision", it went on to provide that he might "within the time prescribed by the regulations, appeal from the decree to the Full Court of the Family Court". "Decree" was defined by s. 4 (1) so as to mean "decree, judgment or order, and includes a decree nisi and an order dismissing an application or refusing to make a decree or order". The sub-section, read in the light of the statutory definition, makes it clear that an appeal lies from a judicial order, not from a mere answer to a question of law arising in proceedings, in particular an answer which of itself could not be decisive of the rights of the parties unless and until the primary judge dealt with the other questions upon which he reserved judgment. The consequence is that no appeal lay to the Family Court from the reasons for judgment delivered by Woodward J. and the Full Court of the Family Court had no jurisdiction to exercise until such time as his Honour made an order. In the absence of jurisdiction in the Full Court, it is not easy to see how the jurisdiction of this Court could be invoked by appeal. In truth the appellant should have sought relief by way of prohibition and certiorari directed to the Family Court on the ground that it lacked jurisdiction to deal with the matter. As it is the matter is best disposed of by rescinding the grant of special leave pursuant to which this appeal has been brought.

The appellant husband filed a petition for dissolution of marriage on 26th April 1974. The ground of the petition was the adultery of the respondent wife with the co-respondent. The appellant claimed damages from the co-respondent under s. 44(1) of the Matrimonial Causes Act 1959. The wife filed an answer in the final paragraph of which she petitioned that she be granted a decree of dissolution of marriage on the ground of cruelty.

On 5th January 1976 the Family Law Act 1975 came into force. On 15th January 1976 the wife made a request under s. 9 (2) of the last mentioned Act that the pending proceedings for a decree for dissolution of the marriage be dealt with as if they were proceedings instituted under the Family Law Act on the ground referred to in s. 48, namely, that the marriage had broken down irretrievably. As the Act then stood such a request under s. 9 (2) could be made by "the applicant".

When the matter came before the Supreme Court of New South Wales in the Family Law Division, Woodward J. invited submissions on three preliminary questions:

(1) Whether the claim of the petitioner for damages against the co-respondent was competent.

(2) Whether the application of the respondent for dissolution made pursuant to s. 9 (2) of the Family Law Act should be dealt with forthwith.

(3) Whether the petitioner was entitled to proceed with his claim for dissolution on the ground of adultery despite the respondent's application and thus for him to retain the carriage of the proceedings.

He dealt only with the first of these questions. He answered it in favour of the husband. The co-respondent purported to appeal to the Full Court of the Family Court of Australia which allowed the appeal [3] . From that decision special leave was granted to appeal to this Court.

It appears to me that the first matter which had to be determined by Woodward J. was whether the effect of the request made by the wife under s. 9 (2) was that upon proof that the parties had lived separately and apart for a continuous period of not less than twelve months immediately preceding the commencement of the Family Law Act 1975, the proceedings were required to be dealt with as if they were proceedings instituted under that Act on the ground referred to in s. 48. If that was the effect then there would be no decree of dissolution on the ground of adultery and consequently no power to award damages under s. 44 of the 1959 Act.

Woodward J. stated that there was little doubt that it could be established that the marriage had suffered an irretrievable breakdown, and I propose to proceed on that basis of fact. This is not altogether satisfactory but it is a situation which has arisen from the way in which an appeal was allowed to be brought from the expression of a view on a single preliminary question. To this aspect of the matter I shall have occasion to return.

On the basis that there was an irretrievable breakdown, the question then is whether the request under s. 9 (2) as it then stood could be made by the wife. The wife was a cross-petitioner before the Supreme Court of New South Wales. The word "applicant" is defined in s. 4 (1) of the Family Law Act, in relation to proceedings for dissolution of marriage instituted before the commencement of that Act, to include a petitioner or cross-petitioner. That being so, I see no reason why a cross-petitioner should not request that the whole proceedings, including the cross-proceedings, be dealt with as if they were proceedings instituted under the Family Law Act on the ground referred to in s. 48 of that Act.

An alternative construction would be that the petitioner alone could make the request in relation to the petition which he had filed and the cross-petitioner could only make the request in relation to the cross-petition contained in her answer. I do not think that this alternative construction can be accepted. It ignores the fact that by definition proceedings include cross-proceedings. It would erect two separate proceedings out of one set of proceedings which include the cross-proceedings. Not only does this construction strain the language of the Act but it would allow the absurd situation that, even though a decree of dissolution of marriage based on the ground of irretrievable breakdown of the marriage was inevitable as a result of the cross-petition and the request under s. 9 (2) made by the cross-petitioner, nevertheless there could proceed within the same proceedings a petition for dissolution on one or more of the old "fault" grounds. And this situation would arise from the mere chance that it was the cross-petitioner, and not the petitioner, who made the request under s. 9 (2). For if the petitioner, and not the cross-petitioner, made the request, the proceedings so far as they related to the petition would have to proceed in accordance with s. 9 (2). A decree of dissolution would accordingly be made. There would be nothing left to be done under the cross-petition. I cannot accept that it was intended that the course of the proceedings should thus depend on whether the request was made by a petitioner or a cross-petitioner; for this would be the result of giving a kind of distributive operation to the definitions of applicant and proceedings in s. 4 (1) of the Family Law Act.

It appears to me that the structure of the 1959 Act reinforces a conclusion which is to me sufficiently clear from the language of the Family Law Act itself, namely that in proceedings (including cross-proceedings) a petitioner or a cross-petitioner could request that those proceedings be dealt with as provided in s. 9 (2). Section 68 (1) of the 1959 Act provided for institution of proceedings by petition and then provided by sub-s. (2) that a respondent might, in answer to the petition, seek any decree or declaration that that respondent could have sought in a petition. I have examined the petition and answer filed in the Supreme Court of New South Wales in the present case. There was only one set of proceedings instituted by the petition to which an answer was made. In that answer relief was sought by way of cross-petition but there was only one set of proceedings which included the cross-proceedings for the relief sought in the last paragraph of the answer.

The result therefore is that the first matter to be dealt with in these proceedings was the cross-petitioner's request under s. 9 (2). If, as I have assumed, the conditions for that request were met, then it was mandatory for the Court to deal with the proceedings as s. 9 (2) requires. As a result there would never be any decree of dissolution based on adultery. Consequently, there could be no damages for adultery under s. 44 of the 1959 Act.

This, it has been submitted, is to take away a vested right to damages, if adultery and damages were proved. That is so, and for that reason there must be a clear legislative intention that the right was to be taken away. In my opinion that legislative intention is clear. Section 8 (b) expressly provides that proceedings by way of a matrimonial cause instituted before the commencement of the Family Law Act shall not be continued except in accordance with s. 9. Once the definitions in s. 4 (1) are applied to the words "applicant" and "proceedings" in s. 9(2) the legislative intention becomes clear. The right to damages for adultery is lost because of the peculiarly dependent nature of that right. It depended on a decree for dissolution of the marriage being made on the ground of the adultery. I do not think that the Family Law Act can be construed in such a way that the right to a decree on the ground of adultery must be taken to have been intended to be preserved simply in order to preserve the dependent right to damages.

I am therefore of the opinion that the Supreme Court of New South Wales ought first to have dealt with the request under s. 9 (2) and, if the conditions were satisfied, ought to have dealt with the cross-petition accordingly. But having expressed that opinion I find nevertheless that there was no right of appeal to the Family Court of Australia from the conclusion of Woodward J. on the preliminary question which he posed. I agree with the reasons expressed by Mason J. for this conclusion and with his proposal that the grant of special leave should be rescinded.

This appeal concerns the transitional provisions of the Family Law Act 1975 which came into operation on 6th January, 1976 and which, by s. 3 (1), repealed the Matrimonial Causes Act 1959 ("the repealed Act"). The question is whether a claim for damages for adultery under the repealed Act could be continued after the Family Law Act came into operation. This arose in a petition for dissolution and other relief instituted under the repealed Act which was being heard by Woodward J. in the Supreme Court of New South Wales.

Section 3 (2) and (3) of the Family Law Act make elaborate provision for the continuance of the effect of decrees made under the repealed Act. Sections 8 and 9 provide for supersession of existing laws and transitional provisions. These provisions apply notwithstanding s. 8 of the Acts Interpretation Act 1901 which provides for the effect of a repeal "unless the contrary intention appears". Although in some respects the Family Law Act has similar provisions to s. 8 of the Acts Interpretation Act, it departs materially from it in other respects and the contrary intention therefore appears.

(b) proceedings by way of a matrimonial cause instituted before the commencement of this Act shall not be continued except in accordance with section 9.

(1) Subject to sub-section (2), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and shall be dealt with as if this Act had not been passed.

(2) Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of commencement of this Act, pending proceedings for a decree of dissolution of marriage shall, if the applicant so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, sub-section 48 (2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of commencement of this Act.

(3) Pending proceedings for a decree of nullity of marriage on the ground that the marriage is void or proceedings of a kind referred to in paragraph (b) of the definition of matrimonial cause in sub-section 4 (1) may be continued and shall be dealt with as if they were proceedings instituted under this Act.

(4) Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act.

For the appellant to succeed, a claim for damages in a petition under the repealed Act must be regarded as a matrimonial cause within the definition in s. 4 of the Family Law Act (I will assume that it is for the moment) although such a claim was specified in the definition in the repealed Act (s. 5 (1)) but not in the Family Law Act. However, the definition of matrimonial cause treats the various proceedings, whether for principal relief (dissolution or nullity or declaration of validity of dissolution or annulment) or not (for example, proceedings with respect to maintenance, property, custody, guardianship or maintenance of or access to a child of the marriage), as separate proceedings although they are related in some cases. Therefore, the words in s. 9 (1), "pending proceedings for a decree of dissolution of marriage", do not include proceedings for maintenance or custody or a claim for damages for adultery which are included in the same petition. This is also evident from s. 9 (4) which refers to "pending proceedings constituting a matrimonial cause not being proceedings for principal relief". In this respect, the Act follows the pattern of the repealed Act (see Price v. Price [4] ).

If, however, s. 9 (1) is interpreted as including proceedings for relief other than principal relief and s. 9 (4) is interpreted as applying only to pending proceedings which are separate from proceedings for a decree of dissolution (nullity or separation order), serious anomalies would result. This would be particularly so if, as the appellant contended, s. 9 (2) is concerned only with the proceedings for dissolution and in no way affects proceedings in respect of other relief such as a claim for damages for adultery or proceedings for maintenance, custody or other relief. This would mean that, in cases pending at the commencement of the Family Law Act, orders for maintenance and custody governing the future relationship of the parties and the welfare of the children would be determined according to the provisions in the repealed Act rather than those in the Family Law Act. It would mean that where a request is made under s. 9 (2) (and this would apply also under the amendments made in 1976), the dissolution would be dealt with as if the proceedings had been instituted under the Family Law Act while custody and maintenance would be determined according to the provisions of the repealed Act. Yet, if the words "pending proceedings for a decree of dissolution of marriage" in s. 9 (1) mean the whole proceedings including non-principal relief (such as a claim for damages), presumably they include also the cross-proceedings.

(1) In this Act, unless the contrary intention appears -

"applicant" includes a cross-applicant and, in relation to proceedings for dissolution of marriage instituted before the commencement of this Act, includes a petitioner or cross-petitioner.

"proceedings" means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.

On this construction of s. 9 (2), "applicant" includes the cross-petitioner and, if an applicant applied under s. 9 (2) (as the appellant's wife did), the whole of the proceedings for dissolution and claim for damages or other non-principal relief would be dealt with as if they were proceedings instituted under the Family Law Act on the ground referred to in s. 48 (irretrievable breakdown). The result is that the claim for damages must fail, as the making of a decree on the ground of adultery is the condition precedent to the claim for damages which was provided for in s. 44 of the repealed Act. On this construction, Woodward J.'s ruling was wrong. This would not, however, remove the anomaly that proceedings for custody and maintenance and other relief would continue to be dealt with under the provisions of the repealed Act.

In my opinion, the scheme of the Family Law Act is that the various proceedings for principal or other relief, although brought in one application, are treated as separate even if they are related; each is a matrimonial cause within s. 4. This is consistent with the treatment of the proceedings throughout the Act (see ss. 44 (3), 62 (1), 64, 65, 74, 77, 78, 79, 81, 83 and 92). Therefore, the claim for damages is to be dealt with in accordance with s. 9 (4) and in that sub-section the words, "as if they were instituted under this Act" qualify "may be continued" as well as "shall be dealt with". Thus, proceedings pending on 6th January, 1976 for custody and maintenance or in respect of property (whether separate or in the same petition or answer as a claim for principal relief) are treated as if they were proceedings instituted under the Family Law Act. The clear intention of the Act is that the wider powers contained in its provisions apply to ancillary proceedings commenced under the repealed Act. Similar provisions in the repealed Act clearly disclosed a similar intention (see Price v. Price [5] ).

This also applies to a claim for damages for adultery. Once s. 9 (4) covers the case, there can be no recourse to doctrines of accrued rights at common law or under the Acts Interpretation Act. The claim can succeed only if such a proceeding is available under the Family Law Act. If such a claim were instituted under the Family Law Act, it would fail for two reasons. Firstly, there is no provision for such a claim. The jurisdiction is statutory. Proceedings which are instituted and which fall outside the statutory categories are incompetent. The repealed Act, of course, provided specifically for damages for adultery and included the claim for "damages in respect of adultery" in the definition of matrimonial cause (s. 5). There is much force in the view expressed by the Family Court of Australia that the omission from the definition in the Family Law Act suggests that a claim for damages for adultery is not within the definition of matrimonial cause in the Act. Secondly, s. 120 of the Family Law Act provides that, after the Act's commencement, no action lies for criminal conversation, damages for adultery or enticement of a party to a marriage. The section discloses an intention that the right to damages for adultery should no longer exist under the Family Law Act or any other law, Federal or State.

The Family Court of Australia was correct in its opinion that any entitlement to damages for adultery was ended by the Family Law Act [6] . Woodward J.'s ruling, however, was not a decision within s. 94 of the Act. Although erroneous, it was not appealable. The Family Court of Australia acted without jurisdiction. I agree with Mason J.'s proposal that, in the circumstances, special leave should be rescinded.

1. (1976) 26 F.L.R. 145; 11 A.L.R. 173. Aickin J.

This is an appeal from a decision of the Full Court of the Family Court (Evatt C.J., Pawley and Dovey JJ.) [7] which had reversed a finding of Woodward J. of the Supreme Court of New South Wales.

The relevant facts are that on 26th April 1974 the appellant (the husband) issued a petition in the Supreme Court of New South Wales, Family Law Division, pursuant to the provisions of the Matrimonial Causes Act 1959 Cth, as amended. The appellant sought a dissolution of the marriage on the ground of adultery and he also claimed (inter alia) an order that the respondent in this appeal (the co-respondent to the petition) pay damages pursuant to the provisions of s. 44 of that Act.

At some stage prior to 5th January 1976 (the date on which the Family Law Act 1975 came into operation) the appellant's wife ("the wife") had issued a petition in the Supreme Court of New South Wales seeking dissolution of the marriage. The date and the details of that petition do not appear, but the wife is described by Woodward J. as a "cross-petitioner". All that appears about it is that on 15th January 1976 pursuant to s. 9 (2) of the Family Law Act the wife requested that her petition be dealt with in accordance with that provision. At that time s. 9 (2) of the Family Law Act provided that in certain stated circumstances "pending proceedings for a decree of dissolution of marriage shall, if the applicant so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in s. 48, and, in relation to proceedings in which such a request is made, sub-s. 48 (2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of commencement of this Act". Section 9 (2) was amended by the Family Law Amendment Act 1976 (No. 63 of 1976) the relevant part of which came into operation on 1st July 1976 by which time Woodward J. had made his finding and an appeal to the Full Court of the Family Court had been lodged.

The matter is thus one in which the husband's petition remains in the Supreme Court of New South Wales under the Matrimonial Causes Act, whereas the wife's cross-petition is to be dealt with on the basis stated in s. 9 (2).

The matter came before Woodward J. for the consideration of preliminary points including whether the appellant's claim for damages could still be pursued in the state of the legislation as it stood in April 1976. On 28th April 1976 Woodward J. invited counsel to make submissions on the following three points:

(1) Whether the claim of the petitioner for damages against the co-respondent was competent.

(2) Whether the application of the respondent for dissolution made pursuant to s. 9 (2) of the Family Law Act should be dealt with forthwith.

(3) Whether the petitioner was entitled to proceed with his claim for dissolution on the ground of adultery despite the respondent's application and thus for him to retain the carriage of the proceedings.

The trial judge dealt only with the first point, reserved his decision on points 2 and 3 and directed that in the meantime the matter should proceed pursuant to s. 9 (1) of the Family Law Act. He had taken the view that the appellant was entitled to proceed with his claim in respect of damages against the respondent. From that decision an appeal was taken to the Full Court of the Family Court which took a contrary view and it is from their decision that special leave was granted to appeal to this Court.

It is convenient to begin an examination of the legislation with the Matrimonial Causes Act. So far as that Act is concerned the material provisions are s. 5 and s. 44. The definition of matrimonial cause in s. 5, so far as material, provided as follows:

(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, 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;

By s. 44 provisions were made with respect to claims for damages as follows:

(1) A party to a marriage, whether husband or wife, may, in a petition for a decree of dissolution of the marriage on the ground that the other party to the marriage has committed adultery with a person, or on grounds including that ground, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.

(2) The court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage on the ground of the adultery of the respondent with that person, or on grounds including that ground, is not made.

(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.

(4) The court may direct in what manner the damages awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the respondent or the children of the marriage.

(5) No action for criminal conversation lies, whether under this Act or otherwise.

It may be noted that that Act also contained provisions for judicial separation, restitution of conjugal rights and jactitation of marriage. It is to be observed that s. 45 provided that where a petition for dissolution of marriage on the ground of adultery or where it is alleged that a party to the marriage has committed adultery with a specified person, then that person is to be made a party to the proceedings. It is not necessary for present purposes to discuss the nature and characteristics of the claim for damages for adultery beyond referring to the decision in Oliver v. Oliver [8] , a decision of the Court of Appeal of New South Wales, and to observe that it is a claim which can only be made in a proceeding for the dissolution of marriage on the ground of, or on grounds which include, adultery with a named person, i.e. a person who is in any event a necessary party. 1. (1967) 9 F.L.R. 469.

The question is whether the undoubted right to maintain such a proceeding as was commenced by the appellant on 26th April 1974 has survived the coming into force of the Family Law Act on 5th January 1976. The relevant provisions of that Act are the definition of matrimonial cause in s. 4 (1), the provisions of ss. 8, 9, 48, 120. It is also necessary to consider the effect of s. 8 of the Acts Interpretation Act 1901 as amended.

There is in my opinion no doubt that immediately prior to 5th January 1976 the appellant did have a right accrued under an Act, in the sense that the Matrimonial Causes Act made provision for claims for damages for adultery, the petitioner had instituted such a claim in the manner prescribed by that Act and if the relevant facts were established would have been entitled to damages. Accordingly the concluding words of s. 8 of the Acts Interpretation Act 1901, namely that "any such investigation, legal proceeding or remedy [in respect of any such right] may be instituted, continued or enforced as if the repealing Act had not been passed" would apply unless a "contrary intention appears" in the Family Law Act.

There is no doubt that the appellant's petition under the Matrimonial Causes Act was a "pending proceeding for a decree of dissolution of marriage" within the meaning of s. 9 (1) of the Family Law Act. The fact that it claimed additional relief does not alter the fact that it was a proceeding for dissolution of marriage or make the claims for additional relief separate proceedings.

The provisions of s. 9 (1) are expressed to be "Subject to sub-section (2)" but that has no application in this case. The appellant had made no request under sub-s. (2) and the fact that the wife made a request in her cross-petition would be irrelevant except perhaps for the purposes of the third point on which Woodward J. invited argument.

From what I have said above it follows that the appellant's petition is prima facie within s. 9 (1) and should proceed as if the Family Law Act had not been passed. Section 8 is important because it expressly provides that proceedings for restitution of conjugal rights, jactitation of marriage or judicial separation shall not be instituted or continued after the commencement of the Act, but makes no mention of claims for damages for adultery. Section 120 provides that, "After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage", but that language is applicable to the future and says nothing as to the past. It is true that under the Matrimonial Causes Act actions for criminal conversation were prohibited, but claims for damages for adultery were specifically provided for in s. 44. Section 120 does not express any intention contrary to the survival of claims for damages for adultery pending at the time of the Family Law Act coming into operation.

It was said however that the effect of s. 9 (4) and the definition of matrimonial cause in s. 4 (1) show such an intention. Section 9 (4) is as follows:

Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act, and the definition of "matrimonial cause" does not include a claim for damages for adultery. The argument was that a claim for damages for adultery was not a proceeding for "principal relief" and that it could therefore be continued and dealt with only as if it were a proceeding instituted under the Act. The next step in the argument was that such a proceeding could not be instituted under the Family Law Act and indeed the requirement that such a claim could be made only in proceedings for dissolution on the ground of adultery (which do not exist under the Family Law Act) demonstrated that there would be no jurisdiction to deal with such a claim.

In my opinion this argument fails because its initial step takes it on an erroneous course. The appellant's petition was a "pending proceeding for a decree of dissolution" and, if it matters, was therefore one for "principal relief" as defined in s. 4 (1). It cannot properly be regarded as "not being proceedings for principal relief", and accordingly sub-s. (4) has no application to it. The claim for damages is not a separate proceeding but is, and to fall within the Matrimonial Causes Act must be, part of a proceeding for dissolution of marriage. It could only come within s. 9 (4) if it were a separate proceeding for relief not being principal relief, but there is no basis for so regarding it or for dividing up a single proceeding and treating it as comprising several separate proceedings, one for each item of relief claimed. In the same way a claim for custody or maintenance in a pending proceeding for dissolution of marriage would be dealt with under s. 9 (1), and not under s. 9 (4). On this view there is no difficulty in the proceeding instituted in the Supreme Court of New South Wales continuing pursuant to s. 9 (1). It would continue as if the Family Law Act had not been passed, and the absence of any provision in the Family Law Act giving the Family Court jurisdiction to make an award of damages for adultery would be irrelevant. This seems to me to be the scheme of the Act, and it is one which does not disclose any relevant contrary intention so as to exclude the operation of s. 8 of the Acts Interpretation Act.

I have had the advantage of reading the reasons for judgment prepared by Mason J. I agree with his reasons for the conclusion that the Full Court of the Family Court had no jurisdiction to entertain the appeal from Woodward J., and do not wish to add to those reasons. However that conclusion does not lead me to the same end result. It provides a further reason for allowing the appeal from the Full Court of the Family Court.

In my opinion the decision of that Court should be set aside on the ground that it was incorrect in substance as well as made without jurisdiction.