Bate v Priestley

[1990] HCATrans 20

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl22 of 1989

B e t w e e n -

JOHN EDWARD MURRAY BATE

Applicant

and

JENNY ORMOND PRIESTLEY

Respondent

Application for special

leave to appeal

MASON CJ
GAUDRON J

McHUGH J

Bate

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 1990, AT 3.52 PM

Copyright in the High Court of Australia

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MR D.E. RYAN: If Your Honours please, I appear for the

applicant. (instructed by R.B. Kandy & Company)

MR R.G. CRAIGIE, QC:  May it please Your Honours, I appear

with my learned friend, MR M.A. ELKAIM, for the

respondent. (instructed by F.E. Fischer & Co)

MR RYAN:	Your Honours, could I start by saying that in
many ways the positive case that the applicant
seeks to argue before Your Honours has been set
out in the judgment of His Honour Mr Justice Kirby
and the factors that His Honour stress at pages 37
to 38 of the application book are those matters,
Your Honours, which the applicant relies upon to
support his contention that in this case what the District Court had before it was a matrimonial
cause within the FAMILY LAW ACT. And it is the
fact as set out in His Honour Mr Justice Kirby's
judgment at the pages I have taken Your Honours to
that support, in the applicant's submission, the
argument that the majority in the Court of Appeal fell into error in applying or purporting to apply the decision of this Court in PERLMAN's case to the matter before it.
MASON CJ:	Now, what paragraphs do you say it comes within
in the definition of "matrimonial cause" in section 5?
MR RYAN:	In section 4, if Your Honours please, as it was,
certainly, at the time. Your Honours will see that Mr Justice Kirby ultimately held that it fell
within the definition of 4(l)(ca) of the Act.
That is to say, His Honour took the view that the
proceedings in the District Court,properly categorized, were proceedings arising out
of the marital relationship,  His Honour first
having held that they were parties to a marriage
and that the proceedings related to property of
one of them which, Your Honours, in the courts below
has been common ground between the parties.
MASON CJ: And that is (ca)(i)?
MR RYAN:	Yes, if Your Honours please.

MASON CJ: What other paragraph?

MR RYAN:	That is· the only paragraph His Honour Mr Justice Kirby
felt necessary to decide.
MASON CJ:	Now, is that the only one that you rely on?

MR RYAN:  No, Your Honours. We also rely upon subparagraph (c)

of the definition which relates to:

proceedings ..... with respect to the
maintenance of one of the parties to

the marriage.

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And also, Your Honours, in the alternative,

to the definition in subparagraph (f) of the

definition by saying that the proceedings were -

if they did not fall within any of the other

definitions, proceedings with respect to:

pending or completed proceedings of

a kind referred to in any of paragraphs (a)

to (eb) - - -

MASON CJ: Well, (c) is rather difficult for you, is it not?

Can we not clear that out of the road?

MR RYAN:	Your Honour, in the applicant's submission, the
applicant would adhere to the submission that the
proceedings properly analysed do fall within (c)
and that the decision in PERLMAN's case relating
to the position of an approved section 87 deed and the attempt then to say that proceedings to enforce that deed did not fall within paragraphs
such as (c) is not binding - did not bind the
Court of Appeal and is not applicable to this case.
MASON CJ:	Can you distinguish it?
MR RYAN:	Yes, Your Honours, because the ground of distinction
is the ground which is relied upon fundamentally by
the applicant before Your Honours which is that all
of the observations of the Court in PERLMAN's case took place in relation to, as I have said, an approved section 87 deed. It took place in relation
to such a deed, Your Honours, when the statute,
the FAMILY LAW ACT, specifically provided in
section 87(3) that once a deed had been approved
then, in effect, the Family Court ceased to have
jurisdiction in relation to the orders made under
the deed,or reflected in the deed, rather, but
that the deed was to be treated, said the section,
for the purposes of enforcement as a decree or order of the Family Court.

MASON CJ:  But you cannot say that of this deed, can you?

I mean, it is further removed than an approved deed.

MR RYAN:	Your Honour, the applicant says that it is the reverse.
Your Honour, Mr Justice Hope finds in the majority
as Your Honour the Chief Justice has just observed
but, in truth, Your Honour, when it is taken -
when the decision in PERLMAN is looked at and the dicta
by the Justices who sat on that case are considered,
what Their Honours said was that, in effect, the
approval of the 87 deed severed its ties to the
Family Court system and to the FAMILY LAW ACT and,
Your Honours, Their Honours took the view that there
was no other provision of the Act which required a
determination that the Parliament had intended to
forbid persons who are parties to such deeds seeking

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to enforce them in the State courts. At the time

this case was decided, Your Honours, the Parliament

had seen fit to provide that the exclusive power

to enforce approved section 87 deeds should, indeed,

lie in the Family Court of Australia and the very

Act that amended the definition of "matrimonial

cause" to include (ca)(i) upon which the applicant

relies, also made it clear that the exclusive

jurisdiction to enforce section 87 deeds rests

in the Family Court, a matter, Your Honours, which

was, as I have said, picked up by His Honour

Mr Justice Kirby and is one of the grounds of

distinction.

So, Your Honours, fundamentally, that is the point of the applicant, that this is, in truth, a

very different animal to the approved section 87

deed considered by the Court·in PERLMAN's case.

MASON CJ: That does not necessarily bring it within

paragraph (c) though.

MR RYAN:	Your Honour, in relation to paragraph (c) it is
clear, Your Honours, that what was before the
District Court was a maintenance agreement as
defined in the Act and Your Honours will see from
the consent orders and the notes relating to agreements between the parties that occurred in the proceedings before the Family Court that this obligation imposed by the deed entered into in the precincts of the court was a mirror image of a sum, described perhaps unhelpfully, with
respect, as being for both property and maintenance
the mirror image of the sum of $50,000 which was ordered to be paid by the court.

Your Honours, the applicant says that there

is, indeed, the sort of close connection that

arguably was lacking - that was lacking in PERLMAN's

case by virtue of that fact; that what the parties

have attempted to do, in effect, is to set up an

Family Court per medium of this deed and it is for	relation to an order for maintenance made by the alternative or supplementary regime of rights in
those reasons, Your Honours, that the applicant wishes to agitate before the Court the argument that,correctly viewed,it does amount to proceedings
with respect to the maintenance of one of the parties to the marriage, the deed never having had the
imprimatur of the Family Court.

MASON CJ:	Now, what do you say about (ca)?
MR RYAN:	With relation to (ca)(i), Your Honours, the applicant
again relies on his fundamental point about the difference between the 87 deed as approved and the short minutes of order and notes made by the Family Court in this case. The applicant says that the

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definition in (i) was not in the Act at the time the

Court considered the matter generally in PERLMAN, it

was included in the 1983 amendments which had not

been proclaimed at the time the case was before the

Court and therefore was an amendment not relevant to

the Court's determinations. The applicant adopts,

with respect, the reasoning of His Honour

Mr Justice Kirby and his expression of the argument

put in the Court of Appeal that that inclusion is

part of a history of increasing exclusive jurisdiction

in the Family Court which, again, is a matter which

has proceeded at pace since PERLMAN's case and,

more accurately, in an unproclaimed manner at or

about the time PERLMAN was decided.

Your Honours, again, ,the factors at pages 37 to

38, which are not contentious, in the applicant's

submission, show that here clearly the proceedings

do stem - they do arise out of the marital

relationship and, Your Honours, what the applicant

says is that where His Honour Mr Justice Mahoney, for

example, at pages 49 to 50 of the application book,

says that all matters can, in fact:

be traced back to the Creation -

Your Honours, that is not, with respect, an answer

to the argument the applicant wishes to put before
the Court because what His Honour also says there is

that the argument put forward by the applicant is

philosophically irrefutable and, with respect, the

applicant says what His Honour is really saying is

that it is logically irrefutable. Then, Your Honours,
the process of interpreting the Act moves to defining

what His Honour Mr Justice Kirby identified as the

"grey areas" in the proper application of the

statutory formula and the application of that test

involves, with respect, the consideration of factors

of connection that His Honour Mr Justice Kirby stressed

and it is not an answer, with respect, to say that

PERLMAN's case has provided what His Honour

Mr Justice Mahoney seemed to see as a simple, almost

mechanical test for determining when the sequence,

as he said, was broken.

MASON CJ:  How do you answer the remarks of Chief Justice Gibbs

in PERLMAN's case where he was dealing with

paragraph (e)? The passage in the judgment is set out

at page 56 of the application book.

MR RYAN:	Your Honours, what Mr Justice Gibbs, the Chief Justice,
·was then  talking about was, of course, the
phrase "arising out of the marital relationship" as
it appeared in subparagraph (e) of the definition of "matrimonial cause" which, as Your Honours will
remember is the subparagraph relating to the power
of the court to grant injunctions or orders.

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Your Honours, the applicant would point to

the fact that dicta in PERLMAN's case also
intimated that the definition in (e) was difficult,
if not obscure, and, Your Honours, again, the
applicant says that the fundamental distinction

between the type of deed being considered in

PERLMAN and here is relevant, that once you

accept, as the Justices did, in my submission,
in PERLMAN, that the 87 deed under the statutory
regime then established was cut off from the Family

Law system, then it can follow that the process of

categorization, the process of drawing the line

between matters that do or d~ not arise out of a

marital relationship is made simpler. But,

Your Honours, in relation to subparagraph (e)

• •	might I draw Your Honours' attention to the observations of Mr Justice Wilson at page 499 point 8 of the
report - I trust Your Honours have PERLMAN's case?

MASON CJ:	Page 400 - - -
MR RYAN:	Page 499 point 8, if Your Honour please. Your Honours,
the applicant refers to - theobservations of His
Honour there, that:

It is neither necessary nor helpful to

attempt any abstract definition of the

limits of this paragraph.

And hence the phrase "arising out of the marital

relationship" that is part of it. His Honour

observed:

If such a definition were attempted there

may well be difficulty in drawing the

line but a solution will often be found

in a particular case by recalling "the

answer of a great judge that, though he knew

not when day ended and night began, he knew

that midday was day and midnight was night".

Now, Your Honours, the section 87 deed approved

by the Family Court in the history of the MATRIMONIAL

CAUSES ACT in cases such as SHAW V SHAW clearly

show the severing of that deed from the Family Law

Court. Indeed, the Family Court had held in

PERLMAN's case, when the wife went back to it for
orders to enforce the deed, they said, "We have

no jurisdiction to give you the orders you seek."

Hence the dicta in PERLMAN's case of the anomalous

position the law would be in if, having been rejected
by the Family Court, because that is where the wife

went first in PERLMAN, she went to the Supreme Court

of New South Wales - it would be anomalous for that

court to say, "We, too, have no jurisdiction." But
that position has changed with the change of the
statute, Your Honours, and it has changed here because

of the non-approved method in which the parties set up

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what was a device outside the framework of the

FAMILY LAW ACT. And, Your Honours, that is the

essential difference that the applicant says

has been recognized by His Honour Mr Justice Kirby

and was not recognized by the majority and hence

the majority, with respect, fell into error.

Further, Your Honours, the applicant would

say that His Honour Mr Justice Hope erred in

finding, as relevant to the determination of the

appeal, that the parties had intended to set up

this private regime, had intended to step outside
the provisions the FAMILY LAW ACT provided for

enforcement of orders and deeds and so on. That, with

respect, again, as recognized by the President, must

be irrelevant in the applicant's submission and,

secondly , Your Honours, His Honour observed in the

same passage or consequent u'fion the observations I

have just referred to, that it would be a pity if

the court felt impelled to hold that the District

Court here had no jurisdiction since the Family

Court itself had been aware of the acknowledgment

of debt since an acknowledgment of debt was referred
to in the orders but, again, with respect Your Honours,
the attitude of the Family Court to the structure
the parties agreed to is, with respect, irrelevant

to the question of jurisdiction.

MASON CJ: What as to paragraph (f)?

MR RYAN:	As to paragraph (f), Your Honour, again, the point
is either a good one or a bad one, but the
applicant, of course - - -

MASON CJ: That is true of most points, Mr Ryan.

MR RYAN:	Yes, Your Honour. But, Your Honour, the applicant
would say that the treatment in PERLMAN, again, of
any other proceedings 'in relation to"must be
viewed in light of the fundamental distinction in
subject-matter in the two cases as I have sought to
address Your Honours.

Your Honours will remember that in PERLMAN's

case - indeed Your Honour Mr Justice Mason, to my

recollection, observed that the words "in relation

to" were words of wide application and were words

that really were of the widest application and

one had to look for criteria by which there could be,

to use the vernacular, reigned in, and hence, again,

Your Honour, we come back to what the applicant

sees as, in truth, a grey area question in the

determination of what are truly matrimonial causes

in circumstances such as these.

MASON CJ: Yes, but we are concerned with the two terminal

points of the relationship here. We are not so much

concerned with, as it were, how wide a relationship

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extends but you have got to say that the current

proceedings have a relationship with completed

proceedings.

MR RYAN:	Yes, Your Honour.
MASON CJ:	Now, the problem is this, is it not, that the current proceedings in the District Court have
a clear relationship with the deed on which they
are brought but what relationship do they have to the proceedings in the Family Court?
MR RYAN:	Because, Your Honour, in truth, the deed is merely
a reflection of the proceedings in the Family
Court. It is, in truth, a part of it. It is, in
truth, an attempt in those proceedings, immediately
prior to the settlement of thpse proceedings in the Family Court itself, by the parties to create their
own regime or consequence of the settlement of the
proceedings. The deed itself or the acknowledgment of debt, as it was called, is referred to in the orders of the Family Court itself and yet it was not an approved deed.

So, Your Honour, the applicant points to what

he can only really submit is the reality of the

position here but, in truth, unless there was some

compelling reason of principle or authority to

gainsay it, one would say that of course the deed

considered by the District Court was a deed that

could properly be said to be in proceedings that

related to the proceedings in the Family Court.

The very preambles of the deed itself referred to
the Family Court proceedings and the orders and

the consent minutes of the settlement refer to the

acknowledgment of deed. It was, Your Honour, not
a separate legal act, in truth, that was of sufficient

separateness from those Family Court proceedings

to sever the connection. It was not the formal

consensual agreement of the parties as to the final

resolution of their financial matters solemnly

approved by the court in circumstances where such

approval severed the deed in terms under the statute

from the Family Court which was considered in PERLMAN

and which, in PERLMAN's case, Their Honours had no

trouble in saying the proceedings did not fall within

(f) •

Your Honours, that is really the applicant's

case and the case the applicant wishes to agitate

before Your Honours and the general importance of it

lies in the fact that it must be of general importance,

with respect, if parties in the Family Court

can outside section 87 deeds which, of course, require

the approval of the court, as part of settlements,

perhaps not disclosed even to the Family Court - it is merely accidental, on the reasoning of the Court

of Appeal that it was disclosed to the court -

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without even disclosing it to the court, they may

have these private arrangements which affect and

are part of, in truth, the Family Court proceedings.

That is the question of general interest, if

Your Honour please, and Your Honours, those are the

submissions of the applicant unless I can help on a

particular point.

:MASON CJ:  Thank you, Mr Ryan. Yes, Mr Craigie? We need not

trouble you so far as	the application is based on
the interpretation of	paragraphs (c) and (ca)(i) but
what do you say about	paragraph (f)?

MR CRAIGIE:  Yes, Your Honour. If I can assist Your Honours:

I had prepared a chronology, a sunnnary of submissions and PERL:MAN's and DOUGHERTY's cases, if I could

present them.

:MASON CJ:  It would seem that we will not need all this,

Mr Craigie.

MR CRAIGIE:  No, you probably will not, Your Honour.

:MASON CJ: What, your view is if we are going to drown, we may

as well drown thoroughly?

MR CRAIGIE:  No, Your Honour, just thoroughness in preparation as

I have been taught a long time ago. Your Honour, so

far as the merit of the legal point in relation to

(f), it is touched upon at page 5 and, of course, Your Honour, it is in the light of the chronology

that I have put there which I do not know that I will

need to trouble Your Honours with.

:MASON CJ: No, I would not have thought so.

MR CRAIGIE:  But I have set out there, Your Honour,

subparagraph(£) as it is in section 4(1) and my

submission is that Your Honours will see for a start

that (f) is in slightly different terms to what it

was when it was considered in PERLMAN and, of course,

Your Honour, just one point that my friend made about

PERL:MAN and that was - I think he said that (ca)(i)

was different then in 1987 and again in the

decision in PERL:MAN, certainly, as set out in the

judgment of the Chief Justice at page 482 -

(ca) does not have the subparagraphs (i~, (ii)

and (iii) but, Your Honours, the amendments in

1983 were contained in the FAMILY LAW AMENDMENT

ACT 1983, No 72 of that year. It was assented to on 28 October 1983 and the commencement so far as

these amendments was 28 days after the day on which

the Act received the royal assent which was

25 November and it is rather curious that when one

has regard to the fact that PERLMAN was argued in

October 1983 it was prior to the royal assent and the judgment was given in February 1984, it was

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almost as though the legislature had some idea

of what was going on in this Court's mind because

so many of the matters that were adverted to in

PERLMAN found their way in changes to the definition

of "matrimonial cause" and very importantly,

Your Honours, was the introduction into the

definition in section 4(1) of the FAMILY LAW ACT

of paragraphs (ea) and (eb) and subsection (11) into section 87 which talks about enforcement of approved

maintenance agreement in substance.

Now, Your Honours, the point in PERLMAN, of

course, was that there was no jurisdiction to enforce. Now, by vir~ue of the amendment, there is jurisdiction

and, indeed, section 87(11) gives to the court very

much the powers of this Court in proceedings before

it at first instance giving.remedies and relief such

as can be obtained in this Court.

Your Honours, I say that by way of background because the point about subparagraph (f) was that

in order for it to be appropriate in this case
the proceeding could not fall into any other class

of proceeding in the definition of "matrimonial

cause" and, Your Honour, there must be, in our

submission, a connection or association between the

District Court proceedings, the subject of this

application, and either of the proceedings of
5 February 1979 or 31 May 1984 in the Family Court of

Australia. Your Honours will recall that 5 February 1979

was the dissolution of the marriage and also the

approval of a maintenance agreement which made

certain provisions. And Your Honours will recall

that on 31 May 1984, independently of the proceedings

in the court, though certainly in contemplation

because the orders made on 31 May 1984 contained a

notation that the acknowledgment of debt in the form

of a deed of the same date had been prepared by the

parties. Whilst we say that they were in contemplation

of one another, one was the proceedings in the court

and it is important to have a look at the proceedings

in the court on that day. There was, firstly, the

consent to a revocation of the approval given on

5 February 1979. There was, by consent, the grant of

leave to institute proceedings under section 44(3)

and then there were orders inter alia for the payment

of the $50,000 and a notation to the effect that the

parties had come to other agreement which was the

acknowledgment of debt in the form of a deed.

Now, it is not said to be that that deed was

executed in consideration of the consent orders. It

stands on its own. It has binding effect because

it is a deed. It is our submission that it cannot

be suggested that that deed of 31 May, described as

an acknowledgment of debt, can be connected or

associated with the proceedings on 5 February 1979

because the proceedings on 31 May 1984 would have

disjuncted them all or severed the connection or

association. It is our submission that there is not

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the necessary connection between the deed being the

acknowledgment of debt and the actual proceedings

in which consent orders were made, part of which

was dealing with the revocation of approval,

granting of leave to institute proceedings in the
Family Court and the payment by the husband to the

wife by which time the marriage is well and truly over some six years and it is our submission that

there is no sufficient connection.

In any event, the proceedings in the District

Court which flow from that deed do not have any

connection with the proceedings in the Family Court

for, for example, if the court had not made the

orders, the deed of 31 May would have stood by

itself and what occasioned the District Court
proceedings was not the proceedings in the Family

Court but it was the failure of the applicant to fulfil the obligation he undertook in the deed to

pay, by a certain date a certain sum of money in a

particular way, in the form of a bank cheque, and

to a nominee if he was so directed. Now, that is the

failure; that is what prompted the District Court

proceedings. . And. to say that ·th~ a.rrcangement or

).i.a'\1i1:l.g · tl\is·. acknowledgment of debt is a .. device and

it is something to trick the Family Court - it

was not, it was disclosed to the Family Court in

any event and we would say that it is not prohibited

in any way. One only has to look at section 80 of

the FAMILY LAW ACT, for example, and this is in the

context where now a provision in a desd,.an·

approved maintenance agreement, can be enforced as

though it were an order of the court and section 80

provides the sorts of orders that can be maue in

the court.

One can see, for example, that the court, in making

an order - and therefore parties can consent to a

covenant in an approved agreement - to the provision

of security, the execution of deeds and on terms

and conditions.

MASON CJ: I suppose the argument against you is that there is

a relationship between the proceedings in the

District Court and the proceedings which resulted in

the order because, in effect, the proceedings in the

District Court are, even if only indirectly, an

enforcement of the order that was made in the

proceedings in the Family Court.

MR CRAIGIE:  Yes. Well, Your Honour the Chief Justice, suppose

for a moment that the parties had not reached the

agreement as to what should be the settlement and

they have proceeded to judgment and the Family

Court ordered him by way of property settlement and

lump sum maintenance to pay $50,000 on a particular

date and if the Family Court had gone on

it could have directed that he execute particular

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instruments to secure that and under section 84

the Family Court could have said to the applicant,

"If you don't execute that instrument then I'll

direct that the registrar be empowered to execute

the instrument in your name." Now, in that event

there would be nothing to prevent the instrument

being relied on in one of the ordinary courts, in

my submission, Your Honours, because it is envisaged

the Family Court. There is no machinery in the

that that sort of security can be provided for. in

Family Court, for example, to sue using a statement
of liquidated demand as you would in the District
Court. Whilst there is provision in the FAMILY
LAW ACT for husbands and wives to sue one another,
and that includes former spo~ses, there is also
incorporated in the orders the express intention
of the parties to put finality to their financial
dealings and that is the reference in the orders to

section 81 which is the provision of the Act which

invites people and the Family Court to try and- put an end

to the proceedings as between husband and wife.

It is our submission that this instrument

stands by itself. It was created by the parties
for their own purposes to assist them in the coming
to a conclusion of their financial dealings.

Your Honours, it cannot be, as my friend would have had you understand, a section 87 agreement because it does not express itself to be and it does not

have those hallmarks of the 87 agreement which

Your Honour the Chief Justice referred to in the deed of acknowledgment - of debt, if it is so -

and my friend has not put this:  if it is an 87

agreement, then it is not valid until such time
it has had the approval of the court. We say it is

an independent creature. Your Honours, even though

it has been referred to, it is unrelated to any

of the orders of the Family Court. And if Your Honours

are against me on that submission by a combination

of section 80 and 87(11), an instrument deemed to be
ordered and could be enforced as an order for the

provision of an instrument by way of security, then

it is not said to be that. It is something that the

parties have, in their state of being unmarried,

entered into to provide additional security.

Now, Your Honours, I was going to address this

submission to you in terms of the discretionary

matters but it is appropriate now to submit that

even if leave was.given to appeal and the appeal

was successful, the applicant is not any further

advanced because he still remains indebted to the

respondent pursuant to the order made on 31 May 1984.

So, it would be pointless going. to the extent of an

expensive appeal when he would be relieved of no

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further burden in the circumstances of the case.

And, of course, really, what the proceedings in

other than the Family Court, whether or not an

the District Court are - it is my submission

that the determination by a court such as the

acknowledgment of debt in the form of a deed is

a maintenance agreement within the terms of

section 87 is not an important question of law

of general application or a matter of great public

interest. Your Honours, a District Court judge

can sit and make that determination on the basis

that the submissions I have made is that it is not

a maintenance agreement and it cannot be ever a

maintenance agreement. I do not know if I can

assist Your Honours further on that point.

MASON CJ: Yes, thank you, Mr Craigie. Yes, do you want to

say anything in reply, Mr Ryan?

MR RYAN:	No, if Your Honours please.
MASON CJ:	The Court will take a short adjournment.

AT 4.29 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.30 PM:

MASON CJ:  The Court considers that the decision

of the Court of Appeal is not attended with

sufficient doubt to warrant the grant of special

leave to appeal. The application is therefore

refused.

MR CRAIGIK:  Your Honours, I ask for an order for costs

of the application?

MASON CJ: Yes. The application is refused with costs.

MR CRAIGIE: If Your Honours please.

MR RYAN: If Your Honours please.

AT 4.31 PM THE MATTER WAS ADJOURNED SINE DIE

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