Caska & Caska

[2001] FamCA 1279

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA56 OF 2000
File No. SY6343 OF 1991

IN THE MATTER OF: CASKA

Appellant/Husband

AND: CASKA

Respondent/Wife

CORAM: LINDENMAYER, HOLDEN & WATT JJ

DATE OF HEARING: 1 FEBRUARY, 2001 & WRITTEN SUBMISSIONS

DATE OF JUDGMENT: 23 NOVEMBER, 2001

REASONS FOR JUDGMENT OF THE FULL COURT

Appearances: Mr Trench of Counsel (instructed by Peninsula Law, Solicitors, 103-105 Blackwall Road, Woy Woy, NSW, 2256) for the Appellant/Husband

Mr M. Twigg, Solicitor (of Adrian Twigg & Co, Solicitors, Level 10, 162-166 Goulburn Street, Sydney, NSW, 2000) for the Respondent/Wife

MAINTENANCE OF SPOUSE – Whether a lump spouse maintenance order that has been complied with, is “in force” in accordance with the words of s83(1) and therefore capable of variation pursuant to that section.

MAINTENANCE OF SPOUSE – Lump Sum – Variation – Where a lump sum spouse maintenance order has been paid, whether an application for variation of maintenance can proceed because a property order made at the same time is yet to be complied with.

MODIFICATION OF SPOUSAL MAINTENANCE ORDERS – Words and Phrases – Whether the “transfer or settlement of property” referred to in s83(5A), must be one made pursuant to a court order.

ESTOPPEL – Res Judicata – Whether the element of res judicata estoppel which requires that the Court had jurisdiction over the ‘parties and the subject-matter’ requires that the Court must have had the jurisdiction or power to make the particular order which it purported to make.

ESTOPPEL – Res Judicata – Whether a party against whom an adverse ruling on a matter of law is made, but who ultimately succeeds at trial on other grounds, is subject to res judicata estoppel in respect of the adverse ruling where the other party appeals successfully and the party against whom the adverse ruling was made does not cross-appeal or otherwise seek to uphold the decision below on the basis that the adverse ruling was erroneous.

JURISDICITON OF THE FAMILY COURT OF AUSTRALIA - Whether the validity of an order is sustained when a trial Judge erroneously purports to exercise jurisdiction under s83 but the order was within the jurisdiction of the Court pursuant to ss72, 74 and 75. Maiden v Maiden (1909) 7 CLR 727; McLaughlin v Fosbery (1904) 1 CLR 546; Friis and Friis (2000) FLC 93-009; Wade-Ferrell and Wade-Ferrell (2001) FLC 93-069 and Brady and Brady (1978) FLC 90-513 applied.

JURISDCITION OF THE FAMILY COURT OF AUSTRALIA – Whether leave pursuant to s44(3) can be granted nunc pro tunc. Goddard and Pupovak [2000] FamCA 37 (unreported – 3 February, 2000) discussed.

This was an appeal, instituted by the husband, against the orders of Cohen J, made 7 June, 2000, which effectively granted the wife’s application for variation of spousal maintenance pursuant to ss 83, 72 and 75 of the FLA.

On 12 August, 1996, the parties entered into consent orders which essentially provided for the husband to pay the wife, firstly, $60 000 by way of spouse maintenance within 28 days and, secondly, $140 000 in 3 instalments by way of property settlement. Accordingly, the husband paid the wife the lump sum maintenance. However, on June 16, 1997, she filed an application for spouse maintenance, in which she sought $2 000 per week from the husband.

A Registrar granted the wife’s application and, subsequently, the husband sought a review, by way of hearing de novo, which proceeded before Chisholm J on 4 December, 1997. At the hearing, the husband submitted that as the wife’s application was for periodical maintenance, it could not be regarded as a modification of the previous order for lump sum maintenance, especially given that that order had been satisfied. To that end, the husband submitted that, given the date of the parties’ divorce, the wife would require leave pursuant to s44(3) to proceed with the application. Chisholm J rejected the husband’s argument and concluded that there was no jurisdictional impediment of that nature. His Honour went on to conclude that he was not satisfied that the $60 000 spouse maintenance, agreed to in the consent orders of 1996, was “not adequate or proper” and concluded that it was not open to him, because of the terms of s83, to make an order varying the spouse maintenance.

The wife successfully appealed against the decision of Chisholm J on 18 September, 1998. The Full Court held that Chisholm J erred in treating s.83(2)(ba) as the only threshold test for variation of a spouse maintenance order made by consent. It was held that the conditions or matters listed in paragraphs (a),(b),(ba) and (c) of s83(2) of the FLA are in the alternative, and that s83(2)(ba), simply provided an additional ground which may be relied upon when seeking a variation of a spousal maintenance order made by consent, and that it was not a prerequisite for the variation of such an order if one of the other grounds, provided by paragraphs (a), (b) or (c), was available.

The matter was then re-heard before Cohen J. When the judgment was delivered on 7 June, 2000, the trial Judge granted the variation sought by the wife because he concluded that it was apparent that her financial circumstances had changed, for the worse, if one analysed and compared her “real” situation in 1996, when the consent orders were made, with her “real” situation at the time her application for variation was heard. The trial Judge ordered the husband to pay the wife $800 per week forthwith, in conjunction with retrospective maintenance totalling $124 800.

The husband then commenced appeal proceedings against the orders of the trial Judge and on 1 February, 2001, he was granted leave by the Full Court to amend his Notice of Appeal to include, as a preliminary point, a further ground of appeal in the following terms:

“1A That there was no jurisdiction in the Court to enable his Honour to make any order varying the lump sum maintenance order made on 12 August, 1996 and thereafter fully executed.”

On Appeal, the husband submitted that a fully executed lump sum maintenance order was no longer “in force”, in accordance with the opening line of s83, and was therefore not capable of being varied under that provision.

In response, the wife contended that even though the $60 000 lump sum maintenance had been paid, other payments required by the consent orders remained unpaid at the time of the filing of the application and, therefore, there were orders which in part dealt with maintenance and that the orders themselves were still in force even though parts of them had been complied with.

The wife further submitted that the words “in force” could be interpreted as meaning “meant to replace periodic maintenance for a particular period or until particular events occur”, rather than meaning “unpaid” in the context of a lump sum order. She submitted that if her interpretation of “in force” was not accepted, then the words “…and any transfer or settlement of property, previously made by a party to the marriage to the other party” in s83(5A), would be superfluous, having regard to the requirements of s75, unless they referred to property transferred under a Court order other than pursuant to s79 – namely by way of lump sum maintenance. Based on this reasoning, the wife submitted that a completed transfer by way of maintenance was capable of variation.

In the absence of submissions, the Full Court further identified, on the facts of the case, the potential application of the principles of res judicata estoppel, the “Anshun” variety of estoppel and the issue regarding the possibility of leave being granted pursuant to s44(3) nunc pro tunc.

Held per curiam: in allowing the appeal pursuant to the preliminary jurisdictional point that there was no longer an order “in force” under section 83 which could be varied because the husband had complied with the obligations specified in the spousal maintenance order:

Section 83 certainly provides for lump sum maintenance orders to be varied, but the issue was whether a completed or executed lump sum maintenance order was “in force” in accordance with the terms of s83, or whether, because of the fact of compliance, the order was no longer capable of variation under the section. It was a point that escaped discussion in each of the cases listed in Collins and Collins (1993) FLC 92-343 at 79,638 to 79,639, no doubt because in none of them was the Court actually required to decide whether a lump sum order for maintenance, once paid, was capable of variation under s83. These cases did not necessarily assist in the determination of the preliminary point regarding the effect of the words “in force.” O'Brien and O'Brien (1983) FLC ¶ 91-316; Ramsey and Ramsey (No 2) (1983) FLC ¶ 91-323; Park and Park (1978) FLC ¶ 90-509; Kaljo and Kaljo (1978) FLC ¶ 90-445; Warnock and Warnock (1979) FLC ¶ 90-726; Fowler and Fowler (1980) FLC ¶ 90-808; Anast and Anastopoulos (1982) FLC ¶ 91-201 and DeLange v DeLange (1968) 11 FLR 286 discussed and distinguished.
It was difficult to see how it could be concluded that s83(1) empowered the Court to vary a lump sum maintenance order which had been fully complied with, and still give any meaning and operation to the words “in force” in that subsection. None of the cases considered compelled such a conclusion, and the more persuasive dicta {in Collins (supra)} was to the contrary.
In the proceedings before the trial Judge, his Honour and the parties treated the application as one seeking to vary the maintenance order pursuant to s83. In contrast to its normal requirement regarding leave, s44(3) specifically states as an exception to be excluded from its ambit “…proceedings seeking the… variation of an order previously made in proceedings with respect to the maintenance of a party.” Therefore, leave was clearly not required under s44(3) of the FLA to pursue an application under s83 and the trial Judge was correct in not turning his attention to this issue.
Order 1 of the consent orders entered into by the parties on 12 August, 1996, was a specific and severable order which required lump sum spouse maintenance to be paid, whilst order 2 was clearly a property order which required $140 000 to be paid to the wife in 3 instalments. No comfort could be drawn by the wife from the fact that, although the lump sum spouse maintenance order had been paid, there was, at the date of her application, an outstanding payment pursuant to order 2. It was very clear that the only maintenance order to which s83 could possibly have applied, at any stage, was order 1. Order 2 was clearly identified as a property order, and in the event that it was a property settlement order with a maintenance component, it was still a property order in respect of which s83 had no application or effect. Therefore it was irrelevant, in the context of the application, that the final component of the property order was yet to be paid when the variation proceedings were initially instituted.
Words in statutes are to be given their ordinary natural meaning unless there is a sufficient reason for doing otherwise. Anteden Pty. Ltd. v Glen Eira City Council (2000) 111 LGERA 42 and R v Dunn [1973] 2 NZLR 481 at 483. Accordingly, the relevant words of s83(5A) should not be read as containing a qualification, as suggested by the wife’s submissions, namely that the “transfer or settlement of property”, therein referred to must be one made pursuant to a court order. If Parliament intended those words to have that limited meaning, then this should have been specifically provided in the legislation. The clear intention of s83(5A) was only to ensure that when considering the propriety or adequacy of any consent spousal maintenance order, for the purposes of s83(2)(ba), the Court does not look at that order in isolation from any other financial arrangements which may have been made between the parties, since to do so could clearly lead to injustice in a particular case. So construed, s83(5A) offered no support for the construction of s83(1) contended for by the wife.
Even though, in making the order which he did in favour of the wife, the trial Judge was purporting to exercise jurisdiction under s83, only if no other source of jurisdiction could be relied upon to sustain the validity of his order, could his Honour be regarded as having acted in the absence of jurisdiction. Maiden v Maiden (1909) 7 CLR 727; McLaughlin v Fosbery (1904) 1 CLR 546; Friis and Friis (2000) FLC 93-009 and Wade-Ferrell and Wade-Ferrell (2001) FLC 93-069 applied.
Once the s83 threshold is crossed, the proceeding becomes an ordinary maintenance proceeding, and the Court is required to consider afresh what order it should make applying the principles with respect to spousal maintenance found elsewhere in Part VIII: see Brady and Brady (1978) FLC 90-513. Accordingly, although the trial Judge erred in thinking that he was exercising jurisdiction under s83 (an error induced by the parties), the order which he ultimately made for the payment by the husband to the wife of $800 per week was an order made under s74, applying the legal principle set out in s72 and the criteria specified in s75 and, as such, was within the jurisdiction of the Court [subject only to the issue of leave, under s44(3)].
Although the order which the trial Judge ultimately made was one which was capable of being made as a new order for maintenance, in the exercise of the Court’s jurisdiction under s74 of the FLA (rather than as a variation of the earlier order, under s83), an essential condition precedent to the exercise of that jurisdiction [namely, the leave of the Court or the consent of both parties pursuant to s44(3)] was and remained missing and could not be held to have been waived by the husband. In Goddard and Pupovak [2000] FamCA 37 (unreported – 3 February, 2000) Moss J considered the question of whether leave could be granted pursuant to s44(3) nunc pro tunc. However, the comments of Moss J in that case were obiter dictum. As the wife’s legal representatives, having been given the opportunity to do so, did not choose to make any submissions in support of the Full Court’s power to make an order granting leave under s.44(3) nunc pro tunc, or in support of the appropriateness of the exercise of that power, if it existed, it would be inappropriate either to express a concluded opinion on either question, or to give the wife yet another opportunity to seek to rely upon the point in the appeal.

Res Judicata Estoppel:

Per Lindenmayer J: with Holden and Watt JJ not expressing an opinion:

The third of the constituent elements of res judicata estoppel refers to the Court having jurisdiction over the “parties and the subject matter”. It does not stipulate that the Court must have had the jurisdiction or power to make the particular order which it purported to make in the proceedings between the parties. Chisholm J’s decision on the “jurisdiction point” was a decision within his Honour’s jurisdiction, even if it was wrong as to the existence of jurisdiction in the Court to make an order in the wife’s favour under s83 of the FLA. Accordingly, his decision was not prevented from creating a res judicata estoppel in relation to the point which he decided, merely because it may have been an erroneous decision about the extent of the Court’s jurisdiction.

10. On the facts of the case, even though Chisholm J’s ruling upon the “jurisdictional point” was adverse to the husband, he succeeded before his Honour on other grounds. Accordingly, it was the wife who appealed from his Honour’s orders and an appeal lies to the Full Court under s94(1) of the Act only from a “decree”. Although “decree” was defined by s4(1) of the Act as meaning “decree, judgment or order, and included a decree nisi and an order dismissing an application or refusing to make a decree or order”, the husband could not appeal from Chisholm J’s ruling on his “jurisdiction point” because he did not make any decree or order on that point, even one refusing to make a decree or order. As the husband could not himself appeal against his Honour’s ruling, that ruling, even if “final” in the sense referred to in the authorities which form the foundation of the principle, no res judicata estoppel could arise from it against the husband.

11. The point sought to be raised by the husband on appeal which he did not raise before the trial Judge was purely a point of law, which turned entirely upon the construction of s83(1) of the FLA. It was a point upon which there was no binding decision of the Full Court, but on which there had been considerable obiter dicta, some of it conflicting. If the point had been taken by the husband before the trial Judge, there was no evidence which the wife could have called which would have affected the determination of the point. Accordingly, it was expedient in the interests of justice to allow the question to be raised on appeal: c.f. Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Hendler and Hendler; Moore (1992) FLC 92-321. Coutlon v Holcombe (1986) 162 CLR 1 also discussed and considered.

12. There was no occasion to consider the possible application of the principle arising from Port of Melbourne Authority v Anshun Pty Ltd [No.2] (1981) 147 CLR 589 since it was concluded that even upon the assumption that it was the very same point as was determined adversely to the husband by Chisholm J, he was not estopped. In those circumstances, he could not be estopped, by the application of that principle, in respect of a related point which, although not raised, he should have raised at that time.

REPORTABLE

LINDENMAYER J:

INTRODUCTION

This matter involves a preliminary jurisdictional point which requires resolution before it is necessary to proceed with the balance of the proceedings, if at all.

On 5 July, 2000, the husband instituted appeal proceedings against the orders of Cohen J, made 7 June, 2000, which effectively granted the wife’s application for variation of spousal maintenance pursuant to ss 83, 72 and 75 of the Family Law Act 1975 (“the FLA”). This order was made by the trial Judge notwithstanding the fact that payment of $60,000, as lump sum maintenance, had been made by the husband in accordance with, and discharging his obligations under, order 1 of the consent orders entered into by the parties in 1996.

The provision of the FLA applied by the trial Judge, in so far as it is relevant to this preliminary consideration, was (with emphasis added):

"Modification of spousal maintenance orders

83       (1) [Court may vary etc. maintenance orders] In proceedings with respect to the maintenance of a party to a marriage, if there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of that party by the other party to the marriage:
(a)    made by the court; or
(b)   made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;

the court may:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

…."

Succinctly put then, the preliminary point that now falls for determination is - given that the husband’s obligations pursuant to the spousal maintenance order (ie order 1) had been complied with - was there an order “in force”, in accordance with the opening words of s83, that the trial Judge could have modified?

BACKGROUND

The original orders for property settlement and spouse maintenance entered into by the parties, by consent, on 12 August, 1996, relevantly provided:

"1. The husband …pay to the wife the sum of sixty thousand dollars
($60,000.00) by way of spouse maintenance such payment to be made within twenty-eight (28) days from the date of these orders.

2. The husband is to pay to the wife the further sum of one hundred and forty thousand dollars ($140,000.00) by way of property settlement in the following terms:-…
a.)As to an amount of forty thousand dollars ($40,000.00) on or before or before 12 August 1997;
b.)As to an amount of fifty thousand dollars($50,000.00) on or before 12 August 1998;
c.)As to the remaining amount of fifty thousand dollars ($50,000.00) on or before 12 August 1999.”

The parties agree that the husband complied with his obligations pursuant to Order 1 and paid the wife lump sum maintenance of $60,000 within the time frame specified.

However, on June 16, 1997, the wife filed a Form 12 application for maintenance. In this application she sought payment of spouse maintenance in the amount of $2,000.00 per week from the husband.

The wife’s application was determined by Registrar Symons on 15 September, 1997, and an order, in her favour, for payment of $1,000.00 per week was made. The husband then sought a review of this decision and the wife filed a summons to enforce arrears due under the Registrar’s order.

Review of the Registrar’s decision, by way of hearing de novo, proceeded before Chisholm J on 4 December, 1997. Judgment in this matter was then delivered on 5 February, 1998.

In setting aside the orders of the Registrar and dismissing both the wife’s application for variation of spouse maintenance and her enforcement summons, the jurisdictional issue which currently falls for determination before this Court about the operation of the term “in force” in s.85(1), was not addressed, at least not in those precise terms. In his judgment under the heading “The Jurisdiction Point” Chisholm J stated:
“It was submitted by Mr Harding (counsel for the husband) that, there having been an order for lump sum maintenance which had been paid in the context of a property settlement, and the parties having been divorced in February 1992, the wife cannot proceed with her maintenance application without leave under s 44(3). He said that the wife’s present application, being for periodical maintenance, is for a different class of maintenance and cannot be regarded as a modification of the previous order for lump sum maintenance, especially where that order had been satisfied.
I do not accept this argument. The provisions relating to variation of maintenance, set out below, do not distinguish between lump sum orders and orders for periodical payments. I refer elsewhere to the significance of the consent orders in determining the merits of this matter. At this point it is sufficient to say that in my view there is no jurisdictional impediment of the kind suggested by Mr Harding.”
After discussing the relevant legal principles to be applied, under the heading “Modifying Maintenance Orders” Chisholm J stated:
“In the present case, the wife’s entitlement to spousal maintenance was first determined by the consent orders of August 1996 to be payable by a lump sum payment of $60,000. The wife seeks to vary this. The provision dealing with such variation is s 83. Subsection (1) provides in substance that the Court can (among other things) vary the order.”
His Honour then referred to and quoted s83(2) of the FLA, emphasising paragraph (ba) of that subsection. That subsection, so far as is relevant provides:
“The Court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
….
(ba) in a case where the order was made by consent – that the amount ordered to be paid is not proper or adequate.”
His Honour then continued his judgment, as follows:
“In my view where the application is to vary a previous order made by consent, the correct interpretation of the section is that the applicant must show that that the amount ordered to be paid (in the consent orders) “is not proper or adequate”: paragraph (ba). Paragraph (a), referring to change of circumstances, does not apply.”
His Honour then went on to conclude that, based on the evidence as a whole, he was not satisfied that the wife had established that the $60,000 spouse maintenance, agreed to in the consent orders of 1996, was now “not adequate or proper.” Consequently, his Honour concluded that it was not open to him, because of the terms of s83, to make an order varying the spouse maintenance.

It is clear then, that the precise point that there was no order “in force” to vary was not addressed by his Honour.

Ultimately, the wife appealed from the decision of Chisholm J, and on 18 September, 1998, the Full Court upheld her appeal and remitted the matter for re-hearing. In coming to this conclusion, it was held that his Honour erred in treating s.83(2)(ba) as the only threshold test for variation of a spouse maintenance order made by consent. The Full Court held that the conditions or matters listed in paragraphs (a),(b),(ba) and (c) of s83(2) of the FLA are in the alternative, and that s83(2)(ba), simply provides an additional ground which may be relied upon when seeking a variation of a spousal maintenance order made by consent, and that it was not a prerequisite for the variation of such an order if one of the other grounds, provided by paragraphs (a), (b) or (c), is available.

The re-hearing of the wife’s application for variation took place before Cohen J in March, 1999, but was not completed until April when all written material had been filed. Before judgment was delivered, there was an application by the wife to re-open. This application was not heard until 11 February, 2000. At that hearing the application to re-open was withdrawn.

The trial Judge then delivered his judgment on 7 June, 2000. In granting the variation sought by the wife, his Honour stated that it was apparent that her financial circumstances had changed, for the worse, if one analysed and compared her “real” situation in 1996, when the consent orders were made, with her “real” situation at the time her application for variation was heard. Accordingly, the husband was ordered to pay her $800 per week spousal maintenance, including retrospective maintenance, calculated at that rate from the date she filed her application, producing a lump sum of $124,800, to be paid within one month.

Once again, the question regarding the effect or significance of the words “in force”, in the context where the order sought to be varied had already been complied with and executed, was not addressed by Counsel or the Court, and no objection to the Court’s jurisdiction to vary the 1996 order, under s83, was taken on the husband’s behalf before his Honour.

It was from these orders made on 7 June, 2000, that the appeal in this matter was eventually filed on 5 July, 2000.

THE APPEAL

On 1 February, 2001, the appellant husband was granted leave by the Full Court to amend his Notice of Appeal to include, as a preliminary point, a further ground of appeal in the following terms:

“1A That there was no jurisdiction in the Court to enable his Honour to make any order varying the lump sum maintenance order made on 12 August, 1996 and thereafter fully executed.”

In addition to the order granting the appellant leave to amend the Notice of Appeal, the parties were directed to file and serve written submissions, limited to this preliminary point, according to the following time line:
-submissions in support of the amended ground from the husband on or before 22 February, 2001;
-submissions in reply to the amended ground from the wife on or before 15 March, 2001; and
-submissions from the husband, if any, in reply to those of the wife on or before 22 March, 2001.

In purported pursuance of that direction, written submissions from the parties upon the preliminary point were filed as follows:
-submissions on behalf of the husband on 26 February, 2001;
-submissions on behalf of the wife on 15 March, 2001; and
-submissions in reply on behalf of the husband on 5 April, 2001.

No objection having been taken by the wife to the lateness of the submissions filed on behalf of the husband, I would extend the time for the filing and service of these submissions, in compliance with our directions of 1 February, 2001, nunc pro tunc.

DID THE TRIAL JUDGE HAVE JURISDICTION UNDER SECTION 83?

The husband, through his counsel Mr Trench, in support of amended ground 1A, relied on the decision Collins and Collins (1993) FLC 92-343, which he referred to as a case which dealt with the words “in force” as they formerly appeared in s66N of the FLA. [That section (since replaced by s66S) previously dealt with the modification of child maintenance orders, but was similarly worded to s83 and is, therefore, analogous for present purposes.] The husband argued that in that case the Full Court determined that a fully executed lump sum maintenance order was no longer “in force” and was therefore not capable of being varied under s66N, as it then was.

In reply, the wife submitted that the Full Court in Collins and Collins (supra) identified an injustice arising from such an interpretation of s66N. She pointed out that at 79,639 the Court examined the situation where, an order for lump sum child maintenance having been paid, the residence of the child in question was then reversed, with the payer becoming the resident parent. In the context of this discussion the Court there stated that in such circumstances “it would seem to be unjust if at least a portion of the lump sum were not recoverable by the payer…”. The wife argued that surely it was not Parliament’s intention to allow such an injustice to occur and, consequently, based on this proposition, ipso facto, an executed lump sum payment would be capable of variation.

In response to the wife’s submissions on this point, the husband asserted that her argument ignored the possibility that a further application could be made for maintenance, notwithstanding the fact that a lump sum maintenance order had been made and fully executed. The husband pointed out that ss 44 (3) and (4) of the FLA were designed to permit such applications to proceed so as to prevent hardship, despite the lapse of time. Thus there is available to the payer, in the circumstances predicated by the Full Court in that case, an avenue of redress for the perceived injustice, without the necessity to strain the meaning of the words “in force” in s66N as it then was, and in s83(1) as it still is.

In contemplating the factual situation alluded to by the wife, the Full Court in Collins (supra) was considering whether s66J of the FLA, which essentially delineated the general powers of the Court when making child maintenance orders, afforded the Court an alternative avenue pursuant to which an order for the repayment of part of the amount paid under a lump sum maintenance order could be made, the Court having already concluded that such an order could not be made under s66N. At 79,640 the Court found it unnecessary to decide whether s66J provided such an avenue, although its reasoning clearly supported an affirmative conclusion on that point.

Therefore, not only were these comments about the injustice mere obiter dictum, but they were also made in the context of considering alternative avenues for relief rather than exclusively the effect of the modification provision which is analogous to the section presently under consideration. The wife did not attempt to relate the comments in Collins (supra) regarding the possibility of varying an executed lump sum maintenance order pursuant to the general powers of the Court, to the equivalent section in the context of spousal maintenance, which is s80. In any event, the success of such an argument would be doubtful given the long established principle that s80 is not itself an independent head of power – King and King (1977) FLC 90-299 at 76,580– but rather merely provides the Court with various ancillary powers which it may exercise when making orders under the substantiative provisions of Part VIII, such as ss 72, 74, 79 or 83.

The relevance of Collins (supra) to the current application therefore rests in the fact that the Court stated, at 79,639, in relation to s66N, that the variation of an order for lump sum maintenance which had been obeyed “appeared to be beyond its scope” and that “arguably, then, there is no provision in s66N to enable the Court to vary an order for lump sum maintenance once that order has been complied with.” However, as those statements were clearly obiter dicta, it is necessary that this Court examine the reasoning of the Court in order to decide for ourselves whether the opinions there tentatively expressed are ones which we share.

The husband in that case appealed, inter alia, against orders that he pay lump sum child maintenance and a lump sum for future private school fees assessed on the basis that the child would be continuing to attend a particular private school for a further 5 years. One of his grounds of appeal was that the trial Judge “failed to place sufficient weight on possible changes in the circumstances of the child”, and reference was made on his behalf to the injustice which he would suffer if, for example, having paid the lump sum for the school fees for the whole of that period, the child left school before the expiration of that period. That led the Full Court to observe (at 79,638):

“If the order for payment of lump sum maintenance could be subsequently varied if circumstances changed and an order made that the wife refund the lump sum, or an appropriate proportion of it, then any possible future injustice could be avoided.”

The Court then set out its reasoning for the tentative conclusions previously referred to in the following passage (at 79,638 to 9):
“Counsel for the wife cited a number of cases in support of his submission that an order for the payment of lump sum maintenance can be varied:
O'Brien and O'Brien (1983) FLC ¶ 91-316
Ramsey and Ramsey (No 2) (1983) FLC ¶ 91-323
Park and Park (1978) FLC ¶ 90-509
Kaljo and Kaljo (1978) FLC ¶ 90-445
Warnock and Warnock (1979) FLC ¶ 90-726
Fowler and Fowler (1980) FLC ¶ 90-808
Anast and Anastopoulos (1982) FLC ¶ 91-201
DeLange v DeLange (1968) 11 FLR 286
Some of those cases dealt with variation of the so-called 'maintenance element' in orders for settlement of property (e.g. Ramsey) and are not relevant to this appeal. Others are authority for the proposition that even if lump sum maintenance has been paid pursuant to an order, 'in any later proceedings the court would give great weight to that but the court cannot be precluded from making a variation under section 83 if there is a change in circumstances' (per Evatt C.J. in Park op. cit. at p 77,665) but the 'variation' in those cases was in fact an additional order for further payment, including the variation of an order for periodical payments to an order for a lump sum, not a reduction or repayment of the amount already paid. Neither is O'Brien, in which McGovern J. said (obiter) that 'a lump sum ... maintenance order is one capable of variation under S.83', authority for the proposition that a lump sum paid pursuant to an order can be reduced, or ordered to be repaid by a subsequent order.
Section 66N allows the court, 'where there is an order (for maintenance) in force' to vary, discharge or suspend that order in certain specified circumstances. The problem in the present case is whether an order for lump sum maintenance remains 'in force' once the sum has been paid.
In Money v. Money (1966) 7 FLR 476 Selby J. considered the proper interpretation of rule 88(2) of the Matrimonial Causes Rules:
'Where an order pending the disposal of proceedings instituted by the petition is in force, the petition shall not be withdrawn ... except by leave of the court.'
Having identified certain orders as being orders 'pending the disposal of proceedings', his Honour held that one such order was 'still in force' on the grounds that 'it has not been obeyed'. The other order, reserving interim costs to the hearing, he also held to be 'in force'. By implication, it appears that an order which has not yet been fully complied with remains 'in force'; conversely, that it is no longer 'in force' once it has been complied with. This is consistent with a common sense interpretation of 'is in force'.
Section 66N, therefore, appears to contemplate the variation of orders for maintenance by way of periodic payments where the time at which such payments are to cease (for example, the child's eighteenth birthday) has not yet been reached. The variation of an order for lump sum maintenance which 'has been obeyed' appears to be beyond its scope.
The point of seeking variation of an order for lump sum maintenance when circumstances had changed would often, perhaps usually, be to recover all or some of the amount paid. Sections 66N(6), (7) and (8) provide, in summary, that where an order is made 'decreasing a periodic amount payable under an order', or discharging such an order, it may be expressed to operate retrospectively and, if it is, amounts paid since the date from which the order was varied or discharged are recoverable by the payer. However, those subsections refer specifically to orders for periodical payments.
Arguably, then, there is no provision in section 66N to enable the Court to vary an order for lump sum maintenance once that order has been complied with. In this respect such orders may be analogous to orders for settlement of property by way of payment of a lump sum; although such orders can be varied or set aside if the provisions of section 79A are complied with, for example if they were unjustly made or subsequently become 'impracticable', they cannot be set aside simply because circumstances change even if, had those circumstances obtained at the date of the hearing, a different result would have been more just.”

In examining the relevant cases referred to by the Full Court in the passage of Collins (supra) cited above in paragraph 32, it is convenient to start with O’Brien and O’Brien (1983) FLC 91-316. In his written submissions, the husband specifically referred to the following statement of McGovern J in O’Brien (supra) at 78,149:

“…a lump sum or periodic sum maintenance order is one capable of variation under sec. 83.”

The husband submitted, in anticipation of the wife’s submissions in reply, that this statement was mere obiter dictum, as the point was not a matter for consideration during the proceedings before McGovern J and, therefore, the decision could not be seen as authority supporting the position contended for by the respondent wife in the current appeal. However, at no point in the written submissions did the wife make reference to this case.

In the matter of O’Brien (supra), the wife brought an application for property settlement, lump sum spouse maintenance and child maintenance. In the context of discussing the lump sum spouse maintenance application, at 78,149, McGovern J pointed out that the inclusion of a maintenance component in a property settlement order, did not preclude a party from later claiming periodic or lump sum maintenance, subject only to the provisions of s44(3). His Honour cited the case of Anast and Anastopoulos (1982) FLC 91-201 to support this principle. As previously quoted in the context of the husband’s submissions at paragraph 33, McGovern J went on to explain that, as an integral part of a property settlement, a maintenance component was final whereas a lump sum or periodic sum maintenance order was one capable of variation under s83.

As submitted by the husband, the point made by McGovern J in O’Brien (supra), with respect to the variation of a lump sum maintenance order under s83, was mere obiter dictum, as the issue requiring determination in the case before his Honour related to whether a lump sum maintenance order in favour of the wife should be made. Ultimately, his Honour refrained from pursuing such a course of action because he found that a reliable assessment could not be made in the circumstances for various reasons, including the unpredictability of the effect of the property settlement on the wife’s future financial situation and the fact that a lump sum maintenance order would not have brought an end to the financial relations between the parties.

In the case of Park and Park (1978) FLC 90-509, the husband appealed against the orders of Gun J which provided for the wife to transfer her interest in the matrimonial home to the husband upon payment of $6,500, by him, to her. The husband’s grounds of appeal related to the insufficient weight attributed to both his continuing obligation to support the children and the wife's contribution which should be made thereto.

The Full Court allowed the husband's appeal and reduced the amount payable to the wife to only $4 000. The Full Court also affirmed the order regarding the transfer of the wife’s interest in the home to the husband. In doing so, the Full Court maintained that such a property order would not only recognise the husband's responsibilities towards the children, but also liquidate the wife's child maintenance obligation. In coming to this conclusion, the Full Court held that the trial Judge did not give sufficient weight to the relevant s75(2) factors, or to the husband's ongoing obligation to provide for the children and to the absence of any contribution thereto from the wife in the past and in the future.

The Full Court stated that the figure was in full satisfaction of the ongoing maintenance obligation of the wife to the children, which meant that in the circumstances foreseeable by the Court the husband would be, in effect, debarred from making a claim unless there was some dramatic change. In explaining the Full Court’s conclusions, at 77,665, Evatt CJ stated:
“…the Court cannot, by making an order expressed to be in full satisfaction of the wife's maintenance obligations to the children preclude any further application for maintenance on behalf of the children. There is no way that maintenance for children can be seen as final and not able to be reconsidered. The most the court can do is to make it clear that in the foreseeable circumstances no such application would be entertained…It can decide that a settlement upon the party or [sic.] a lump sum payment is in full satisfaction or is intended to be in full satisfaction of future maintenance obligations. In any later proceedings the court would give great weight to that but the court cannot be precluded from making a variation under sec. 83 if there is a change in circumstances.”
The matter of Kaljo and Kaljo (supra) was an appeal against the orders of Opas J, which essentially varied an order for the settlement of property made by Carmichael J in the Supreme Court of N.S.W.

The original property orders made by Carmichael J in May, 1974, ordered the husband to purchase a home, for a sum not exceeding $70,000, which was to be held on trust for the occupation of the wife and then to be settled on the children. The Supreme Court Judge also ordered the husband to pay the wife lump sum maintenance of $50,000.

The wife then decided that it was unlikely that she could select a property, such as that contemplated by Carmichael J, for an amount not exceeding $70 000 and so she indicated to the husband that she was prepared to contribute $17 000 of her lump sum maintenance to the purchase price of a suitable property. The husband refused to agree to such a purchase in the names of the wife and the trustees as tenants-in-common.

When the matter came before Opas J in February, 1978, his Honour found that there was no substance in the husband's objection that he had had no opportunity to object to the value of the proposed house. His Honour went on to find, firstly, that he had power to appoint trustees for the purposes of the order and, secondly, that the order sought by the wife was not a variation of property settlement, but that her application was merely to vary a machinery provision.

Ultimately, the orders of Opas J provided for the wife to pay $17,000 to the husband's solicitors, which was to be applied by them in the purchase of the specified property that the wife and the Trustee Company were to hold, as tenants-in-common, in the shares of 17/87ths and 70/87ths respectively.

The husband then instituted an appeal against the decision of Opas J and, essentially, his submissions focused on two procedural issues, namely, the power to vary property settlements and whether the order of Carmichael J was a property settlement.

In allowing the appeal and discharging the orders of Opas J, the Full Court held that given the unusual features of the order of Carmichael J, it was, in effect, a settlement of a lump sum not exceeding $70,000. In the context of discussing why the order which provided for the wife to pay to the husband’s solicitors $17,000, to be held in trust by the Solicitors and applied to the purchase of a particular property selected by the wife, should be discharged, the Full Court stated, at 77, 277-8,:
“While it is clear that his Honour could make orders to enforce the payment of the lump sum due to the wife, it would be in our view beyond power for a Court to determine the way in which lump sum maintenance should be applied by the recipient. Furthermore, it could be inconvenient to everyone if that order had to be varied in the event of the purchase not proceeding.”
In 1974, in the matter of Warnock (supra), the wife was granted exclusive use and occupation of the former matrimonial home, in addition to $50 per week from the husband to cover both spouse and child maintenance.

Then, in 1976, the wife sought an order giving her ownership of that property and filed an application for variation accordingly. The wife then sought to add to her original claim an alternative claim which sought lump sum maintenance of $50,000, in conjunction with maintenance at the rate of $100 per week, pending suit, and then subsequently at the rate of $150 per week. McCall J allowed the amendments sought by the wife and, at the same time, dismissed the wife's first application regarding ownership of the matrimonial home.

When the matter came before Connor J for hearing in May, 1979, his Honour focused on the ''preliminary question'' of whether it was necessary for the wife to obtain leave to institute proceedings for lump sum maintenance and whether the wife was estopped from bringing the proceedings. His Honour having answered both of those questions in the negative, the husband appealed.

In holding that the wife did not need leave to institute her proceedings for lump sum maintenance, and dismissing the appeal, the Full Court stated, at 78,909,:
“The provisions of sec. 83 allow the Court to vary maintenance orders and an application for variation is one of those applications expressly excepted from the provisions of sec. 44. Once an order has been made, in our view, it can be varied either by increasing or decreasing periodic sum or by means of a lump sum order. We consider that the words 'or in any other manner' in sec. 83(f) are sufficiently wide to allow the making of a lump sum order and there may be in [sic.] cases in which, failing sec. 81, the Court on an application for variation, may wish to make such an order. It would not be outside the powers of the Court to capitalise a lump sum order. See also sec. 80(a). It follows that we would, with respect, disagree with the reasoning in Van Dongen v. VanDongen (1976) FLC ¶90-071 insofar as that case suggests that there is no power under sec. 83 to make orders for lump sum maintenance.”
In the case of Anast and Anastopoulous (supra), in December, 1980, Pawley SJ made orders to the effect that the wife receive one-quarter of the assets of the parties, by way of property settlement, and that ''[t]here should be added to this a maintenance component of $35,000 which represents the capitalisation of a weekly payment of $65 over a period of about twenty-five years at an interest rate of approximately 9%''.

The wife then successfully appealed against the decision of the trial Judge. After noting the importance of drawing a distinction between the applicant's property entitlements under s79 and the provision of lump sum and periodical maintenance, the Full Court found that a proper distinction had not been drawn by the trial Judge between a ''maintenance component'' and an order for lump sum maintenance. The Full Court further pointed out that a ''maintenance component'' was part of a s79 order and, as such, was final and not capable of variation under s83. It was also noted that the inclusion of a maintenance or s75(2) component in a property order, did not operate to preclude the wife from later claiming periodic or lump sum maintenance, subject only to the provisions of s44(3).

The Full Court held that the trial Judge ought to have reached a decision on the property application, taking into account all matters under s79, including those under s75(2), before considering the wife's application for spouse maintenance. The Full Court went on to explain that the trial Judge would then have been bound to consider that maintenance application in the light of the impact of the property order on the parties' financial circumstances. At page 77,062, in explaining that the starting point then would be s72, the Full Court stated:
“If the wife established that she was then unable to support herself adequately within the meaning of sec. 72 and that the husband had the capacity to contribute to her maintenance, the trial Judge should then consider the quantum of maintenance having regard to the provisions of sec. 75 and the form of the order, e.g. periodic or lump sum maintenance. Any order then made would be an order capable of variation under sec. 83.”
The Full Court found that even though the trial Judge described the order as a maintenance component, it was actually assessed as if it were an order for lump sum maintenance. As such, the Full Court questioned the appropriateness of the $35,000 being a lump sum maintenance order which spanned a 25 year period. The Full Court harboured concerns as to the appropriateness of such an order because it would give little protection to the person paying the maintenance if the other party's position should improve, as well as the corollary that such an order may fail to provide adequately for the future needs of the recipient.

In the matter of Fowler and Fowler (supra) the husband made an application to the Court seeking the discharge of spouse and child maintenance orders, as well as property orders, which were made in 1974. The property orders provided for the wife to have exclusive occupation of the property, which was owned solely by the husband, until the occurrence of certain events ''or further order of the court''. The husband was also ordered to make the necessary payments required to ensure her continued occupation of the home.

In discharging the orders made in 1974, Ferrier J held that the Court could utilise its powers under s83 to vary an original order for maintenance, so as to provide for payment of lump sum maintenance in lieu of periodical payments. Accordingly, Ferrier J ordered the husband to pay the wife the sum of $20,000 on her ceasing to occupy the matrimonial home.

In the case of DeLange and DeLange (supra), the parties entered into consent orders which provided, firstly, for the husband to transfer certain property to the wife and, secondly, for the husband to pay the wife the sum of £1,500, in 3 equal instalments, over a period of 3 years.

The property was duly transferred and the first 2 instalments were paid. However, before the final instalment was due to be paid, the wife died. Consequently, pursuant to s87(1) of the Matrimonial Causes Act 1959, the husband applied to discharge the order for maintenance in so far as it related to the final payment.

In deciding to discharge the order from the date of the wife’s death, at page 288, Allen J stated:
“…the judgments of the High Court made it clear that whatever may have been the contemplation of the parties no court is able to make an order under s. 87 which is incapable of variation…”

And then later in the judgment at page 289:

“No doubt the order was made at the request of both parties and as a result of their agreement, but it remained open to either of them to apply at a future time for a variation if circumstances permitted – see s. 87(2) and Johnston and Johnston (6) – though, no doubt the provisions of par. 3 of the 'terms' would be most material on any such application.”

The cases listed in Collins (supra) and examined so far (from paragraphs 33 to 59), all contain some indication, albeit by obiter dictum in each case and with varying degrees of definiteness, that a lump sum maintenance order is or may be capable of variation pursuant to s83.

In the context of considering the current preliminary point however, it is important to note that not one of the Courts hearing the cases listed in Collins (supra), was required to, or decided to, consider the effect of the words “in force” in s83(1). It is a point which has escaped discussion in each of the cases, no doubt because in none of them was the Court actually required to decide whether a lump sum order for maintenance, once paid, was capable of variation under s83. Therefore, they are not cases which necessarily assist in the determination of the current preliminary point regarding the effect of the words “in force.” Section 83 certainly provides for lump sum maintenance orders to be varied, but the issue in the present proceedings is whether a completed or executed lump sum maintenance order is “in force” in accordance with the terms of s83, or whether, because of the fact of compliance, the order is no longer capable of variation under the section. As such, it is with the greatest respect that I point out that statements like that of Evatt CJ in Park (supra), extracted above in paragraph 39,[to the effect that in later proceedings the court would give great weight to the fact that a lump sum maintenance order had been complied with, but that the court could not be precluded from making a variation under s83 if there was a change in circumstances] fail to take into account, or attribute any effective meaning to the words “in force”.

Turning then to Ramsey (supra), the remaining case cited in Collins (supra): the parties in that case were divorced in 1972 by a decree under the repealed Matrimonial Causes Act 1959. At that time, Joske J ordered the husband, subject to the consent of the mortgagees, to settle upon the wife his interest in the former matrimonial home. Efforts to implement the effect of this order failed when, in 1973, the mortgagee refused to give its consent. One year after the divorce, the parties resumed cohabitation for a further period of 5 years. In November, 1978, the parties separated for the final time and then, in 1980, the wife applied to the Court for various orders to bring about the transfer of the husband's interest in the former matrimonial home. That application led to orders which were the subject of a successful appeal and then the matter was remitted for a rehearing.

During the rehearing, the husband submitted that the Court should exercise its power under s83 of the FLA to vary that portion of the 1972 orders which could be categorised as representing maintenance rather than adjustment of property.

Relying on the case of Mullane v Mullane (1983) FLC ¶91-303, the husband submitted that it was clear that merely because an order was made under s86 of the repealed Act, it did not follow that such an order was to be treated as the equivalent of an order under s79 of the FLA. In the case of Mullane (supra), the High Court held that an order for exclusive possession made under s86 of the repealed Act was not to be treated as equivalent to an order under s79 of the FLA so as to deprive the Family Court of jurisdiction under that section. Whilst the 1972 order undoubtedly worked an alteration of the legal and equitable interests in the former matrimonial home, it was argued by the husband that the definition of orders under s79 was narrower than this.

Relying on further passages from Mullane (supra), the husband submitted that an order settling property on a wife for maintenance purposes, even if it did purport to change the legal and beneficial interests of the parties, fell outside the scope of s79. The husband pointed out that the Family Court would not ordinarily make an order, by reason of contribution or need, depriving a husband of the totality of his equity in the former matrimonial home and Vaughan and Vaughan (1981) FLC ¶91-066 was cited to support this proposition. Consequently, the husband argued that at least 40% of Joske J’s order regarding the former matrimonial home should be treated as a maintenance order and liable to variation under s83.

Nygh J stated that whilst it was true that an order altering property interests under either s86 of the Repealed Act or s79 of the FLA might be, partly, a means of providing maintenance, such a maintenance element was part of the s79 order and could not be varied under s83. His Honour cited Anast and Anastopoulos (1982) FLC ¶91-201 in support of that conclusion. Nygh J then went on to point out that the majority judgment in V. and G. (1982) FLC ¶91-207 indicated that an order which purported to settle the children's maintenance claims by way of a larger share in the house, was still an order under s79 and not under s74.

Nygh J therefore concluded that the order made by Joske J was the equivalent of an order under s79 incorporating a maintenance element and could not be varied in any respect under s83. His Honour pointed out that Joske J made no mention of any lump sum calculation in his order and in fact awarded the wife and the children most generous periodic maintenance which amounted to two-thirds of the husband's then net weekly income. Consequently, Nygh J held that both in law and in fact, there was no ground for an argument that the order made by Joske J should not be treated as an order under s79 and it therefore followed that the claim made by the husband under s83 was not sustainable.

It can be seen, therefore, that in that case, Nygh J indirectly referred to the concept of variation of a lump sum maintenance order, under s83, but the ratio of the case is that when a property order includes a maintenance component, that maintenance component is still to be treated as a property order and, as such, it is not capable of variation under s83. Therefore, once again, the issue of whether a lump sum maintenance order which has been complied with is still “in force”, so as to be susceptible of variation under s83, was not addressed or considered in the case.

Focusing then on cases and commentary, additional to Collins (supra), which have specifically considered the effect of the words “in force,” it is interesting to note that under the heading of “¶25-580 Application of Section 83”, the electronic CCH Family Law Library contains the following commentary on this issue (with emphasis added):

"It is not clear whether a lump sum can be varied. The Full Court in Anast and Anastopoulos (1982) FLC ¶91-201 assumed that a lump sum order was capable of subsequent variation. It is difficult to see how it can be varied. Once lump maintenance has been paid and the order satisfied, it cannot be said that 'there is in force an order ... with respect to maintenance'."

In the unreported judgment Hodgson and Hodgson [1998] Fam CA 2247, Dawe J considered the meaning of “in force” in the context of s83. In considering an application to vary a spouse maintenance order, the obligations imposed by which had already been complied with, her Honour stated:
"Section 83 clearly requires not merely that there once upon a time was an order for maintenance, but that there be an order which is in force. The order of 22 March 1988 and the maintenance orders contained in paragraphs (3) and (4), cease to be in force upon the payments referred to therein. Those payments have been paid. Subparagraphs (3) and (4) of this order of 22 March 1988, therefore, to my mind can no longer be said to 'be in force'."

And then later in the judgment:

"The Full Court in Collins v Collins went on to say - and I emphasise the following - by implication it appears that an order which has not yet been fully complied with remains in force. Conversely, that it is no longer in force once it has been complied with. This is consistent with a common sense interpretation of 'is in force'."

In concluding that there was no order “in force”, as required by s83 and, consequently, there could be no application to vary the spouse maintenance order, it is interesting to note that her Honour made the following comments:
“The periodic maintenance in subparagraphs (3) and (4) have been paid. I therefore accept the husband's submission that there is no maintenance order which is in force and that, therefore, there can be no application to vary that order pursuant to Section 83. I have come to this conclusion notwithstanding the Judgment of the Full Court in the matter of Caska v Caska, being the Judgment of the Full Court published on 18 September 1998, Appeal Number EA19 of 1998. That matter was an application to vary a lump sum maintenance order. In that matter the consent order was made on 12 August 1996, providing that: 'The husband pay to the wife the sum of $60,000 by way of spousal maintenance. Such payment to be made within 28 days from the date of the orders.'
On 16 June 1997, some ten months later, the wife applied for a variation. There is no suggestion in the Full Court Judgment that the husband had not complied with the order of 12 August 1996 and paid the $60,000. The Full Court hearing dealt with the interpretation of Section 83(2)(ba). The Judgment appears to assume that the order for lump sum payment of $60,000 spousal maintenance was still 'in force' when the wife applied on 16 June 1997. (They dealt with this matter in a round about way when considering the impact of Section 77A, on the provisions of the order that they had before them).
With respect their Judgment appears to assume that the mere filing of an original application for spouse maintenance within the required period would be sufficient. To my mind, however, this does not give any effective meaning to the words 'is in force' in Section 83(1). I therefore maintain that the submission of the husband is correct and that there is no order for spouse maintenance "in force" capable of being dealt with under Section 83. It is therefore not necessary to consider the requirements of Section 83(2).”
The husband also referred to the case Evans v Spicer (1992) FLC 92-320 at 79,410 where Moss J, in dealing with ss77A and 82 of the FLA, as they then were, stated, in respect of an order for payment of a lump sum the subject of a s77A order “which has been perfected in every sense and which has ceased to have any further operation, although it remains a valid order of the Court”, that “such an order is ‘beyond recall.’: Wilde v Australian Trade Equipment Co. Pty. Ltd. (1981) 145 CLR 590.”

Counsel for the husband stated that a search of English decisions produced only one decision which may be useful, G v G (1983) EWCA 717, and then merely referred the Court to an attached copy of the judgments of the Court of Appeal (Civil Division) in that case.

Upon examining this English case, it is apparent that the wife sought to extend a spousal maintenance order, made in her favour, which imposed temporal limits on her entitlement to periodical payments from the husband. One of the specified events which effectively terminated her entitlement to the payments, was the parties’ eldest child attaining the age of 18. This event transpired in November, 1994. Following this event, the wife brought an application to extend the term of the order.

After the wife’s application was granted by District Judge Cushing, on appeal the husband questioned whether the Court had jurisdiction to even make the order. Hale J of the High Court accepted the submissions of the husband on this point and upheld his appeal.

Finally, the wife appealed to the Court of Appeal (Civil Division), whereupon the Court (Ward and Potter LJJ) held that, based on the language of the relevant sections of the statute, in conjunction with case law on the point, the Court lacked jurisdiction, and accordingly dismissed the wife’s appeal.

In coming to this conclusion, Ward LJ, after referring to the relevant statutory provisions (including s28(1)(A) which dealt with the “term to be specified in a periodical payments order”, and s31, which empowered the Court to vary such orders) stated:
“26. When the term is defined by s. 28(1)(A) not to extend beyond death of either spouse or remarriage, then the order ceases on the happening of that event and cannot be revived. No one would contest that proposition. There would, therefore, have to be very good reason for giving different treatment to a term specified by the court so as, in that case, to permit the kiss of life to be given to it after the obligations to pay under it had ceased to have effect. To give consistent meaning to the Act, one would be constrained to find there no longer is an order which is capable of variation. On that view of the law, that is the end of this appeal.
27. A review of the authorities leads to the same conclusion.”
Later in the judgment his Lordship said this:
“35 The speech of Lord Scarman makes it clear that the order comes to an end not only when it expressly stands dismissed but also when it 'ceases' or is 'discharged' or 'after the husband (has) complied with all his obligations'. In those events there is no 'continuing order capable of variation or discharge under section 31 of the Act'. This view accords with the statutory language. Section 23 enables an order to be made 'for such term as may be specified in the order'. Section 25A(2) enables the court to require the periodical payments to be made 'only for such term' as is sufficient to enable adjustment to be made without undue hardship to the termination of financial dependence on the other party. Section 28 deals with 'duration of continuing financial provision orders' and provides 'the term...shall be such term as the court thinks fit' subject to the statutory limits of death or remarriage. Consistency demands that when the term specified in the order, of whatever kind it may be, expires, the order expires with it. The words 'or further order' must be given their usual meaning and it is not possible to construe out of those words the meaning that only the obligation to pay comes to an end leaving the order comatose but capable of being kissed back to life by an application to vary. As Hale J. pointed out, if that submission was correct, then an application to vary could be made years after the event. That it would so fly in the face of the spirit of a clean break, even a deferred clean break, as to be unacceptable.”
This English authority essentially related to the possibility of varying a maintenance order when the specific term, for the duration of which the provision of maintenance had been ordered, has expired or, alternatively, when a certain event, the happening of which brings the obligation to pay maintenance to an end, has transpired. The decision largely turned upon the interpretation and application of the terms of the relevant statute consistently with the practical effect of the orders, so that the two could continue to coherently co-exist.

Although this English case turned on statutory interpretation of a particular provision, dissimilar in wording from s83(1) which is currently under consideration, a general comment made by Lord Scarman in Minton v Minton [1979] A.C. 593 at 608 and extracted in the case, is pertinent to the present issue:

“The court having made an order giving effect to a comprehensive settlement of all financial and property issues as between spouses, it would be a strange application of the principle of the clean break if, not withstanding the order, the court could make a future order on a subsequent application made by the wife after the husband had complied with all his obligations...”

After considering all these cases, I find it difficult to see how it can be concluded that s83(1) empowers the Court to vary a lump sum maintenance order which has been fully complied with, and still give any meaning and operation to the words “in force” in that subsection. None of these cases compel that conclusion, and the more persuasive dicta {in Collins (supra)} is to the contrary.

The submissions of the wife essentially focused on 2 issues, firstly, whether leave was required pursuant to s44(3) of the FLA and, secondly, in the event that leave was found to be required under this provision, it was asserted that the absence of leave was a matter of procedure rather than jurisdiction, and, as such, there could be consent by the respondent, overtly or by waiver, to overcome this requirement. This is a matter to which I shall refer later in these reasons.

The opening paragraphs of the wife’s submissions addressed the applicability of s44(3) to these proceedings. Essentially it was asserted that, based on statutory interpretation and the strict application of s44(3), there is no time limit on the present application.

In reply, the husband pointed out, quite correctly in my view, that the suggestion of this Court that leave may be required, pursuant to s44(3), was made in relation to any further application by the wife for maintenance, as opposed to an application for variation of an existing order, under s83.

In the proceedings before the trial Judge, his Honour and the parties treated the application as one seeking to vary the maintenance order pursuant to s83. In contrast to its normal requirement regarding leave, s44(3) specifically states as an exception to be excluded from its ambit “…proceedings seeking the… variation of an order previously made in proceedings with respect to the maintenance of a party.” Therefore, leave is clearly not required under s44(3) of the FLA to pursue an application under s83 and the trial Judge was correct in not turning his attention to this issue. If the trial Judge was simply dealing with an application for spouse maintenance, then, subject to considerations of implied or overt consent or waiver by the husband, the proceedings could not be validly instituted without leave because of the lapse of 12 months since the decree nisi became absolute and the statutory requirements of s44(3). But this was not the way the case was presented to his Honour, nor dealt with by him. No doubt the very fact that s44(3) stood in the way of a fresh application was instrumental in the wife’s case being presented to his Honour as one for variation of the 1996 order.

The wife then focused on the primary issue of whether an order for lump sum maintenance which has been paid, ceases to be an order “in force.” The wife contended that it was important to note that whilst the $60,000 had been paid, other payments required by the consent orders remained unpaid at the time of the filing of the application. The wife submitted that there were thus orders which in part dealt with maintenance and that the orders themselves were still in force even though parts of them had been complied with.

In reply, the husband submitted that order 1 was a specific and severable order which required lump sum spouse maintenance to be paid, whilst order 2 was clearly a property order which required $140,000 to be paid to the wife in 3 instalments. The husband contended that no comfort could be drawn by the wife from the fact that, although the lump sum spouse maintenance order had been paid, there was, at the date of her application, an outstanding payment pursuant to order 2. He then further noted that s83(1) specifically provides that the section applies to maintenance orders only.

I accept the submissions of the husband on this point. It is very clear that the only maintenance order to which s83 could possibly have applied, at any stage, was order 1. Order 2 is clearly identified as a property order, and in the event that it was a property settlement order with a maintenance component, it is still a property order in respect of which s83 has no application or effect. Therefore it is irrelevant, in the context of this application, that the final component of the property order was yet to be paid when the variation proceedings were initially instituted.

In focusing further on the meaning of the term “in force”, the wife submitted that rather than just simply meaning “unpaid”, in the context of a lump sum order, it could also consistently mean “meant to replace periodic maintenance for a particular period or until particular events occur.” The wife maintained that this was the complaint of the appellant in various grounds stipulated in the Notice of Appeal. Specifically the grounds referred to by the wife were:

"9. That his Honour erred in disregarding the $60,000.00 paid as a lump sum maintenance (sic) in any way connected to the day to day income or expenditure of the wife;
10. That his Honour erred in determining the wife’s income in that he failed to take into account any notional income which should be attributed to her arising from the payment of $60,000.00 in 1996 at the point of settlement;

11. That his Honour erred in considering 25 years as an appropriate period of time over which the lump sum maintenance order might reasonably be seen as applicable; and

13. That his Honour erred in calculating the wife’s expenses in circumstances where her expenses included those of the children."

The wife further submitted (wife’s written submissions, paragraph 15) that her interpretation of the words “in force”, encapsulated “the underlying assumption of s77A from the perspective, at least of the Department of Social Security.”

Section 77A requires that where the Court makes an order for payment of a lump sum, or for a settlement of property, for the purpose of making provision for the maintenance of a party to the marriage, then the Court shall expressly state that the order is an order to which the section applies. Failure to expressly declare that the order is an order to which s77A applies, (ie that it relates to maintenance) means that the order shall not be treated as relating to the maintenance of the party.

Based on the facts of the current case, the wife argued that the original consent order was not described in terms of a s77A component, nor said to replace a particular period of time.

In responding to this submission, the husband submitted that the question of the period that the lump sum maintenance order should be regarded as covering, was a different question from whether the order was still “in force.”

I fail to understand how the fact that the conditions delineated in s77A were not complied with, in any way assists the wife’s case. If the conditions of s77A are not complied with, the result is that the order is treated as one relating to property. As has been previously covered, s83 has no application to a property order and, therefore, the wife’s case would not be advanced by regarding it as a property order. Such orders are incapable of variation except pursuant to the rather restrictive provisions of s79A, which were never sought to be invoked in this case. In any event, the order in question was described specifically as being “by way of spouse maintenance”, and any failure to comply with s77A is, at worst, technical.

The wife made the further submission that if her interpretation of “in force” were not accepted, then what would be the purpose of the words in s83(5A) “…and any transfer or settlement of property, previously made by a party to the marriage to the other party”? Section 83(5A) provides:
“(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage to:
(a) the other party; or
(b) any other person for the benefit of the other party."

Relevantly, s83(2)(ba) states:

(2) [Requirements for variation] The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

…

(ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;

…"

The wife argued (wife’s written submissions, paragraph 16) that if this only referred to a consideration of “the overall orders made generally”, then the quoted words from s83(5A) would be “superfluous, having regard to the requirements in s75, and in particular, in s75(2)(b), the ‘property…of each of the parties’, and especially s75(2)(n) – any order made under s79.”

The wife further submitted that the only way the quoted words in s83(5A) were not superfluous would be if they referred to property transferred other than pursuant to s79 – namely by way of lump sum maintenance. The wife asserted that the Court only gets to consider a completed transfer in this context if the Court is considering modification, so that the 2 subsections, when read together, assume that a completed transfer by way of maintenance is capable of variation. Summarising this argument the wife submitted that “a Court when considering a variation of a maintenance order made by consent must consider whether the amount paid (including a transfer of property) was adequate or proper.” The wife reasoned that “if there has been a transfer, then obviously the maintenance order has been completed.” Therefore, she concluded, “variation of completed lump sum maintenance orders must be possible.”

In responding that this argument could not be sustained, the husband submitted (husband’s submissions in reply, paragraph 16) that “the reference to transfer or settlement of property in Sub-Section (5A) of Section 83 is a reference to Section 75(2)(n) with an extension to include a settlement of property or transfer which was not made pursuant to an Order of the Court under s79” [sic.]. It was further submitted by the husband that s83 “does not give the Court power to vary an Order made pursuant to Section 79 or to vary a property settlement made outside of any Court Order” [sic.].

There is an absence of judicial authority regarding the appropriate interpretation of s83(5A) of the FLA. The provision was inserted into the FLA by s45 of the Family Law Amendment Act 1987, however the Explanatory Memorandum merely indicates the amendment without explaining why the addition of this section was regarded as necessary.

In the absence of any binding or even guiding authority regarding the interpretation of s83(5A), one must start from the well known premise that words in statutes are to be given their ordinary natural meaning unless there is a sufficient reason for doing otherwise. Anteden Pty. Ltd. v Glen Eira City Council (2000) 111 LGERA 42 and R v Dunn [1973] 2 NZLR 481 at 483. Accordingly, the relevant words of s83(5A) should not be read as containing a qualification, as suggested by the wife’s submissions, namely that the “transfer or settlement of property”, therein referred to must be one made pursuant to a court order. If Parliament intended those words to have that limited meaning, then this should have been specifically provided in the legislation.

Moreover, those words, read in their context and given their ordinary natural meaning, do not require that, in considering, for the purposes of s83(2)(ba), whether the amount ordered to be paid by a consent order for spousal maintenance was “not proper or adequate”, any transfer or settlement of property previously made by one party to the marriage to the other must be included in and thus have formed part of the maintenance order. Those words only require that in considering that question the court must “have regard to” any such transfer or settlement of property previously made (whether pursuant to Court order or otherwise). The clear intention of s83(5A) is only to ensure that when considering the propriety or adequacy of any consent spousal maintenance order, for the purposes of s83(2)(ba), the Court does not look at that order in isolation from any other financial arrangements which may have been made between the parties, since to do so could clearly lead to injustice in a particular case. So construed, s83(5A) offers no support for the construction of s83(1) contended for by the wife, and that construction is rejected.

The husband also challenged the wife’s submissions regarding the severability of the s83 application from the balance of the trial Judge’s decision, stating that if there were an absence of jurisdiction under s83 to modify an order for lump sum maintenance which had been executed, then the whole of the wife’s application which was heard before the trial Judge should fall. The husband contended that it was not possible for the wife to convert her application, as she requested in the alternative, because a fresh application for leave to file an application out of time was of an entirely different nature and one which was never heard in the series of hearings preceding this appeal.

Based on the circumstances of the case, given the length of time that has elapsed since the filing of the original application in 1997, the considerable amount of evidence given and the time spent on the proceedings, the wife argued that the most just course would be to treat the application as a fresh application.

The husband argued that the Court should not and could not treat an application under s83 as being an application under s72. He went on to point out that a finding in the context of the preliminary point that the court lacked jurisdiction, did not preclude the wife from pursuing an application under s44(3). As if to enforce this point, the husband informed the Court that the wife had in fact now filed that very application.

Whilst the husband’s submissions regarding the availability of a s44(3) application, with a view to pursuing a fresh application for spousal maintenance, were accurate, his conclusions in the context of the fate of the trial Judge’s decision, given the absence of jurisdiction which his Honour purported to exercise pursuant to s83, is not necessarily as final and as definite as the husband has suggested.

The decision of the High Court case in Maiden v Maiden (1909) 7 CLR 727, which discussed and followed the decision of McLaughlin v Fosbery (1904) 1 CLR 546, is authority for the principle that “if the subject matter of the suit is within the jurisdiction of a Court the mode of exercise of jurisdiction is in truth a matter of procedure only. If a party against whom procedure is taken in an erroneous form chooses to lie by and take his chance of success, the Court will not afterwards give effect to an objection founded upon the irregularity” (per Griffith C.J. in Maiden v Maiden (supra) at 735). A more modern discussion and application of this principle is to be found in the judgments of the Court of Appeal of the Supreme Court of Queensland in Friis and Friis (2000) FLC 93-009, cited by the Full Court of this Court in Wade-Ferrell and Wade-Ferrell (supra) at 88,228.

Therefore, even though, in making the order which he did in favour of the wife, the trial Judge was purporting to exercise jurisdiction under s83, it is only if no other source of jurisdiction can be relied upon to sustain the validity of his order, that his Honour can be regarded as acting in the absence of jurisdiction. One must therefore turn one’s mind to the question whether the trial Judge could possibly have validly made the order that he did, within the scope of the jurisdiction of the Family Court of Australia.

The head of power under which his Honour could have made the orders appealed from {subject to the issue of leave under s44(3)} is provided by s74. That section provides:-

“In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.”

Indeed, although the Court’s jurisdiction to make an order varying an existing order for spousal maintenance is provided by s83, the only substantive effect of s83, so far as the exercise of that jurisdiction is concerned, is to provide a threshold over which an applicant’s case is required to pass before the Court can exercise the power under s74 to make to make “such order as it considers proper for the provision of maintenance”, in favour of the applicant, “in accordance with” Part VIII. And in exercising that power, the Court is required, by s83(7), to “have regard to the provisions of sections 72 and 75”, which are the sections which provide the relevant criteria which the Court must apply in determining what order (if any) it is “proper” to make for the provision of maintenance for the applicant “in accordance with” that Part. In short, once the s83 threshold is crossed, the proceeding becomes an ordinary maintenance proceeding, and the Court is required to consider afresh what order it should make applying the principles with respect to spousal maintenance found elsewhere in Part VIII: see Brady and Brady (1978) FLC 90-513.

Accordingly, although in my view the trial Judge erred in thinking that he was exercising jurisdiction under s83 (an error induced by the parties), the order which he ultimately made for the payment by the husband to the wife of $800 per week was an order made under s74, applying the legal principle set out in ss 72 and the criteria specified in s75 and, as such, was within the jurisdiction of the Court (subject only to the issue of leave, under s44(3), to which I shall turn below).

An analysis of the trial Judge’s judgment supports what I have said about the effect of s83, and its interaction with ss 72, 74 and 75. His Honour first considered (at paragraphs 6 to 31 of his judgment) whether the wife’s case, as presented in the proceedings before him, crossed the threshold erected by s83(1)(f) and s83(2). Having concluded (at paragraphs 32-3) that it did, his Honour proceeded to consider what order it was now proper to make for the maintenance of the wife, having regard to ss72 and 75. Thus, in making his orders, he was ultimately exercising his jurisdiction under s74, and (subject to the issue of leave) his orders were within the jurisdiction conferred by the FLA.

THE ISSUE OF LEAVE, UNDER S44(3)

I have already briefly referred (in paragraphs 82 and 102 hereof) to the wife’s submissions to the effect that the requirement of s44(3), that a party must obtain the leave of the Court before instituting proceedings, including proceedings for maintenance, after the expiration of 12 months from the date of the decree absolute dissolving the marriage of the parties, is procedural rather than substantive, and that in the circumstances of this case the husband should be found to have waived the benefit of that provision. In support of that submission, reliance was placed upon dicta of the Full Court (Baker, Nygh and Bulley JJ) in Tudor and Tudor (1992) FLC 92-273 at 79,027 where their Honours seemed to equate “a plea under the statute of limitations barring the action” with “a refusal of leave to institute proceedings under sec 44(3)”. However, that comment by their Honours was clearly obiter dictum, and was not made in the context of a careful consideration of the effect of s44(3) in the context of the FLA, particularly with reference to the policy embodied in s81, which is akin to the “clean break” principle of English law, arising from s25A of the Matrimonial Causes Act 1973, mentioned in the passage quoted in paragraphs 78 and 80 hereof from the judgment of Ward LJ in G v G (supra).

The wife’s submissions on this point further draw support from the fact that s44(3), as amended by item 37 of Schedule 3 to the Family Law Amendment Act 2000 (which came into operation on 27 December, 2000), now expressly provides that leave may be granted by the Court “even if the proceedings have already been instituted”. I consider that a telling submission, but an even stronger argument in support of the submission that the leave requirement is procedural, not substantive, is the fact that the section, as amended by item 36 of Schedule 3 to the same Amending Act, now provides that “the consent of both of the parties to the marriage” is an alternative basis to the leave of the Court upon which proceedings within the purview of the section may be instituted after the expiration of the 12 month period otherwise prescribed. For the purposes of that provision, I am unable to see why the consent of the parties could not be inferred from their conduct, rather than being confined to consent expressly given.

Upon the assumption that the leave requirement of s44(3) is procedural, and not substantive, then, even without the express reference to “the consent of both of the parties”, there is much support, for the contention that the benefit of the provision may be waived by the party entitled to claim it, to be found in the judgments of Toohey and Gaudron JJ of the High Court in Verwayen v The Commonwealth (1990) 95 ALR 321, at 372-79 and 382-386, respectively, and in the judgments of a number of the Law Lords in Kammin’s Ballrooms Co Pty Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850.

However, it is unnecessary to decide in this case whether the limitation in s44(3) is procedural or substantive and, if the latter, whether its benefit can be waived by a party by conduct which falls short of express consent. That is because there can be no question of waiver by the husband in this case since the wife’s case was at all times presented as an application under s83 for variation of the earlier order, and the s44(3) limitation does not apply to such an application. The husband could not be held to have waived the benefit of a defence to the wife’s application which was simply not available in respect of that application as presented and pursued by her.

I therefore conclude that although the order which the trial Judge ultimately made was one which was capable of being made as a new order for maintenance, in the exercise of the Court’s jurisdiction under s74 of the FLA (rather than as a variation of the earlier order, under s83), an essential condition precedent to the exercise of that jurisdiction (namely, the leave of the Court or the consent of both parties) was and remains missing and cannot be held to have been waived by the husband. Nor is the husband estopped from now seeking to rely upon that available defence in the circumstances of this case. The effect of the absence of jurisdiction to make the order under s83 cannot therefore be avoided by treating it as having been made within the Court’s jurisdiction under s74, unless it is open to this Court now to grant the necessary leave under s44(3) nunc pro tunc, and unless this Court considers it appropriate to do so.

CAN LEAVE PURSUANT TO SECTION 44(3) BE GRANTED NUNC PRO TUNC?

In the case of Goddard and Pupovak [2000] FamCA 37 (unreported – 3 February, 2000) Moss J considered this very question. In that case in August, 1994, Moss J made orders dividing the parties’ property pursuant to s79. In February, 1995, the husband’s appeal to the Full Court was allowed, on the ground that leave should have been sought and granted pursuant to s44(3) before the property proceedings commenced. Consequently, the property orders were discharged and the application initiating the property proceedings in 1993 was dismissed.

Eventually, after various applications, orders and appeals, which included a grant of leave pursuant to s44(3), and orders under s79, the matter came before Moss J again in December, 1999, by virtue of an application filed by the wife pursuant to s79A. In the course of giving judgment in the context of that application, his Honour pointed out that in the February 1995 appeal, Counsel for the wife had failed to cite any authority to the Full Court as to whether an order could have been made nunc pro tunc with respect to the leave required by s44(3).

His Honour went on to list and discuss a number of authorities to which he said reference might have been made which supported such a proposition. Those cases included the following: Re Testro Bros [1965] VR 18 [where Sholl J held that such an order could be made in respect of the leave required by s199 of the Companies Act 1961 (Vic)]; Re Sydney Formworks Pty Ltd (In Liquidation) [1965] NSWR 646 [in which McLelland CJ, in Equity, held that such an order could be made in respect of the leave required under s218 of the Companies Act 1936 (NSW)]; Re V Veghelyi (1993) 45 FCR 413 [where leave under s58(3) of the Bankruptcy Act 1966 (Cth) was granted nunc pro tunc by Sweeney J]; Ceric v Heath Underwriting and Insurance (Australia)Pty Ltd (1994) 99 NTR 1 [in which the Court of Appeal of the Supreme Court of the Northern Territory upheld an appeal against a trial Judge’s refusal to make such an order in respect of the leave required under s27(3) of the Law Reform (Miscellaneous Provisions) Act1956 (NT)]; and Emanuele v Australian Securities Commission (1997) 188 CLR 114 [in which the High Court, by a majority – Dawson, Toohey and Kirby JJ, Brennan CJ and Gaudron J dissenting -–held that the leave required by s459P(2) of the Corporations Law before applying for an order that a company be wound up in insolvency could be granted nunc pro tunc, even by an appellate court].

Moss J then stated:
“Had the relevant cases been referred to, it could hardly be doubted that the approach these decisions reflect would have been adopted by the Full Court; the wording in those cases was either not relevantly different or, perhaps, expressed in more peremptory terms, than the relevant wording in s44(3). And unlike s44(3), at least some of those provisions were directed to the protection of third parties. It is obviously desirable that such provisions, though their language may vary, receive the same interpretation in all courts. Given that the decision in Ceric was a decision of an intermediate appellate court, it seems to me that although the subject-matter here is not uniform national legislation, nevertheless the Full Court would have been bound to follow the reasoning in Ceric: ASC v Marlborough Goldmines Ltd (1993) 177 CLR 485.”

However, the comments of Moss J in that case were obiter dictum and, persuasive as they may be, this is not a topic upon which this Court has had the benefit of submissions by the parties. Accordingly, it would be inappropriate for me either to conclude that this Court has the power to grant leave under s44(3) nunc pro tunc or, if it does, that this is a case in which that power should be exercised.

I have considered whether, even at this stage of the proceedings, the Court should invite further submissions by the parties on this point, and postpone our determination of the appeal until they have had a reasonable opportunity to make such submissions. However, on reflection, I consider that that is neither necessary nor appropriate.

A perusal of the transcript of the appeal hearing reveals that in the course of that hearing I “flagged” this point to the parties very clearly, as one which I was interested in and concerned about, and referred specifically to Moss J’s judgment in Goddard and Pupovak (supra), copies of which I arranged to be provided to their legal representatives. At the end of the appeal hearing, the Court invited further written submissions from the parties on the issues addressed during the hearing, and made the directions for the filing and service of such submissions which I have referred to in paragraph 22 hereof. In due course we received the written submissions referred to in paragraph 23 hereof. The submissions for the parties did not address the issue at all.

As the wife’s legal representatives, having been given the opportunity to do so, did not choose to make any submissions in support of this Court’s power to make an order granting leave under s.44(3) nunc pro tunc, or in support of the appropriateness of the exercise of that power, if it exists, in this case at this time, I think we are entitled to assume that it is a point which they have considered and decided that they do not wish to advance. In those circumstances, I consider that it would be inappropriate for this Court either to express a concluded opinion on either question, or to give the wife yet another opportunity to seek to rely upon the point in this appeal.

Accordingly, I would uphold the amended ground of appeal 1A, set out in paragraph 21 hereof, allow the appeal on that preliminary point, and make the order which is sought by the husband in that event, namely that Cohen J’s orders of 8 June, 2000, be set aside, and in lieu thereof it be ordered that the wife’s application for maintenance filed on 16 June, 1997, be dismissed.

COSTS

The issue of the costs of this appeal was not addressed by the parties in their submissions, as we indicated at the conclusion of the appeal hearing that we would not expect them to do so until after we had determined the substantive appeal, and that we would then make directions for written submissions on costs.

There is also the matter of an appeal by the husband against a costs order made by the trial Judge on 24 August, 2000 (“the costs appeal”). In the course of the hearing of this present appeal this Court made an order granting the husband leave to amend his Notice of Appeal in this appeal to include an appeal against that costs order of Cohen J, subject to the reservation that that part of the expanded appeal be stood over to be determined pending the outcome of the substantive appeal.

Having decided that the substantive appeal should be allowed, and the trial Judge’s substantive order set aside, (a decision with which I understand the other members of the Court agree) it now remains for us to make directions in relation to the costs appeal and for the filing of submissions in relation to the costs of the appeal that we have just dealt with. Whether as part of the costs appeal or not, there may also be applications from the parties to this Court in respect of the costs of the trial before Cohen J.

I consider it desirable that there should, if practicable, be only one set of further submissions from the parties dealing with all outstanding issues. A difficulty in formulating directions at this stage is that there are no documents in the existing appeal books that relate to the costs appeal and if that appeal requires determination by this Court, a supplementary appeal book will be required.

In all the circumstances, I consider that the appropriate course is to direct the parties to confer with the appeals Registrar for the Sydney Registry and settle the contents of any supplementary appeal book that may be required. At the same time I would expect the parties to attempt, with the assistance of the appeals Registrar, to settle a set of directions for the filing and service of written submissions dealing with the costs appeal, the costs of the hearing before this Court and any other costs application arising out of the Court’s orders. It seems appropriate to me that the husband, as appellant in the costs appeal, should be the first to file submissions. If the parties are unable to agree on an appropriate set of directions, with the assistance of the appeals Registrar, then our orders should authorise the Registrar to make the necessary directions.

ORDERS

For the foregoing reasons I propose orders to the following effect:-
That the appeal be allowed.
That the orders of Cohen J of 7 June, 2000 be set aside.
That in lieu thereof, the wife’s application for maintenance filed on 16 June, 1997, be dismissed.
That the parties attend a conference with the Appeals Registrar for the Sydney Registry of the Court, on a date and at a time to be fixed by the Registrar upon notice to the parties, for the purpose of settling the index to, and the making of any necessary directions, pursuant to the relevant Family Law Rules, for the preparation, filing and service of, the appeal papers in respect of the appeal by the husband from the order of Cohen J of 24 August, 2000, as to costs ("the costs appeal").
That the parties file and serve written submissions in relation to this appeal, in relation to the costs appeal ( including the costs thereof) and in relation to any other issues of costs of or incidental to these proceedings, in accordance with a programme to be determined by the Appeals Registrar at or following the conference referred to in order 4 hereof.

HOLDEN AND WATT JJ:

We have had the benefit of reading a draft of Lindenmayer J’s reasons for judgment in this matter.

We concur in his Honour’s reasons as set out in paragraphs 1 to 103 (inclusive) and the conclusion based on those paragraphs that is stated in the first sentence of paragraph 104, namely:

“Everything which I have so far said about the construction of s 83(1) points inexorably towards a conclusion that it did not provide a source of power for the court to vary the lump sum maintenance order of 12 August 1996, and that amended ground 1A of the Notice of Appeal should therefore be upheld.”

Paragraphs 125 to 141 (inclusive) of his Honour’s judgment deal with arguments raised in the alternative by the wife. We concur with his Honour in concluding that those arguments should fail, as he does in paragraphs 140-1, and agree with his Honour’s reasons for reaching that conclusion.

The balance of paragraph 104, the first part of which we have already quoted, is as follows:

“However, there remains for consideration the question of whether the husband is somehow precluded or estopped from raising this point in the appeal”.

At this point we would depart from the course taken by his Honour in that he proceeds in paragraphs 105 to 120 to consider the question of whether res judicata estoppel could operate to give the court jurisdiction it otherwise lacks.

As his Honour notes in paragraph 107, at the hearing of oral argument before us, a concession was made on the part of the wife that estoppel could not operate to prevent the husband from raising the jurisdictional issue raised before us, and indeed, his Honour’s conclusion, after considering this point, is to the same effect as the concession made at the hearing: see paragraphs 120 and 124 of his Honour’s judgment. Understandably, in light of the concession made, the issue was not addressed in the parties’ written submissions. We therefore consider it undesirable to express a view on an important point of law on which the court has not had the benefit of submissions and which does not need to be determined in order to dispose of the issues before us. Nor do we consider it necessary to consider (as his Honour does in paragraphs 121 to 123) whether it was appropriate for us to permit the husband to raise the jurisdictional issue at the hearing before us in circumstances where it had not previously been raised in the Notice of Appeal: the wife did not oppose the amending of the husband’s notice of appeal and again, the matter was not addressed in the parties’ written submissions.

In paragraph 141 his Honour raises the question whether leave under s 44(3) could be granted to the wife by this court nunc pro tunc. In paragraphs 142 to 146 (inclusive) his Honour discusses authorities relevant to that consideration. In paragraphs 147 to 149 (inclusive) his Honour gives reasons for finding that it would be inappropriate to invite further submissions from the parties on that issue. We concur in those reasons and do not consider it appropriate to say anything further concerning paragraphs 142 to 149.

Paragraph 150 of his Honour’s judgment is in the following terms with which we agree:

“150. Accordingly, I would uphold the amended ground of appeal 1A, set out in paragraph 21 hereof, allow the appeal on that preliminary point, and make the order which is sought by the husband in that event, namely that Cohen J’s orders of 8 June, 2000, be set aside, and in lieu thereof it be ordered that the wife’s application for maintenance filed on 16 June, 1997, be dismissed.”

We also agree with the remaining paragraphs of His Honour’s judgment and the proposed orders, both substantive and procedural, that are set out at the conclusion of his Honour’s judgment.

I certify that the preceding 165
paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: L. Kopp

Associate

[2001] FamCA 1279

23 November 2001