Hickey & Hickey

This case concerned an appeal by the wife against orders made by the Family Court of Australia, stemming from a dispute over property settlement. The central issue revolved around the interpretation and effect of paragraph 5 of the Terms of Settlement, which the parties described as a "catch-all" provision.

The court was required to determine the legal effect of a "catch-all" provision within a property settlement order made under section 79 of the *Family Law Act 1975* (Cth). Specifically, the court had to consider whether such a provision, which did not explicitly require any party to perform an action, could operate to alter the proprietary interests of the parties.

The Full Court reasoned that while orders under section 79 typically require a party to perform an action (in personam), the wording of section 79 itself suggests that an order can directly alter a party's interest in property without further action. The court noted that provisions like paragraph 5, which do not mandate any specific act, would not transfer ownership of property to a party not in possession. However, such a provision would effectively convert joint ownership into sole ownership in favour of the party who already possesses the property, thereby drawing a line in the sand and providing certainty for the parties. Section 80(1)(d) of the Act was also considered, which allows the court to order necessary steps to carry out orders effectively.

The court found that paragraph 5 of the Terms of Settlement, by its terms, did not require anyone to do anything, and therefore, it would not transfer ownership of property to a party not in possession. However, it would have the effect of converting joint ownership into sole ownership in favour of the party in possession.