HUNT and HUNT

[2001] FCWA 1

FAMILY COURT OF BEFORE: BARLOW J.
WESTERN AUSTRALIA HEARD: 13 November 2000
AT PERTH SUBMISSIONS FILED: 18 December 2000
JUDGMENT: 22 February 2001

No. PT 1052 of 2000

B E T W E E N:

G. A. HUNT

(Husband)

- and -

M. A. HUNT

(Wife)

REASONS FOR JUDGMENT

APPEARANCES:

Mr J Hedges of Counsel, (instructed by Paterson & Dowding), appeared on behalf of the husband.

J Redman of counsel (instructed by Gibson and Gibson) appeared for the wife.

Catchwords:

Family Law – jurisdiction – medical examination – whether Court has jurisdiction to order examination –property and spousal maintenance proceedings – relevance of state of health – Family Law Act 1975, s 72, s 74, s 75(2), s 80(1)(k)

Cases Cited In Reasons For Judgment:

Gilbert and Gilbert (1988) FLC 91-966

Parsons v Martin (1984) 58 ALR 395

R v Forbes; ex parte Bevan (1972) 127 CLR 1

DJL and the Central Authority (2000) FLC 93-018

L v T (1999) FLC 92-875

Introduction

1. The substantive proceedings between the parties are constituted by cross applications for alteration of property interests and an application by the wife for spousal maintenance. The matter for determination by me is an application by the husband for the following orders:

“1. The Wife forthwith attend upon a consultant rheumatologist of the husband’s choosing for the purposes of examination and report in relation to the state of health of the wife.

2. The husband advise the wife of the name and contact details of the rheumatologist within fourteen days of the making of the order.

3. Upon receipt of the information from the husband as set out in paragraph two hereof the wife forthwith make an appointment on the first available date with the nominated rheumatologist.”

The application was listed for hearing before me on 13 November 2000. The wife’s position in relation to the husband’s application was that she neither opposed nor consented to it.

2. On 13 November 2000 I made the following orders:

“1 Within 28 days from the date hereof, the husband file and serve written submissions in relation to the matter of jurisdiction in relation to his Form 8 application filed on 11th October 2000.

2 With 7 days of service of the submissions referred to in paragraph 1 hereof, either party may apply to the Court for the application to be relisted in the event of that party wishing to be heard further in relation to the application.

3 The issue of costs be reserved.”

The husband’s written submissions were filed on 18 December 2000. Neither party applied for the matter to be relisted.

Background

3. On 22 March 2000 at the hearing of the wife’s application for an order for spousal maintenance, she gave oral evidence in relation to the state of her health. In relation to those proceedings, on 26 June 2000 the wife swore an affidavit which affidavit was filed on 27 June 2000. In that affidavit she again provided particulars of health problems experienced by her, which she asserted impacted in a significant way on her capacity to earn.

4. On 28 June 2000 on behalf of the wife there was filed an affidavit by a general medical practitioner, namely [Dr C]. In a report dated 27 June 2000 annexed to that affidavit Dr C referred to various medical conditions suffered by the wife. In particular, Dr C stated that the wife was affected with pain, stiffness and swelling of both knees, hands and wrists, elbows and shoulders, lumbar spine and cervical spine.

5. In the husband’s affidavit filed on 22 September 2000 in support of his application he stated, that he had requested the wife through her solicitor, to attend a rheumatologist, namely [Dr H] for the purpose of being physically examined in relation to her claims that she suffered from illnesses, which prevented her from seeking employment. The husband went on to state that to-date the wife had declined to present herself for examination by Dr H.

Family Law Act 1975

6. Section 72 of the Family Law Act 1975 ‘the Act’ provides:

“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).”

7. Section 74 of the Act 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.”

8. Sec 75(1) of the Act obliges the Court, in exercising jurisdiction under sec 74, to take into account only the matters referred to in sec 75(2).

9. The matters to be taken into account by the Court pursuant to Section 75(2) of the Act include the state of health of each of the parties and their physical and mental capacity for gainful employment.

10. Section 79(2) of the Act provides that the Court should not make an order for alteration of property interests unless it is satisfied that, in all circumstances, it is just and equitable to make the order.

11. Section 79(4) of the Act obliges the Court to take into account various matters in determining what order for alteration of property interests should be made. Those matters include the matters referred to in Section 75(2), insofar as they are relevant.

12. The Court in exercising its powers in relation to alteration of property interests and spousal maintenance may pursuant to Section 80(k) of the Act.

“make any other order….which it thinks it is necessary to make to do justice.”

The Act does not contain any explicit provision granting to the Court the power to make an order of the nature sought by the husband.

Submissions made on behalf of the husband

13. On behalf of the husband it was submitted that:

“There are …. two necessary conditions for spousal maintenance. First, one party must be “unable to support herself or himself adequately”. Secondly, the other spouse must be reasonably able to maintain his or her spouse.

In the present case, the first condition is of particular significance given that the wife is claiming that she is unable to support herself adequately as a consequence of having to care for her children and due to her state of health.

Quite clearly, section 75(2)(a) specifically provides that one of the factors to be taken into account by the Court in an application for maintenance is the state of health of each of the parties. With respect to her medical illness, the wife has relied on her own affidavit evidence and a report of [Dr C], a general practitioner.

It is submitted that in exercising its statutory jurisdiction with justice and efficiency, the Family Court should allow the husband's application for an order that the wife attend a consultant rheumatologist for the purposes of examination and report in relation to the state of health of the wife.

…….

In an application for maintenance such as the present, the health of the parties is clearly a relevant factor for the Court to consider. This is because the state of one’s health has a meaningful correlation with one’s earning capacity. It is therefore crucial, if justice is to be served, for the husband to be able to test the wife’s claims and supporting evidence.”

Authorities

14. In Parsons v Martin (1984) 58 ALR 395 the Full Court of the Federal Court of Australia considered the power of a Court of Petty Sessions. At 401 the Court noted that in R v Forbes; ex parte Bevan (1972) 127 CLR 1, Menzies J at 7 :

“….spoke of inherent jurisdiction as “the power which a court has simply because it is a court of a particular description”. He added: “Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as ‘inherent jurisdiction’, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have ‘inherent jurisdiction’.”

The Full Court then went on to state that in it’s:

“….opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to exercise of the jurisdiction or the powers so conferred.

In view of the way in which the phrase “inherent jurisdiction” is used in many cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.”

The above mentioned passages were quoted with approval by the majority of the High Court in DJL and the Central Authority (2000) FLC 93-015 at 87,268 and 87,269, where the Court stated:

“The Family Court is …. not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction''. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute ``has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.” (footnote numbers deleted)

15. The decision of Gilbert and Gilbert (1988) FLC 91-966 appears to be the only authority directly on point. In Gilbert’s case the substantive proceedings were the same as the proceedings between the parties in this case. In Gilbert’s case the husband applied for an order that the wife attend for psychiatric examination. The application was made on the basis that the husband wished to test the claims as to the wife’s psychiatric condition as being relevant to the issue of spousal maintenance and settlement of property. The application was heard by Nicholson CJ. His Honour concluded that the Court had jurisdiction to make such an order. In finding the Court had such jurisdiction, his Honour in part relied upon cross vesting legislation, which purported to confer on the Court the power to exercise original jurisdiction with respect to State matters. However Nicholson CJ also expressed view that in any event the Court had jurisdiction to make such an order. At 76,991 his Honour stated:

“Emery J. pointed out in Vergis and Vergis (1977) FLC ¶90-275 at p. 76,470 that this Court is not a court of common law or equity as are the Supreme Court of the States and does not have any inherent jurisdiction as those courts do.

……

Further, even if the limits of the Court's powers referred to by Emery J. are still extant, it is apparent that this Court does have additional powers as will enable it to exercise its statutory jurisdiction with justice and efficiency. See Parsons v. Martin (1984) 58 A.L.R. 395 at p. 401 and the discussion of this question in CCH Australian Family Law & Practice, vol. 1 at ¶2-900 -- ¶2-950.

In particular, the Court has inherent jurisdiction to control and regulate the proceedings before it and to avoid injustice. See Re P's Bill of Costs (1982) FLC ¶91-255 at p. 77,417 per Evatt C.J. and Fogarty J.

Regard must also be had to the provisions of the Family Law Act 1975 in relation to questions of spousal maintenance and property. Section 75(2)(a) of the Family Law Act specifically provides that one of the matters to be taken into account by the Court on an application for spousal maintenance is the state of health of each of the parties. By reason of sec. 79(4)(e) of the Act, the state of health of a party may also be a relevant matter on an application for a property settlement.

In these circumstances, and given the relevance of the state of health of a party, it seems to me that there would be a significant injustice in requiring the husband to proceed to trial without affording to him the opportunity of an independent psychiatric examination of the wife. I consider that in accordance with the principles set out above, this Court has the jurisdiction to make such an order in such circumstances and ought to do so.”

16. I was referred to the decision of the Full Court in L v T (1999) FLC 92-875. In L v T, the proceedings before the trial Judge included cross applications by the husband and wife for residency of the child of the marriage. The trial Judge granted residency of the child to the husband, with contact to the wife. The trial Judge also ordered that the wife attend upon a psychiatrist for assessment of her present psychiatric state and thereafter abide by any therapy program recommended by the psychiatrist. It appears the order was made on the basis that it would be in the best interests of the child for the wife to undergo such assessment and any therapy recommended as a result of such assessment.

17. The Full Court concluded there was power under Sections 65D1, 67ZC, 68B or 114 to order that a party attend upon a psychiatrist and undergo treatment as a condition of contact or residence, but there was no such power to make a non-conditional order. At 86,392 the Court stated :

“In our view, whatever the limits of the wardship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. It may clearly be demonstrated that it is in a child's interest that a parent remain healthy and to that end give up smoking. Some would say it is essential that all adults undergo regular exercise, eat only healthy foods, and refrain from consuming alcohol. It would not be, in our view, a proper exercise of the "welfare" power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.”

Conclusion

18. With respect, I find myself in agreement with the conclusion reached by Nicholson CJ in Gilbert’s case. In particular I am satisfied the power to make orders, as sought by the husband, is incidental and necessary to the exercise of the power to make such order for alteration of property interests, that in all the circumstances are just and equitable and such order for spousal maintenance, which the Court considers proper in accordance with the relevant provisions of the Act.

19. I am of the view that L and T’s case may be distinguished. In that case the Court was concerned about the power of the Court to make a stand-alone order for a medical examination and possible treatment of a party as a final order in proceedings relating to a child, in circumstances where the Court had exercised its jurisdiction and made final parenting orders. In this case the orders sought are interlocutory orders relating to the exercise of the jurisdiction yet to be exercised in relation to alteration of property interests and spousal maintenance. In my view the power to make the order arises as being incidental and necessary to the exercise of that jurisdiction.

20. I will hear from Counsel in relation to the form of the orders and any other relevant order which should be made.

I certify that the preceding 20 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate