Leibinger, G.H. and Leibinger, C.L. (No.2).

[1986] FamCA 26

In the marriage of LEIBINGER, G.H. and LEIBINGER, C.L. (No.2).

(1986) FLC ¶91-775

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 5 December 1986.

Before: Fogarty, Walsh and Nygh JJ.

Fogarty, Walsh and Nygh JJ.: By notice of appeal dated 13 June 1986 the husband has appealed against orders which were made by Hogan J. on 20 May 1986 after a hearing before his Honour in the Sydney Registry of this Court on that date.

As a matter of convenience we will refer to the parties as husband and wife respectively although they have in fact been divorced for a substantial number of years.

The orders which his Honour made were as follows:

``1. That the oral application made herein on behalf of the husband for the right of the husband to occupy the flat area of the matrimonial home situate at Sans Souci in the State of New South Wales be dismissed.

2. That the husband vacate by not later than 4 p.m. on the 17th June 1986 the matrimonial home and that he remain away therefrom.''

These were orders made pursuant to sec. 114(1) of the Family Law Act. The issue before us on this appeal is whether his Honour had jurisdiction under the Family Law Act to make those orders. However in order to understand the significance of that issue it is necessary to refer briefly to the facts.

The parties married on 1 June 1940. During 1951 the home at Sans Souci in which the parties were then living was purchased in the name of the wife. The parties continued to live in that home as their matrimonial home until 1965. The husband then left and went to live in Queensland. Subsequently the wife instituted divorce proceedings and a decree nisi of dissolution of marriage was granted on 26 April 1968 under the Matrimonial Causes Act and in due course became absolute. Those proceedings were uncontested and the husband did not file any answer or cross-petition. In 1970 the husband returned to live in the home and both parties continued to do so until the end of 1983. There was some conflict of evidence as to the precise nature of that resumed association. But it was summarised by Hogan J. in his judgment in the following terms and there was no criticism made before us of his Honour's summary, namely:

``In 1970 one of the children of the parties died and pursuant to that the husband came from Queensland to Sydney and thereafter resumed an association with the wife. He refers to it as a reconciliation and she makes reference to the fact that he came to live at the premises and paid board and thereafter there was a getting together.''

In December 1983 the wife requested the husband to leave the home but he refused to do so. On 27 March 1984 the wife instituted an application in the Magistrate's Court seeking, inter alia, an order that the husband vacate the home. That proceeding was transferred to the Family Court at Sydney. On 14 September 1984 the husband filed an application under sec. 44(3) for leave to institute proceedings under sec. 79. On 25 February 1985 Dovey J. granted that leave. The wife appealed; the Full Court upheld the appeal on 4 December 1985 and dismissed the husband's application (see Leibinger and Leibinger (1986) FLC ¶91-727).

The wife then renewed her application of 27 March 1984 and it was that application, together with an oral application made on behalf of the husband during the course of that hearing for ``the right to occupy the flat area of the matrimonial home'', which was dealt with by Hogan J. on 20 May 1986. As indicated above his Honour dismissed the husband's application and made the order which the wife sought, namely an order requiring the husband to vacate the home within a designated time. The husband has appealed against those orders.

Before us counsel who appeared for the appellant husband raised two issues, one of which can be dealt with briefly. Counsel for the husband firstly submitted that his Honour had not given adequate reasons for the orders which he made. That is, he had not ``clearly set out'' his reasons for the orders which he made in favour of the wife. As we indicated during the course of argument, we do not consider that there is substance in this submission. It appears to us that his Honour set out concisely, but clearly, the reasons which led him to make the orders which he did.

The second issue is whether his Honour had jurisdiction to make those orders, and we turn to that aspect. We should pause to say that counsel for the husband conceded that if the trial Judge had jurisdiction then the orders were within a proper exercise of discretion. We think that was a proper concession to have been made and consequently it is unnecessary for us to refer to the facts on that issue.

It is clear that the source of power is sec. 114(1) of the Family Law Act. That section forms part of Pt XIV of the Family Law Act — ``Declarations and Injunctions''. Section 114(1) is in the following terms:

``114(1) In proceedings of the kind referred to in paragraph (e) of the definition of `matrimonial cause' in sub-section 4(1), the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate, including —

(a) an injunction for the personal protection of a party to the marriage or of a child of the marriage;
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage or restraining a party to the marriage from entering the place of work or the place of education of a child of the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.''

Paragraph (e) of the definition of ``matrimonial cause'' in sec. 4(1) of the Act is as follows:

``Proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB).''

Section 4(2) of the Act provides that:

``A reference in this Act to a party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere, or that has been terminated by the death of one party to the marriage.''

The question here is whether the proceedings, being the cross-applications of the parties, were ``for an order or injunction in circumstances arising out of the marital relationship''.

It was counsel for the husband's submission that there was no sufficient nexus or connection between the 1984 proceedings and the former marital relationship of these parties, so that it could not be said that those proceedings ``arose out of'' that relationship.

It is convenient to turn to his Honour's reasons for concluding that he had jurisdiction. This issue was raised by way of preliminary argument before his Honour prior to evidence being given. His Honour ruled on that issue, concluding that he had jurisdiction. His Honour's reasons for that are as follows:

``While the parties were divorced in 1968, it follows from the definition of section 4 sub-section (2) that these parties are parties to a marriage. Definition (e) then of `matrimonial cause' refers to proceedings between the parties to a marriage and for the reason I have just given these parties are parties to a marriage, for an order or injunction when an order or injunction is sought, and the order is sought in circumstances arising out of the matrimonial relationship and in the circumstances relating to the former matrimonial home, and if that definition should be satisfied then in my view it is a matrimonial cause and the mere effluxion of time does not cause it to cease to be a matrimonial cause. For these reasons I hold against the submissions made by counsel for the husband.''

Subsequently, when his Honour came to give judgment after having heard the evidence of the parties he again referred to that issue in the following terms:

``The proceedings were brought before me under s. 114 and I concluded that on the definition of `matrimonial cause' these proceedings, in fact, were proceedings between the parties to a marriage arising out of the marital relationship principally because they were in relation to the former matrimonial home.''

It will thus be seen that his Honour placed his major emphasis for concluding that the matter fell within para. (e) upon the circumstance that the proceedings related to the occupation of the former matrimonial home of the parties.

This is one of the areas under the Family Law Act where the question of jurisdiction depends upon the determination of issues of fact which in turn may turn upon questions of degree. The meaning of the words in para. (e) namely, ``proceedings... for an order or injunction in circumstances arising out of the marital relationship'' has been considered in several cases, the most recent of which is Perlman v. Perlman (1984) FLC ¶91-500. That case related to the enforcement of a sec. 87 agreement and its main emphasis was upon para. (f) of the definition of matrimonial cause. However, the argument that the Family Court had jurisdiction was supported in part by reference to para. (e), a view which the High Court rejected. Wilson J. emphasised the difficulty of giving precision to these words when his Honour observed at p. 79,064 as follows:

``It is neither necessary nor helpful to attempt any abstract definition of the limits of this paragraph. If such a definition were attempted there may well be a difficulty in drawing the line but a solution will often be found in a particular case by recalling `the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night': per Lord Simonds L.C., in Chapman v. Chapman (1954) A.C. 429, at pp. 445-446.''

Gibbs C.J. referred at p. 79,057 to para. (e) in the following terms:

``Finally, it was submitted that the proceedings are a matrimonial cause of the kind referred to in para. (e), i.e. proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship. If the wide words of para. (e) were read without any limitation, they would cover the cases prescribed in para. (a), (c), (ca), (cb) and (d) of the definition, thus rendering those paragraphs superfluous. That is a sufficient reason for rejecting the construction which the appellant seeks to put on para. (e). In Re Dovey; Ex parte Ross (1979) FLC ¶90-616 at p. 78,191; (1979)141 C.L.R. 525 at pp. 532-533, I indicated my opinion that the mere fact that the circumstances of the case involve the parties to a marriage does not mean that the proceedings arise out of the marital relationship. It is unnecessary for present purposes to consider whether a temporal limitation is provided by the words ``in circumstances' arising out of the marital relationship', as Hutley J.A. thought in McLean v. McLean (1979) FLC ¶90-655 at p. 78,468; (1979) 1 N.S.W.L.R. 620 627. The proceedings in the present case clearly do not arise out of a marital relationship; they arise from the fact that the divorced husband has failed to fulfil his obligations under the deed.''

All members of the High Court held that the proceedings did not come within para. (e) or (f). In particular that conclusion is stated by Dawson J. at p. 79,071 as follows:

``The proceedings arose out of a contractual relationship entered into after the marital relationship had been concluded by the dissolution of the marriage. The dissolution of the marriage was the occasion for the contract but the circumstances in which relief was sought arose out of the contract and its breach and not the marital relationship.''

A similar view was expressed by Deane J. (with whom Brennan J. agreed) in the following terms at p. 79,068 relating to the proceedings to enforce the sec. 87 agreement:

``The agreement itself may properly be regarded as `arising out of the marital relationship'. In my view, however, the Supreme Court proceedings for the enforcement of that completed and approved agreement cannot properly be regarded as so arising.''

In Re Dovey; Ex parte Ross (1979) FLC ¶90-616 consideration was given by Gibbs J. (as he then was) to para. (e) in a judgment which had the concurrence of Barwick C.J. and Mason J. Gibbs J. said this at p. 78,191:

``The proceeding in the present case was clearly within the jurisdiction of the Family Court. In the first place, it was a proceeding between a husband and a wife with respect to the maintenance of the wife and the maintenance of the children of the marriage. The injunction was sought in aid of the exercise of jurisdiction in that proceeding. Secondly, it was a proceeding between a husband and a wife for an injunction `in circumstances arising out of the marital relationship'. It does not seem to matter whether those words where they appear in para. (e) govern `proceedings' or `order or injunction' (although grammatically they appear to govern the former expression) because by sec. 114(1) it is made clear that the order or injunction may only be made with respect to the matter to which the proceedings relate, that is, with respect to the circumstances arising out of the marital relationship. The words `circumstances arising out of the marital relationship' appear to be wide, but it is not necessary in the present case to attempt to give a comprehensive statement of their meaning. It is, I think, true to say, as Demack J. said in Mills and Mills (1976) FLC ¶90-079 at p. 75,381, that `the mere fact that something happens between a husband and wife does not mean that it involves `circumstances arising out of the marital relationship'' and that `events which raise issues of criminal law, industrial law or fiscal law cannot be brought within the `marital relationship' simply because the circumstances involve a husband and wife and their children'. However, the occupation by a wife of the matrimonial home is clearly a consequence of the act of marriage between the parties, and can be regarded as an exercise of the rights and a performance of the duties to which the marriage has given rise. Moreover, the circumstances described in para. (e) must include circumstances in which it would be appropriate to make an injunction of the nature indicated in sec. 114(1), which expressly mentions an injunction `relating to the use or occupancy of the matrimonial home'. Indeed, proceedings brought by a wife to protect her right to continue to occupy the matrimonial home, when that right is threatened by some action of the husband, appear to lie at the very heart of the matters described in para. (e).''

The reference there to proceedings in relation to occupation of the matrimonial home is particularly relevant in this case provided of course that the home in question still bears that characteristic.

Barwick C.J., in addition to agreeing with the judgment of Gibbs J., said this at p. 78,189 in relation to para. (e):

``I find no need to attempt an exposition of the nature and limits of the jurisdiction which para. (e) of the definition purports to give. Its language is lacking in precision and its ambit a matter of some doubt in my mind.''

The reference in the judgment of the Chief Justice in Perlman's case to the question whether the words ``in circumstances'' import a temporal limitation upon the paragraph, as was suggested by Hutley J.A. in McLean's case, is of fundamental importance.

What Hutley J.A. said ((1979) FLC ¶90-655 at pp. 78,467-78,468) was:

``The words `in circumstances' in my opinion provide a temporal limitation. At the time that the need for the order arises the marital relationship must provide the very circumstance which requires the making of the order. There are two limitations upon what can be done under this paragraph. There must be a `marital relationship' and it is in relation to circumstances arising out of that which requires the intervention of the court. Section 114 of the Act which deals expressly with what is the appropriate type of order under a matrimonial cause referred to in para. (e) would appear to me to indicate that that paragraph is particularly concerned with enabling the court to regulate a subsisting marital relationship. In other words, subpara. (e) is not a head of power which is available when completed proceedings are over. In this case the marital relationship had long since been determined before these proceedings were commenced.''
(Emphasis supplied.)

If that passage is to be understood to suggest that para. (e) and therefore sec. 114(1) is confined to circumstances where the marriage still subsists it is in our view contrary to authority and to a longstanding practice in many cases over a number of years. However, his Honour may have meant no more than that an essential aspect is the existence of a ``marital relationship''. It is clear that the relationship of marriage may continue in many relevant senses long after the marriage itself is terminated by divorce or even death (see for example Fisher v. Fisher (No. 2) (1986) FLC ¶91-767 and sec. 4(2)).

The precise meaning which is to be attributed to the words ``in circumstances'' may not be entirely clear but it is difficult to see that they import a temporal limitation. The words ``in circumstances arising out of the marital relationship'' mean ``where the circumstances upon which the proceedings are based'' arise out of that relationship.

Counsel, in his submissions for the appellant husband, placed emphasis upon the judgment of the Full Court in the matter of B and B (1985) FLC ¶91-610, arguing that the circumstances there were analogous to the circumstances of this case. That was a proceeding under sec. 79A of the Act. There the Full Court upheld the conclusions of the trial Judge that those proceedings were not referrable to the prior marriage of the parties but to the latter de facto relationship which existed between them; that is, that the acquisition of the property which was the subject of the relevant proceeding arose out of the de facto relationship and had nothing to do with the prior marital relationship of the parties. We do not consider that that case assists the appellant. Indeed the passage at p. 79,948 of the Full Court's judgment would tend to support the contrary view. There the Full Court was referring to the circumstance that other aspects of the wife's application had included applications seeking the protection of the wife and children and orders restraining the husband from entering upon the property which the parties had, after the sale of the original matrimonial home, acquired during the course of their de facto relationship. The Full Court in relation to that said, ``There is no doubt about the jurisdiction of the court to make, in appropriate circumstances, (those orders)''.

Finally we should observe that no emphasis was placed by either counsel on the judgment of the Full Court in the previous appeal between these parties (Leibinger and Leibinger (1986) FLC ¶91-727).

It appears to us that the critical question is whether the proceedings in March 1984 were proceedings ``in circumstances arising out of the marital relationship''. His Honour's conclusion was that they were, placing emphasis upon the circumstance that they related to the future occupation by one or both the parties of the property which had during the marriage been their matrimonial home and that circumstance was not relevantly diminished by the effluxion of time between the divorce in 1968 and the proceedings in 1984.

If these proceedings had been instituted in, say 1970, and assuming that the legislation to be the same then as it is now, we think it would be beyond controversy that the proceedings would have been of the designated type. They would have been proceedings between parties who had recently been divorced and relating to the future occupation of a property which had been their matrimonial home during their marriage. Both the wording of sec. 114(1) and the observations made by Gibbs C.J. and Demack J. referred to above would clearly support that view.

The question is whether his Honour, as a consequence of the effluxion of time and the circumstance that the parties had lived together in a non-married relationship for a number of years, should have concluded that the proceedings no longer arose in circumstances arising out of their former marital relationship.

It was argued by counsel for the husband that the proceedings had by that time lost this characteristic, partly by the effluxion of time and partly because of the creation in the intervening period of a new and different relationship, a relationship which was non-marital in the sense that it did not arise from or have its base in a marriage or the former marriage of these parties. However, it appears to us that his Honour was entitled to reach the conclusion that there was a sufficiently relevant connection between the proceedings and the former marital relationship for the proceedings to fall within para. (e) and thus within sec. 114(1). The situation may have been otherwise if the property in question had not been the former matrimonial home. For example, if the wife had disposed of that home after divorce and had purchased a new home. In those circumstances it may be difficult to find a relevant connection between the proceedings and the former marital relationship. But it is ultimately a question of degree in each case. Even using the above illustration, where the events in question arose in close proximity to the separation or divorce they may still arise out of the marital relationship. For example, even if the wife moved to other premises and the former husband sought to enter upon or live on those premises it would not be difficult to conclude that his actions arose because of the former relationship of husband and wife. In this particular case the continued connecting thread is the home, but in addition there is little doubt that the husband's return to occupation of the home arose because of the former relationship of husband and wife triggered by the reunion of the parties arising out of the death of one of their children. His return to that home was not a return in the capacity of a stranger. As we have said if these proceedings had arisen in the early 1970s under similar legislation the conclusion would be obvious. Whilst it cannot be categorically said that in those circumstances the effluxion of time may not eventually bring about a reversal of that position, it would not normally do so and did not do so in this particular case.

In our view his Honour was correct in concluding that there was jurisdiction and accordingly the appeal should be dismissed.