Oates & Crest
[2008] FamCAFC 29
•20 March 2008
FAMILY COURT OF AUSTRALIA
| OATES & CREST | [2008] FamCAFC 29 |
| FAMILY LAW – APPEAL – APPEAL FROM INTERIM ORDERS OF JUDGE OF FAMILY COURT OF AUSTRALIA – INTERIM SPOUSAL MAINTENANCE – Notwithstanding that trial Judge did not consider interim spousal maintenance claim in accordance with established principles (Rutherford & Rutherford (1991) FLC 92-255, Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1991) 148 CLR 170 and Bevan v Bevan (1995) FLC 92-600 cited) held that correct approach would have produced a substantially similar result thus appellate intervention not justified, particularly as proceedings were interlocutory. Farnell & Farnell (1996) FLC 92-681 and NHC & RCH (2004) FLC 93-204 cited. FAMILY LAW - APPEAL AGAINST INJUNCTION FOR PERSONAL PROTECTION – WIFE RESTRAINED FROM BEING WITHIN 100 METRES OF PROPERTY OF THIRD PARTY WHERE HUSBAND NOT FOUND TO RESIDE – Assertion that trial Judge lacked jurisdiction to order an injunction for the personal protection of a party in the terms he did not established. Held that the order for interim injunction was not for the personal protection of a party to the marriage but for that of a third party and thus trial Judge was in error in granting such injunction. Family Law Act 1975 (Cth) ss 4(1)(e) and 114(1) considered. Esmore & Esmore (1979) FLC 90‑711, Mills & Mills (1976) FLC 90‑079, McLean & McLean (1979) FLC 90-655 and Murkin & Murkin (1980) FLC 90‑806 discussed. Personal protection held to refer to the physical integrity of a party. Murkin & Murkin (1980) FLC 90‑806 per Nygh J cited. Third party protection available pursuant to State statutory provisions. Crimes Act 1900 (NSW) s 562K cited. |
| Family Law Act 1975 (Cth) Section 114; Section 4(1)(e) Crimes (Domestic and Personal Violence) Act 2007 (NSW) |
| Rutherford & Rutherford (1991) FLC 92-255 Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1981) 148 CLR 170 Bevan v Bevan (1995) FLC 92-600 Farnell & Farnell (1996) FLC 92-681 Chorn & Hopkins (2004) FLC 93-204 Esmore & Esmore (1979) FLC 90‑711 Mills & Mills (1976) FLC 90-079 McLean & McLean (1979) FLC 90-655 Murkin & Murkin (1980) FLC 90-806 |
| APPELLANT: | MS OATES |
| RESPONDENT: | MR CREST |
| FILE NUMBER: | SYF | 2939 | of | 2006 |
| APPEAL NUMBER: | EA | 80 | of | 2007 |
| DATE DELIVERED: | 20 March 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Boland JJ |
| HEARING DATE: | 7 February 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2007 |
| LOWER COURT MNC: | [2007] FamCA 549 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson, SC Ms Knox |
| SOLICITOR FOR THE APPELLANT: | Aitken Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Simpson, SC Ms Cleary |
| SOLICITOR FOR THE RESPONDENT: | Athena Touriki Solicitors |
Orders
That leave to appeal order 7 of the orders made by the Honourable Justice Watts on 31 May, 2007 is granted.
That the appeal is allowed in part.
That order 7 of the orders made by the Honourable Justice Watts on 31 May, 2007 be discharged.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Oates & Crest is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2007
File Number: SYF 2939 of 2006
| MS OATES |
Appellant
And
| MR CREST |
Respondent
REASONS FOR JUDGMENT
By application filed on 22 June 2007 Ms Oates (“the wife”) sought leave to appeal against two interlocutory orders made by Watts J on 31 May 2007 in proceedings between the wife and Mr Crest (“the husband”).
The trial Judge’s orders, in essence, provided that the wife pay to the husband $107 000 by way of interim property settlement, that the wife pay to the husband by way of spousal maintenance the sum of $984 per week, that the wife be restrained from communicating with the husband by any means other than through their respective legal advisors and that the wife be restrained from coming within 100 metres of the premises at B2 (“[B2]”).
The wife sought that the order for spousal maintenance and the order with respect to B2 be discharged. The husband resisted the wife’s appeal, inter alia, on the basis that leave to appeal was required but should be refused, and sought to maintain the trial Judge’s orders.
There is little scope for doubt that leave to appeal against the order for interim spousal maintenance is required. Leave to appeal against the order with respect to B2 is less obviously required. Sensibly, senior counsel for both parties agitated the issue of the need for leave to appeal and the appeal together. The wife relied on proposed grounds set out in a draft Amended Notice of Appeal (described in the appeal book as filed on 16 July 2007).
Background
A brief and uncontroversial background to the appeal is to be found in senior counsel for the wife’s Summary of Argument. It is convenient to reproduce that background in these reasons for judgment.
1.The Appellant wife was born June 1941 and was 65 years of age at the date of hearing. The Respondent husband was born June 1927 and was 79 years of age at the date of the hearing.
2. The parties were married [in] 1985.
3. The wife was appointed [as a judicial officer] in August 1986.
4.In July 1987 the husband, when aged 60, retired from the [Public Service as a manager] and took a lump sum as superannuation.
5.The parties separated for about 8 months between September 2004 and April 2005. In April 2005 they reconciled.
6.The husband filed an application for final property orders on 11 May 2006.
7.The husband left the matrimonial home at [B1] on […] August 2006 at the request of the wife. The husband stated that he lived in rented accommodation at [M].
8.The husband retired from full employment in 1997. He had an income of $69 per week from a [C] pension plan.
9.The wife was in full employment as a judicial officer.
10.The husband has received $27,470 by way of interim property settlement. The first payment of $15,000 was made on 5 September 2006. The second payment was made in December 2006.
11.The hearing occurred on 2 May 2007 and judgment was delivered on 31 May 2007. (Summary of Argument on Behalf of Appellant Wife, pages 1 – 2, pars 1 – 11).
The trial Judge’s Reasons for Judgment
Having identified the interim orders sought by the husband, and noting that the wife opposed the granting of any of the relief sought by the husband, the trial Judge referred to the final orders sought by each of the parties.
Given the ambit of the proposed appeal to this Court, it is probably appropriate to note only that the husband sought interim maintenance in the sum of $984 per week, and an injunction against the wife in favour of the husband for personal protection of the husband, inter alia, preventing the wife from entering or remaining “in and around the premises of [M]” (“[M]”) and “[B2].”
Because of the limited challenge to the trial Judge’s orders, it is unnecessary for us to refer to his Honour’s consideration of the application for property injunctions, or to his conclusions in that regard.
His Honour identified the documents relied upon by the parties before him and, under the heading “Chronology and Uncontested Facts”, set out background matters substantially in accordance with the background which we have earlier recorded.
Under the heading “Periodic Spousal Maintenance”, the trial Judge referred to the husband’s financial circumstances, relevantly noting that the wife submitted his Honour could not conclude that the husband, a man aged 79 years, had “no earning capacity absent any other evidence from him in that regard” and that his sole income was “$78.00 per week from a combination of interest on investments and benefits from the [C] Pension Plan”.
The trial Judge referred to the wife’s capacity to meet the orders sought by the husband. Sensibly, senior counsel for the wife confirmed on the hearing of the appeal to this Court that the wife’s capacity was not an issue in the proceedings.
As will be seen, we perceive that the spousal maintenance appeal really turns on only one issue, which involves no consideration of either the husband’s reasonable weekly needs, or the wife’s capacity to meet an order for periodic spousal maintenance based upon such needs. That issue is whether the trial Judge erred in principle in failing to first consider the interim property order to be made by him prior to considering the husband’s asserted need for spousal maintenance.
In the course of his reasons for judgment with respect to the interim spousal maintenance claim, the trial Judge found that the husband was not cohabiting with Mrs Q, the owner and occupant of the premises at B2, with whom he has an “intimate relationship”, and that the evidence before him was “insufficient” to “conclude that there is any financial relationship between Ms [sic] [Q] and the husband”.
It is unnecessary for the purposes of this appeal to refer directly to the trial Judge’s deliberations with respect to “Interim Property”, other than for the purpose of considering the impact of the interim property order made by him on the husband’s claim for interim periodic spousal maintenance. As noted earlier, for reasons which he detailed and which are not challenged in this appeal, the trial Judge concluded that the husband should receive $107 000 by way of “interim property” pending the determination of the parties’ competing claims for final orders with respect to property settlement.
Under the heading “Injunctions for Personal Protection”, the trial Judge considered the applications made by the husband in that context. Broadly speaking, there were two elements of his applications in that regard, the first relating to his personal protection, the second relating to the wife’s presence “in and around” B and M.
As noted earlier, the trial Judge’s order (Order 6) restraining the wife from communicating with the husband by any means other than through their respective legal advisors has not been challenged in this appeal and, by its terms, can be seen as potentially sufficiently broad as to restrain the wife from doing any act or thing which could reasonably be regarded as violating the husband’s personal protection whilst he was at B2.
It is unnecessary for us to refer to the trial Judge’s consideration of the “incident at […]” or its sequelae and, for present purposes, to focus on the trial Judge’s reasons for concluding that an order for personal protection of the husband should extend to restraining the wife from coming within 100 metres of Mrs Q’s home at B2. Although such discussion most obviously commences with the heading “Observations of the Husband at Ms [sic] [Q’s] by Wife” two paragraphs immediately preceding the commencement of that discussion are capable of being relevant to this topic.
The trial Judge referred to the wife’s “incomplete version of what she says happened when she came upon Mrs [Q’s] residence for the purposes of speaking to the husband” on 1 December 2006. His Honour then referred, accurately there is no doubt, to the wife’s admission in such affidavit that she had “entered upon Mrs [Q’s] property” that day and that she was “very angry when she did so”. The trial Judge further, and accurately, recorded the wife’s admission that she did not leave Mrs Q’s premises after being requested to do so.
For reasons which he detailed, the trial Judge could not find which of the competing versions given by the wife, Mrs Q and the husband, of what then occurred was accurate. His Honour referred to the wife’s admission that the wife had called Mrs Q a “mad cow”, had threatened that she would “smash her nose all over her face”, and had said to Mrs Q “talk about your sister being mad, it must run in the family.” Significantly for the purposes of this appeal, his Honour did not find that the wife had assaulted or otherwise done anything unlawful to the husband or Mrs Q on that occasion.
The trial Judge then referred to the wife’s detailed observations on “20 occasions between 5 February 2007 and 7 March 2007” set out by her in an affidavit sworn by her on the latter date and concluded that, to have been able to make such observations, the wife must have been “coming into close proximity to Mrs [Q’s] property”. Having so concluded his Honour said “[g]iven all the material that I have before me (including the disputed material) it is appropriate that I make an order that the wife not go within 100 metres of Mrs [Q’s] property pending further order.”
Reference was then made to assertions of the husband in relation to the distance between the former matrimonial home and Mrs Q’s home, being “a little less than 200 metres apart”. His Honour also referred to the assertions of the husband that it was “not necessary for the wife in the normal course of her daily routine to pass the residence” of Mrs Q based on what he asserted to have been the wife’s “normal routine” during cohabitation.
The trial Judge referred to the husband’s allegations that the “wife’s behaviour in driving past, walking, cycling and coming to the residence of Mrs [Q] causes great distress to him and to Mrs [Q]” concluding, accurately there can be little doubt, that the wife was “not welcome on Mrs [Q’s] premises, either by Mrs [Q] or the husband when he is there”.
Under the heading, “Conclusion about personal protection orders” (paragraph 130) the trial Judge said with respect to the application in relation to B2:-
132.There is also the basis for making an order that the wife not enter or remain in or around the premises at [B2]. There is no evidence that I am aware of that the wife has behaved in any inappropriate way at [M]. Given that the former matrimonial home is 200 metres from [B2], the appropriate order would be for the wife not to come within 100 metres of [B2].
The Grounds of Appeal
Under the heading “Overview of Submissions”, learned senior counsel for the wife raised three “points of appeal” (Summary of Argument on Behalf of Appellant Wife, page 2, par 12). The three “points of appeal” in turn fell into two broad subject areas, they being that the trial Judge had failed to take into account in determining the husband’s spousal maintenance claim the impact of the order he proposed with respect to interim property settlement, and that the trial Judge had either lacked “jurisdiction and power” to make the order with respect to Mrs Q’s home or, if his Honour had “jurisdiction and power”, that trial Judge failed to “provide adequate reasons and take into account relevant facts” in the exercise of such jurisdiction and power.
Although argued in the reverse order, the written Outlines of Argument provided by learned senior counsel for the wife and for the husband dealt first with the spousal maintenance claim. Before considering those matters, it is perhaps appropriate to note that the submissions on behalf of the wife proceed on the basis that leave to appeal against the orders to which we have referred is not required, whilst the submissions of learned senior counsel for the husband suggest that leave is required, albeit, sensibly, suggesting that it was appropriate to deal with the application for leave and the substantive appeal “concurrently”.
In practical terms, probably the only significance attaching to whether or not leave to appeal is required arises from submissions made on behalf of the husband that, even if the wife’s challenges to the trial Judge’s orders found favour, this Court would re-exercise its discretion in the same or substantially the same terms as the trial Judge had and that, as such, no substantial injustice would be caused to the wife or that, as no issue of principle was raised in the appeal, leave to appeal should be refused (see Rutherford & Rutherford (1991) FLC 92-255 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170).
For more abundant caution, we will proceed on the basis that leave to appeal may be required with respect to the order in relation to the B2 premises, and is required with respect to the order for interim spousal maintenance. As learned senior counsel for both parties recognised, the outcome of the proceedings in this Court will turn substantially, if not conclusively, on whether or not the challenges to the trial Judge’s decision are shown to have merit. For our part, we would conclude that the making of a restraining order in the terms challenged by the wife would, if unjustified, represent to her a substantial injustice insofar as it constitutes a significant encroachment of her entitlement to freedom of movement in the street in which she lives. So far as the spousal maintenance order is concerned, although somewhat less substantial, the requirement to pay $984 per week by way of periodic spousal maintenance for an indeterminate period would in our view be a sufficiently substantial injustice as to warrant the granting of leave to appeal if such order can be shown to have been unjustified.
Against that background, we turn to consider the two disputed issues identified by learned senior counsel for the wife and addressed by senior counsel for both the husband and the wife in their written and oral submissions.
The Interim Spousal Maintenance Order
The crux of the challenge to the trial Judge’s order for interim spousal maintenance was that he “did not take into account that the husband would have available to him … within seven days of the judgment, the amount of $107,000 by way of interim property settlement”. (Summary of Argument on Behalf of Appellant Wife, page 3, par 13). It was submitted that “[t]he receipt of this fund was so intrinsic to the husband’s capacity to support himself and to enable the court to give proper regard to s 75(2)(n)” as to represent an error of principle on the part of the trial Judge. (Summary of Argument on Behalf of Appellant Wife, page 3, par 16). Learned senior counsel for the wife relied upon the decision of the Full Court in Bevan & Bevan (1995) FLC 92-600 in support of this proposition.
It was submitted on behalf of the wife that, upon receipt of the sum of $107 000, the husband could not discharge the “threshold requirement posed by s 72(1)” of Family Law Act 1975 (Cth) (“the Act”) that he would, in the absence of an order for spousal maintenance, be unable to support himself adequately. It was thus submitted that the application for interim spousal maintenance could not succeed.
In the alternative, it was submitted that the trial Judge, by failing to provide any reasons for not taking into account the impending receipt of $107 000 in relation to the question of the husband’s capacity to support himself had erred and that appellate intervention was thus appropriate.
The thrust of the written submissions on behalf of the husband in relation to the order for interim spousal maintenance was directed to the asserted absence of “substantial injustice” on the basis that this Court, were it to re-exercise the discretion of the trial Judge would “result either in the same Order as that made by the Trial Judge or at most a de minimis .variation”. (Respondent Husband’s Summary of Argument in Reply, page 1, par 3).
Inferentially in his written submissions, and expressly in oral submissions on the hearing of the appeal, learned senior counsel for the husband asserted that the overwhelming bulk, at least as to $97 000, of the monies to be received by the husband would be expended by him for purposes which it was submitted that the trial Judge accepted as having been reasonable, and that after paying debts which the trial Judge accepted to have been reasonably incurred and properly payable, the husband would be left with little or nothing of the $107 000 from which to support himself.
On behalf of the husband it was thus submitted, in essence, that as a matter of substance a consideration of the impact of the order for interim property settlement could not have impacted upon the determination of the husband’s interim spousal maintenance claim or that, to the extent that the trial Judge failed in his reasons for judgment relating to that claim to refer expressly to the practical effect of the order for interim spousal maintenance, no reasons were in the circumstances required.
In our view it cannot be successfully asserted that the trial Judge gave any consideration in his reasons for judgment to the significance of the husband’s receipt of the sum of $107 000 which his Honour later concluded to be appropriate by way of interim property settlement. It is apparent from his Honour’s reasons for judgment that the question of interim spousal maintenance was considered prior to, and without reference to the question of “interim property” settlement. His Honour thus erred in principle having regard to decisions of the Full Court such as Bevan (supra).
It is necessary however in the circumstances of this appeal, for the reasons raised by learned senior counsel for the husband, to consider whether, notwithstanding what appears to have been an error of approach by the trial Judge, adopting the correct approach could or would have produced a different result.
Ultimately, the fate of senior counsel for the husband’s submissions in that regard depends upon whether, on balance, the trial Judge concluded that the overwhelming bulk of the $107 000 which he determined to be appropriate to be paid by way of interim property settlement would be consumed by the payment of debts or other reasonable expenses. Realistically, unless senior counsel for the husband’s proposition can be seen to have substance, the wife’s challenge to the order for interim spousal maintenance would appear entitled to success on the basis that the approach taken by the trial Judge involved an error of principle.
The trial Judge’s reasons for judgment in relation to his finding that the husband’s reasonable weekly needs were not less than $984 per week does not appear to be dependent upon either the husband continuing to pay or not having to continue to pay monies with respect to any of the debts later considered by the trial Judge in the context of “interim property” settlement and as such do not advance our consideration of that issue.
The trial Judge referred to what the husband claimed “he needs to make his current rented accommodation more liveable”. The trial Judge referred to the husband’s “$14,000 worth of purchases that he wishes to make” with respect to furniture and household items, to a sum of $80 000 “that he needs for legal costs and disbursements in relation to this case” thus giving rise to needs for funds of $124 000 when the husband’s assertion “that he needs $30,000 to rent superior accommodation between now and the final hearing” was taken into account. For reasons which he gave, the trial Judge reduced that figure to the sum of $107 000 which the husband had claimed in his application for interim orders (orders 1 and 6).
The trial Judge had earlier referred to the husband having disclosed $15 000 of cash and publicly listed shares which was offset by personal debts of a corresponding sum.
To the extent that the trial Judge’s reasons might be thought to have accounted only for $94 000 of “needs” of the husband, senior counsel for the husband relied upon a further $8000 of debts asserted by the husband. It was thus submitted on behalf of the husband that, after payment of debts which the trial Judge accepted, and the additional $8000, little if any of the $107 000 awarded by way of interim property settlement would remain. It was accordingly submitted that, even if the trial Judge had adopted the correct approach to the determination of the interim spousal maintenance claim, no different outcome could or would have resulted.
Senior counsel for the wife disputed that the trial Judge’s error of principle could be excused on the grounds asserted by learned senior counsel for the husband, inter alia, on the basis that it could not be successfully contended that the trial Judge’s error of approach to the determination of the interim maintenance claim could not be remedied on the basis asserted by learned senior counsel for the husband.
As we have noted earlier, the trial Judge’s approach to determining the interim spousal maintenance claim of the husband was erroneous in principle. If however the correct approach would not have produced a different outcome, appellate intervention in interlocutory proceedings would not be justified.
The evidence before the trial Judge was untested and, sensibly, there is no complaint that such was the case. In our view, it would be illogical to conclude that his Honour made the order he did for interim property settlement by reference to what he clearly accepted to be two categories of capital need, but would have considered that such capital remained available to the husband for his own support when considering the claim for interim spousal maintenance.
Learned senior counsel for the wife referred the Court to the husband’s assertion in his affidavit of his “imminent” expenses totalling less than $8000 and household expenses which he had “postponed for lack of funds” in respect of which he listed seven items totalling $14 000.
On balance, notwithstanding the trial Judge’s approach to the topic, we are not persuaded that this challenge to his decision should be upheld, or that leave to maintain such challenge should be granted. Although it is perhaps unnecessary to say more, we note the practical effect of the trial Judge’s interim property settlement order. Unlike interim spousal maintenance, at least $80 000 of the $107 000 awarded to the husband by way of interim property settlement would be likely to be “added back” on the final hearing of the parties’ financial disputes, (see Farnell & Farnell (1996) FLC 92-681 and Chorn & Hopkins (2004) FLC 93-204) as would the value at the date of trial of the furniture which the husband said he intended to purchase for approximately $14 000. It would be curious against that background if the husband was required to meet what the trial Judge accepted to be his reasonable weekly needs out of monies, which he would not have, which were likely to be substantially added back at the final hearing of financial proceedings between the parties in circumstances where his Honour found that the husband could not otherwise support himself.
We are satisfied that leave to appeal the order for interim spousal maintenance is required and that, for the reasons we have given, such leave should not granted. If we are in error, and leave to appeal should be allowed, and the appeal upheld, we would re-exercise the trial Judge’s discretion to make an order for interim spousal maintenance in the same terms as he did.
The Restraining Order with Respect to the Premises B2.
Orders 6 and 7 of the trial Judge provided that:-
6. The wife be restrained from communicating with the husband by any means other than through their respective legal advisers.
7. The wife be restrained from coming within 100 metres of [B2].
Learned senior counsel for the wife submitted that the order with respect to Mrs Q’s premises was not an order for the husband’s personal protection and, as such, fell outside the trial Judge’s jurisdiction and power in that regard (Summary of Argument on Behalf of Appellant Wife, page 6, par 30).
In the course of his written submissions, learned senior counsel referred to the provisions of s 114(1) in relation to orders for personal protection. As the submissions for senior counsel for both parties referred extensively to the section, it is convenient that we set it out. Section 114(1) of the Act provides:-
(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers 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;
(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;
(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.
It was submitted on behalf of the wife that the trial Judge did not say that the order with respect to B2 was for the husband’s personal protection, or how it could or would be, particularly as his Honour had found that the husband did not live there. It was further submitted that the trial Judge, for reasons which are apparent, had declined to make an order for personal protection with respect to the husband’s own premises but, without further explanation, had effectively made an order in favour of a third party (Mrs Q).
It was further submitted on behalf of the wife that s 114(1) was subject to the requirement that there be a matrimonial cause. It was submitted that s 4(1)(e) was the only possible matrimonial cause which could potentially be relied upon in the circumstances of this case but that this subsection could not, on the trial Judge’s findings of fact, satisfy that requirement. Section 4(1)(e) provides:-
matrimonial cause means:
…
(e) 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)
…
As was conceded by senior counsel for the wife, an order for personal protection of a party to a marriage could extend to the premises of third parties, provided that such order constituted a “matrimonial cause” within the terms of s 4(1)(e) of the Act. As Nygh J’s judgment in Esmore & Esmore (1979) FLC 90‑711 makes clear, the existence of “circumstances arising out of the marital relationship” is not “predicated on the relationship existing between the parties of husband and wife”. Indeed, in most cases the proceedings are in fact predicated on the relationship between the parties as husband and wife having terminated, or being likely to terminate.
In Mills & Mills (1976) FLC 90-079 Demack J discussed the concept of the expression “arising out of the marital relationship”. His Honour said (at 75,380):-
The words in the definition of matrimonial cause “proceedings between the parties to a marriage for an order or an injunction in circumstances arising out of the marital relationship” are extremely broad. It appears to me that the essential matter that must be determined is what is meant in that definition by the words “marital relationship”. The definition accords with the decision of the High Court in Russell v. Russell (1976) FLC ¶90-0391. Considerable guidance can be gained by the several judgments given in that case. Barwick C.J. said at p. 75,152: —
“In my opinion the power of the Parliament extends to attaching consequences to the act of marriage, both for the spouses and through their parent or parents, for the children of one or both of them.”
His Honour further suggested (at 75,380 – 75,381):-
Against that background, in my view the words “marital relationship” refer to that body of law which defines the nature and extent of that relationship.
Reference was made to McLean & McLean (1979) FLC 90-655, a decision of the Court of Appeal of the Supreme Court of New South Wales, in which Hutley JA said (at 78,467 – 78,468) that s 4(1)(e):-
…requires that the order must be made “in circumstances” arising out of a marital relationship. 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.
In Murkin & Murkin (1980) FLC 90-806 Nygh J said (at 75,082):-
I do not agree with [the contention] that the right, if it exists at all, comes within the description of “personal protection”. If his argument is correct, the reference to the property of the parties would be superfluous, for every right is personal. The logical inference from the words as used in sec. 114(1) is that the words “personal protection” refer to the protection of the physical integrity of a party such as are secured by non-molestation orders.
This does not dispose of the matter. As counsel for the wife pointed out, the second part of subsec. (1) is preceded by the word “including” which indicates that whatever follows is not an exhaustive definition. The question then arises as to what is meant by the words “arising out of the marital relationship” used in the definition of para. (e) of the words “matrimonial cause” in sec. 4(1). I accept the definition offered by Demack J. in Mills and Mills (1976) FLC ¶90-079 at p. 75,381, namely: “The event must be one which raises issues of law that are within the body of law defining marital relationships.” I take that as meaning that the claim must be one which a spouse brings as a spouse and which is not a claim arising out of the general law of tort, contracts or property which happens to be between spouses. In this case, if the wife has any claim against the superannuation funds it can only arise because of sec. 79 of the Family Law Act. We are therefore dealing with proceedings arising out of the marital relationship and not arising out of the general law of contract, tort or property.
It was thus submitted on behalf of the wife that, on his own findings of fact, the trial Judge had no jurisdiction to make the order that he made with respect to the premises at B2, either in the terms made or the seemingly narrower terms sought by the husband in his interim application.
As the facts of this case make clear, the distinction between cases which fall within jurisdiction as involving circumstances “arising out of the marital relationship” and cases which do not is not always easily able to be drawn. The authorities to which we have referred, though clearly stating the principles, do not readily facilitate a conclusion in any given factual context.
The findings of fact made by the trial Judge leave open to speculation the basis upon which he concluded that the jurisdiction to make orders with respect to B2 had been enlivened. The evidence before his Honour suggests that it was only after the husband and Mrs Q formed a relationship that Mrs Q’s premises assumed any significance for the wife. It could reasonably be inferred that the wife’s interest in B2 arose from the husband’s presence there from time to time. It could thus be concluded that the application with respect to B2 arose out of the husband’s relationship with Mrs Q. On the other hand, but for the fact that Mrs Q was in a relationship with the man with whom the wife had a “marital relationship”, there would have been no application with respect to B2. It could thus be concluded that the application arose out of the marital relationship of the husband and the wife but that is not the complete answer as to whether the power in s 114(1) should be exercised.
Although the issue is not in our view clear beyond doubt, we are not persuaded that the trial Judge erred in concluding that jurisdiction to make orders with respect to B2 was validly enlivened in reliance upon circumstances arising out of the marital relationship of the husband and wife.
On behalf of the husband it was submitted by learned senior counsel that the terms of s 114(1), and particularly the words “such injunction as it considers proper”, and “including” prior to references to ss 114(1)(a) and (f) provided a sufficient basis for the trial Judge having jurisdiction and power to make the order which he did with respect to B2.
It was further asserted that the submissions on behalf of the wife involved the imposition of “an impermissible limitation” on the words “personal protection” within s 114. It was thus submitted that the challenge to the trial Judge’s order involved an unjustified attempt to “read down” the words of s 114(1)(a) of the Act.
It was submitted on behalf of the husband, correctly within the context of this appeal, that to the extent that the wife’s complaints involved a challenge to the exercise of the trial Judge’s discretion to make the order he did with respect to B2 she could not advance the challenge as it was not “the subject of any ground of appeal” (Respondent Husband’s Summary of Argument in Reply, page 5, par 14) undoubtedly has substance. It was further submitted that the findings of fact, which were not challenged in this Court, enlivened the jurisdiction to make the order which he did with respect to B2.
Amongst the findings of fact upon which learned senior counsel for the husband thus relied was the trial Judge’s finding that the husband was regularly at and upon the residence of Mrs Q at B2. Having concluded, as he did, that an order for the husband’s personal protection was justified (an order not challenged in this appeal), the trial Judge was thus said to have been able to rely upon the fact that the husband would continue to be at Mrs Q’s residence on a regular basis (Respondent Husband’s Summary of Argument in Reply, page 7, par 21) as providing the nexus between the jurisdiction and power to make the order with respect to those premises as a order for the personal protection of the husband. It is immediately apparent that the order for the husband’s personal protection (Order 6) would preclude the wife from communicating with the husband at any time that he was at B2 without the need for additional restrictions.
Whilst other matters in relation to the wife’s failure to dispute the husband’s assertions with respect to the wife’s “routine” were asserted, we perceive those to go to the issue of discretion which, we have earlier noted, was not challenged in this appeal.
As noted earlier, the trial Judge found that the husband was not living at B2. The trial Judge’s findings do not suggest that the husband would live at Mrs Q’s premises in the future. The husband’s case, and his Honour’s tacit acceptance of it, in relation to the cost of future accommodation is consistent with that impression. Nor did his Honour find or suggest the likelihood of the husband being at Mrs Q’s premises other than for the purpose of seeing her in the course of their relationship. As noted earlier, the order for personal protection of the husband, which has not been challenged in this Court, would appear sufficiently broad to preclude the wife from communicating with the husband by physically entering or remaining upon the B2 premises. There is no suggestion that, absent an invitation from Mrs Q to enter or remain upon her premises, the wife would be other than trespassing upon those premises, irrespective of whether the husband was at the premises. Mrs Q has remedies available to her should the wife enter upon her premises or, without entering upon her premises, threaten her safety pursuant to the laws of New South Wales see Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The circumstances in which the Family Court can validly make orders which have the effect of protecting the person of a third party appear to us limited by the terms of the section to cases where an order validly made against a party to the marriage for the personal protection of the other party of the marriage has that effect. Had the trial Judge found that the husband lived at B2, the foundation for an order for his personal protection extending to B2 would no doubt have been stronger. We have earlier recorded our rejection of the jurisdictional challenge agitated on behalf of the wife. We have also earlier noted the concession, properly made, that an order with respect to the premises of a third party was not necessarily beyond power.
As we have earlier noted, in Murkin (supra), Nygh J suggested that “personal protection” referred to “the protection of the physical integrity of a party”. The terms of s 114(1)(a) are identical with the terms of the section when Murkin (supra) was decided. We see no reason to adopt a different interpretation of the meaning of the term “personal protection” to that advanced by Nygh J.
It is significant for present purposes that the trial Judge made an order for the personal protection of the husband (Order 5), the practical effect of which would be, in our view, to preclude the wife from entering or remaining upon B2 whenever the husband was there. As we have earlier noted, the wife’s presence upon those premises at other times would potentially constitute a trespass in the absence of an invitation from Mrs Q to enter or remain upon the premises, whilst the wife’s conduct on or in the vicinity of the premises may give rise to an entitlement by Mrs Q to relief pursuant to the laws of New South Wales.
The trial Judge’s order restrains the wife with respect to B2 at times when, on his findings of fact, the husband would not be at the premises. It is difficult to see how such order could properly be categorised as an order for the “protection of the physical integrity” of the husband. It is clear that an order for the personal protection of Mrs Q would not be a valid exercise of the power conferred by s 114(1). Objectively, the trial Judge’s order was in substance an order to protect Mrs Q’s entitlement to quiet enjoyment of her property. Without suggesting that Mrs Q’s entitlement in that regard should not be respected, an order of that kind, which could clearly be obtained from other courts, could not constitute a valid exercise of the power conferred upon the trial Judge by s 114(1).
We thus conclude, as was submitted by learned senior counsel for the wife, that the order made by the trial Judge was not an order for the husband’s personal protection and as such was not an order which his Honour could validly make. Although nothing turns on it, if the jurisdictional question were initially approached by reference to the terms of the trial Judge’s order, on the conclusion we have reached as to the nature and extent of the order, the jurisdiction to make such an order may not have been validly enlivened, even though it was made in circumstances arising out of the marital relationship of the husband and the wife.
Having regard to the conclusion which we have recorded above, it is unnecessary to consider the adequacy or otherwise of the trial Judge’s reasons for making the order which he did with respect to B2. Given however the matters to which we have earlier referred, and the reality that these were interlocutory proceedings, were it necessary to do so, we would not accept that the trial Judge’s reasons in relation to the order with respect to B2 were inadequate in all the circumstances.
His Honour’s reasoning process is reasonably discernable from the passages to which learned senior counsel for the husband referred and we have earlier considered. From his Honour’s reasons for judgment it is tolerably clear that the fact that the husband was likely to be at Mrs Q’s premises from time to time, for the purpose of being with Mrs Q at those premises, led to the making of the order.
The second aspect of this complaint was that the trial Judge failed to “take into account relevant facts” in the exercise of the power conferred by s 114(1) of the Act if the jurisdiction to do so had been validly enlivened. For the reasons we have earlier advanced, we conclude that the order with respect to B2 was not an order within power and should be set aside. As our reasons for so concluding reveal, the matters raised on behalf of the wife in support of this challenge have been influential in reaching our conclusion. It is unnecessary and unproductive to say more about this complaint.
Conclusion
For the reasons which we have earlier given, we conclude that the challenge to the trial Judge’s order with respect to Mrs Q’s premises has substance. If leave to appeal against that order be required we conclude that such leave should be granted and the appeal allowed. To restrain a citizen from passing over the public street in which she lives, whether she needs to or not, is in our view a substantial curtailment of that citizen’s right of freedom of movement and, if not according to law, represents a substantial injustice. We would thus grant leave to appeal, if that be necessary, and allow the appeal.
Costs
In our view there should be no order for costs of the proceedings before us. Each party has been wholly successful with respect to one of each of the two issues requiring determination. Each has been wholly unsuccessful with respect to one of those two issues. In our view the appropriate order is that each party pay his or her own costs of and incidental to the proceedings before this Court.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 20 March 2008
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