Matrimonial Causes—Injunctions—Power of Court where rights of a third party involved—Matrimonial Causes Act 1959-1966 (Cth), s. 124. Matrimonial Causes—Settlement of property—Power of Court—Crown lease not assignable without consent—Occupancy thereof without approval forbidden—Matrimonial Causes Act 1959-1966 (Cth), s. 86—Crown Lands Ordinance 1913 (Norfolk Island). Matrimonial Causes—Settlement of property—Power of Court—Settlement to provide for maintenance—Considerations relevant—Punishment or deprivation of property by settlement—Contribution to property by applicant—Form of application for settlement to provide maintenance—Matrimonial Causes Act 1959-1966 (Cth), ss. 84, 86 (1), 87.
Decisions
October 16. The following written judgments were delivered: - BARWICK C. J. The Supreme Court of Norfolk Island on 30th March 1966 made a decree nisi for dissolution of the marriage of the appellant and the respondent. By that decree the Court made provision for the maintenance of the respondent and the children of the marriage. That provision included an order that the appellant "make a settlement upon the petitioner of the matrimonial home and the land on which it is situated and which is completely fenced, together with the land and part of the building thereon which is at present in use as a garage". (at p370)
2. As the land to which this order referred was part of a larger area, some fifty-seven acres of land, the Supreme Court also ordered that a right of way be provided over other parts of the fifty-seven acres to permit of access to the matrimonial home by the respondent, the children and those who should want to visit her. To my mind, as a matter of expression, these orders in referring to the matrimonial home, as well as the subject land, included the furniture and appointments then in the matrimonial home: but in any case in the instant proceedings the Court made it clear that their inclusion in the settlement was intended. The nature of the intended settlement, however, was not clearly expressed in the decree, but it seems to have come to be understood by the parties and by the Supreme Court when making the order under appeal as intending that the matrimonial home should become the property of the respondent. No appeal was brought against this decree: and in any case it became absolute at the end of June 1966 (see s. 90). (at p371)
3. The fifty-seven acres of land on part of which stood the matrimonial home is a leasehold held of the Crown under the Crown Lands Ordinance 1913 of Norfolk Island. By cl. 20 of that Ordinance - "No lease shall be assigned, sublet, or mortgaged without the approval of the Governor-General or the Minister." And by cl. 25 - "Any person who is found occupying or using any land or building of the Crown shall, unless he proves that he was lawfully occupying or using the said land or building under lease or licence from the Crown, be…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sanders v Sanders [1967] HCA 33
Case
[1967] HCA 33
Decision Date
CaseChat Overview and Summary
The parties to this appeal were the petitioner and the respondent in divorce proceedings before the Supreme Court of Norfolk Island. The dispute concerned the settlement of property and the granting of injunctions in the context of matrimonial causes, specifically involving a Crown lease of land on Norfolk Island. The appeal was heard by the High Court of Australia.
The High Court was required to determine the extent of the court's power under the Matrimonial Causes Act 1959-1966 (Cth) to make orders for the settlement of property, particularly where a third party's rights might be involved, and where the property in question was a Crown lease subject to specific statutory restrictions on assignment and occupancy. The court also considered the principles governing the exercise of its power to order settlements for the maintenance of a party and children, and whether such orders could amount to punishment or deprivation of property.
The Court reasoned that while s. 124 of the Matrimonial Causes Act 1959-1966 (Cth) conferred broad powers to grant injunctions, these powers were not unlimited and had to be exercised with regard to the rights of third parties. Regarding the settlement of property under s. 86, the Court acknowledged the limitations imposed by the Crown Lands Ordinance 1913 (Norfolk Island) concerning the assignability of the Crown lease. However, the Court found that it had the power to make orders for the use of the property for the maintenance of the petitioner and children, even if it could not directly transfer ownership of the lease. The Court applied the principles that settlements should provide for maintenance and that the court should consider the contributions of the applicant and avoid punitive outcomes.
By consent, the Court varied the second order of the Supreme Court of Norfolk Island to clarify that the property was to be used by the petitioner to provide a home for herself and the minor, unmarried children of the marriage, and that this home would be the petitioner's property. The appeal was otherwise dismissed with costs.
Orders
Orders of the court
By consent vary the second order made by the Supreme Court of Norfolk Island herein by adding thereto the following words, namely, "to be used by the petitioner so far as the same shall extend to provide and furnish a home for herself and the children of the marriage whilst minors and unmarried, which home shall be the property of the petitioner". Otherwise appeal dismissed with costs.