Schokker v Edwards

[1986] FamCA 7

In the marriage of SCHOKKER, H.B. and EDWARDS, E.E. (formerly SCHOKKER).

(1986) FLC ¶91-723

Other publishers' citations: (1986) 11 FamLR 446

Full Court of the Family Court of Australia at Brisbane.

Judgment delivered 2 May 1986.

Before: Strauss, Gun and Elliott JJ.

Strauss J.: I have had the advantage of reading the draft reasons for the decision of Elliott J. I agree with his Honour's conclusions that the appeal against the orders granting custody of the three children to the wife and against the orders for maintenance and the payment of the arrears of maintenance be dismissed. I do not agree that the appeal against the order under sec. 79 should be allowed as I would dismiss that appeal also.

[His Honour briefly held that the custody order of the trial Judge was open on all the evidence and that the appeal on this point should fail. He then continued:]

Child Maintenance and Arrears of Maintenance

On 20 December 1983 Barry J. made an order ``that until further order and pending the disposal of these proceedings, the husband pay to the Clerk of the Court at Southport, for the maintenance of the children the total sum of $54 per week... ''.

At that stage these children were 11, 9 and 6 years old. The wife was not in employment and was dependent on social service benefits for her and the children's support. The husband was an income tax investigator earning $27,000 to $28,000 a year. The parties had separated in February 1983. The husband had paid the wife $60 per week maintenance initially. He then reduced the payments to $45 a week and in the latter part of 1983 he ceased payments altogether. He himself had been living with another woman and her two children since May 1983.

On 6 February 1984 the husband filed an application for a variation of the maintenance order made on 20 December 1983. In the affidavit in support of the application for a variation he adopted the view that maintenance was payable out of income and not out of capital. The application was refused by Elliott J. on 27 February 1984. Elliott J. further ordered ``that the husband pay the wife's costs of today set in the sum of $300, payment of such amount to abide an order for property settlement in due course or other resolution''. The husband continued in his refusal to abide by the terms of the order. In all, he paid no more than $100 under the order.

On 30 May 1984, apparently as a means of preventing or delaying enforcement proceedings, the husband filed an application in the Magistrates' Court at Brisbane applying for a variation of the order of Barry J. made on 30 December 1983. By application filed on 27 June 1984 the wife sought the transfer of the proceedings from the Magistrates' Court to the Family Court, and she sought payment of maintenance arrears and of the sum of $300 for costs under the order of Elliott J.

In para. 12 of the affidavit sworn on 25 June 1984 the wife swore:

``This is the third time I have been forced to defend frivolous and vexatious proceedings by my former husband. The amount of costs awarded against my former husband are a small part only of the costs I have been forced to incur.''

Paragraphs 63 and 64 of this affidavit were as follows:

``63. The small amount of moneys I received by way of property settlement have been used by me to a large extent in relation to all of the various court proceedings.

64. In view of the fact that I do not wish to further pursue a property settlement I request the Court to order that my former husband pay to me forthwith the sum of $300.00 by way of costs ordered against him on the 27th February 1984.''

There had been other proceedings instituted by the husband concerning access. Also, in December 1983 the husband had issued in the Magistrates' Court an ordinary summons against the wife claiming debt or damages arising out of the division of the furniture in the former matrimonial home, which according to the wife, had not been served on her. The default judgment entered on 11 January 1984 was set aside on 22 February 1984 when the husband was ordered to pay the wife $61.90 costs.

On 27 July 1984 Treyvaud J. made a number of orders with a view to facilitating an early hearing of all outstanding disputes and which appear to have been designed to avoid further interlocutory proceedings. These orders were obviously not made upon an investigation of the merits. The orders made included the transfer of the proceedings for variation of maintenance from the Magistrates' Court to the Family Court. They included orders for a welfare report, the separate representation of the children, directions for filing affidavits and other material. Amongst these various orders Treyvaud J. also ordered that until further order:

``7 (a) all payments of maintenance payable by the husband for child maintenance pursuant to the order of the Honourable Mr. Justice Barry on 20th December 1983 be suspended;

(b) the right of the wife to seek enforcement of all arrears of maintenance presently due and payable pursuant to that order be suspended;

(c) the payment of costs by the husband ordered to be paid by order of the Honourable Mr. Justice Elliott on 27th February 1984 be suspended;.''

In the result, as the order for maintenance was suspended on that day, arrears ceased to accrue under the suspended order. The amount of arrears claimed, namely $1,597.13 is referable to the period from 20 December 1983 to 27 July 1984.

In my opinion, the order for the payment of these arrears was appropriate. The husband was not entitled so to order his affairs as to put it beyond his capacity to make the modest contribution of maintenance which the order of Barry J. required him to make. By sec. 73 of the Act ``The parties to a marriage are liable, according to their respective financial resources, to maintain the children of the marriage who have not attained the age of 18 years''. By sec. 75(2)(b) the matters to be taken into account included ``the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment''. As his Honour pointed out, the husband was not entitled to give up employment and invest his money in such a way as to deprive himself of the ability to contribute to the support of the children. The fact that he was now supporting a new wife and her two children was not a sufficient reason for his failure and refusal to contribute to the support of his own children.

The order of Barry J. had remained in force until its operation was suspended by the order of Treyvaud J. The husband did not appeal against either the order of Barry J. or the order of Elliott J. In my view, no facts or circumstances had been shown to exist which justified a discharge or variation of the order of Barry J. or which would have justified a refusal to enforce the order. In the result, his Honour's decision to order the husband to pay the arrears was the correct one.

As concerns the maintenance of $20 per week per child which his Honour ordered, the husband had earning capacity which, if he chose to exercise it, would have enabled him to meet the order. Even if the husband did not have sufficient earnings temporarily, he had property which he could be required to realise.

The wife's estimate of the needs of the three children amounted in all to $123.59 a week. Under the order the husband is required to contribute less than one half of this amount. In my view the order was moderate.

Accordingly, the appeal against the order for periodic maintenance also fails.

Settlement of Property

In my opinion the appeal against his Honour's order under sec. 79 should be dismissed.

``... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.''
Australian Coal and Shale Employees'Federation v. The Commonwealth (1953) 94 C.L.R. 621 per Kitto J. at p. 627.

Where a decision depends upon the exercise of a judicial discretion ``in many cases different minds may arrive at different conclusions'': cf. Gronow v. Gronow (1979) FLC ¶90-716 per Aickin J. at p. 78,859.

On the facts of this case there is no legal or equitable bar to a successful application under sec. 79. The wife was entitled to make a claim, and his Honour was bound to adjudicate upon it.

The only bar to an application under sec. 79 would have been a maintenance agreement approved under sec. 87. Any other agreement whether registered under sec. 86 or not, even if it purported to resolve all outstanding financial matters between the parties and even if it had been acted upon by the parties, would not preclude an application under sec. 79 or a bar to the Court's exercise of its jurisdiction.

``The Court must consider the issues relevant to the application under sec. 79 at the time the matter is before it... In so doing, the existence of the agreement is a relevant factor, as is the fact that the parties have accepted it and acted upon it, possibly to the detriment of one or other of them.''
Candlish and Pratt (1980) FLC ¶90-819 at p. 75,170; see also Burgoyne and Burgoyne (1978) FLC ¶90-467.

In the instant case, there was not even agreement to resolve all outstanding disputes. The letter of 3 June 1983 could hardly have influenced the husband in any way at all. From July 1983 on the wife had refused to enter into an agreement under sec. 87 on the ground mainly that she was concerned about the superannuation entitlements of the husband. In a letter dated 3 April 1984 from the husband to the wife's then solicitor the husband wrote:

``Property settlement

There are several items of dispute that I would like to see resolved and formalized in a deed.''

Then he refers to disputes about lounge chairs and coffee table and conveyancing costs.

In this letter he also claims that the wife was entitled to only $100 of the $300 costs awarded by Elliott J. and he sought to set off this $100 and the $61.90 costs awarded by the Magistrates' Court on the setting aside of the default judgment against conveyancing costs which he claimed the wife owed him. In this letter the husband also deals at some length with the wife's claim to have his superannuation entitlements brought into account and he argued that the wife should not be entitled to any part of it.

Having regard to the protracted negotiations, the fact that the wife at this stage had no expectation of the husband retiring from his employment at an early stage, to the seemingly never ending litigation and disputes about maintenance, costs, access and custody, the wife's statement that she did not wish further to pursue a property settlement but wanted her $300 costs paid is understandable.

I note in passing that Treyvaud J. did not act on the request made in para. 64 of the wife's affidavit. As has been seen, Treyvaud J. on 27 July 1984 suspended the right of the wife to enforce the payment of these costs and arrears of maintenance, and his Honour also suspended the operation of the order for the payment of maintenance. The result of the suspension of the order was that the order for the payment of maintenance ceased to operate from 27 July 1984 until Underhill J. made the order for the payment of $20 per week for the maintenance of each of the three children on 12 August 1985. The total amount of child maintenance which, but for the suspension of the order, would have been payable from July 1984 to August 1985 was approximately $2,716. His Honour said in the course of his judgment, and in my opinion rightly so, ``I also take into account the husband's failure to pay maintenance for the children for a very long time''.

The learned trial Judge dealt at some length with the like arguments as those which were addressed to this Court on appeal. He set out the letter of 9 June 1983 from the wife's solicitor to the manager of the Commonwealth Savings Bank stating that her instructions were that the wife would not seek a further settlement of property and maintenance. His Honour also set out para. 64 of the affidavit of 27 June 1984. His Honour continued:

``The husband alleges that based on these expressed intentions of the wife not to pursue a property settlement he left his employment in the Public Service. In paragraph 10 of his affidavit filed 28 March 1985 the husband deposes as follows:

However, because of heavy financial burdens placed upon me by these proceedings, and my former wife's refusal to provide access and subsequently my obtaining access only by heavy travelling commitments. I found that financially I must withdraw from the Commonwealth Public Service and try to earn money outside and I thereby formulated an intention to withdraw from the superannuation scheme in or about the month of August, 1984.'

I find that the husband resigned from the Public Service in order to make more money and because he was in trouble there as a result of using his position of Tax Investigator to pursue his personal aims.''

This finding was clearly open to his Honour.

There was evidence from the husband's present wife to the effect that she invested her capital in a joint venture with the husband, and that she would not have done so if she had known that the wife intended to issue property proceedings. His Honour referred to this evidence and held, correctly in my view, that the wife was not estopped from making a further claim for a property settlement. His Honour dealt with the questions of financial and other contributions of the parties to the property and the welfare of the family. He found that the net assets of the parties at the time of separation were $62,000. However, it is common ground that in fact they were worth $58,000, but nothing appears to turn on this error. Out of these assets worth $58,000 the husband received money and property worth $31,000 and the wife received money and property worth $27,000.

The husband retired from his employment with the Taxation Department in about September 1984 and he then received a total of $22,000 being as to $13,000 refunds of and interest on superannuation contributions and as to $9,000 for long service leave and other termination payments.

On 1 February 1985 the wife filed her application for alterations of interests in property. As I read his Honour's findings, the wife has spent all the moneys which she received, viz. $19,254 (less $3,000 kept in trust) on living expenses to supplement her husband's wages and to pay for her own legal expenses. His Honour found that the wife ``recently paid $3,000 in legal expenses and believes there may be more to pay''. His Honour found that ``the wife and [her present husband] appear to have no liabilities and, apart from the car which the wife values at $2,400, they have virtually no property''.

The husband's property at the time of the hearing before his Honour was an interest with his second wife in a business which cost $111,000. The net value of the husband's and his second wife's equity in the business at the time of the hearing was $58,074, and so the husband's secured interest was worth about $29,000. Apart from some furniture and a life policy with an estimated surrender value of $2,500 on the husband's life, the husband and his present wife had no assets.

His Honour found that the husband has a greater earning capacity than the wife and in general better future economic prospects. His Honour also said:

``Among the factors to which I give considerable weight in determining the issue of property settlement are the ages of the children and the duration of their dependence on the wife.''

In my opinion his Honour was not only entitled but bound to have regard to the fact that when the parties divided their property in 1983 the wife received a smaller share than the husband, notwithstanding that the wife had the care of three young children and that her earning capacity was much inferior to that of the husband. He was bound to have regard to the wife's comparatively large expenditure for costs and the husband's repeated attempts to avoid maintenance obligations and he was entitled to take into account that the order suspending the maintenance obligation had the effect of depriving the wife of about $2,716 for child support.

There were, therefore, a number of matters which support the making of the order which his Honour did in fact make. As matters stood, the husband had received a total worth $53,000 of the assets ($31,000 in 1983 and $22,000 in 1984) and the wife had received $27,000. In addition, the husband had so far avoided his maintenance obligations. It should also be pointed out that the wife should be seen to have made an indirect contribution to the superannuation fund. It is, however, said that the wife's statements to the effect that she would seek no further property settlement are of such overwhelming significance in all the circumstances as to make it so plainly unjust and inequitable as to disentitle the Court from awarding a settlement of property, notwithstanding that the wife had received less than she might have received otherwise. It is said that the husband would probably not have resigned from the Public Service, or might not have committed himself to the purchase of a business if he had thought he would have to pay part of the superannuation and other moneys to the wife. It is further said that the husband's second wife might not have entered into the joint venture with the husband had she known of the wife's claim. I consider the fact that the wife had so far received much less than was just having regard to her financial position and earning capacity and to her family obligations is a matter of great weight.

In my view, the precise weight to be given to all these considerations was a matter for his Honour and not for this Court. In Gronow v. Gronow (supra) at p. 78,859 Aickin J. said:

``Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 C.L.R. 513 at p. 533:

`The proposition that the appeal court will consider whether `no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.'

It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result.''

As I have tried to point out earlier, even if the wife had entered into a formal agreement to the effect that she would seek no property orders other than what was provided in the agreement, the Court would have been bound to entertain her claim, and would have been obliged to make an order if it were satisfied that it was just and equitable to do so. It is true that what is just and equitable is not a matter of unfettered individual opinion. Considerable though not exhaustive guidance on what is just and equitable is provided for the court in sec. 79(4) and 75(2) which point to the various matters which the Court must take into account when making an order.

As Gibbs C.J. pointed out in Mallet v. Mallet (1984) FLC ¶91-507 at p. 79,111:

``When an appeal is brought from an order of a Judge made under sec. 79 the Full Court of the Family Court must decide the appeal in accordance with the established principles which apply when an appellate court is hearing an appeal against an exercise of discretion.''

I am satisfied that the fact that there was no conference held does not affect the validity of his Honour's order in the circumstances of this case. Neither of the parties raised the holding or not holding of a conference as an issue before his Honour. Neither party objected to his Honour discharging his earlier order for a conference. Both parties argued the case on the basis that his Honour was entitled to adjudicate upon the property claim. For these reasons alone the validity of the order cannot now be attacked. I also agree that the discharge of the order amounted to an inferential decision by his Honour that there were special circumstances that made it appropriate to make the order notwithstanding that the parties had not attended a conference.

In my opinion no case for appellate interference against the property order has been made out. The appeal should be dismissed.

Gun and Elliott JJ.: This is an appeal brought by the husband against orders as to custody, child maintenance and property settlement made 12 August 1985 following a hearing over some 15 full days commencing in February and ending in mid-July of 1985.

It must be said at the outset that no issues of innate complexity were involved to justify a hearing of such duration; rather it reflected the high level of disputation between the parties and their counsels' seeming determination to exhaust every possible point, minor or material.

The custody issue was as to three children, C aged 14, N aged 11 and D aged 8. The children had been with the wife since an interim order of Barry J. in December of 1983 giving her custody, giving the husband access and ordering the husband to pay child maintenance of $54 per week for the children.

The parties had married in February 1972, and the marriage was dissolved by decree nisi on 27 February 1984. Three months later the wife married a Mr Edwards, who had living with him two children of his former marriage. The husband also remarried in January 1985; his household includes two children of his present wife's former marriages.

The course of the litigation was notable for multiple filing by both parties of numerous interlocutory applications. They are set out in his Honour's judgment and need not be recapitulated at length. The children caught in the middle of this litigious crossfire were ordered by the Court to be separately represented. One application made by the wife does require mention. The matter of custody had been set for trial to commence on 12 February 1985; on 1 February the wife filed an application seeking orders in relation to superannuation and long service leave payments received by the husband upon his resignation from the Taxation Department. When the trial commenced his Honour adjourned this and the question of child maintenance to the contested list with usual orders including the holding of an O. 24 conference, and the hearing proceeded for three days on the custody issue alone; it was then adjourned part-heard to continue on 29 April. His Honour later caused the matter to be listed for mention on 1 March when he vacated his earlier orders and consolidated the hearing of the maintenance and property questions with the further hearing as to custody, making appropriate orders for filing of all necessary material. On 26 April the wife filed an amended application for property settlement and lump sum maintenance.

The husband has raised a ground of appeal as to this course taken by his Honour which may be conveniently dealt with at this stage. It was his contention that his Honour erred in proceedings to hear the property issue, as no O. 24 conference had been held between the parties; nor had his Honour dispensed with the holding of such a conference as provided by sec. 79(9)(b) or (c). He submitted that the wording of sec. 79(9), that a court ``shall not make an order'' unless one or other of the matters referred to in (a), (b) or (c) of the subsection occur, operated as an absolute prohibition and as a consequence the later order made by his Honour was a nullity.

Section 79(9) is mandatory in its terms. But it does not appear to us that on a proper reading of the section a judge is necessarily required to make a positive finding or declaration as to being satisfied as to the existence of special circumstances or of impracticability as referred to in subpara. (b) and (c), but may do so by implication. His Honour clearly had weighed the desirability of consolidating all issues in the hearing shortly to recommence before him as against the earlier orders he had made, including the holding of an O. 24 conference. He himself caused the matter to be listed for mention on 1 March to give his considered decision. It is true that he did not specifically advert to his reasons for doing so, but may be seen to have satisfied himself as to the need to proceed without the holding of an O. 24 conference ``inferentially and without formality'' (to adopt the expressions of Barwick C.J. on an analogous point in Sanders v. Sanders (1967) 116 C.L.R. 366 at p. 374) in vacating the earlier order as to the holding of a conference made on February 12.

[Their Honours dealt with the appeal by the husband against the custody orders. They held that no grounds were made out to establish that the trial Judge's discretion miscarried and dismissed the appeal. They then proceeded to hear the other appeals as follows:]

Child Maintenance

His Honour ordered the husband to pay to the wife within six months accrued arrears of maintenance of $1,597.13 and $20 per week for each child by way of periodic maintenance. The husband's appeal against both orders was based on his alleged inability to pay as ordered. He relied on that part of the reasons for judgment which reads:

``Neither the husband nor his present wife has any assets or money other than the business and some furniture apart from a policy on the husband's life (which has an estimated surrender value of $2,500). Their motor vehicle is leased.

It might seem from his present financial circumstances that the husband is not in a position to make either a property settlement or to pay maintenance for the children.''

However his Honour had gone on to say:

``... it could not be expected that he is entitled to retain the major portion of the parties' assets and to invest them in a way that he has no, or very little, present income instead of the income of approximately $28,000 that he had before and that he voluntarily surrendered.''

His Honour was here referring to the fact that the husband and his present wife had sunk all their available assets into purchase for $111,000 of a freehold shop with residence attached from which they conduct the business of a convenience store. On figures put forward by the husband, the business was not in profit. The evidence of his present wife was that although there was a lack of funds the family was living reasonably well off the business. The husband, by resigning from the Taxation Department, had forgone his former $28,000 income from that source.

In our view the equity of the husband in this property is a sufficient resource available to him to pay the maintenance as ordered. The order made was reasonable in the light of the wife's needs for the children.

In our view this appeal also fails and should be dismissed.

Property Settlement

After separation the parties had effected between themselves a settlement of their property. His Honour set out the distribution in his judgment, but this contained a minor error of calculation. In effect, of property of the value of $58,000 approximately the wife received $27,000 and the husband $31,000. In mid-1983 the husband's solicitors drafted a deed to reflect this division for the purposes of seeking the Court's approval under sec. 87. The wife, advised by her solicitor, would not sign it and requested information as to the husband's superannuation entitlement — probably receivable by him as far off as 32 years thence as he was then only 33 years of age; he had been employed in the Taxation Department some 14 years.

In July of 1984 in proceedings before Treyvaud J. for variation of the maintenance order an affidavit of the wife was read, filed on 27 June 1984, in which she deposed as follows:

``In view of the fact that I do not wish to further pursue a property settlement I request the Court to order that my former husband pay to me forthwith the sum of $300 by way of costs ordered against him on 27 February 1984.''

Earlier, when the husband had wished to borrow some money from a bank (which was concerned as to whether a property settlement claim might be made against him), she caused her solicitor to write to the bank a letter dated 9 June 1983 in the following terms:

``I act for Mrs Schokker and have been requested to write to you by the Solicitors acting for Mr Schokker regarding the property settlement between the parties. I confirm that arrangements have been completed and provided my client receives the moneys which have been agreed to be paid to her at the settlement (of the sale of their property at Narangba) tomorrow she instructs me to advise that she will make no further claim on her husband in relation to property settlement and maintenance for herself.

This acknowledgement is, of course, given on the basis that the husband has made full disclosure of his assets during the course of negotiations.''

As his Honour found, the wife tried to tell lies about so forgoing any property claim when giving oral evidence.

In September 1984 the husband resigned from his employment and received termination moneys totalling $22,000, composed of $13,000 in superannuation payments and $9,000 for accrued long service leave. As previously mentioned, these and other assets were eventually joined to the assets of his present wife and invested in the convenience store in Annerley which they still own and which was purchased (including stock of $6,000 approx.) for $111,000. Some $46,000 of this amount was borrowed on mortgage. Their joint equity can thus be seen to be some $65,000 (the balance sheet at 16 April 1985 to which his Honour referred in his judgment, showed net assets at $58,074).

As noted earlier in this judgment, the wife filed a property settlement claim in the Court on 1 February 1985, only 11 days before the custody hearing was due to begin; this was later amended on 26 April 1985 to claim by way of property settlement and lump sum maintenance 60% of the property of the parties at the time of separation.

In his reasons for judgment his Honour examined many of the circumstances of the parties' marriage, commented inter alia that the husband had assisted with parenting and household chores more than is customary for husbands and that the wife had fulfilled her homemaker and mother role satisfactorily, though barely so. He made an order, on what final basis is somewhat unclear, that the husband should pay to her by way of property settlement the sum of $11,000 payable within six months. Perhaps coincidentally this amounts to one-half of the total sum received by the husband by way of superannuation and long service leave pay-out when he resigned from the Taxation Department.

It is appropriate to note that the husband was under some pressure to resign from the Public Service. His Honour found, as the Department suspected, that the husband had misused his position as a taxation investigator to obtain for his own purposes confidential information from taxation files relating to the wife's present husband, Mr Edwards. It should also be noted that on the wife's case she had spent every cent of the $27,000 she had received from the earlier division of their assets.

The husband has appealed against the order on a number of grounds, ten in all. Many go merely to weight or raise minor points which were dealt with in the course of argument. Those of any substance challenge the quantum of the award to the wife and complain that it was unjust to give the wife a property settlement after she had twice declared her intention not to pursue any further claim against him; and when in reliance on this he had capitalised his superannuation and leave entitlements and invested them in the shop and business jointly with his present wife. He argued that the order would force a sale of the premises and business (which had not proved successful and was losing money) in changed economic conditions where a considerable loss on their capital by him and his present wife was likely, indeed to be expected.

We consider it a significant fact that the husband's present wife is likely to incur a loss of some part of her capital due to a sale following upon the order. She gave evidence that she would not have invested her capital in a joint business venture with the husband had she known that his former wife intended to issue property proceedings.

We consider that the making of the order by his Honour in all the circumstances was not just.

The manner in which a judge at first instance should exercise his discretion in deciding upon an application under sec. 79 was dealt with by the High Court in Mallet v. Mallet (1984) FLC ¶91-507; (1984) 9 Fam. L.R. 449, as was the manner in which an appellate court should proceed in determining an appeal from a judgment made on such an application.

As Gibbs C.J. said in the course of his judgment, Parliament ``has conferred on the Court a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made''. (Emphasis added.)

This distinction between the dual phases in sec. 79 hearings needs to be borne in mind. Often it is said, in an elliptical way, that the section empowers the court to make orders that are just and equitable. But to so say is to short-circuit the process of judicial determination required by sec. 79(1) and (2). As an example one could take the case of a husband who, on the criteria set out in sec. 79(4) would have a good claim to a substantial portion of the parties' property. He might for reasons quite outside the criteria, such as remorse for his conduct, wish to consent to an order for all or most of the property to vest in his wife. Such an order would not be one a judge would make properly taking the criteria into account. Prima facie it might appear unjust and inequitable to so order. But it is an order the court can make if it thinks fit; and in all of the circumstances, including circumstances outside the criteria, the court could be satisfied that the making of such an order would be just and equitable; perhaps even commendable.

The very wide discretion is, as we consider Gibbs C.J. to have observed, contained in the phrase ``such order as it thinks fit''.

The ``just and equitable requirement'' of sec. 79(2), though involving a discretion, is clearly not so unfettered and must accord with known and accepted legal and equitable principles. As Windeyer J. commented in Sanders v. Sanders (1967) 116 C.L.R. 366 at pp. 379-380 in connection with the effect of the ``just and equitable'' phraseology in sec. 86 of the repealed Act:

``The discretion must of course be exercised according to accepted principle, for what is just and equitable in this jurisdiction is not a matter of unfettered individual opinion.''

An appeal court may thus more surely examine an outcome in which the justice and equity of the making of an order is involved.

Nothing advanced in this appeal causes us to wish to interfere with his Honour's decision as to the fittingness of the property order based on consideration of circumstances dealt with in the criteria. It can be seen to be well within the discretion vested in him by sec. 79(1). The wife had received from their agreed distribution somewhat less than half of the property after some 12 years of marriage, even though she had three children to rear and had received next to no maintenance for them from the husband since separation. But in our view of sec. 79(2), the wife having twice unequivocally declared that she would not seek a further property settlement, it was unjust and inequitable for her to make a claim and for an order to be made in her favour. It seems that an argument along such lines was advanced to his Honour by the husband's counsel as to the creation of an estoppel. His Honour ruled against the submission. It is not necessary under this Act to import the rules which have been developed under the general law as to equitable or promissory estoppel; sec. 79(2) is a statutory provision encompassing that and other principles of justice and equity. But it can be said on the circumstances of this case that the husband was twice assured by the wife that she would not make a further property settlement claim, that he acted on that assurance and opted to receive a capital sum in lieu of future rights to superannuation and long service leave; that he invested this sum along with the capital of his present wife in a joint venture, which may and probably will involve a loss to both of them if there is a forced sale; and that the wife thereafter claimed and received a property order in her favour which will make a forced sale necessary.

In our view his Honour should not in those circumstances have made an order under sec. 79.

We would allow the appeal.