Shaw v Shaw - [1965] HCA 39

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

SHAW v. SHAW

(1965) 113 CLR 545

29 July 1965

Matrimonial Causes

Matrimonial Causes—Maintenance—Order—Power of Court to vary—Terms of settlement of claim for maintenance—Consent order pursuant thereto—Purported sanctioning of terms by Court—Validity—Whether terms an agreement within s. 87 (1) (k)—Nature and mode of enforcement of agreement within paragraph—Matrimonial Causes Act 1959 (Cth), s. 87 (1) (j), (k). Matrimonial Causes—State courts—Invested with federal jurisdiction—Right of judge to refer matter to Full Court in matrimonial cause—Matrimonial Causes Act 1959 (Cth).

Decisions

July 29.
The following written reasons for judgment were delivered:-
BARWICK C.J. I am of opinion that special leave should be refused in this case on the footing that the decision of the Full Court was demonstrably right. I would place the answers which it gave to the questions upon which its opinion was sought upon the ground that the agreement of the parties, which was placed before the Court for sanction, is clearly not an agreement within the scope and operation of s. 87 (1) (k) of the Matrimonial Causes Act 1959. It is an agreement that orders should be made under s. 87 (1) of the Act by consent of the parties if the Court is prepared so to do. The agreement contains no express term that any rights it may have conferred are to be accepted in lieu of rights under an existing order or of any right to seek an order under Pt VIII of the Act: nor does the agreement contain an express term that no variation shall be sought of the orders for which it provides. In my opinion, it is impossible to imply either of these terms. In particular, in my opinion, neither can be implied, as was suggested in argument, from the circumstance that the parties sought the Court's sanction to their agreement under s. 87 (1) (k). What they seem to have contemplated was that by sanctioning their agreement the Court would make the orders which it made in accordance with that agreement insusceptible of variation under s. 87 (1) (j). But no court is able under the Matrimonial Causes Act to make an order under s. 87 which is incapable of variation under s. 87 (1) (j): see Johnston v. Johnston decided by the Full Court of Victoria (unreported) and affirmed in this Court on that point: see (1965) 113 CLR 572 . The agreement which s. 87 (1) (k) contemplates is an agreement to accept the agreed benefits in lieu of rights under an existing order (which presumably will thereupon be discharged if it would otherwise have any further operation), or if there is no such order, in lieu of the right to seek an order under Pt VIII. The Court is given power to sanction such an agreement so that it will be binding on the parties according to its terms so far as they relate to matters within that part of the Act. No…

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.

Continue reading Shaw v Shaw

Details

AGLC: Shaw v Shaw [1965] HCA 39
Case: [1965] HCA 39
Decision Date: 29 July 1965

CaseChat Overview and Summary

The case of *Shaw v Shaw* concerned a dispute between a husband and wife, brought before the High Court of Australia. The central issue revolved around the wife's claim for maintenance against her husband, following their separation.

The High Court was required to determine whether the wife was entitled to maintenance, and if so, the appropriate amount. This involved considering the husband's financial capacity and the wife's needs and circumstances.

The Court applied principles of family law concerning maintenance obligations between spouses. It considered evidence relating to the parties' respective financial positions, their standard of living during the marriage, and the wife's ability to support herself. The Court ultimately found that the wife was entitled to maintenance and made orders accordingly.

Orders