Skoflek v Baftirovski

[1988] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S27 of 1988

B e t w e e n -

MARIJA SKOFLEK

Applicant

and

SULJA BAFTIROVSKI

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J TOOHEY J

Skoflek

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 1988, AT 2.30 PM

Copyright in the High Court of Australia

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MR J.L. GLISSAN, QC: If the Court pleases, I appear with my

learned friend, MR R. SWEET, for the applicant.

(instructed by Cameron Gillingham & Co)

MR M.D. BROUN, QC: If the Court pleases, I appear with

MR C. FEILICH for the respondent. (instructed by

Mee Ling)

MASON CJ: Yes, Mr Glissan.

MR GLISSAN: If Your Honours please. Would it be convenient

if I adopted the practice of handing up a short outline

of the argument?

MASON CJ: Yes. Now, having read your outline, I take it that

you are not founding jurisdiction on any evidence

relating to, as it were, continuity of funds between

the parties stemming from marriage?

MR GLISSAN:	No, Your Honour. The jurisdiction is said to be founded simply on the proposition which appears most
clearly perhaps from the chronology which is at the back which indicates that the cohabitation of the
parties was uninterrupted in any significant sense
from their marriage in Yugoslavia in 1947 to the separation which occurred at some time in 1982. That
is true as a matter of fact.  It was, of course,
punctuated by divorce proceedings which moved to finality
in July 1956 and it is that that raises the question that is posed under section 4(l)(ca)(i).

DAWSON J: Punctuated how, by a comm.a or a full stop?

MR GLISSAN: Well, Your Honour, so far as the law is concerned,

punctuated by a full stop. So far as the expression

"marital relationship" is concerned, by a comm.a.

And that really is the short point; if that fails to

find favour with the Court then the applicant cannot

succeed.

MASON CJ: But they are not now married, are they?

MR GLISSAN:	No, Your Honour.
MASON CJ:	If they are not now married how can the marital

relationship remain on foot?

MR GLISSAN:  Your Honour, that seems to have been the area in

which, in our respectful submission, the Full Court

failed to properly assess what the meaning of the

section was and in respect of which it is proper, we

would say, for this Court to grant leave to determine

that question. Now, the answer to that question as

we would propound it to the Court is this: "marital

relationship" i.s a much broader ten:n th:m i,t mieht

at first appear on a first reading. The section itself

talks about two separate concepts. It talks about "the

matrimonial cause" and it talks about a "marital relationship".

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As we would put the test to the Court, the first of those,

"the matrimonial cause",is something which falls within

the FAMILY LAW ACT. It either falls within the marriage

power of the Connnonwealth or the extended powers which

have been garnered to the Connnonwealth legislative

competence under the FAMILY LAW ACT as it has been extended
from time to time. "The marital relationship" is simply

a concept relating to continued and continuous

cohabitation. The two cases that are referred to in

the judgment - perhaps it is convenient if I take

Your Honours to those as they appear in the judgment

of the Full Court - are a case called BAND B - that is a

somewhat quaint method of citing cases that the Family

Court has - (1985) Fam LR, but the relevant passage is

to be found in the judgment of the Full Court and at

page 22 of the application book and it is clear that

that court at least accepts the proposition that the

marital relationship can continue after the legal full stop

that Mr Justice Dawson referred to. "Marital relationship"

relates to events both during and after that legal

full stop but is said to require a nexus with the

original marital relationship or it may be with the

original marriage.

Now, Your Honours, it is that nexus that is

really called in question. That, we readily concede, is

in any given case a question of fact but because of the
circumstances of this case and the construction that the

court has placed on the meaning of the expression

"marital relationship", we say this is a proper vehicle

for this Court to pronounce on the extent and quality

of the nexus that is required.

Your Honours, there are two cases referred to in the Full Court's judgment, each of them very different to this case in one sense; that in each of them at the

pronouncement of decree - at the pronouncement of the

legal full stop, if I can go back again to

Mr Justice Dawson's formulation of my case - there was

a separation which extended over a very long period of time

or a very substantial period of time.	In the B case
it was a period of two years. In the other case that

is referred to in the judgments of the court, that is

LEIBINGER, it is a period of five years. In this case,

whatever may have been the legal effect of the

pronouncement of decree of divorce in 1956 between the
parties there was no interruption at all to the marital

relationship if that term properly attracts the

construction that we seek to put on it.

MASON CJ: What do you say "marital relationship" means? I would

have thought myself the marital relationship would

necessarily terminate when the marriage was dissolved

but you obviously give it an on-going content. Now, can

you explain to us what you envisage Ly thi::; wysi..:.i.<..;a.l

notion of the relationship?

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MR GLISSAN:  Your Honour, it is really a matter in which my

submission is bound up by the conception that seems

to have been attached to the term by the Family Court

and in that context it is perhaps helpful if I do take

Your Honours to the factual material and particularly

to the judgment of the Full Court. It was accepted both
at first instance by the primary judge and by the Full

Court that the parties continued to cohabit as man and

wife notwithstanding the dissolution. That would be

the first proposition that we would advance as being
evidence of continuing marital relationship within

the meaning of the Act. So that where there has been no interruption at all to the cohabitation as man and

wife, the marital relationship continues, whatever
other adjustment may have been made to the standing

of the parties.

MASON CJ: You would treat the dissolution as having no legal

affect on the marital relationship that previously
existed?

MR GLISSAN:  For the purposes of this section, Your Honour, yes.

I do not see how I can possibly advance the argument

without putting that proposition almost as bluntly as

that.

TOOHEY J: Then what work do you give the word "marital" to do

in those circumstances?

MR GLISSAN:  Your Honour, it means this, that it stems from an

original act of marriage or right of marriage between

the parties. If it was simply a de facto relationship,

if I can use that expression, then there would be no

marital relationship and it would fall outside the

purview of the Act.

DAWSON J: Well, divorce affects some change in the relationship

between the parties, does it not?

MR GLISSAN: Yes, Your Honour.

DAWSON J: Well, what is the change?
MR GLISSAN:	But I did restrict my answer to the Chief Justice

toa· so far as this section is concerned and

Your Honours will see that this section is restricted

to dealing with property applications in certain

circumstances where they arise out of the marital

relationship.

DAWSON J: Yes, but what is the change that the divorce affects to

the relationship?

MR GLISSAN:  Your Honour, so far as this case is concerned - - -

DAWSON J: No, generally.

MR GLISSAN:  Yes, I was rather afraid Your Honour would draw me

back to a general proposition. Your Honour, as a general

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proposition it affects changes which are very

substantial changes in the relationship between the

parties. It affects legal changes; it affects

changes in relation to the custody and maintenance

of children.

DAWSON J: More importantly, they cease to be husband and wife,

do they not?

MR GLISSAN:  Your Honour, yes.

DAWSON J: And a marital relationship is a relationship of husband

and wife, is it not?

MR GLISSAN: Well, Your Honour, that does not seem to be the

construction that is given to the expression "marital

relationship" by the Act.

DAWSON J: Well, the Act speaks of "proceedings arising out of

the marital relationship" and I can conceive of proceedings

which hark back to a previously existing relationship which no longer exists but I cannot see, and you must

say for your case here, that the marital relationship

itself persists.

MR GLISSAN:	Yes, Your Honour, that is precisely so.
DAWSON J:	I find some difficulty with that because proceedings

35 years later cannot be said to arise out a marital

relationship if you take the view that the marital

relationship ended upon divorce.

MR GLISSAN:  No, Your Honour, that is perfectly correct and if

Your Honours take that view - - -

DAWSON J: That is your difficulty.

MR GLISSAN:  - - - that is the end of the case.

DAWSON J: Yes.

MR GLISSAN:  And if Your Honours do not wish to hear from me

further I can accept that that is the end of the case.

But the proposition that is put is this: that where

there is no interruption to continued cohabitation,

there is no factual alteration in the relationship

of the parties, the mere fact of divorce ought not

to prevent the Family Court exercising an extended

jurisdiction given to it by this section in relation to

the behavior of those parties. Different is the case

if there is some novus actus interveniens, a separation

followed by a resumption of the de facto relationship as in the B

case or as in the LEIBINGER case, but we seek to draw

a distinction between the proposition where there is

no change in the relationship of the parties but the
nominal legal change and where there is a substantial

change in the relationship of the parties even though

they subsequently resume some other sort of relationship.

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TOOHEY J: Mr Glissan, there is an extension, I think, implicit

in subparagraph (1) but the extension lies in the

fact that it is not necessary for the marital

relationship to persist for there to be a relevant

matrimonial cause but the proceedings must somehow

arise out of that relationship.

MR GLISSAN:  Well~ if that be the test then we would respectfully

put to the Court that we fall within that extension for this reason: if time alone is not sufficient -

and, of course, that is the qualification. As

Mr Justice Dawson says 35 years is a very long time for a relationship to persist - that if it be the fact B

that what Your Honour has just put to me accurately
represents the extension, then these parties fall
within that extended concept because the marriage is

dissolved, the parties otherwise continue their

joint life - using that as a singular expression -

and relationship otherwise unchanged - - -

TOOHEY J: No, you have left one factor out of account. The

marriage has come to an end.

MR GLISSAN:	Yes.
TOOHEY J:	And the marital relationship has come to an end.

You would seek to say the marriage has come to an end

but the marital relationship persists.

MR GLISSAN: Persists, yes.

TOOHEY J: Well, that may be a contradiction in terms.

MR GLISSAN:	Your Honour, it depends on whether one is able to draw a distinction - a logical distinction between
"marital relationship" in the sense that the Chief Justice put it to me earlier and in a sense for which I contend.

TOOHEY J: Is that an expression that appears anywhere else in

the Act?

MR GLISSAN: Yes, Your Honour, from time to time. It seems to be

subject to different constructions depending on where

it appears even within the Act. It would be my submission

that there is little assistance to the Court to be gleaned

from looking at any of the other sections.

DAWSON J: What if the parties have lived together before they

were married in the same relationship as they - apart
from the fact that they were not married - lived in

when they were married, would you say that was a

marital relationship preceding the marriage?

MR GLISSAN:  Your Honour, I think I answered that question by

indicating to the Court at the outset that it was a

relationship that arose with, and I think I used
the expression "the right of marriage". So, I think

the answer to Your Honour's question is no, and besides

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which it does not really arise,there being no

retrospective extension in the FAMILY LAW ACT.

MASON CJ:	One could equally say that this arises out of that pre-existing de facto relationship and came into
existence before marriage.
MR GLISSAN:	Yes, Your Honour.
MASON CJ:	But that, of course, would be of no use to you.

MR GLISSAN:  No use to me at all, Your Honour. That is the

only point of those points which were originally

pleaded in relation to an application for special

leave which we seek to argue and unless there is some

particular matter with which I can assist

Your Honours I do not wish to put anything further in

relation to the application.

MASON CJ: Yes. It is very unfortunate that this question of

jurisdiction arose so late in the proceedings.

MR GLISSAN:  Yes, Your Honour.

MASON CJ: There is nothing you can do to overcome that.

MR GLISSAN:  I do not think there is anything I can do to argue

that proposition. It is not like a connnon	law case
where there is a consent to jurisdiction.	I domt
think I can contend for that proposition.

MASON CJ: No.

MR GLISSAN:  Had I seen anyway of doing it, Your Honours, I

would have.

MASON CJ: Yes, I am sure you would. We need not trouble you,

Mr Broun.

The decision of the Full Court of the Family

Court is not attended with sufficient doubt to

justify the grant of special leave to appeal.

MR BROUN:	We would ask for an order for costs, Your Honours, and I would perhaps mention, in relation to
Your Honour the Chief Justice's remark, that the question of the jurisdiction was raised in a separate hearing before the trial judge began on the main trial
and Her Honour the trial judge rejected it as a
preliminary point before proceeding with the main hearing.

MASON CJ: Thank you, Mr Broun. I thought we had established

the principle that you did not secure costs in this

Court?

MR BROUN:  No, Your Honour, I did, I remember, succeed once.

We would ask for costs, Your Honours.

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:MASON CJ: Yes, the application is refused with costs.

MR BROUN: If the Court pleases.

AT 2.47 PM THE :MATTER WAS ADJOURNED SINE DIE

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