Stanford v Stanford [2012] HCATrans 206

[2012] HCATrans 206

[2012] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P23 of 2012

B e t w e e n -

STANFORD

Appellant

and

STANFORD

Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 SEPTEMBER 2012, AT 10.17 AM

Copyright in the High Court of Australia

MR P.M. DOWDING, SC:   Good morning, your Honours.  I appear with MR P.W. JOHNSTON and MS J.R. BRADY for the appellant.  (instructed by Carr & Co Divorce and Family Lawyers)

MR M.R. BERRY:   May it please the Court, I appear with MR G. ATHANASIOU for the respondent.  (instructed by Ferrier, Athanasiou & Kakulas)

MR P.J. HANKS, QC:   Your Honours, I appear with MR R.L. HOOKER and MS D.M. FORRESTER for the Attorney‑General of the Commonwealth intervening under section 78B of the Judiciary Act.  (instructed by Australian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MS F.B. SEAWARD for the Attorney‑General of Western Australia intervening.  (instructed by State Solicitor (WA))

MR J.G. RENWICK, SC:   May it please your Honours, I appear with MR S. ROBERTSON for the Attorney‑General for New South Wales intervening.  (instructed by Crown Solicitor (NSW))

FRENCH CJ:   Yes, Mr Dowding.

MR DOWDING:   If your Honours please.  The first matter I wish to raise with your Honours is an application to deal with an amended notice of appeal.  Since your Honours gave us leave, we had consideration of the terms of the notice and sought to expand it slightly in relation to section 79(8).  The material of the summons appears at volume 3 of the appeal book ‑ ‑ ‑

FRENCH CJ:   Perhaps if I can just find out whether it is opposed.

MR BERRY:   No objection, your Honour.

FRENCH CJ:   Yes, you have leave to amend accordingly.

MR DOWDING:   Thank you.  May it please your Honour, we have made a slight rearrangement for the document that is before your Honours, and we would seek to rely on that.  Your Honours, the second thing I would say is that your Honours will see there is a fairly voluminous appeal book.  Most of the material has been included at the request of the respondent.  For our purposes, we think volume 3 is the volume that contains the relevant material, and I just draw your Honours’ attention to the bits that might be of importance.  At page 1177 the magistrate’s judgment appears.  At 1257 the Full Court’s first judgment appears and at 1351 the second of the Full Court judgments appear.  We have filed a chronology which perhaps explains something about the nature of the proceedings and your Honours may have had an opportunity to see it.

FRENCH CJ:   I think we are all pretty well familiar with the factual background and the judgments, Mr Dowding.

MR DOWDING:   Yes, if it please, your Honours.  I notice, your Honour, the only matter in relation to the magistrate’s order that I draw your attention to is although she did not order a sale of the husband’s home she did note, at paragraph 161, that she was “mindful of the fact” that her order might cause him to “have to sell the home”. 

Your Honours, the scope and purpose of the Family Law Act, as we contend it, contemplates operating at the point at which the marriage to these parties has broken down.  The history that each of the parties has dealt with in their various submissions highlights the historical link between an application for property settlement and the breakdown of the marriage, that is the link between property settlement and principal relief, divorce and the like.

That has never been true of the maintenance provisions in this country.  Maintenance has been available without a link to principal relief and with a link to principal relief, both, but historically people have not sought to agitate for property settlement - have not had a jurisdiction in which you could agitate for property settlement, absent the principal relief. 

Now, in the Family Law Act Justice Murphy’s invention, as it were, made a provision which enabled the property settlement application to be brought following a breakdown of marriage, requiring a breakdown of marriage, but not linked to the relief that the parties sought in terms of terminating their divorce.

Following Russell’s Case and following the inquiry that has been spoken of in the ‑ constitutional inquiry into the Family Law Act, amendments were introduced in 1983 in which both the Attorney‑General and the Minister representing the Attorney‑General in the Parliament indicated that this related to property proceedings following the breakdown of the marriage.  If I could draw your Honours’ attention to the document which is attached to the West Australian submission at page 21, it is in fact a copy of the House of Representatives Hansard debate in which this second reading speech was given and I draw your Honours’ attention to it because the Commonwealth have referred to the first portion of the paragraph explaining the legislation, but omitted the second.  The second reads thus:

This is a further significant recommendation of the Joint Select Committee and will be of advantage to many persons faced with marital breakdown who wish to secure a settlement of property rights before the 12 month period of separation required for divorce proceedings has expired.

HAYNE J:   Where are you reading from?

MR DOWDING:   I am reading, your Honour, on column 2 on the second paragraph which begins:

Property proceedings at present can only be brought –

There are three sentences down that begins, “This is a further significant recommendation . . . ”, and it goes on to identify the link between property settlement proceedings and the breakdown of the marriage.

Now, one of the contentions that we bring to this case is that the evidence was found by the court that this effectively was an intact marriage.  The wife had, as your Honours will know, had been admitted suffering from dementia to a secure facility where the husband visited her regularly, held her hand and spent time with her and she had at no stage sought to end the consortium herself.  Up until the point at which she had been admitted to the home they had a happy marriage, according to the husband, never a cross word.

Now, into that environment steps the case guardian to seek an order in relation to property settlement which the wife had never agitated and never sought to initiate.  There was no suggestion that she was not content with the way these parties had arranged their affairs and, indeed, as your Honours will see from the papers, in fact they had arranged their affairs in a particular way.  She had sold her home to her daughter when she and the appellant began to live together.  They would live in his home.  He procured for her a life tenancy upon his death in his will and it was a fact that they had contemplated – they were free to leave their estate as they saw fit.

Now, your Honours, we say the relevance of that to this case is that, in reality, people are free to make their own arrangements inside a marriage and it is not the role of the Family Court or parties external to the marriage, even on behalf of one of those parties, to take ‑ ‑ ‑

FRENCH CJ:   I suppose this feeds into the question of - which really has to be the threshold question here - the legal and practical operation of section 79 and the terminology of “just and equitable” in 79(2) and appropriate.  It would be good to focus upon that, I think. The statute is the point of entry before we get into wider issues.

MR DOWDING:   Yes, your Honour.  Could I take a step back, however, to look at section 43 before I enter section 49 because section 43 is clear about the role of the Court and may confine the operation of section 79 in the exercise of the just and equitable jurisdiction or it may go further, as we contend is open to the Court.  Section 43 sets out the principles to be applied.  The two elements that are relevant here are, firstly, the preservation of the institution and, secondly, giving the widest possible protection and assistance to the family.  Your Honour, an exercise under section 79 which focuses upon, as this case did, the moral claim or the moral right of the wife ignores the existence of the freedom these parties have to set up their financial affairs as they see fit.

HAYNE J:   Well, that may or may not be so, Mr Dowding.  Do we not need to enter this debate by looking at the Act?  You say that the Act, in its valid operation, does not engage with the circumstances of the case, is that right?

MR DOWDING:   I do, your Honour.

HAYNE J:   Do we not, therefore, need to begin with what section 79 says and understand its legal and practical operation before we come to these rather more general issues that you are debating?

MR DOWDING:   I am content to do that, your Honour.  Section 79 is a machinery provision which effectively enables the court to alter property interests.  With great respect, your Honour, it is my submission that the court should not embark upon the alteration of property interests in the circumstances where there is an intact marriage.  There is no warrant for the court to enter on that process.

HAYNE J:   Is that a proposition about the meaning and operation of 79(2)?  Is it a proposition of some other kind?

MR DOWDING:   It is a proposition, your Honour, that the exercise of the jurisdiction under section 79 is constrained by the need to respect the institution of marriage.  So, in my respectful submission, you do not enter into the process of adjusting or altering property rights in an intact marriage.

HAYNE J:   But that can be understood – I do not know whether it has to be understood – but it can be understood as a proposition that is about the content of 79(2).  That is, it is a proposition about what is meant by saying that the court shall not, unless just and equitable.

MR DOWDING:   Your Honour, the way in which we have read the Act in its operation is, as I have said, that section 43 in a sense is a trapdoor and you do not enter the determination of whether or not you should alter, or consider altering property interest.  But if you enter the trapdoor, as I use that expression, then I accept your Honour’s proposition that the prohibition under 79(2) is not to make an order unless the court is satisfied that it is just and equitable. 

But we are suggesting there is something more than the common interpretation of just and equitable, which seems to be an assessment of the competing interests of two parties who have litigation before the court.  What we are suggesting is that the litigation between these parties to determine whether something is just and equitable ought not to occur inside a valid marriage and I have ‑ ‑ ‑

HAYNE J:   That is a proposition that seems to conflate two different ideas.  79(2) says:

The court shall not . . . unless –

At least a possible point of view is that that is a radically different proposition from saying the court may make any order for division that is just and equitable.  Those are two radically separate and distinct ideas, I would have thought.

MR DOWDING:   Yes, I accept that, your Honour.  It is not my expression, but I accept that that is an interpretation of the Act, that the justice in equity might be defined in a way that requires consideration of all of those elements.

FRENCH CJ:   Well, you are not into a sort of palm tree justice exercise with just and equitable, are you?

MR DOWDING:   No, that is correct.

FRENCH CJ:   You are looking to, inter alia, the scope and purposes of the Act.

MR DOWDING:   Yes.

FRENCH CJ:   That is why you invoke 43.

MR DOWDING:   It is.  Furthermore, your Honour, we go to the definition of “matrimonial cause” in section 4(ca)(i), which reads to require the matrimonial cause not only to be “between the parties to a marriage”, and not only to be in “respect to the property of” them or either of them, but subsection (i) requires that these proceedings arise “out of the marital relationship”.  Now, we find some difficulty in seeing how a cause could arise out of the matrimonial relationship if it is an intact marriage.  There is no matrimonial cause in those circumstances that could arise out of an intact marriage.

KIEFEL J:   But the reference to “arising out of the marital relationship” is referring to a connection for constitutional purposes, is it not?

MR DOWDING:   Yes.  I understand the reference, your Honour, but it nevertheless contemplates that there is an issue arising out of the marital relationship.

HAYNE J:   So, for example, if, without the wish of the parties, the parties are living separately, as will occur when one of them is hospitalised, is it not open to a court to conclude that it would be just and equitable to make a property order if there were unmet needs of either of the parties?  Now, the marriage can be described as intact because it is not occasioned ‑ the separation is not occasioned at the will of either party, but can that not be so?

MR DOWDING:   We submit, your Honour, that the court would exercise that jurisdiction under the maintenance power under section 72 and under the maintenance power it can make a variety of orders to meet the needs of a party to the marriage.

KIEFEL J:   But if a party is in need of maintenance in the position they find themselves and the other party to the marriage is not meeting that need, the court then is empowered - because the need and the need for something to be done about it arises out of the marital relationship, the court then exercises its power under section 79(2) and makes an order that is just and equitable in the circumstances, having regard to the parties’ needs.  That is how it works.  It is not really very complicated.

MR DOWDING:   Your Honour, it may be that it is the failure of one spouse to adequately support the other spouse.

KIEFEL J:   Quite so, and I think here it was conceded that maintenance would be provided to a certain extent.  I mean, this is a marriage where it was accepted between the parties that there was a financial support of the other.

MR DOWDING:   One would support the other, yes.

KIEFEL J:   But that is not to say that if the financial support offered to a spouse who had to live somewhere else was insufficient or if a party to an existing marriage was refusing to make that support that the court did not have the power under the constraints of section 79(2) to make an order to protect the position of one party to the marriage.

MR DOWDING:   Your Honour, to protect the position of the party the court has the power to meet the need.

KIEFEL J:   To meet their need.  To make sure that their needs for support are met.  The keyword is “need”, is it not?

MR DOWDING:   The keyword is “need” and, of course, that does not directly arise in property proceedings.

KIEFEL J:   Property proceedings include maintenance.  They include everything to do with the financial interests of the parties.

MR DOWDING:   Your Honour, the consideration of a property order as to what is just and equitable covers the issue of what are the section 75(2) factors, that is, the factors that relate to the financial position and have been described as “need” but are not directly “need”.

KIEFEL J:   Bearing in mind need, as I understand your notice of appeal, you were saying that at the point that the Full Court of the Family Court comes to make its orders, the wife who is now deceased could not be regarded as in “need” and the order that is made is made to enhance her estate and that is not an appropriate order made, I would have thought, under either section 79(8) or the wider section 79(2).

MR DOWDING:   That is right.

KIEFEL J:   Is that not the kernel of your argument?

MR DOWDING:   Could I take it one step further, your Honour, and ‑ ‑ ‑

KIEFEL J:   I would prefer you just focussed on that.

MR DOWDING:   It is my argument but I do take it – I accept that but I take it one step further and that is that section 72 specifically imposes an obligation on “A party to a marriage”.  It is not an issue that falls on the just and equitable consideration.  It does not depend upon the breakdown of the marriage.  Section 72 makes an absolute entitlement to “A party to a marriage”.  We say that is a different consideration from a consideration under section 79, that this Act imposes, as it may properly do under the marriage power, an obligation on a party, whether they are living with or separate from their spouse.

KIEFEL J:   But if you put aside this distinction that you want to draw between powers in relation to maintenance and the settlement of property, as I understand your case, by the time the Full Court came to make its order it is your argument that the wife did not have any need which had to be met either by way of maintenance or by way of settlement of property upon her.  Is that not your case?

MR DOWDING:   That is our case.  The Full Court was satisfied that all her needs had been met.

FRENCH CJ:   Can you encapsulate the basis upon which the Full Court held it was just and equitable to make the order that it did?

MR DOWDING:   In the end, your Honour, the Full Court really dealt with it rather shortly in considering that the wife had a moral claim which is unmet.

FRENCH CJ:   Was that because of the contribution to the marriage which the magistrate had found?

MR DOWDING:   The contribution was the basis that she and her husband had lived together and she had made ‑ ‑ ‑

FRENCH CJ:   He would be 57½ and she was the rest, on the magistrate’s findings.

MR DOWDING:   That is right.  The reason we have made a reference to Waters and Jurek and handed that up to your Honours is because we say that this was a marriage which exemplified what it is that Justice Fogarty was speaking of when he wrote Waters and Jurek.  He wrote a very lengthy judgment, I think, for the purpose of informing the courts of first instance in which he described the way in which parties in a marriage are free to make arrangements with their financial property.  In the same way it follows that they are free to make arrangements for the inheritance that they might wish to leave to respective members of their family.

Your Honours, the Full Court, essentially, simply said as a result of her contribution, which we did not dispute, that it was sufficient to enliven, if you like, a jurisdiction because it created a moral claim.  They picked up the expression that Justice Brennan had used in Fisher’s Case and said looking at this case, yes, no separation; yes, intact marriage, but she had made all this contribution during the marriage ‑ ‑ ‑

FRENCH CJ:   I am sorry, I am trying to get it out of the text of the reasons for judgment ‑ ‑ ‑

MR DOWDING:   It is at the very end, your Honour.

FRENCH CJ:   At 1371, is the core of it at 55?

MR DOWDING:   It is.

FRENCH CJ:   Is there anything beyond that?

MR DOWDING:   Your Honour will see at 1370 – was that the page your Honour was on?

FRENCH CJ:   Yes, 1370.

MR DOWDING:   Yes, 1370.  It begins with the quote from Fisher and then paragraph 52:

In our view, the many years of marriage and the wife’s contributions demand that those moral obligations be discharged –

That is the point, your Honours, at which we raise this question of whether or not the purpose and scope of the Family Law Act is to enter into the intact marriage and make a determination of what parties ought to do.  That is not the case under the maintenance provisions of section 72, because, as I have said, the Act properly lays down an overriding obligation of one spouse to the other to support them, but this ‑ ‑ ‑

FRENCH CJ:   So the moral claims referred to in Fisher and in this case founded upon “many years of marriage and the wife’s contributions”, they are the factors that inform the just and equitable criterion applied in this case.

MR DOWDING:   That is right.  Of course ‑ ‑ ‑

HAYNE J:   Does that not conflate two distinct questions?  Fisher v Fisher 161 CLR 438 was the continuation of proceedings that had been commenced following separation.

MR DOWDING:   Yes, your Honour, by the wife.

HAYNE J:   Was it not the case in Fisher v Fisher that what made it just and equitable for there to be a property settlement was the fact that the parties had separated voluntarily?

MR DOWDING:   Yes.

HAYNE J:   It was that which determined that it was just and equitable that the property of the parties should be considered.

MR DOWDING:   Yes, your Honour.

HAYNE J:   In this case, where there has been living separately brought about not at the will of either party but by circumstance, am I to understand the Full Court as holding in paragraph 52 at page 1371 that the bare fact of so‑called “moral” claim satisfies the just and equitable requirement of 79(2).

MR DOWDING:   That was the Full Court’s position.

HAYNE J:   Does that not conflate 79(2) with the considerations that are to be taken account of in 79(4), that is, is not the expression of “moral” claim a description applied to the consequences of taking account of the 79(4) considerations?

MR DOWDING:   Yes, it is, your Honour.

HAYNE J:   Is there not therefore a conflation of 79(2) into 79(4) which in turn leads to the question, by what right is there that conflation made?

MR DOWDING:   Yes.  Your Honour, we accept that and we draw to the Court’s attention that the effect of the wife’s conduct in Fisher was to express to the court a determination that she was not satisfied with the arrangements into which the parties had during their marriage.  She called upon the court to readjust the arrangements as they stood from a legal perspective. 

In this case, the wife had never called for that, and that was the point we thought that your Honours might find the expressions of Justice Fogarty as a way of perceiving this issue, that is, it is not for the Family Law Act to determine that parties ought to have any particular property relationship until they come to the point of asking for a determination in which 79(2) and 79(4) apply.

KIEFEL J:   Could I take you to section 79(8), which is mentioned in your notice of appeal?

MR DOWDING:   Section 79(8), your Honour, yes.

KIEFEL J:   Section 79(8)(b)(i) and (ii).  The Full Court was required, because of the death of the wife, to consider whether it would have made an order with respect to property if the deceased party had not died – that is the first question – and then to consider whether it was still appropriate to do so.  Focusing on the first question, whether or not it would have made an order, but for their death, would bring into account section 79(2), whether it was just and equitable to do so.

MR DOWDING:   Yes.

KIEFEL J:   Here, the Full Court, when it had set aside the orders of the magistrate, had determined there were a number of things that had gone wrong in the process, that the magistrate, for instance, had failed to consider an order for periodic maintenance, given that the marriage subsisted and the husband’s concession that maintenance would be appropriate if need were established. 

The Full Court found that the findings that the wife actually needed money and her care would improve if funds were available were against the weight of the evidence, and that the magistrate had failed to give appropriate consideration to the likelihood that the husband would remain in the home, and the effects of the orders upon him.  They are all the matters that the Full Court at that point had identified as showing a miscarriage of the discretion under section 79(2).

MR DOWDING:   Yes.

KIEFEL J:   When the Full Court came to make its order when it re‑exercised, I think is the expression, the discretion ‑ ‑ ‑

MR DOWDING:   Which we had asked it to do at that point; I have to say in the circumstances, yes.

KIEFEL J:   Well yes, I think that goes without saying.  The Full Court appears to have shifted somewhat and to have simply focused upon the contributions made by the wife to the marriage and determined it was appropriate it would obviously go to the estate.  Now, that is a very different position that the Full Court placed itself in and two questions would appear to arise out of it.  In doing so, with regard to section 79(8)(b)(i), is the Full Court answering the question that it would have made the order that it did, with respect to property, if the wife had not died?  That is the threshold question.  Then whether it was still appropriate to make an order?

MR DOWDING:   An order.  I think it is “an order” not “the order”.

KIEFEL J:   Just focusing upon the shift of the Full Court here.  If, in relation to its reasons concerning the magistrate, the focus was upon whether or not there was a need for maintenance, as well as not necessarily a property order, it is not immediately obvious that there was a basis for the Full Court’s later shift to a grant of a property settlement per se.  That is, it is not immediately apparent from its reasons at that point that it would have made the order that it finally did.  So, is paragraph (i) of section 79(8)(b)(i) was that truly addressed?

MR DOWDING:   Yes, the answer I think is no.

KIEFEL J:   Because, for instance, hypothetically, if the Full Court would have, at the most, made an order for maintenance if that had been necessary the question would have still remained under paragraph (ii) whether it was appropriate to make such an order because the wife no longer was in that position.  So we have a couple of questions, but perhaps the threshold question is what is there in the Full Court’s earlier reasons which support an exercise of discretion that it subsequently made?

MR DOWDING:   Your Honour, I think the answer to that is it is solely as identified in the last two pages of their judgment, and importantly they do not address the order that they are about to make in the context of justice and equity to the husband, except in the context, well, it would not be fair to make him sell the house now.

KIEFEL J:   Well, I suppose what might also be inferred is that the Full Court failed to address the very factors which they said the magistrate had to address.

MR DOWDING:   Had to address, yes.

KIEFEL J:   That was at a time when the wife was alive.  To satisfy section 79(8) they had to address the very factors they identified and then they would have had, if they had thought that that led to an audit, they would have to have answered the additional question about whether it still remained appropriate to do so.

MR DOWDING:   That is right.  Your Honour will see at paragraph 58 that the issue of – as your Honour says, they really need to then address what is the order we are now going to make in the full context of section 79(2) and 79(4).  What they did was, in relation to 79(2), simply address the question of having determined this moral obligation, having determined that it ought to be made into a legal entitlement, it then says, well, the only question that they address in relation to the husband’s position then is the timing of the payment and we say ‑ ‑ ‑

FRENCH CJ:   It might be too generous a view, but on one view paragraph 52 in the reasons might be a step towards answering the 79(8)(b)(i) question, whether the court would have made an order with respect to property if the deceased party had not died.

MR DOWDING:   I think the difference, your Honour, is determining that the section 79(4) factors are identified in a way that would give the wife a property order is only the beginning of the process.

FRENCH CJ:   So, if we assume for the moment that the court has reason to a degree which supports an answer to the question in 79(8)(b)(i), the next question is where does it address the criterion in 79(8)(b)(ii) that it is still appropriate?

MR DOWDING:   Well, really, your Honour, only by saying we think the moral obligation has to be discharged.  That is the nub of the Full Court’s reasons for making the order at any point of time, whether the wife is alive or not.  The nub of it really is that she was a wife and she had made the contributions that all family lawyers are familiar with.

FRENCH CJ:   The difficulty is the way it is applied.  If that is right it becomes a criterion of universal application.

MR DOWDING:   Exactly and it becomes a criteria which others are free to impose on parties to the marriage in circumstances such as this.  I mean this is a case, as it were, in extremis where the woman had absolutely no capacity.  But there are many cases one might envisage where the Public Trustee or the – I cannot remember what they call them in New South Wales, but the equivalent take a role of managing someone’s property where they have a measure of disability.  They might step in and then require the imposition on what was an acceptable, to use Fogarty’s word, “partnership” between the parties. 

I do not believe I can find anywhere in the Full Court’s judgment any greater attention to the questions that are posed under section 79(8)(a) that it was appropriate to make an order and now it is appropriate to make an order and then we are going to give proper consideration to all the elements of an order, having regard to 79(2) and 79(4).

HAYNE J:   But if 79(4) dominates the whole of 79, if the considerations in 79(4) are controlling there has been a marked change effected by the Act from the position that Mr Justice Windeyer identified in 1963 in Hepworth v Hepworth 110 CLR, particularly at 317 where, true it is in the context of a Married Women’s Property Act case, reflected on the fact that Australia does not know  – the common law of Australia did not then know, at least – community of ownership between husband and wife.

MR DOWDING:   No, that is right.

HAYNE J:   If 79(4) is the leading provision in this section it means that contributions dominate, regardless of legal interests.  That is a complete inversion of the position that used to obtain.  Now, if that is the proper construction of the Act that is the proper construction of the Act, but it is, at least, something that excites attention.

MR DOWDING:   Your Honour, in its effect section 79(4) brings into play a number of issues outside the contribution and I must say if your Honour ever had need to read a bulk of family law property determinations you might find that contribution, in fact, dominates.  But section 79 ‑ ‑ ‑

HAYNE J:   All in the context, almost all in the context where what makes it just and equitable to divide is that the parties have separated and that the marriage has broken and that is what is making it just and equitable to divide.  How you divide it - that is a question for the Act.

MR DOWDING:   That is so.

HAYNE J:   That is why I suggest that the critical question in this case is, what made it just and equitable in this case to make any property order?

MR DOWDING:   Yes.  Your Honour, our contention is, nothing made it.  We make the point that 79(2) is actually not that the court shall satisfy itself, but that the court is mandated not to make any order unless it becomes satisfied that in all those circumstances it is just and equitable.  I did want to just add, as your Honours will know, that subsection (e) brings into play a whole other range of criteria beside contribution called the section 75(2) factors, and 75(2)(o) is actually the broadest of all which does not limit itself to anything in particular, it just simply makes reference to any other “fact or circumstance”.  So, there are a number of factors that the court can have regard to but contribution is certainly a critical factor.  Section 75(2)(o) talks about:

any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account –

I am not saying that that actually gives one any specific direction, but it is, I think, highlighting that a number of factors outside of pure contribution come into play.

FRENCH CJ:   When 79(4)(e) refers to “the matters referred to in subsection 75(2) so far as they are relevant”, what is the criterion of relevance?

MR DOWDING:   Yes.  Your Honour, having been a politician I know how draftsmen like to take us in circles, so I really cannot answer that.  The way in which the court interprets it is to look at all the elements of section 79(4) - of which the contribution is a critical – and then go to, basically, how does that place the parties, visa vie, each other?  Waters and Jurek was an important judgment for practitioners because Justice Fogarty, who at that time was a highly respected senior Family Court judge, made an effort to give some identification to what that actually meant.

FRENCH CJ:   You have been trying to get us into it for some time now.  What is the particular proposition you want to extract from it?

MR DOWDING:   Well, it is really the concept of the relationship, which is dealt with on page 10 of the print, which starts off:

In most marriages, there is a division of roles –

It then goes on to say:

On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end.  Individually, the parties are left largely in the personal situations that the marriage has assigned to them.

That is really, I think, a key to where the justice and equity issue kicks in because it does not apply to every marriage; there is no community of property.  The marriage law of the Commonwealth has been used to require people to support each other in a marriage, but not to arrange their financial affairs in any particular way. 

As Justice Fogarty emphasises here, the point is reached when the marriage breaks down, then the community has a role in identifying what it is that might be reassigned in property terms or money terms in order to recognise the position that the parties are in once the marriage has broken down, and that is the point at which we say the court should enter into property disputes, and not before.

Your Honour, we have sought, in our material, to just try and analyse what it was Justice Brennan was talking about in relation to this moral obligation and, as your Honour Justice Heydon has commented, it was a case directly ‑ ‑ ‑

FRENCH CJ:   Justice Hayne, I think you are responding to.

MR DOWDING:   I am sorry, Hayne, I do apologise, your Honour.

HAYNE J:   I am flattered, his Honour is not.

MR DOWDING:   Yes, I am sorry.

HEYDON J:   I am relieved.

MR DOWDING:   I am sorry, your Honour.  The point that Justice Brennan was dealing with was, of course, entirely related to proceedings triggered by the wife because of the breakdown of the marriage and not otherwise.  Justice Brennan also made some references which might be apropos to our concept of the partnership and the, as it were, unviability of the relationship between the property relationships within a marriage and that they are not susceptible to the Family Law Act. 

His Honour, in that case of R v L, was dealing, of course, with connubial rights which are a sensitive and delicate issue, but nevertheless, his Honour there referred in a way that we say could have some relevance to a consideration of whether the State steps inside the marriage, where he said at page ‑ ‑ ‑

FRENCH CJ: Well, now, this is (1991) 174 CLR 379. What page?

MR DOWDING:   Yes, your Honour, page 392 is the sentence that I would refer to, and I say, it is relating to a case concerning the sexual relationship of the parties inside a marriage.  But, he said:

The unique relationship of each marriage, the delicacy of a relationship which is intended to survive good times and bad, temptations and despondency, and the vicissitudes of family life preclude the possibility of curial enforcement of connubial rights.

Of course, but we say that is, as it were, a statement about what goes on inside the marriage staying inside the marriage, except to the point of in R v L of course rape, and except in respect of maintenance because the community regards that obligation as mandated on all married couples, but in relation to these matters, not so.

Now, if I might, your Honour, tackle one of the issues that is raised by some of my learned friends to suggest that, whilst it was truly an intact marriage, nevertheless because somebody agitated for a property settlement order that was enough to enliven the proper exercise of jurisdiction under section 79.

KIEFEL J:   Could I just interrupt you there?  You say “agitated for a property settlement order”.  The application, from what appears at page 2 of the appeal books, sought property and/or maintenance.

MR DOWDING:   Yes.  It did seek it – I accept that – but the maintenance ‑ ‑ ‑

KIEFEL J:   That is what the court was asked to do.  The court was to consider not just a division of property.  The whole question of maintenance and property was before the court.

MR DOWDING:   Yes, it was.

KIEFEL J:   That should not be lost sight of.

MR DOWDING:   No, I accept that.

KIEFEL J:   One of the things that the court had to consider was whether it was appropriate to make an order for maintenance.

MR DOWDING:   But the important essence of the judgment in relation to that is that it was found there was not a maintenance need.  The husband was meeting it, as required.  To explain the facts, the wife had some cash ‑ ‑ ‑

KIEFEL J:   Yes.

MR DOWDING:   The husband had set up a little trust fund of 40,000‑odd in case he got so ill that he could not make any further active participatory payment to the wife.  But the order that the parties sought at the time, your Honours – whilst they made reference to maintenance – which appears on page 5, does not make provision for maintenance.  I accept that they said it, but the order they sought was always a property order.  It was never in the nature of a maintenance order.

KIEFEL J:   But it would have nevertheless been open to the Family Court to make a maintenance order instead?

MR DOWDING:   Your Honour, it is always open to amend an order ‑ ‑ ‑

KIEFEL J:   Perhaps we do not need to go there.

MR DOWDING:   I accept it is always open to amend an order, but this was essentially always a property claim and our response was at all times to offer an acceptance of the maintenance obligation.  What I was leading up to saying, your Honours, was that the contention that we read from some of the material from our opponents in this is that they contend that simply the mere fact of the institution of proceedings by someone was enough to enliven the jurisdiction to make these determinations of the property arrangements, and we dispute that.  We say it could not be. 

We say, as in Sterling’s Case – I think there was a reference when Sterling got to the High Court, one of their Honours dealing with it made reference to a cushion, that is, that a public trustee might simply take an application for settlement of property to provide a cushion, out of which the public trustee might do any number of things - I suppose pay their fees, or use the money to administer the facility, whatever.  Chief Justice Gleeson said – this is at our binder of authorities – it is the transcript of the special leave application.  It is perhaps only by the by, but his Honour said:

Just before you pass from that, does it amount to this, that the benefit seen by the majority –

that is, the majority of the court –

in this case was that she would be provided with what, in other contexts, is called a cushion?

Whatever the purpose of the proceedings in this case might have been thought to be, they were at all times a rearrangement of the property rights of the parties, and no more than that.  We have said in relation to the section 79(8) issues that at the point at which the court then was called upon to make this judgment under 79(8) we are challenged to find what the matrimonial cause was.  It was not a jurisdiction enlivened by a complaint of a wife.  It was not an exercise of the power in order to meet her needs or her maintenance.  It was not an exercise even to benefit her. 

The obvious point was, of course, that she had passed away, but the reality was that at the time the court came to make the order which was so very different from Fisher, she had not sought to change what a third party might think had been fair and reasonable between she and her husband, and ensure that that continued through to her estate.  As the Full Court said in its judgment, making a reference to Konitza at paragraph 57 of page 1372:

Although the circumstances were different in some respects, similar orders were made by the Full Court . . . in Konitza –

Now, I can tell your Honours I recall Konitza terribly well because I lost the case, but in Konitza the wife had agitated prior to her death.  It was an extraordinary case, involving people’s issues before the end of the Second World War, but she had initiated these proceedings because she wanted her moral claim answered, as was the case in Fisher.

It is our respectful submission that at the time the court came to make the order there was no aspect of a matrimonial cause.  I mean you could argue that ‑ ‑ ‑

HAYNE J:   But was there not a matrimonial cause when the proceeding began?

MR DOWDING:   There was a matrimonial cause if you could argue that what was being sought arose out of the marital relationship, but at the point at which the court is required to exercise this jurisdiction we say that the matrimonial cause needs to continue.  What aspect of it was a matrimonial cause; we say there was none.  It was not the conversion of a claim by a wife into a legal position so she could enhance her estate.  It was nothing more than rearranging the testamentary rights and interests of the parties.  The husband was no longer able to utilise his property as he would wish.  The wife, being deceased, had no interest or involvement and never requested it and the only issue really then was the creation of an interest by the people who were seeking it, namely the people to whom her will had left her estate.

Now, your Honours, the other issue if I might quickly make the point to your Honours about a property order - and we have put it in our papers, I am sure your Honours are familiar with it - but it is a very different class of orders from a maintenance order.  It is a final order and what we say for the purposes of extending our issue beyond merely the facts of this case is this, that imagine an intact marriage where for one reason one of the parties has the intervention of a case guardian and an order for property settlement is made.  From that time on there is no longer an assessment of contribution at all. 

I mean in this case, for instance, if the husband painted the house before his death or if he kept the garden or if he did any of the things that could be considered – or took his wife food so she would enjoy a different menu –none of those things which, in ordinary circumstances, would be counting up in the contribution bank account, all of those are no longer relevant because of the finality of the property order.  We say that in itself demonstrates the inconsistency of having a jurisdiction which deals with property during an intact marriage.

Your Honours, I am not walking away from any of the filed material, but I do not want to be repetitious or read things that your Honours have already grasped.  In essence, I think we have stated our position in relation to the matter.  We say it goes outside the mere facts of the case because it deals with the two important principles.  One is whether the object and purpose of the Act extend to dealing with the position of an intact marriage other than in relation to maintenance and, secondly, whether section 79(8) goes beyond it.

The final matter, if I could, is to say to your Honour that we see the fact that the Act no longer links the two issues of ancillary relief and principal relief as a desire, as the Attorneys‑General said in 1983, to procure the opportunity for one or other of the parties to make the step into the court immediately on the breakdown of the marriage and not to suggest in any way that it predates the breakdown of the marriage.

We are heartened a bit by that because when it came for the draftsman to decide how he or she would envisage the de facto jurisdiction being added into – when the de facto legislation was introduced as a mirror of the rights and interests of married people, the jurisdiction of the court was not enlivened under section 90SM until the breakdown of the de facto relationship.

Of course, the timing in which the de facto proceedings can be brought are two years following the breakdown of the relationship.  So in the de facto jurisdiction it is absolutely clear that the property rights and interests of the parties cannot be enlivened until there is the breakdown of the relationship.  We just see that is a consistency across the board with what the proper understanding of the Family Law Act is.

FRENCH CJ:   Is that everything you want to say on the constructional side?

MR DOWDING:   It is, your Honour.

FRENCH CJ:   It might assist the Court to hear from the respondent on that aspect.

MR BERRY:   May it please the Court.  Your Honours, the construction which the appellant contends for seeks that before a spouse can engage section 79 there must be a separation under Part 6 of the Act and the respondent says, as a general proposition, that that may create consequences which are unnecessary and undesirable and if the Court is faced with a choice of competing constructions then the Court need not adopt a construction which is going to have consequences which are undesirable consequences. 

In the outline which was handed up this morning, there was a case called Price v Underwood which was handed up as well, and if I could ask your Honours to refer to the paragraphs which are tabbed on that case.  Your Honours, this was an appeal about a case guardian bringing a divorce application on behalf of a person with a disability.

FRENCH CJ: This is [2009] 41 FamLR 614. It assists if you can cite the reference when you refer to a case because we then have it in the transcript.

MR BERRY:   Yes.  Thank you, your Honour.  The first reference point, your Honours, that we take the Court to is at paragraph [96] on page 641.  The Court makes it plain that the case guardian is entitled to bring an application for divorce, but in paragraph [96] Justice May makes the observation that there was already a communication by the husband to the wife “that the marriage was at an end”.  This is an important point in this case in respect of evidence which is available to a case guardian to prove a breakdown of marriage and the evidence came essentially from the other party conceding that there was a breakdown of the marriage.

Then, if I can refer your Honours to page 650 at paragraph [145].  This now becomes the joint judgment of Justices Boland and Ryan.  The crux of this case, your Honours, is that the majority says:

that the rules permit a case guardian to bring an application for divorce.  But such an application will be nugatory unless the case guardian can satisfy the court that the marriage has irretrievably broken down by demonstrating that the applicant, whom the case guardian represents, had the requisite intention to bring the marriage to an end –

in addition to living:

separately and apart -

So that this is highlighting the difficulties which a case guardian may have in proving a breakdown of marriage where there is a person with a disability, a spouse with a disability.

HEYDON J:   What has it got to do with this case?

MR BERRY:   I am sorry, your Honour?

HEYDON J:   What does it have to do with this case?

MR BERRY:   Your Honour, what it has to do with this case is that the appellant is contending that section 79 should not be engaged unless there is a separation and the reason why it is relevant is that if a separation is a required element what may be a consequence of that is that a disabled spouse must remain, or may possibly have to remain, a party to an intact marriage unless or until the able spouse severs the consortium vitae, or unless and until the disabled spouse can adduce evidence what the marriage has ended.  So, a disabled spouse essentially is locked out of section 79 even in circumstances where in truth the marriage has broken down, but it is beyond the control of the disabled spouse to adduce evidence.

HEYDON J:   Why has the marriage broken down?

MR BERRY:   I am not suggesting, your Honour Justice Heydon, that in this particular case that is a relevant proposition.  My submission is the more broad proposition put by the appellant that section 79 should only be engaged on a separation of the spouses and the point I wish to make about it is that if one of the spouses happens to be a spouse with a disability that creates what potentially could be a highly unjust constructional consequence of that construction.

BELL J:   Because of the difficulty of leading evidence of the fact that the disabled spouse wishes to see the marriage at an end, is that the point you are making?

MR BERRY:   Yes, it is, your Honour, and the primary judge in this case made an observation at appeal book 3.  Your Honours, can I just emphasise that the points I am making now are not said to apply to this particular case.  We accept that this was an intact marriage up to the point when the wife became disabled and went into a nursing home.  The submissions I am making relate to the general proposition put by the appellant that there should be a broken down marriage or a separation before section 79 can be engaged.

Your Honours, at the appeal book volume 3 at page 1191, at paragraph 36, the primary judge in this case at trial made some comments about the status of evidence and hearsay evidence being adduced on behalf of the spouses.  There was some controversy as to whether there was an agreement that hearsay evidence could be given and there was a reference to a conciliation conference file note.  The primary judge, in paragraph 37, indicated that hearsay evidence “should not be permitted”.  Over the page at 1192, in paragraph 39, the wife is incapacitated – at line 43:

[B] is completely incapacitated by her disability but [C] is not.

So that the wife was not able to give evidence, and did not give evidence, in this matter and the husband did.  But, your Honours, the injustice which could flow if the Court adopts the construction by the appellant is that you are locking in, potentially, a disabled spouse into a marriage unless they can adduce evidence of a separation.  That is not a construction which is necessitated by the statute.  That is the first point we would make in relation to that.

The point that my friend makes about strangers making decisions about commencing proceedings in this case – the wife could not make the decision.  Why would it not be appropriate for someone else to look after her interests, as Part 6.3 of the rules makes provision for, that a case guardian is entitled to make decisions for the represented person in their best interests?  There is a capacity to apply to discharge a case guardian.  That was never done in this case.  So that it is perfectly proper for a party to an “intact” marriage who loses that party’s capacity to be able to have a case guardian represent their interests.

On the matters of construction, your Honours, your Honour Justice Hayne made an observation about whether section 79(4) was controlling.  In our respectful submission, we would not say that section 79(4) is the controlling provision within section 79.  If there is said to be a controlling provision within section 79, we respectfully submit that it is section 79(2).  It is the making of the order being just and equitable which is the ultimate gateway to whether an order is made.  The criterion of justice and equity – whether it is just and equitable – has to be what it satisfies the court of before it makes an order.

However, in forming a decision about whether it is just and equitable to make an order we say that decision is informed by the mandatory elements within section 79.  Section 79(4) is a mandatory requirement that if the court is to determine whether it makes an order or not, in determining whether to make an order or not the court must have regard to, and it then lists the specified matters in subsections (a) through to (g). 

The first three factors - (a) to (c) - refer to the contributions factors and the balance, generically referred to as the adjustment factors, which are generally prospective in nature whereas the factors from (a) to (c) refer to the past up to assessment of the present contributions of the parties.  So while we say, Justice Hayne, that section 79(4) is not controlling, section 79(2) is, but it is heavily informed by what the court’s assessment is of the section 79(4) factors.

HAYNE J:   What is it in this case that made it just and equitable for the court to make an order?

MR BERRY:   Your Honours, the Full Court addressed that issue towards the end of its second set of reasons.  If I can refer your Honours to pages 1370 and 1371 of appeal book 3 and in the discussion at paragraphs 51 and following we accept, your Honours, that the Full Court did lift the phrase “moral claim” from Justice Brennan’s reasons in Fisher.  We also accept that the reference to a moral claim does not find any expression in section 79(8). 

However, we would respectfully submit that the Full Court nevertheless did have regard to the relevant considerations in 79(8)(b)(i) and (b)(ii).  Your Honour Justice Hayne, in answer to your question, the two factors which the court identified as being relevant to why it is a just and equitable order are firstly in paragraph 52 ‑ ‑ ‑

HAYNE J:   No, not that the order was just and equitable.  What was it that satisfied the requirement of 79(2), namely:

shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

MR BERRY:   Your Honour, what made it just and equitable to make the order is that the wife would essentially have unrecognised entitlements, an unrecognised entitlement based on 37 years’ worth of contributions to a marriage, albeit, an intact marriage.

HAYNE J:   I understand the proposition to be that the bare fact, and it is a rather complex fact, but the bare fact that by reason of contributions the legal interests – go back a stage - the legal interests in property, which each of the parties to the marriage have, do not reflect the consequence that would be obtained under 79(4).  That is step one, is it?

MR BERRY:   Plainly, your Honour, on step one the assessment of contributions, the court’s finding plainly was that the legal entitlements of the parties did not reflect their contributions to the marriage.

HAYNE J:   That fact alone makes it just and equitable to make an order.  Is that the proposition?  I am not saying it is wrong, but I just need to know what the proposition is.

MR BERRY:   I would answer that, your Honour Justice Hayne, by saying that that seems to be what is the dominant – and it would appear to be the sole factor.  I am hesitating to say that, but looking at the Full Court’s reasons it does seem to be at least the very dominant consideration in the Full Court’s assessment and I cannot point to any other factor which affects that conclusion other than to say that the Full Court in paragraph 54 appears to have regard to the wife having a very meagre estate and that but for the making of an order the wife would not have an estate. 

Underpinning the Full Court’s discretion in this matter, your Honours, appears to be the proposition that part of the just and equitable exercise is that after a lengthy marriage where there have been contributions accrued by spouses which are not reflected in legal title, it is just and equitable to make an alteration of those legal interests to more closely reflect, in a party’s estate, what they would have accrued in their lifetime.

HAYNE J:   Regardless of whatever the parties to the marriage may have wished.

MR BERRY:   Your Honour, that proposition I hesitate to acknowledge would apply in this particular case, and I say that for this reason.  We accept that as a matter of fact, there were no proceedings taken by the wife in relation to property interest while she was not disabled, but we do not necessarily accept that this was a happy acquiescent arrangement which was in place between the parties.  So, irrespective of their wishes ‑ ‑ ‑

HAYNE J:   Would you accept that it is at least without the expressed wish of the moving party?

MR BERRY:   Yes, your Honour.  Your Honour, can I just elaborate on the point about the assets held by the parties legally.  Your Honours will find in the appeal book at pages 1366 and 1367 in paragraph 44, that comprises the legal interests of the parties’ estate, both parties’ assets, and save for the notion of the last item on page 1367 in the table of an add back, a notional asset, the other assets which are there identified under the columns “HUSBAND” and “WIFE” reflect the legal interest which each spouse had in the matrimonial estate. 

I would respectfully submit that within paragraph 54, part of the Full Court’s discretion is having regard to what the consequence would be for the wife’s estate if she were not to receive an adjustment of property interest in her favour, and the Full Court took the view that justice and equity within section 79(2) extends to a benefit received by a spouse’s estate based on matters arising out of a marital relationship which hinged very substantially on contributions over a 37-year marriage.  That appears to be the reasoning process of the Full Court.

FRENCH CJ:   Is there any distinct factor underpinning the answer to the question posed by 79(8)(b)(ii), is it still appropriate?

MR BERRY:   Yes, Justice Kiefel’s questions about the elements in section 79(8) – both elements, your Honour, were, would the court have made an order with respect to property if the deceased spouse had not died?  And the answer to that question, your Honours, requires a move back to the first set of reasons which the Full Court delivered in October last year  If I can ask your Honours to look to pages 1306 and 1307 of the appeal book in paragraph 124, the court at this time was aware that the wife had passed away.  In paragraph 124, the Full Court identifies a spectrum of possibilities as to the orders it might make, and it refers to:

If a re-exercise is deemed to be appropriate the orders available to the Court include an adjournment of the proceedings –

i.e. an adjournment of the property proceedings –

or may be orders which take effect at a future date or event.

Then the Full Court invites submissions from the parties about how the matter should proceed so that, in my submission, the Full Court is reflecting its thoughts or its views about what orders might it make and the range of orders available are:  adjourn the property proceedings generally if the wife continued to live, or make an order with immediate effect but it only takes operation – I am sorry, if I can withdraw that, your Honours – make an order which has effect at a future date or event.

KIEFEL J:   Is there anything in the reasons of the Full Court at this point which suggests that the Full Court had come to a provisional view that a final property settlement was appropriate at that point in time, hence the discussion about adjournment?

MR BERRY:   Yes, your Honour, in the first set of reasons it would be fair to say that the Full Court made a number of comments that there was no compelling reason at that point in time why there needed to be a final property order.

KIEFEL J:   Yes, I think in summary the Full Court had found that the evidence did not support the making of a maintenance order in relation to the wife’s further support and, if you considered the potential of the effect upon the husband, they were looking at the question of whether it should be adjourned over to see if questions arose in the future about the wife’s needs.  Is that a fair summary of the approach that they took at that point?

MR BERRY:   Your Honour, it is not plain that there was ever a dismissal of an application for maintenance because that application was not made by the wife; it was a proposition put up really by the husband.

KIEFEL J:   No, but the court at a number of points talks about adjourning it over, particularly at paragraph 119 in the third dot point.

MR BERRY:   Yes, that is so, your Honour.  In answer to your Honour’s question, it is not plain that the Full Court specified beyond paragraph 124 on pages 1306 and 1307 where on the spectrum it would have made an order stepping into the shoes of the magistrate, but all of those orders, we would respectfully submit, any in those range would satisfy the requirements of section 79(8)(b)(i) and be an order with respect to property, and it would require your Honours to accept the proposition that an order preserving property rights is essentially an order with respect to property.

KIEFEL J:   But the only factor which has occurred between the Full Court expressing these views and the order it made subsequent was the death of the wife.

MR BERRY:   That is so, your Honour, and why that makes all the difference, we would respectfully submit, is found in part – if I can refer back to the primary judge’s reasons in this matter, because that reflects a position which is not contentious.  At pages 1190 and 1191 of the appeal book these were the reasons for judgment of the primary judge and at paragraph 28 at the foot of 1190 the primary judge recites essentially section 79(2) and then observes that:

if a final property order was made between parties whose marriage was intact, the consequence might be an unjust and inequitable division when the parties ultimately separate.  In this matter however the incontrovertible evidence is that [C] and [B] live separately now and they will continue to live apart in the future.

So that the typical factor which would bear on a court in determining a section 79 application where spouses are not separated is that section 79 is a once and for all proposition and once the final order is made it cannot be revisited except in the narrow circumstances of section 79A of the Act and ordinarily during an intact marriage the court will not be able to correct in a sense a final property order if at a later time the spouses separate.  Hence, the Full Court’s canvassing of the possibility that – adjourn the proceedings generally is an option but when the wife dies this is now the time when a property order cannot be made unless it is made under section 79(8).

There is no concern about a property order unable to be amended or revised because we have now reached the point where a property order is either made at this point or not at all and the Full Court took the view that having regard to section 79(4) it was appropriate for the wife’s estate to receive the benefit of her contributions accrued over the marriage and that was in a context where the facts were agreed about the asset pool, the facts were agreed about contributions and this re‑exercise was done by agreement of the parties and the court drew those conclusions on the material before it. 

We would respectfully submit that that was an exercise of discretion which was open to the Full Court under section 79(8) and in subsection (2) the court plainly had the view that it is now appropriate to finalise the financial relationship between the parties in these circumstances.  Your Honours, I do not know if I can assist the Court much beyond what I have said unless there are further issues would assist the Court to be addressed on.

FRENCH CJ:   Yes.  Thank you, Mr Berry.

MR BERRY:   May it please your Honour.

FRENCH CJ:   Mr Dowding in reply on the constructional question.

MR DOWDING:   It is perhaps trite to say, your Honours, that at that point of course that my friend is speaking of the wife is no longer able to readjust her estate, perhaps by giving the house back to the husband.  I mean, it just beggars that issue in the sense that she is no longer able to make any determination on the subject.  Could I just draw your Honours’ attention to some comments in relation to that proposition that the next friend, the case guardian, is able to make decisions for the wife.  There is one expression, at first instance, from Justice Dessau in the case of Jennings where her Honour said ‑ ‑ ‑

FRENCH CJ:   The reference?

MR DOWDING: I am sorry, your Honour. It is (1997) FLC 92‑773.

HAYNE J:   What is the proposition that you want us to take out of this?

MR DOWDING:   It is the proposition, your Honour, that the case guardian should be seen as - in the place of the wife - able to make all the relevant decisions, including those decisions which might be used by the court to accept the jurisdiction under section 97(2).

HAYNE J:   Do you dispute that?

MR DOWDING:   In some circumstances it may be so and in the case of Fisher, for instance, it would be so, but not in a case like this.  In Jennings, which was a case similar to this, it was held at first instance that it would be a perverse proposition that an administrator, a person who, through a disability is unable to organise his or her own affairs, could reach a decision that the marriage has ended.  I think that is an echo of the case that my learned friend Mr Berry cited on the institution of divorce proceedings.

HAYNE J:   The proposition that the marriage is either intact, the proposition that the marriage is ended, though of disarming simplicity is apt to mislead in both cases, is it not?  What we are confronted with is a circumstance where the parties are living separately, not by choice but because of necessity.

MR DOWDING:   Yes.

HAYNE J:   Now, if we put on that a tag of “intact” or “not at an end”, what more have we gained?  Nothing, have we?

MR DOWDING:   In my submission, we have, with respect, your Honour.  It is my submission that we have a matrimonial relationship which is continuing and that is the important element.  At least from the husband’s perspective, he had not stepped away from that loving relationship.  To the extent that the wife had any capacity the evidence was she seemed to enjoy his presence.  I am not saying you can read much into that, but neither of them really regarded this marriage at an end, never had.

HAYNE J:   This was not a matter of choice.

MR DOWDING:   It was a matter of choice?

HAYNE J:   It was not a matter of choice that they were living separately.

MR DOWDING:   It was not a matter of choice.  That is right.  Justice Kay, your Honours, in the case that we have referred to of Sterling, the Full Court, before it came to the High Court – that is a reference that appears - I think the only reference we have is [2000] FamCA 1150. That was the Full Court’s determination which, surprisingly, I do not think was reported on its way to the special leave application. But Justice Kay dealt in a dissenting judgment at some length with this issue. At page 7 of the report, paragraph [22] embarks on an analysis of what these relationships might mean and at paragraph [33] provides a useful analysis of that situation, the Sterling situation, and he ends at paragraph [33] by saying this:

An order made in the course of a subsisting marriage may be a clear indication that the court is not willing to protect the institution of marriage as a union entered into for life.

FRENCH CJ:   This is your 43/79 interface?

MR DOWDING:   It is, your Honour, and in relation to my learned friend’s proposition and your Honour’s Justice Hayne’s proposition that this circumstance was forced on the parties, his Honour Justice Kay deals in paragraphs 40 and 46 with a number of aspects that are apropos of this case because, of course, Sterling was very close to the facts of this case.  My learned friend makes reference to the Full Court’s views about the justification for moving forward into making an order. 

I just draw your Honour’s attention to the fact that at page 1303 the Full Court, in answer to a question that your Honour Justice Kiefel raised with my learned friend about the move between the 79(4) process and the 79(8) process, the Full Court says in paragraph 112 at the end of it:

In our view there are many aspects of this application which do not require an immediate order finally altering the interests of the parties in their property and particularly so where it would require the husband to leave his home of 48 years in which he is still residing.

That is not the same thing as doing what the Act requires.  I mean, if this is said to enhance their later comments at page 1371, this is not doing what they are required to do under 79(8), determining whether it is now appropriate to make an order.  This is simply saying well, this is the consequence of making an order.  Should we make it in those circumstances?  It is not the analysis of section 79(2) and 79(4) and 75(2) that the court is required to embark upon.  Those are the comments in reply, if your Honours please.

FRENCH CJ:   Thank you, Mr Dowding.  The Court will adjourn briefly to consider what course it should take.

AT 11.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.57 AM:

FRENCH CJ:   The Court will consider its decision on the basis of the arguments thus far put.  The Court adjourns until 10.15 tomorrow morning.

AT 11.57 AM THE MATTER WAS ADJOURNED