Sterling v Sterling

[2001] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S250 of 2000

B e t w e e n -

MAURICE PATRICK STERLING

Applicant

and

DOROTHY IRENE STERLING (By the Protective Commissioner of New South Wales as her next friend)

First Respondent

PROTECTIVE COMMISSIONER FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2001 AT 11.50 AM

Copyright in the High Court of Australia

MR G.C. LINDSAY, SC:   May it please the Court, I appear for the applicant.  (instructed by Marriott & Oliver Solicitors)

MR G. RICHARDSON, SC:   If your Honours please, I appear with my learned friend, MR R.I. MAURICE, for the first respondent.  (instructed by Moss Krouk & Associates)

MR T.J. TUNBRIDGE:   If it please the Court, I appear for the second respondent.  (instructed by Protective Commissioner for the State of New South Wales)

GLEESON CJ:   Yes, Mr Lindsay.

MR LINDSAY:   May I had up a document by reference to which I propose to address.

GLEESON CJ:   Thank you.  Could I ask you whether what appears on page 27 line 34 and 35 is an accurate statement of the way the case was conducted?

MR LINDSAY:   That is.

GLEESON CJ:   Yes, thank you.

MR LINDSAY: These proceedings raise questions as to the operation of section 79 of the Family Law Act, where there is a continuing marriage and there has been an enforced separation of the parties by reason of mental illness. The proceedings concern an application brought by the Protective Commissioner in the name of one of the spouses. The particular questions that arise are stated generally in paragraph 1 of the document, but the crux comes in paragraphs 2 and 3. The trial judge found that the fact of an enforced separation through a medical condition of itself justified the making of an order under section 79 irrespective of whether there was available, as there was, maintenance from the husband and a continuing relationship. We say that the trial judge’s discretion miscarried for the reasons stated by the minority judge at page 47.

HAYNE J:   Do you say that the discretion miscarried in the sense that it was a judgment not reasonably open to the trial judge?

MR LINDSAY:   We do say that and we say ‑ ‑ ‑

HAYNE J:   Why was that so?

MR LINDSAY: Because, in our submission, the mere fact of physical separation which is involuntary could not, of itself, justify what amounts to an interference by, in practical terms, a party outside the marriage for relief in the nature of section 79. That is one aspect. The other aspect is that we say that the decision to divide the parties’ property was oppressive when the situation could have been dealt with, and should have been dealt with, by orders relating to maintenance and the approach adopted by the trial judge simply put those to one side and said there has been an enforced physical separation in an otherwise happy marriage; that fact alone justifies a division of property and that order is made.

GLEESON CJ:   Where in the reasons of Justice Moss do we find him making this error?

MR LINDSAY:   At page 12 paragraph 52.  Paragraph 51 introduces the point.  Having concluded that there was jurisdiction, he proceeded:

The next question is whether the evidence satisfied me that it would be just and equitable to make an order.

GLEESON CJ:   But you leave the last sentence in that paragraph, “In the circumstances of this case”.

MR LINDSAY:   Yes, and the only circumstance which gives rise to the finding that it would be just and equitable is the:

complete and final physical separation has been forced upon the parties –

There is no other articulation of any reason that made it just and equitable to make an order under section 79.

GLEESON CJ:   But is your proposition that, as a matter of general principle, that can never be a basis to make a property order?

MR LINDSAY:   We do submit that and we submit in addition to that, if it is necessary for there to be a grant of relief, it should be moulded to the circumstances.  One cannot simply put to one side maintenance in accordance with, what appears to be in other cases, the general practice of the Family Court.

GLEESON CJ:   Well, that is a separate discretionary point, but coming back to your first point, the question of principle that you want to argue, suppose the reason for the complete and final separation is that the wife finds herself isolated from her husband in Australia because of something that has happened to her husband overseas.  He is never going to come back again.  Something tragic has produced a complete and final separation between the two of them for that reason and there is property in Australia.  Could not an order, in some circumstances, be made in the wife’s favour?

MR LINDSAY:   We accept that in some circumstances that may be so, but the illustration that has been advanced demonstrates the difference with this case, because with this case the husband was available, wanting to be involved and offering maintenance.  There was not the additional factor that your Honour ‑ ‑ ‑

GLEESON CJ:   But that seems to take it away from a question of general principle to the particular circumstances of this case.  Maybe you want to refine your general principle and say you can never justify an order like this while the husband is, as it were, on hand to provide some financial support.

MR LINDSAY:   We do, in our submissions, effectively say that, because we say that one needs to examine a number of factors, which were largely adopted by the minority judge, and those factors include the availability of the husband and whether or not it is beneficial.

GLEESON CJ:   The moment you get into those factors you have taken the case out of a case about general principle and into a case about the exercise of discretion in the particular circumstances.

MR LINDSAY:   Well, in our submission, not.  The reason for that is that one needs to, in a situation where you are dealing with a party who is the subject of a disability, ask whether there is any interplay between the Family Law Act, section 79, and the law governing disabled persons.

GLEESON CJ:   Where is the most convenient place we find section 79?

MR LINDSAY:   In the judgment of the minority judge at page 35 of the application book.

GLEESON CJ:   Thank you.  Is there any relevant provision in the statute that limits that discretion?  By “relevant” I mean relevant to this case.

MR LINDSAY:   The answer to that, I think, is no, except in so far as the legislation indicates that the discretion, or the purpose of the Act, is to preserve the institution of marriage and those are the points that were made by the minority judge, but there is no specific provision in the legislation which governs it one way or the other.

GLEESON CJ:   Well, one way of preserving the institution of the marriage is to make it work fairly to both parties in difficult circumstances.

MR LINDSAY:   Yes, and that is part of the error in this case, because what the trial judge did was simply make an order based on the enforced physical separation, even though, on his own findings, that would allow no benefit to the wife – he has specifically found that – even though she did not know and would never know about the proceedings.  Effectively what he did was to exclude the husband from any continuing relationship, at least at the financial level, with a wife and, in our submission, that simply could not be considered fair.

HAYNE J:   You said a finding of “no benefit to the wife”.

MR LINDSAY:   Yes.

HAYNE J:   What was that finding and what did that amount to?

MR LINDSAY:   Your Honours will find that in the judgment of the trial judge at page 13 paragraph 55:

the Applicant will remain institutionalised for the rest of her life . . . She will never be aware of the outcome of these proceedings.  She is obviously kept in as much comfort as is possible in the institution where she resides, and there is no evidence that any particular change in that care will follow as a result of a property order being made –

So the net effect of the order that was made was to deprive the husband of property and for the property that was transferred pursuant to the orders to be held by the Protective Commissioner.  There was no evidence at all that it would make the slightest difference to the wife.

HAYNE J:   Am I entitled to ask and, more importantly, entitled to know whether the consequences of that are consequences about entitlement to claim on the public purse?  If that is not something I am entitled to know, do not tell me.

MR LINDSAY:   Well, I will go no further, I think, and I should go no further than to note that the matter was not dealt with at that level below and that that is so appears at page 12, the last sentence in paragraph 54.  But the husband was not, in this case, saying, “Make no property order and cut me free”.  What he was saying was that he was prepared to provide maintenance.

HAYNE J:   Can I just take you back to 79(2) page 36:

The court shall not make an order under this section unless it is satisfied . . . just and equitable –

Do I understand your proposition to come to this.  No benefit to the wife in the sense of no change to her care or treatment.

MR LINDSAY:   Yes.

HAYNE J:   No benefit to the wife through her awareness – that alas has gone.

MR LINDSAY:   Yes.

HAYNE J:   Detriment to the husband, therefore no judge could have concluded “just and equitable”.

MR LINDSAY:   Yes.

HAYNE J:   Is that the nub of it?

MR LINDSAY:   Yes, it is and, more particularly, we say, because there was, if it was required, an alternative remedy, namely maintenance.

HAYNE J:   Is there any evidence below about what was happening about cost of provision of her care in the institution to which she was ‑ ‑ ‑

MR LINDSAY:   I think the answer to that is it was not explored, it was not dealt with.  I did not appear at the trial so I cannot ‑ ‑ ‑

HAYNE J:   No, I understand that, but ‑ ‑ ‑

GLEESON CJ:   But if you look at the matter that Justice Hayne directed attention to earlier, on page 12, the last three lines on page 12, I assume – and I have to say that this assumption is based less on a familiarity with this Act than with the sort of arguments that used to exist under what used to be called the Testators Family Maintenance and Guardianship of Infants Act – that a common issue that is agitated, if it is available to be agitated, is that the making of an order will do nothing other than relieve the Treasury of some obligations and therefore the order should not be made.  That, I presume, is a common submission, if it is available to be made.

MR LINDSAY: Your Honour, that was not explored, none of that was explored, and one reason why it appears not to have been was that the question that was centrally debated was whether or not the enforced separation triggered section 79.

HAYNE J:   But there is the difficulty.  On the face of it, it is perhaps an open conclusion for a trial judge that, absent evidence, the only effect is an effect on the public purse, this at least provides something for the continued care of this woman in these last impossible years of her life.

MR LINDSAY:   Well, the response to that comes in at the third point.  In our submission, what the court needed to do in that situation was to see whether the case could be addressed by orders for maintenance, and that simply was not done.  The Protective Commissioner, in the name of the wife, took the view that it was a property order or nothing and offers of maintenance were not to the point.

HAYNE J:   It would be unfortunate if the decision of the Full Court in this case were to be taken as establishing some general principle wider than the particular exercise of discretion on a very particular factual base and if it is later suggested that it stands for some wide general principle, other issues may well intrude.

MR LINDSAY: Well, your Honour, part of the difficulty with the judgment of the majority is that they do not provide any guidance at all beyond saying that it was sufficient for the trial judge to make an order on the basis of the physical separation alone and then they go onto what is our second point. They say one normally looks at section 79 and division of property before one looks at maintenance.

HAYNE J:   And that is the point I seek to make, that it may be this case will later be thought to take on a life of its own where it is enough to demonstrate physical separation, ergo property division, and at least there is a highly contestable question whether that principle can be seen as underlying this decision.

MR LINDSAY:   And, in our submission, the possibility that the decision of the majority may be interpreted that way demonstrates the appropriateness of the case for a grant of special leave.

HAYNE J:   But bring it up here and we are confined by this narrow factual base on which it was conducted below.  That is the difficulty.

MR LINDSAY:   Well, your Honour, what it does do – what is quite clear in the judgment of the majority is that they take mere fact of physical separation – that is the one and only factor – and they say ‑ ‑ ‑

HAYNE J:   Wife in need of care, just and equitable, or at least cannot say beyond the realms of judicial discretion to conclude just and equitable.

MR LINDSAY:   But, your Honour, that leaves out of the equation the determination that any need that she had – and no need was established – had to be addressed by reference to a division of property, whereas, in our

submission, the Family Court is given a range of powers discretionary and needs to address the justice of the case by reference to that range of powers.  What in fact appears to have happened – and the majority say as much – is that before any question of alternative remedy can or should be considered, one needs to deal with division of property.  If that principle is correct – and, in our submission, it is not – what flows from that, almost inevitably, is that in a case such as we have a mere separation will trigger as a standard response a division of property.  In our submission, largely for the reasons that the minority judge advances, that involves questions of importance that ought to be resolved by this Court.

GLEESON CJ:   I am looking at paragraph 58 of the reasons of Justice Moss on page 13, Mr Lindsay.

MR LINDSAY:   Yes.

GLEESON CJ:   I am not sure I entirely understand the significance of it, but did his Honour there say she has at the moment a weekly income of $183, which I assume is from a pension, is that right?

MR LINDSAY:   I assume that is so, yes.

GLEESON CJ:   And her total expenses at the moment are $187 and then he says “it is inconceivable” “that the cost of her care will remain static”, under this 40 per cent entitlement that I have already referred to, if given effect, would be more than enough “to ensure her care in whatever circumstances might befall her”.  That seems to be the benefit, whether it is right or wrong.

MR LINDSAY:   Well, in our submission, that is not so, but if it is the benefit, it is disproportionate and it disregards entirely the availability of maintenance.  That is the vice in the approach that has been adopted.  It should not be the case that parties to a marriage are forced into a situation where there is a division of property forced upon them and they are placed in a contested situation where there is a continuing close and loving relationship and maintenance is available to address the particular problem.  That is what we say is the vice in the approach that was adopted.  May it please the Court.

GLEESON CJ:   Thank you.  Mr Richardson, you have followed the course of argument, no doubt.  What was the benefit to the wife flowing from the making of this division of property?

MR RICHARDSON:   May I address that in a number of ways, firstly, commencing at page 13 of the application book, paragraph 58, that your Honour the Chief Justice referred to a short time ago.  His Honour was conscious of a limited income and, by reference to the bottom of the preceding page, we know that that income was an income by way of a pension.  She had expenses that had been expressed on a weekly basis that exceeded the available income and his Honour records:

It cannot be assumed the cost of her care will remain static, indeed it is inconceivable that it could be so –

Their Honours in the majority in the Full Court then addressed the question of benefit at paragraphs 114 and 115, appearing on page 65:

Although not referred to by his Honour, the availability of funds to be utilised for the wife’s maintenance or support, during the balance of her lifetime, or disbursed in accordance with State laws governing intestate succession on her death, would, in our view, constitute a “benefit” of the kind asserted on behalf of the husband to be necessary before an order could be made under section 79.

It is evident that the trial Judge was conscious of the probable absence of any tangible benefit –

pausing there, perhaps a reading of his Honour’s reasons would more suggest an absence of immediate tangible benefit –

flowing to the wife as a consequence of any order made by him under section 79. His Honour clearly took that into account in determining the order to be made. It has not been demonstrated that his Honour did so in a way which was not open to him. In our view, it cannot be said that his Honour erred in the exercise of his discretion by reason of this factor.

There are a number of other things that ought be said ‑ ‑ ‑

GLEESON CJ:   Just before you pass from that, does it amount to this, that the benefit seen by the majority in this case was that she would be provided with what, in other contexts, is called a cushion?

MR RICHARDSON:   She would be provided with a resource from which her likely future needs could be met.  In the evidence before his Honour there was evidence that the catalyst to the commencement of these proceedings, in circumstances unusually after 40 years of marriage where all of the wealth sat with one party, that there had been a request by the Protective Commissioner’s office of the husband to provide a fund that would enable a full assessment of her circumstances and needs to be undertaken and then provisions for it.  Now, at the time of trial ‑ ‑ ‑

GLEESON CJ:   At whose cost?

MR RICHARDSON:   Inviting he, the husband applicant today, to contribute funds to enable that to be undertaken.  So at his cost, he holding the purse of the entirety of the funds that these parties had accumulated during their some 40 years together.  As I recall the evidence, that was responded to in a way that he would give consideration to such a request if certain conditions were met, which included the relocation of her.  So there was a catalyst to the commencement of proceedings ‑ ‑ ‑

GLEESON CJ:   Let me understand something.

MR RICHARDSON:   Yes, certainly.

GLEESON CJ:   If a capital sum were provided, it would go in the first instance to the Protective Commissioner, is that right?

MR RICHARDSON:   To be held for her benefit.

GLEESON CJ:   And would the Protective Commissioner be entitled to look to that sum to pay costs and expenses of administration of the estate?

MR RICHARDSON:   Yes, he is holding it as her estate.

HAYNE J:   At what rate would that be taken?  A percentage of capital as well as a percentage of income?

MR RICHARDSON:   I do not know the answer to that, but I just may be able to obtain some instructions about that.  Certainly this was not an issue, as I apprehend it, that has been explored below, in any way, to suggest that in any form that this was an application for the benefit of the Commissioner himself.  Whilst those matters are perhaps being elucidated, may I return ‑ ‑ ‑

HAYNE J:   I am not suggesting it was for the benefit of the Commissioner.  I am suggesting that an exploration of who got what if this were done rather seemed to lie at the heart of this.

MR RICHARDSON:   I am told it is held on a trustee basis for the estate, that there is a commission of 4 per cent entitlement on the first $100,000 and then a reducing percentage on a sliding scale thereafter and that there is a modest percentage that I do not have instructions on in relation to income of the estate for managing those affairs.

GLEESON CJ:   Now, assume no order had been made in the present case, where would the administrative costs of the Protective Commissioner have come from?

MR RICHARDSON:   Assumedly they are met by the government in the funding of the Protective Commissioner’s offices.

GLEESON CJ:   All right, so that is at least one respect in which this order relieved the public purse of something.

MR RICHARDSON:   It does beyond that also, your Honour, because, for example, the question of whether an entitlement to a pension might continue in circumstances where resources are available to meet the lady’s needs might also become a relevant consideration but ‑ ‑ ‑

GLEESON CJ:   I would have thought it was a very relevant consideration to know whether the making of an order such as this operated largely to relieve the public purse or whether it operated to relieve the woman in whose favour it was made.

MR RICHARDSON:   Well, in my submission, there are two aspects.  Firstly, the evidence before his Honour was that this lady’s support was entirely being met from the public purse in the form of a pension.

GLEESON CJ:   Yes.  Well, you would not want to interfere with that, would you, prima facie?

MR RICHARDSON:   Would we wish to interfere with it?

GLEESON CJ:   Who would wish to interfere with that?  Who would wish to relieve the public purse of an obligation to this lady?

MR RICHARDSON:   Well, the extension of that is that the level of her care and the opportunity to provide care to her is limited by the constraints of the very modest sum that has provided for her care for that ‑ ‑ ‑

GLEESON CJ:   Now, as they say, you are talking.  Where do we find that discussed in the judgment?

HAYNE J:   She can move from this basic care facility into this new pluperfect wonderful facility where her needs will be met much better.  Where do we find that?

MR RICHARDSON:   Your Honours will not beyond the assumptions that his Honour discusses in paragraph 58 of the judgment and beyond that, in the evidence at trial, the contention that with funds to be available to facilitate it, an assessment was intended to see how this lady’s needs could be best met.

HAYNE J:   I take it that instructions were given to appear in the interests of this woman by the Protective Commissioner, were they?

MR RICHARDSON:   Yes.

HAYNE J:   I would have thought there were certain obligations incumbent on a public officer, in a position of trustee, instructing counsel in a case of this kind, and I would have thought one of the most basic obligations was to ensure that all of the facts were before the trial judge.  At the moment I fear I am left with an uneasy feeling that that was not done.

MR RICHARDSON:   I do not know that to be the case, your Honour. This application, I should say, was presented within the framework of section 79 proceedings, albeit involving some very novel issues. In those proceedings, that is, an application for property settlement, the demonstration of need on the part of an applicant is not a factor that features in entitlement to an award. To the extent that one may have needs, that can be a factor in obtaining a greater or lesser award, but it is certainly not one in obtaining an award to start with and, indeed, your Honours would be aware, for example, by reason of section 79(8)(a) which enables proceedings to endure beyond the life of one of the parties, that the estate of an applicant is entitled to continue proceedings after death in circumstances where the applicant would directly receive no benefit at all.

GLEESON CJ:   Does that mean that the way an application like this was approached was to say, “Look, husband and wife lived together for X years, usual pattern of mutual support and contributions, prima facie wife entitled to 40 per cent if she had ever come forward to claim that entitlement.  True it is she has never come forward to claim that entitlement.  True it is that the marriage has not broken down in any sense.  But she is living in these circumstances at the moment and the Protective Commissioner is here to assert her right to that 40 per cent”.  And the question then is, “Why shouldn’t she have it?”.  Is that the way it was approached?

MR RICHARDSON:   I will not embrace the concept of a prima facie entitlement, but for the purpose of the discussion the determination of what the percentage may be probably does not matter and, on our friend’s appeal, the quantum of the percentage is not a matter that is debated. But the Protective Commissioner on her behalf says, “There is a standing to make an application. The effect of that application would be to provide a fund to her benefit, namely, to assist with her care”. And it is a discretion – it would be a matter for the court and we submit one of the hurdles our friend’s application for special leave needs to embrace is the fact that at trial there was no challenge to jurisdiction or power. It is therefore accepted that the broad discretion under section 79 is enlivened, but he says ‑ ‑ ‑

GLEESON CJ:   Exactly, but in that argument as you put it, you used the expression “to provide a fund to her benefit”.  Now, that is where we came in.

MR RICHARDSON:   Yes.

GLEESON CJ:   What was undertaken at trial by way of demonstrating that the fund was for her benefit, or was that simply left at the level of assertion?

MR RICHARDSON:   I, again, did not appear at trial.  I did on the appeal in the Full Court.  My recollection is that the evidence was that it was not much beyond assertion in a context of presenting the very modest fund that was otherwise available to her.

GLEESON CJ:   You may be right.  It may be sufficient for your case to say it is either self‑evident that she will be better off as a result of having this amount of money paid to the Protective Commissioner or, at least in the absence of some demonstration of a good reason to the contrary, a judge is entitled to conclude that it would be for her benefit.  That may or may not be right, but is that the way the case was conducted?

MR RICHARDSON:   Yes, it is, to the extent that paragraph 58, which enjoins the discretion as to her future needs – it was not put any higher than to say, “There is a very modest sum available.  It ought be self‑evident that that restricts the basis upon which her needs and her comfort can be met”.  Beyond that your Honours have the reasoning of the Full Court, including, for example, within this blended family, that is, children of a prior relationship, that there are tangible issues of benefit to be recognised in terms of available estate.

Could I meet one issue that is raised by Mr Lindsay in relation to maintenance proceeding and that is that the trial was not conducted before this judge on the basis that maintenance was conceded.  His Honour Justice Moss records at page 3 that the proceedings commenced by an application in May 1998, it was heard late in 1999, and throughout those proceedings it was the case that the husband sought a dismissal of the application for spouse maintenance.  Indeed, it might have been a different position for him if he had, in the face of that application, even voluntarily contributed to her maintenance during the life of those proceedings, so that the judge was in a position to see that his intention of support or assistance was in some way being tangibly demonstrated, which it was not.

GLEESON CJ:   Can I ask who is paying for this litigation, without appearing to be vulgar?  I mean, who is bearing the costs?  Who bore the costs of the proceedings below?

MR RICHARDSON:   There were interim orders as a result of which my client was required to provide $22,500 to the Protective Commissioner during the course of the trial and then $50,000 as a condition of a stay pending the appeal in the Full Court.

GLEESON CJ:   So, one way or another, the legal costs are coming out of the $700,000, is that right?

MR RICHARDSON:   Yes, with the exception of, I believe, the Protective Commissioner’s own cost to the limited extent that he has appeared in his own capacity.

GLEESON CJ:   This is the late 20th century equivalent of being in Chancery.

MR RICHARDSON:   To an extent, yes, your Honour.

GLEESON CJ:   Yes.

MR RICHARDSON:   So, throughout the proceedings an order for dismissal of the maintenance application was sought, hence his Honour was left to resolve as the authority of the Full Court, as was referred to in their Honours’ judgment, the decision of Bevan, would otherwise instruct him to do so, to resolve firstly the application for property settlement and then to take into account in determining any application for spouse maintenance the outcome of that application.  That, to an extent, is very much what is discussed in the conclusion at paragraph 58 where his Honour talks about the capital fund that she would receive as a result of the property settlement proceedings being adequate to cover her future needs, and his Honour then goes on, having made those findings, to conclude that the application for spousal maintenance ought be dismissed back in paragraph 59.

The essential feature of this claim, in absence of the challenge to power or jurisdiction, is, our friends contend, that it was axiomatic that his Honour formed the view that, the parties having been separated by circumstance, an order ought be made.  Your Honours would not draw that from the material appearing at paragraph 51 and 52.  His Honour was very conscious of the difficult circumstances of these parties and it was the whole of those circumstances that his Honour refers to in the – that is, the reference to the evidence at the conclusion of paragraph 51 on page 12, to lead to the position that he then determines that it is “just and equitable” to

make an order and, within the very broad discretion under section 79, that is a course, we submit, that was entirely open to his Honour.

The thrust of the challenge must, in our submission, be weakened by the proposition that, at the end of the day, there is no argument as to the amount of the order but the fact of whether an order ought be made at all.  So thus it is very much a case where, properly described, our friend’s claim is that the exercise of this discretion, in fact, entailed no discretion at all.

It is not without significance that as a consequence of the 1983 Family Law Act amendments, they being the amendments which deleted the requirement for the existence of principal relief dissolution proceedings before the jurisdiction for property settlement could be enlivened in the court, that there is nothing in the Act that instructs in any way, or purports to limit in any way, the availability of the discretion to make such an order to circumstances where parties are separated. Clearly the mandate though of section 79(2), which entails that the order must be seen as one that would be “just and equitable”, places enormous practical limitations upon an order that could be made where parties were not separated in circumstances where their contributions to the benefit of one another were continuing.

Now, this is not a case where the issue for debate, in our submission, is whether one or the other party intended to withdraw from the marital relationship such as might be the analysis for the purpose of dissolution proceedings, but whether in, as his Honour has identified, practical ways the separation has entailed a set of circumstances where it would be, on those limited circumstances, “just and equitable” to make an order.  We submit, at the end of those matters, there is no issue for special leave.  Unless there is any other particular aspect, your Honours.

GLEESON CJ:   Thank you, Mr Richardson.  Mr Tunbridge.

MR TUNBRIDGE:   I have no submissions to make at this time, your Honour.

GLEESON CJ:   Thank you.  Mr Lindsay.

MR LINDSAY:   Three points if I may.  The entitlement of the Commissioner to commission appears from the Protected Estates Regulation clause 4, and it provides for a sliding scale of commission on capital and then for 5 per cent on income, and that is a matter of statute. 

The second point is my friend suggests that at the trial there was no offer of maintenance.  In my submission, that is simply not open.  Counsel then appearing for the husband at the beginning of the case – and this appears at page 5 of the transcript – said, “I have instructions to consent to a spouse maintenance order in the sum of $200 per week”.  Then that offer was renewed later and there are similar references at page 61 and page 73 of the transcript.  So right from the start the husband was saying, “Let me deal with this situation by maintenance and I will submit to an order”.  That is one aspect.

The other aspect is that although there was in form in the application an application for maintenance, that was specifically and expressly disclaimed by counsel then appearing for the Protective Commissioner and the case was conducted on the basis – and I quote from page 67 – that the wife’s application, that is, the Commissioner’s application, was for property settlement, not for maintenance.  The difficulty that my client is in is that at all times he has been prepared to submit to orders for maintenance.  He has invited that to happen.  Instead of that the Protective Commissioner has advanced the case that merely because of the physical separation forced upon the parties, forced upon my client, there has to be a division of property and, to that extent, he is excluded.  In my submission, the law, if it is in any way as stated in the majority judgment, would lead to dire consequences.

GLEESON CJ:   Now, what is the ultimate result that you want to achieve, the matter go back to a judge to re-exercise a discretion?

MR LINDSAY:   The relief that we would submit would be appropriate would be the relief that the minority judge advances, and that is ‑ ‑ ‑

GLEESON CJ:   What page, Mr Lindsay?

MR LINDSAY:   Pages 51 and 52, pages 62 and 63.  Set aside the judgment of the trial judge; order that the application be stayed until further order; if there is any change of circumstances, there be liberty to reactivate it; and also that there be an ability to apply for maintenance if it need be.  My client is not seeking to evade the consequences of an appropriately proportioned order, if that be appropriate.  He simply takes exception – and, in my submission, appropriately so – to an order that goes way beyond anything that could reasonably be allowed.  So that, in our submission, the orders proposed by the minority judge would be the appropriate orders.

GLEESON CJ:   Was there any evidence or investigation of the question at first instance whether an application of this kind is the result of some policy in relation to administration by the Protective Commissioner seeking, for example, a capital fund?

MR LINDSAY:   No, there was not evidence to that effect.  The evidence was that this is the first case of its nature brought by the Protective

Commissioner of New South Wales and the only other case which was reported was that of Jennings in Victoria.

HAYNE J:   Was that an equivalent State official mounting a claim?

MR LINDSAY:   Yes, it was.

HAYNE J:   A State trustee, I assume.

MR LINDSAY:   Yes.  It was effectively the same as the Protective Commissioner and, I mean, as a matter of principle, one of the matters that we draw attention to is that if this decision is correct, it would be open to the equivalent official in various States simply coming into the act to disrupt the property arrangements of families that are endeavouring to remain in contact.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

AT 12.34 PM THE MATTER WAS CONCLUDED