Vitzdamm-Jones v Vitzdamm-Jones - [1981] HCA 8

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.

VITZDAMM-JONES v. VITZDAMM-JONES

(1981) 148 CLR 383

10 February 1981

Constitutional Law

Constitutional Law—Powers of Commonwealth Parliament—Marriage—Dissolution of marriage—Order giving joint custody of child to parents—Application by wife for sole custody—Death of father—Application for custody and access by husband's second wife—Application by second wife to intervene in first wife's application—Right of second wife to make applications—Validity of law granting right—Abatement of proceedings on death of party—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi)—Family Law Act 1975 (Cth), ss. 4 (1) "matrimonial cause" (c), (f), 31, 39, 61 (1), (4). Constitutional Law—Powers of Commonwealth Parliament—Marriage—Custody order in favour of mother—Remarriage of mother—Care of child by mother and step-father—Death of mother—Removal of child by grandparents—Application for custody by step-father in State Supreme Jurisdiction of Supreme Court—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi)—Family Law Act 1975 (Cth), ss. 4 (1) "matrimonial cause" (f), 8, 31, 39, 61 (1), (4).

Decisions

1981, February 10.
The following written judgments were delivered: -
BARWICK C.J. We heard these two matters together as they involve questions common to the resolution of each, though their particular situations exhibit some diversity. I need only refer briefly to their respective facts and do so without reference to the precise dates when the significant events took place. (at p392)

2. The respondent in the first matter (the mother) was married to Alfred Athol Vitzdamm-Jones (the father) for some years, during which a male child was born to them. (at p392)

3. Subsequently, that marriage was duly dissolved by decree of the Family Court of Australia at Melbourne and the Family Court made an order, in fact by consent of the parties though I do not think that significant, that the father and the mother have joint custody of the child. Prior to the making of that order, there had been opposing applications by the father and mother for sole custody of the child. (at p392)

4. The father thereafter married the applicant, who thereby became Wendy Jane Vitzdamm-Jones. Later the father died. The child had been throughout in the care and control of the mother. The applicant then applied to the Family Court for, amongst other things, an order giving to her the custody of the child, the mother being a respondent party to the proceedings. On the hearing of that application, the applicant by an oral application sought leave to intervene in the proceedings in which the mother had in the lifetime of the father sought an order for the sole custody of the child. (at p392)

5. Upon the mother objecting that the Family Court did not have jurisdiction to make the orders sought, a case was stated for the opinion of a Full Court of the Family Court as to the relevant jurisdiction of that court. (at p392)

6. Thereafter, by an order of this Court made on the application of the Attorney-General of the Commonwealth of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1981] HCA 8
Decision Date: 10 February 1981

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a will in *Vitzdamm-Jones v Vitzdamm-Jones*. The dispute arose between the executor of the will and beneficiaries who claimed entitlement to certain assets.

The central legal issue before the Court was whether the testator's intention, as expressed in the will, was to create a discretionary trust or a fixed trust in favour of the beneficiaries. This required the Court to construe the language used by the testator to determine the nature of the interest conferred upon the beneficiaries and the extent of the discretion, if any, vested in the executor.

The Court analysed the specific wording of the relevant clause in the will, paying close attention to the use of words such as "may" and "shall" and the overall context of the testamentary instrument. The majority of the Court held that the language indicated a clear intention to create a discretionary trust, granting the executor a wide discretion in distributing the assets. The legal principle applied was that the intention of the testator, as gathered from the whole of the will, must be given effect, and that the language used must be interpreted in its ordinary and grammatical sense, unless the context clearly indicated otherwise.

The appeal was dismissed, with the Court upholding the primary judge's finding that a discretionary trust had been established.

Orders