Williams v Williams

[1985] HCA 52

HIGH COURT OF AUSTRALIA

Mason A.C.J., Wilson, Brennan, Deane and Dawson JJ.

WILLIAMS v. WILLIAMS

22 August 1985

Decision

MASON A.C.J., WILSON, BRENNAN, DEANE, DAWSON JJ.: In this appeal, which is brought pursuant to a grant of special leave, the appellant challenges on a number of grounds the order made in favour of the respondent by the Family Court, the effect of which was to give her the home which she had held in trust for the appellant, subject to her paying to him a sum of $15,000 which she was ordered to pay.

2. It now appears more clearly than it did at the time of the grant of special leave that in substance these grounds amount to a submission that the Family Court's discretion to order a property settlement was erroneously exercised, a matter which does not ordinarily raise a question of principle or warrant the grant of special leave. However, the appellant submits that there are matters of principle involved.

3. We should refer briefly to them. The first arises from a submission that the Family Court erred in taking into account, when assessing the property of the parties capable of division, (a) moneys still held in the Supreme Court of the Australian Capital Territory representing part of the proceeds of the settlement of an action brought by the appellant for damages for personal injuries, and (b) the home which had been acquired with moneys earlier withdrawn from the fund in court. It is submitted that in doing so the Family Court necessarily had regard to portions of the settlement that represented damages for pain and suffering and loss of amenity of life. The short answer to this submission is that when the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant, in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what order should be made under s.79 of the Family Law Act 1975 (Cth).

4. The second matter arises from a submission that the primary judge proceeded on a wrong view of s.79(4)(c) of the Act in taking into account the contribution made by the respondent wife to the welfare of the family after the appellant husband left the home. It is unnecessary to say more than that we consider that the construction upon which her Honour acted, a construction affirmed by the Full Court of the Family Court, was correct, and that the care by the respondent of the children after cohabitation ceased was a factor within s.79(4)(c).

5. The final matter arises from the appellant's submission that, in any event, the application ought to have been dismissed on the ground that it was made by the wife in breach of her duty as a trustee to uphold the trust and not to impeach the title of the beneficiary. This submission, which is raised for the first time in this Court, cannot be accepted. The respondent did not attack the validity of the trust. She made an application under the Family Law Act in circumstances in which the interests of the beneficiary, the appellant, were protected. In any event, it became clear in the course of argument that the point is not one which the appellant should be permitted to raise for the first time in this Court.

6. Having dealt with the suggested matters of principle, nothing remains but the exercise of a discretion, upheld by the Full Court, in circumstances in which this Court would not ordinarily consider it appropriate to intervene. The Court therefore revokes the grant of special leave.

Orders

Order granting special leave to appeal rescinded.