[Home] [Databases] [WorldLII] [Search] [Feedback] High Court of Australia

Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436 (23 February 1983)

CATCHWORDS

HEARING

DECISION

2. The material facts may be stated briefly. In 1967, on the petition of the wife, the marriage of the parties was dissolved by order of the Supreme Court of New South Wales. There were three children of the marriage and they were then aged nine, five and one years respectively. By its decree, the court ordered, inter alia,

"4. That by consent the Petitioner have the exclusive
occupation of the property situate at and known as Number
Thirty-four Careebong Road, French's Forest and being the
land comprised in Certificate of Title Volume 7705 Folio 182
until such time as all three of the said children of the marriage
shall have become self-supporting or the Petitioner shall have
remarried whichever event shall first occur.

5. That by consent the Respondent pay all capital and
interest due under the mortgage on the aforesaid property as
well the Municipal and Water Rates assessed in respect of the
property together with ordinary Fire and Burglary Insurance in
respect of the property and the cost of all reasonable repairs and
maintenance thereto.

6. That by consent the Petitioner be at liberty to apply for
such further injunctions or other Orders as may be necessary to
give full effect to Order (5) herein." (at p439)

3. Consequent on the orders, the wife and three children have continued to occupy the property for the past fifteen years. At all material times the property has been registered solely in the name of the husband and has been subject to a mortgage. He has maintained payments due under the mortgage and has paid municipal and water rates and insurances in respect of the property. (at p439)

4. In August 1978 the Family Court of Australia sitting in Sydney (Hogan J.) commenced the hearing of an application by the wife for an order in the following amended terms:

"That at the expiration of the Applicant's period of
occupation of the property at 34 Careebong Road, French's
Forest, pursuant to Order made by the Supreme Court of New
South Wales on 27 September, 1967, the Husband do all acts
and things and execute all deeds and instruments necessary to
effect a sale of the lands and premises at 34 Careebong Road,
French's Forest, and out of the net proceeds of sale therefrom
after payment out of the amount required to discharge the first
registered mortgage thereon, agent's commission and legal
costs, a division and payment as to two-thirds thereof to the
Applicant and as to one-third thereof to the husband."

"In proceedings with respect to the property of the parties to
a marriage or either of them, the court may make such order as
it thinks fit altering the interests of the parties in the property,
including an order for a settlement of property in substitution
for any interest in the property and including an order requiring
either or both of the parties to make, for the benefit of either or
both of the parties or a child of the marriage, such settlement or
transfer of property as the court determines."

5. The contrary argument, advanced for the wife, is that the Family Law Act applies to the order as if it were an order in the nature of maintenance pursuant to s. 74 of the Act, or, alternatively, an injunction made pursuant to s. 114(1). If it be properly treated as an order for maintenance, it is argued that the general powers of variation contained in s. 83 of the Act would be applicable to it and that, there being no order which was required to be treated as it it had been made under s. 79, the power to make an order with respect to the property of the parties remains available. (at p441)

6. Much of the argument, both in the Full Court and in this Court, has been concerned with the question whether the order was "a settlement of property" within the meaning of that term in s. 86 of the Matrimonial Causes Act. With all respect to their Honours who constituted the Full Court and who, with a proper regard to the principle of stare decisis, were following the approach adopted by that Court in In the Marriage of King (No. 2) [1978] HCA 4; (1977) 30 FLR 160; 3 Fam LR 11,564; (1977) FLC 76,577, the formulation of the question in that way tends in our opinion to distract attention from the essential point. It does not matter how the order in question would be characterized by reference to the repealed Act. It is now to be treated as if it had been made under the Family Law Act and the question is whether, so treated, it precludes the making of a further order in relation to the former matrimonial home, in the admitted absence of any of the grounds specified in s. 79A. (at p441)

7. In stating the issue in that way we have regard to the single issue of jurisdiction to which the grant of special leave was limited. There are important questions of principle touching the merits of the application which may remain even though this Court makes a finding in favour of jurisdiction in terms of the stated case. In addition, Mr. Neil, counsel for the respondent husband, was at some pains to reserve his right to challenge, on other grounds, the right of the wife to make the present application. (at p441)

8. The order under consideration declares that the wife shall have exclusive occupation of the matrimonial property until such time as all three of the children of the marriage shall have become self-supporting or until she shall have remarried whichever event shall first occur. In King, the Full Court of the Family Court characterized a similar order in the following terms (1977) 30 FLR, at p 167;3 Fam LR, at p 11,570; (1977) FLC, at p.76,582:

". . . the effect of an exclusive occupation order is that the
owner, who is otherwise entitled to possession and occupation,
is thereafter deprived of the right to occupy during the term of
the order. It seems clear that this effects an alteration in the
nature of his or her interests in the property. The attributes of
ownership have been changed by the order; in effect the right to
occupy is settled exclusively on the wife during the term of the
order. When the term expires the parties revert to their former
position as joint owners, with such rights and remedies as are
open to them. It follows that an order which grants one spouse
occupation rights in the matrimonial home to the exclusion of
the other spouse, whether or not that other spouse is a joint
owner or a sole owner, is an order settling property within the
meaning of s. 86 of the Matrimonial Causes Act and an order
altering the interests of that other spouse in the property within
the meaning of s. 79 of the Family Law Act."

"It is possible that use or occupancy orders can be framed in
such a way that they are of a personal and temporary nature
only: . . . Such orders would not be referable to s. 79. It may
also be possible to frame a use and occupancy order which
derives from the court's powers to deal with maintenance, . . .
The categorization of the order depends on the nature of the
proceedings and on the terms of the order."

"It must be acknowledged that the categorization of an order
for exclusive occupation of the home gives rise to difficulties.
Such an order is in many ways a 'hybrid' order sharing some of
the characteristics of other kinds of orders which can be seen
clearly as orders for maintenance, property settlement or
injunction. . . . It was not always necessary to categorize such
orders under the Matrimonial Causes Act, but it is necessary to
do so under the Family Law Act. The question of this
categorization has been decided by the Full Court in King and
King [1978] HCA 4; (1977) 30 FLR 160; 3 Fam LR 11,564
and that decision has not been shown to be
demonstrably wrong."

"In my view it is a question of degree in every case as to
when a proprietary interest becomes so affected as to be altered,
but I am of the opinion that a temporary suspension of a party's
right to deal with his property . . . does not so affect his interest
in the property as to alter it within the meaning of s. 79." (at p443)

9. It appears from these decisions that it has been the practice, when a question of jurisdiction arises under s. 79 of the Family Law Act by reason of a pre-existing order relating to property under the Matrimonial Causes Act, to proceed by categorizing the earlier order by reference to s. 86 of the Act under which it was made. That practice explains the approach adopted in the present case to which we referred earlier in these reasons. The concept of "settlement of property" as that term was used in s. 86 no doubt carried a wide denotation: Sanders v. Sanders [1967] HCA 33; (1967) 116 CLR 366, at pp 375, 382. However, the consequence that a wide range of orders might be referred to the power conferred by s. 86 did not attract any difficulty in the exercise of jurisdiction under that Act because of the existence of a wide power of review of such orders: see s. 87(1)(j). Indeed, the existence of that power of review in relation to settlements of property extended also to orders for maintenance and the custody of children, thereby rendering it unnecessary in many cases to categorize the orders in question at all. The Family Law Act, however, introduces an important distinction between orders altering interests in property and other orders. Each category has its specific provision authorizing discharge or variation of an order of the specified description. Thus, orders for custody may be discharged or varied pursuant to s. 64(7), orders for maintenance pursuant to s. 83 and orders altering property interests pursuant to s. 79A. As we have noted, the jurisdiction to vary orders pursuant to s. 79A is very limited indeed. (at p443)

10. There is no reason to suppose, given the different wording used in s. 79 as compared with s. 86 and, more importantly, the different context, that because an order may be categorized as an order made under s. 86 of the Matrimonial Causes Act that it therefore must be treated, pursuant to s. 3(2)(c), as if it were made under s. 79. It could frequently happen, as recognized in Sanders, that the court would choose to "settle" property upon the wife as a means of providing maintenance for her and the children of the marriage. There was no necessity for permanence to be associated with such an order. As circumstances altered, the powers of the court as provided by s. 87(1)(j) could be invoked to match the order to the changing needs of the wife or children. In such a context, there is no practical problem in categorizing an occupancy order as a settlement of property, however much it may seem to strain the language. (at p443)

11. On the other hand, the Family Law Act clearly reveals the intention of the Parliament that if the court, in proceedings with respect to the property of the parties to the marriage or either of them, makes an order "altering the interests of the parties in the property", and the making of that order has not been attended by any circumstance amounting to a miscarriage of justice, then such order is not open to any review or variation. In drawing that conclusion as to the proper construction of the Act, we rely on the decision of this Court in Taylor to the effect that notwithstanding any possible implication it may have in relation to the maintenance of a party, an order made under s. 79 is not open to review under s. 83. (at p444)

12. In our opinion, such a radical change of intention compels a fresh approach to the construction of the subject matter of the section. It can no longer remain a question of degree in every case as to when a proprietary interest becomes so affected as to be "altered" within the meaning of s. 79. In the present case, the Full Court supported its adherence to the decision in King [1978] HCA 4; (1977) 30 FLR 160; 3 Fam LR 11, 564 by reasoning as follows:

"Because of that order (the s. 86 order), his interest in the
property is in a sense charged with the entitlement of the wife
and children to remain in occupation. The wife has a right,
enforceable against the husband, to remain in occupation of the
specific property referred to in the order, and the husband is
under a corresponding legally enforceable obligation to allow
her to do so. If the husband were to attempt to dispose of the
property, whilst he might effectively transfer his title to the
purchaser, he could not give vacant possession without being in
breach of the order.

His inability to give possession to a purchaser consistently
with his obligations under the order is an important restriction
upon his rights as an owner of the property.

His interest in the property is diminished, even though the
wife may not have acquired an interest capable of registration
or of protection by caveat." (at p444)

13. With respect to their Honours, this statement of the effect of the order could apply with complete accuracy to the effect of an injunction under s. 114(1) of the Family Law Act. Admittedly, the order is not in its terms expressed as a restraining order but having regard to the legislative intention to which we have referred its substance is more important than its form. Alternatively, there is no reason why an order made pursuant to s. 74 "for the provision of maintenance" of a party to a marriage or of a child of a marriage could not achieve precisely the same effect as that attributed by their Honours to the present order. In the course of argument, reference was made to the statement by Windeyer J. in Sanders (1967) 116 CLR, at p 380 when, referring to the sections of the Matrimonial Causes Act conferring power to make orders with respect to maintenance (s. 84) and settlements (s. 86), his Honour said:

"The basic distinction between s. 84 and s. 86(1) is that a
provision for maintenance under s. 84 does not involve an
order relating to some particular item of property or an interest
therein."

14. In our opinion, therefore, s. 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right: Stow v. Mineral Holdings (Aust.) Pty. Ltd. [1979] HCA 30; (1977) 51 ALJR 672, at p 679; Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. [1982] HCA 69; (1982) 158 CLR 327, at pp 343, 350-351. It does not exclude every interest which is not assignable or transferable (cf. per Mason J. in Meneling Station [1982] HCA 69; (1982) 158 CLR 327, at p 343.). Thus an order under s. 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring. (at p445)

15. It follows, then, that s. 79 does not authorize a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a s. 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment. Where the section refers to a settlement of property, it should be understood as using that expression in a sense which is closely related to the meaning which the expression bears in the law of real and personal property. (at p445)

16. The application of the wife which provoked these proceedings seeks an order that on the expiration of her right to occupancy the property be sold and the net proceeds thereof be divided as to two-thirds to her and one-third to the respondent. The application clearly seeks an alteration of the interests of a party in the property within s. 79. Special leave to appeal was granted in order to examine the question whether the Full Court was correct in denying jurisdiction to Hogan J. to deal with the application for the reason that the exclusive occupancy order made in 1967 should be treated as if it had been made under s. 79. It follows from the reasons we have outlined that in our opinion the Full Court erred in coming to that conclusion and that the denial of jurisdiction on that ground was not justified. (at p446)

17. The appeal should be allowed. It was agreed between the parties that the appropriate course to be adopted in that event is to remit the matter to the Full Court of the Family Court for reconsideration in accordance with the judgment of this Court. (at p446)

ORDER

Order of the Full Court of the Family Court of Australia set aside.

Matter remitted to the Full Court of the Family Court of Australia for reconsideration in accordance with the judgment of this Court.