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High Court of Australia |
LANSELL v. LANSELL [1964] HCA 42; (1964) 110 CLR 353
Constitutional Law (Cth) - High Court
High Court of Australia
Kitto(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ.
CATCHWORDS
Constitutional Law (Cth) - Divorce and matrimonial causes - Settlement of Property - Power of court to order - "Proceedings under" Commonwealth Act - Validity - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxii.) - Matrimonial Causes Act 1959 (Cth), s. 86 (1).High Court - Question as to limits inter se of constitutional powers of Commonwealth and States - Proceedings in State Supreme Court - Removal to High Court - When arising - Judiciary Act 1903-1960 (Cth), s. 40A.
HEARING
Melbourne, 1964, May 12;DECISION
July 30.2. On 1st February 1961 the Matrimonial Causes Act 1959 (Cth) came into force. Thereafter, on 8th August 1962, the petitioner commenced an application in the dissolution proceedings, seeking an order that the respondent execute a registrable transfer of certain land, of which he was the registered proprietor under the Transfer of Land Act 1958 (Vict.), to the petitioner for life with remainder to the two children as tenants in common in equal shares. (at p356)
3. The Court had no jurisdiction to make such an order unless under sub-s. (1) of s. 86 of the federal Act. That sub-section provides that the Court may, in proceedings under the Act, by order require a party to a marriage to make, for the benefit of all or any of the parties to or the children of the marriage, such a settlement of property to which the parties are or either of them is entitled as the Court thinks just and equitable in the circumstances of the case. (at p356)
4. Upon the application coming on to be heard before Sholl J., a submission was made on behalf of the respondent that the sub-section was beyond the legislative competence of the Parliament of the Commonwealth and void. His Honour pointed out (1963) VR 102, at p 106 that the submission appeared to raise a question as to the limits inter se of the constitutional powers of the Commonwealth and the several States so as to bring about, under s. 40A of the Judiciary Act 1903- 1960, the removal of the cause, that is to say of the application, to this Court. The respondent thereupon amended his submission so as to concede that s. 86 (1) is valid, but to contend that in order to sustain its validity its terms must be read in a restricted sense which would place the petitioner's application outside the jurisdiction thereby conferred. The construction contended for, as explained to us, was one which would make the sub-section inapplicable as against a husband, inapplicable after the dissolution of a marriage, and inapplicable with respect to property acquired by a party to the marriage after the dissolution thereof. Sholl J. considered that even the new form of the submission raised an inter se question. Adhering to a view he had stated in the earlier case of Reg. v. Governor of Metropolitan Gaol; Ex parte Molinari (1962) VR 156, at p 164 upon an examination of the decisions of this Court down to O'Neill v. O'Connell [1946] HCA 59; (1946) 72 CLR 101, at p 116 , his Honour held that such a question "arises", within the meaning of s. 40A, where the Court is satisfied that a decision upon it is necessary for the adjudication of the rights of the parties, and not before; and being satisfied that such a decision was necessary in the instant case he held that the cause was removed to this Court. Accordingly, in compliance with s. 40A, he proceeded no further. (at p357)
5. It is, I think, clear that an inter se question had arisen, for eve n the amended contention could not be disposed of without a decision being given as to the extent of the power of the Parliament under s. 51 (xxii.) of the Constitution to make laws which by force of s. 109 must prevail over all inconsistent laws of the States. (at p357)
6. It follows in my opinion that Sholl J. took the correct course. But I am unwilling to leave the subject without observing that views upon s. 40A which were formerly entertained as to the stage of a case which must be reached before an inter se question may be said to "arise" in a cause, e.g. in In re Drew (1919) VLR 600 and Ex parte King; Re University of Sydney (1943) 44 SR (NSW) 19, at pp 27-29 , seem to require reconsideration in the light of the decisions of the Privy Council in the Banking Case [1949] HCA 47; (1950) AC 235; (1949) 79 CLR 497 , Nelungaloo Pty. Ltd. v. The Commonwealth [1950] UKPCHCA 2; (1951) AC 34; (1950) 81 CLR 144 and Grace Bros. Pty. Ltd. v. The Commonwealth [1950] UKPCHCA 1; (1951) AC 53; (1950) 82 CLR 357 upon s. 74 of the Constitution. See also Nelungaloo Pty. Ltd. v. The Commonwealth [1952] HCA 11; (1952) 85 CLR 545, at pp 595, 596 and Nelungaloo Pty. Ltd. v. The Commonwealth (No. 4) [1953] HCA 87; (1953) 88 CLR 529, at p 540 . There is much now to be said for the view that an inter se question "arises" in a cause pending in the Supreme Court of a State as soon as it appears, either upon a contention advanced by a party (whether by means of a pleading or otherwise) or upon the Supreme Court's own consideration of its jurisdiction (see e.g. Hooper v. Hooper [1955] HCA 15; (1955) 91 CLR 529, at p 533 and contrast Nelungaloo Pty. Ltd. v. The Commonwealth (1951) AC 34, at p 53; (1950) 81 CLR, at pp 159, 160 where the inter se question did not go to jurisdiction and therefore might be withdrawn by the party who raised it) that judgment cannot be pronounced in favour of one of the parties without a decision being given upon the inter se question; and it is immaterial that the possibility has not been exhausted of deciding other questions in such a way that a judgment may be pronounced which will dispose of the cause without the inter se question having had to be decided. The evident purpose of s. 40A, after all, is to supplement the provision made by s. 74 of the Constitution in furtherance of the "high policy" of reserving "for the jurisdiction of (the) High Court the solution of those inter se questions which were of such vital importance to Commonwealth and States alike" (1950) AC 235, at p 293; (1949) 79 CLR 497, at p 624 . I take it to be the purpose of s. 40A to prevent the Supreme Court of a State from pronouncing a judgment (which may be carried by direct appeal to the Privy Council) in any cause in which it has become apparent that s. 74 of the Constitution would have precluded an appeal to the Privy Council in the absence of a certificate if the court had been the High Court. Unless the view above suggested as to when an inter se question arises is correct, this purpose must largely fail. The present case may be taken as an illustration. Suppose that Sholl J. had proceeded with the application as regards questions not inter se, and had dismissed it on the merits without considering the inter se question. On an appeal by the petitioner to the Privy Council the respondent would be entitled to rely upon that question in order to retain his judgment. Then their Lordships, if they were to disagree with the decision on the merits, would be under the necessity of deciding the inter se question, notwithstanding that by reason of s. 74 they would have had no jurisdiction to do so if the appeal had come from the High Court. Their decision upon the question would not be binding on the High Court in other cases, and, as happened before s. 40A was enacted, a situation of uncertainty and embarrassment would result. The Privy Council's judgments in the three cases abovementioned make it clear that without a certificate an appeal from the High Court must be dismissed as soon as the fact appears that an inter se question is really involved in it, in the sense that one party relies upon an inter se argument which would have to be met and answered by the Board before the appeal could be decided against that party. Where that appears the appeal must be dismissed at once: the Board has no jurisdiction to proceed, even to the extent of discovering whether the appeal may be disposed of without touching the inter se question. This having been made clear by their Lordships in regard to s. 74, it seems to me by parity of reasoning that where a cause is pending in a State Supreme Court that Court is required by s. 40A to proceed no further with any question in the cause, once the fact has emerged that an inter se question is really involved. (at p359)
7. I turn then to the inter se question in the present case. Under par. (xxii.) of s. 51 of the Constitution the Parliament has power to make laws for the peace, order and good government of the Commonwealth with respect to "divorce and matrimonial causes". Everything incidental to those topics is, of course, included: Le Mesurier v. Connor [1929] HCA 41; (1929) 42 CLR 481, at p 497 . The paragraph goes on: "and in relation thereto, parental rights, and the custody and guardianship of infants"; but upon this addition it is necessary only to say that it implies no intention to exclude from the range of the principal subject any topic which is fairly incidental to it. (at p359)
8. The first observation to make upon the terms of s. 86 (1) is that the power conferred is a power exercisable "in proceedings under this Act". If this expression meant "in proceedings under this sub-section", so that the intention appearing were to create a jurisdiction exercisable independently of proceedings for divorce or any other matrimonial cause, there might well be strength in a contention that the enactment could not be supported under any head of federal power. No doubt it would properly be characterized only as a law with respect to property, notwithstanding that the persons whose interests might be affected are confined to spouses and children; and the Parliament has no general power to make laws with respect to property. But I think it is clear that the sub-section creates only a power to make an ancillary order in substantive proceedings which themselves are within the constitutional concept of "divorce and matrimonial causes". In order to demonstrate that this is so, reference must be made to several provisions of the Act. The expression "the court" is defined in s. 5 (1) to mean, in relation to any proceedings, the court exercising jurisdiction in those proceedings by virtue of the Act. By s. 23 (2), the Supreme Court of each State is invested, subject to certain provisions which there is no need to mention here, with federal jurisdiction to hear and determine matrimonial causes instituted under the Act. The expression "matrimonial cause" is given by s. 5 (1) an exclusive definition, extending it, but at the same time confining it, to proceedings described in five paragraphs lettered from (a) to (e). The kinds of proceedings comprised in pars. (a) and (b) are of a substantive character, having no necessary relation to any other proceedings. They are (a) proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights or jactitation of marriage, and (b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage, or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation. Paragraph (c) comprises proceedings of various descriptions, including proceedings "with respect to settlements", but all the descriptions are qualified by the words "being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act". Paragraphs (d) and (e) need not be here considered. (at p360)
9. Proceedings with respect to settlements, then, are within the grant of federal jurisdiction in s. 23 (2) if, and only if, they are in relation to proceedings of one of the substantive kinds referred to in pars. (a) and (b) of the definition. A construction of s. 86 (1) as giving the court a power exercisable in proceedings not in relation to substantive proceedings of those kinds would be anomalous, and for that reason, even if there were no other, it should be rejected. (at p360)
10. But there are other reasons too. The essentially ancillary nature of the orders which may be made under s. 86 (1) is indicated by a provision in s. 37 (2) that where, in proceedings for a decree of dissolution of marriage on the ground of separation, the court is of opinion that it is just and proper that the petition should make (inter alia) provision for the benefit of the respondent by way of settlement of property, the court shall not make a decree on that ground in favour of the petitioner unless the petitioner has made arrangements to the satisfaction of the court to provide that benefit upon the decree becoming absolute. A similar indication is found in s. 68 (3), which provides, in effect, that proceedings such as an application under s. 86 (1) for a settlement of property, if in relation to proceedings under the Act of a kind referred to in pars. (a) and (b) of the definition, may be instituted by the same petition and not otherwise, except as permitted by the rules or by leave of the court. (I may remark in passing that I have assumed for the purposes of this judgment that the application in the present case is within the exception.) Further light is thrown on the matter by s. 89. That section distinguishes between "the principal relief" (which is defined by sub-s. (4) to mean relief of a kind referred to in pars. (a) or (b) of the definition of "matrimonial cause") and an order under Pt X (which includes s. 86). The section provides in sub-s. (1) that where the petition for the principal relief has been dismissed the court shall not make an order under that Part. This is subject to an exception provided for by sub-s. (2); but that sub-section expressly excludes an order under s. 86. (at p361)
11. All these provisions combine to emphasize that an order for a settlement of property under s. 86 is provided for only as a form of incidental relief in proceedings for what s. 89 calls the principal relief, that is to say of the kinds described in pars. (a) and (b) of the definition of "matrimonial cause". That, indeed, is the conclusion which seems the more likely on the face of s. 86 (1) itself; for upon the most natural reading of its terms it postulates the existence of antecedent proceedings to identify what it is content to call "the marriage". The conclusion is reinforced by the consideration that sub-s. (2) of the same section empowers the court, again "in proceedings under the Act", to make an order with respect to the application for the benefit of all or any of the parties to, and the children of, "the marriage" of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to "the marriage" or either of them. Finally, there is sub-s. (3), which provides that the power of the court to make orders of the kind (sic) referred to in the section shall not be exercised for the benefit of a child who has attained the age of twenty-one years, unless the court is of opinion that there are special circumstances that justify the making of the order. Perhaps this provision should be read as meaning that in the absence of special circumstances an order may not be made under which a benefit may arise in favour of a child after he has attained twenty-one. But, even if this be too narrow a construction, the inference is clear enough that both sub-s. (1) and sub-s. (2), so far as they relate to the provision of benefits for children, are concerned predominantly with the presumptive dependence of children under twenty-one upon parental assistance, and that therefore the relief they authorize is in the nature of consequential relief in proceedings by which a marriage (or a purported marriage: see. s. 83) is made the subject of principal relief of the kinds mentioned in pars. (a) and (b) of the definition of "matrimonial cause". (at p361)
12. It is obvious that where any of those forms of principal relief is granted, except jactitation of marriage where there has been no purported marriage that is void, a re-adjustment of the property rights of the spouses may be required if consequential injustice to one or both of the spouses and to the children is not to result. The making of a settlement may be a way of carrying to completion, or nearer to completion, the task of dealing fully with the relationship which is the subject of the matrimonial cause. Orders with respect to maintenance are familiar as one means of dealing with an economic situation arising from the granting of substantive matrimonial relief. Orders varying ante-nuptial or post-nuptial settlements, as provided for by s. 86 (2), provide another example: see Dewar v. Dewar [1960] HCA 79; (1960) 106 CLR 170, at p 174 . The orders which s. 86 (1) authorizes are more akin to the latter than to the former, for in considering under s. 86 (1) what is just and equitable in the circumstances the court is not restricted to considerations relevant to maintenance; but they share with both the character of relief incidental to, because consequential upon, the dissolution of a marriage or the granting of one of the other forms of relief which identify a cause as a matrimonial cause in the ordinary English sense of the expression. (at p362)
13. This being the nature of the power conferred by s. 86 (1), two conclusions as to the interpretation of the provision according to its terms appear to be proper. One is that "the parties to the marriage" means the persons who are or were the parties to the marriage to which the principal proceedings relate, so that in proceedings for a divorce an order for a settlement may be made even after a decree for dissolution has been made absolute. The other conclusion is that the sub-section, in referring to "property to which the parties are, or either of them is, entitled", is not confined to property acquired before the dissolution of the marriage. The question for the court in dealing with an application under the sub-section is simply whether any and what settlement as a means of dealing with the available property is just and equitable in the circumstances of the case. The time and circumstances of acquisition may well have a significant and perhaps even a decisive bearing upon the determination of that question; but the sub-section is not, upon its terms, inapplicable with respect to property acquired by a party after the dissolution. (at p362)
14. But recognition of the essentially incidental character of the power which s. 86 (1) confers necessitates also a conclusion against the respondent both upon his original contention that the provision is invalid because unsupported by s. 51 (xxii.) of the Constitution and upon his substituted contention that in order to keep the provision within constitutional limits it must be read as not authorizing an order against a husband (or an ex-husband), or against either party after the marriage has been dissolved or against either party in respect of after-acquired property. Both contentions rested upon an assertion that in legislation enacted before 1900 in the United Kingdom, in the colonies which became States of the Commonwealth, and elsewhere, the received practice was not to arm the courts with power extending in any of these three directions; and we were invited to hold that the content of the subject described in s. 51 (xxii.) of the Constitution as "divorce and matrimonial causes" was to be understood as limited accordingly. (at p363)
15. Even if the assertion be correct, it does not justify the conclusion. It is no doubt proper to refer to any legislation enacted before 1900 which provides real assistance towards an understanding of the sense in which a particular expression in the Constitution is likely to have been used by those who framed it; but as Mr. A. L. Bennett Q.C. has pointed out (1953) 26 ALJ 630 the method is more likely to assist in establishing the minimum content of a power than its outside limits. The view contended for in the respondent's argument may be thought to resemble the view which the Privy Council upheld in L'Union St. Jaques de Montreal v. Belisle (1874) LR 6 PC 31, at p 36 ; for it amounts to saying that the conclusion may be drawn from earlier legislation that divorce and matrimonial causes are "well-known legal terms expressing systems of legislation with which" persons in this country and others were "perfectly familiar" in 1900, and that the familiar systems included no such provision as s. 86 (1) of the federal Act. But the Privy Council was considering, along broad lines befitting the consideration of a constitutional question, what was the substantial nature of the systems designated in the relevant head of power (bankruptcy and insolvency), whereas the respondent here would have us determine what is incidental to "divorce and matrimonial causes", not by reference to the nature of that subject, but upon an assumption that other legislatures, in the provisions they have seen fit to make upon the subject, have by their example set limits to what may properly be considered within the range of the incidental. In answer it is enough to say that the assumption is unwarranted and the whole argument built upon it must fail. (at p363)
16. In my opinion, therefore, the contention addressed to Sholl J., both in its original and in its amended form, should be overruled. It remains to consider what course should be followed for the further hearing of the application. The Judiciary Act provides in s. 45 that a matter pending in the High Court, whether originally commenced there or not, may be remitted for trial to any Court of a State which has federal jurisdiction with regard to the subject-matter and the parties, and that an order remitting it may be made by the High Court on the application of any party to the matter. In the present case the purpose of s. 40A will have been served if we made an order disposing of the respondent's contentions which have raised inter se questions. The order should declare both that s. 86 (1) of the Matrimonial Causes Act 1959 is a valid law of the Commonwealth, and that the order sought by the petitioner under that section is an order requiring a party to the marriage between the petitioner and the respondent to make a settlement of property, within the meaning of s. 86 (1). Upon the argument of the matter before us the petitioner made an application for the remission of the matter to the Supreme Court of Victoria for trial in the event of the inter se questions being decided in her favour. In my opinion that is the course we should adopt, the Supreme Court having federal jurisdiction with regard to the subject-matter and the parties by virtue of s. 23 of the Matrimonial Causes Act, enacted under ss. 77 (iii.) and 76 (ii.) of the Constitution. (at p364)
TAYLOR J. In an application to the Supreme Court of Victoria (Sholl J.) for an order pursuant to s. 86 (1) of the Matrimonial Causes Act 1959 (Cth) the validity of that section was impugned and, being of opinion that a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States had arisen, the Court proceeded no further with the hearing of the application and it now comes before this Court by reason of the provisions of s. 40A of the Judiciary Act 1903-1959. (at p364)
2. In terms the applicant sought an order directing the respondent to execute a registrable transfer of a certain house property at Surrey Hills in which she was living with her two daughters at the time when the application was made. The transfer which the Court was asked to direct was a transfer to the appellant for life with remainder to her two daughters as tenants in common in equal shares. The respondent and the applicant were formerly husband and wife and their marriage was dissolved in 1948 on the ground of desertion by the respondent, that is to say, before the enactment of the Matrimonial Causes Act 1959 but by the decree then made "the questions of alimony and maintenance" were reserved. There is evidence that the respondent voluntarily undertook to pay a weekly sum for the maintenance of his wife and children and that he permitted them to continue to reside in what had been the matrimonial home. There they remained until 1955 when the home was sold but a substitute home was provided by the respondent by the purchase of the home which is the subject of this application. Disputes have now arisen between the applicant and the respondent with respect to the former's right to continue to occupy the property and this has led to the present application being made. It should, perhaps, be added that no order for alimony or maintenance has ever been made. (at p365)
3. Before Sholl J. the question arose whether the proceedings for the dissolution of the marriage of the parties are "pending proceedings, within the meaning of s. 110 of the Act". But in view of other provisions of the Act this question does not seem to be of any consequence when one comes to consider the validity of s. 86. Section 8 of the Act provides that subject to immaterial exceptions a matrimonial cause shall not be instituted after the commencement of the Act except under the Act and, further, that a matrimonial cause instituted before the commencement of the Act shall not be continued except in accordance with Pt XIII of the Act. Section 23 of the Act is the provision which authorizes the institution of proceedings under the Act and it provides that a person may institute a matrimonial cause under the Act in the Supreme Court of a State or of a Territory to which the Act applies. "Matrimonial cause" is defined by s. 5 and it includes "proceedings with respect to . . . settlements . . . being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act". Proceedings for a decree of dissolution of marriage is one form of proceeding referred to in one of the two preceding paragraphs. It follows, therefore, that by definition the present proceedings constitute a matrimonial cause within the meaning of the Act. (at p365)
4. Section 86 (1) of the Act is in the following form: "The court may, in proceedings under this Act, by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such a settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the case". In terms the authority which is conferred by this section is exercisable only in proceedings under the Act, that is to say, in proceedings which constitute a matrimonial cause as defined. It is, therefore, exercisable only incidentally to a substantive proceeding, either pending or completed, of one or other of the characters described in pars. (a) or (b) of the definition of that term. On this view of the meaning and operation of s. 86 (1) the question is whether it is within the constitutional power to make laws with respect to divorce and matrimonial causes, or perhaps, with respect to marriage. (at p365)
5. Prima facie I should have thought that a law which empowers a court to direct a settlement of property as a provision for either party to a marriage which has been dissolved may fairly be described as a law with respect to "matrimonial causes" in the sense in which that expression must be taken to have been used in the Constitution. "Divorce and matrimonial causes" is intended to denote broadly a head of legislative power and it is not susceptible of any narrow interpretation. The argument for the respondent, however, proceeds to examine the extent to which Courts exercising jurisdiction in matrimonial causes in the various States of the Commonwealth were, at the time of Federation, authorized to direct settlements, or resettlements, of property and it was pointed out that in no case was authority given to direct a settlement of any part of a guilty husband's property in favour of his wife. The power to direct a settlement of property, it was said, was limited to directing a reasonable settlement for the benefit of the husband and the children of the marriage of property of a wife when the marriage was dissolved or a decree for judicial separation was made on the ground of her adultery and to the resettlement of property subject to an ante-nuptial or post-nuptial settlement. It was not contended that proceedings of the character contemplated by the statutory provisions pursuant to which this jurisdiction was exercised were extraneous to the concept of "matrimonial causes". But it was contended that the statutory provisions which authorized Courts to exercise these powers marked the relevant limits of the concept of "matrimonial causes" at that time and that the constitutional provision could not be taken to authorize any wider power to direct a settlement of the property of either party to a marriage. Further, it was argued that the constitutional power does not authorize provisions under which a settlement may be directed of property acquired by one of the parties to the marriage after the marriage has been dissolved. (at p366)
6. This argument is based upon misconceptions. It may, no doubt, be true to say that the ordinary principles of interpretation require that constitutional provisions conferring authority upon Parliament to make laws shall bear the meaning which they had at the time of Federation but it is beyond question that, although the meaning of these terms does not change, their denotation must extend as new concepts develop. Further it does not follow that because at the time of Federation the authority of courts exercising jurisdiction in matrimonial causes to direct settlements did not extend beyond the limits already indicated the authority which the various State Legislatures had conferred set a limit to the concept of matrimonial causes. Indeed it is difficult to see why if an application for the settlement of an adulterous wife's property fell within that concept an application for the settlement of an adulterous husband's property should not also be comprehended. (at p367)
7. It is, of course, reasonably clear that the expression matrimonial cause cannot be taken to comprehend every application by one spouse for the settlement of some part of the property of the other. Nor can it be taken to comprehend every such application made at any time simply because the parties have at some time been married and the marriage has been dissolved or a decree of nullity or for judicial separation has been pronounced in the past. But the jurisdiction conferred by s. 86 is not a jurisdiction to direct settlements at large or simply because the applicant was once married to the respondent. It is a jurisdiction which is exercisable only "in proceedings under this Act", that is to say, in applications for orders directing settlements in relation to proceedings of the character specified in pars. (a) and (b) of the definition of "matrimonial cause". In such applications the Court may require the parties to a marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of the marriage, such a settlement of property to which the parties are, or either of them is, entitled, as the Court considers just and equitable in the circumstances of the case. The phrase, "in relation to" and the succeeding words of par. (c) of the definition of "matrimonial cause" indicate the limits which are set to the jurisdiction conferred by s. 86 (1). It is a jurisdiction which is exercisable only where the application bears an appropriate relationship to substantive proceedings which admittedly constitute a matrimonial cause, that is to say, where the application can fairly be said to be incidental to the relief obtainable or already obtained in the substantive proceedings. As such it appears as a provision designed to deal with situations brought about by the granting to one or other of the parties to a marriage of substantive relief of the character referred to in pars. (a) and (b) and which the legislature may well have thought to call for some provision enabling appropriate financial readjustments to be made as occasion might require. I do not myself see how it can be said that a law which authorizes a court in applications of such a character to direct such a settlement as it considers just and equitable in the circumstances of the case transcends the limits of the constitutional power. (at p367)
8. For these reasons the constitutional question should, I think, be decided adversely to the respondent and the matter remitted to the Supreme Court. (at p367)
MENZIES J. Upon the hearing before Sholl J. of an application by a former wife against the husband she had divorced in 1948 seeking an order under s. 86 of the Matrimonial Causes Act 1959 requiring him to make a settlement upon herself and the two children of the marriage of a house property acquired by him in 1955 for his former wife and children to live in and which he was in 1962 proposing to sell, counsel for the respondent impugned the validity of s. 86 of the Matrimonial Causes Act 1959. The learned judge thereupon ordered that the matter proceed no further before him by reason of the operation of s. 40A of the Judiciary Act. By virtue of that section the cause (i.e. the application for an order under s. 86) has been removed to this Court. (at p368)
2. The original proceedings for divorce were brought in the Supreme Court of Victoria and the decree nisi granted to the present applicant on 20th May 1948. That decree, which became absolute three months later, reserved questions of alimony and maintenance. No further order has been made and the suit instituted by the petition has not been completed. (at p368)
3. It is necessary to understand the authority conferred by s. 86 before enquiring into the validity of the section. The Court is authorized to make an order under the section only "in proceedings under this Act". If by this phrase no more is meant than that proceedings under the Act may be taken to obtain an order under the section, it would seem that an attempt has been made to confer a wide authority independently of any existing divorce or matrimonial cause. For the section so understood to be within Commonwealth power, an application under the section would itself have to be a matrimonial cause within the meaning of s. 51 (xxii.) of the Constitution, viz. divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants. To maintain this, giving the words of the section their literal meaning, would, I think, be impossible. A proceeding by a wife against a husband for a settlement of his property upon herself and the children of the marriage might be regarded as a matrimonial cause in a wide sense but in s. 51 (xxii.) the words "matrimonial causes" are used in conjunction with the word "divorce" and can hardly cover all proceedings between spouses. Still less could proceedings by a child against a parent seeking a settlement be regarded as a matrimonial cause. Yet unless s. 86 is to be limited in some way it would seem to authorize proceedings such as I have just mentioned. In my opinion, however, s. 86 is limited by the words "in proceedings under this Act" for, as I read them, they require the application under the section to be part of divorce proceedings or proceedings in relation to some other matrimonial cause. Section 86 is not a section authorizing the institution of a matrimonial cause; it is a section providing ancillary relief in a matrimonial cause in the constitutional sense. So understood, what appears to me as the substantial objection to its validity disappears. (at p369)
4. It was, however, further objected that as in 1900 neither English law nor the law relating to divorce and matrimonial causes in force in the colonies which became the States of the Commonwealth authorized the making of orders of the kind to which s. 86 relates, the section cannot be regarded as a law with respect to divorce or matrimonial causes. This argument I reject. The Parliament of the Commonwealth has power to make laws with regard to divorce and matrimonial causes and, if it enacts a law falling within that description, it matters not that the law is novel. It is right, in construing a grant of power, to ascertain as a starting point at least what the words used in the Constitution meant in 1901 when the Constitution was enacted but it is quite another thing to attempt to confine the legislative power of the Parliament to making the kind of laws then in existence. Once it is decided that the making of orders such as s. 86 authorizes constitutes, in divorce or matrimonial causes proceedings, a means of governing part of the relationship of the parties vis-a-vis one another and the infant children of the marriage - as it unquestionably is - then it matters not that the section is a departure from other ways of governing such a relationship. It is true that by virtue of such an order children under the age of twenty-one at the time of the making of the order could, when they are no longer infants, obtain an interest in possession. This consideration, however, does not take the section outside the category of a law governing the relationship of parents and children arising out of, and affected by, a divorce or matrimonial cause. (at p369)
5. For the foregoing reasons I am of opinion that s. 86 of the Matrimonial Causes Act is a valid law and that the cause should be remitted to the Supreme Court of Victoria for trial. (at p369)
WINDEYER J. I agree that the operation of s. 86 (1) of the Matrimonial Causes Act 1959 is limited by the words "in proceedings under this Act"; and that so construed the only orders that it authorizes are orders that are truly ancillary or incidental to proceedings in a matrimonial cause - that is to say proceedings for some one or other of the forms of matrimonial relief for which the Act makes provision. The section does not I think mean that a court exercising jurisdiction under the Act can alter a person's proprietary rights on no other ground than that he or she had at some earlier time been a party in a matrimonial cause. (at p370)
2. Before the Constitution was enacted the courts exercising matrimonial jurisdiction in the Australian Colonies were empowered to modify settlements and to direct settlements of the property of a wife guilty of adultery. These provisions were derived from English legislation. Section 86 empowers courts exercising jurisdiction under the Commonwealth Act to go further in affecting the proprietary rights of spouses. That does not affect its validity. The content of a constitutional power is determined by the connotation of the words in which it is expressed, not limited by their denotation at any particular time. I adopt here a sentence of Higgins J.; that it was said in the course of a dissenting judgment and in relation to different subject matter does not affect its aptness here: "The usage of 1900 gives us the central type; it does not give us the circumference of the power": The Brewery Labels Case [1908] HCA 94; (1908) 6 CLR 469, at p 610 . In Dewar v. Dewar (1960) 106 CLR 170 , this Court (Dixon C.J., Kitto and Menzies JJ.), speaking of a provision in the Queensland Act (The Matrimonial Causes Act of 1875), said that its "essential purpose . . . is to enable the Court to inquire into post-nuptial and ante-nuptial dispositions of property in favour of one or other or both of the parties to the marriage which because of the dissolution of that marriage should be reconsidered and to empower the Court to make orders for what appears in the changed circumstances a just application of the property" (1960) 106 CLR, at p 174 . That sentence states the ambit of the power there being considered. It limits it to circumstances arising "because of the dissolution of the marriage". The Commonwealth enactment that we have to consider in this case is, in my opinion, likewise restrained. Properly construed, giving due weight to the words "in proceedings under this Act", s. 86 (1) is within the constitutional power. I agree in the reasons for this conclusion that are more fully set out in the judgments of my brothers Taylor and Menzies and with the order proposed. (at p370)
OWEN J. I agree with the reasons for judgment of my brother Taylor and with the order proposed by him. (at p370)
ORDER
This cause having been removed to this Court by the operation of s. 40A of the Judiciary Act 1903-1960, order as follows:-1. Declare that sub-s. (1) of s. 86 of the Matrimonial
Causes Act 1959 is a valid law of the Commonwealth.
2. Further declare that the order sought in paragraph 1
of the application in this cause dated 8th August 1962,
namely an order that the respondent be required at
his expense to execute a registrable transfer of certain
land under the provisions of the Transfer of Land
Act 1958 (Vict.) to the petitioner for life with remainder
to the two named children of the marriage as tenants in
common in equal shares, is, within the meaning of
sub-s. (1) of the said s. 86, an order requiring a party
to the marriage to make a settlement of property.
3. Order pursuant to s. 45 of the Judiciary Act 1903-1960
that the cause be remitted to the Supreme Court of
Victoria for trial.
4. Order that the respondent pay the petitioner's costs
of the proceedings in this Court.
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