Stanford v Stanford [2012] HCATrans 154 (22 June 2012)

Last Updated: 22 June 2012

[2012] HCATrans 154

Office of the Registry
Perth No P3 of 2012

B e t w e e n -

STANFORD

Applicant

and

STANFORD

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 11.55 AM

Copyright in the High Court of Australia

MR P.M. DOWDING, SC: Good morning, your Honours, I appear with MS J.R. BRADY, for the applicant. (instructed by Carr & Co Divorce and Family Lawyers)

MR M.R. BERRY: May it please the Court, I appear for the respondent. (instructed by Ferrier, Athanasius & Kakulas)

FRENCH CJ: Mr Dowding, we might be assisted to hear from Mr Berry first as to why special leave should not be granted in this case. Yes, Mr Berry.

MR DOWDING: May it please your Honour.

MR BERRY: Your Honours, in this matter the Full Court made a determination pursuant to section 79(8) of the Family Law Act and in relation to the reasons which were given by the court the court appropriately dealt with the mandatory requirements under section 79(8), namely section 79(2) and section 79(4) in the re-exercise of discretion which was a matter which was agreed upon by the parties that the Full Court would re-exercise its discretion and if I can refer your Honours to the application book, pages 120 and 121.

The Full Court identified the relevant 79(2) factor at paragraph 58 and at page 120 in paragraph 52 and thereby referred to the contributions based entitlements of the wife relevant to section 79(4) and there is no sufficient error attended by the exercise of discretion by the Full Court in making the orders which it made. With respect, it is difficult to understand what general principle could be contended for by the applicant which would attract the attention of the Court.

BELL J: Well, amongst the principles I think the applicant is raising is a question the jurisdiction to make the order under section 79 in circumstances where the marriage remains, as it were, on foot but the separation has occurred by reason of the physical health of the wife.

MR BERRY: Your Honour raises the question of jurisdiction and during the proceedings there was a distinction drawn between the existence of the jurisdiction to make the order and whether in the exercise of the discretion the court should make an order, and the jurisdictional point I read as being the applicant’s complaint about there being the absence of a matrimonial cause.

BELL J: Yes.

MR BERRY: That was essentially a dead issue by the time the matter reached the Full Court and, indeed, none of the nine grounds raised by the applicant complained about the absence of a matrimonial cause when the matter reached the Full Court.

BELL J: I see.

MR BERRY: Indeed, the Full Court, in fact your Honour, record – if I can refer your Honours to the application book at page 53 at paragraph 27 – the Full Court record her Honour Magistrate – the primary judge’s finding that there was a matrimonial cause and in the last sentence the Full Court records:

There is no challenge to her Honour’s finding that is supported by authority that jurisdiction existed -

Your Honour Justice Bell, if I can refer back to the grounds of appeal themselves at the application book at pages 39 and 40, at pages 39 and 40 your Honours have the nine grounds and not one of those grounds makes a complaint about the absence of a matrimonial cause. There is an assertion in paragraphs 1 and 2 which pertain to an exercise of discretion, but do not challenge the existence of jurisdiction by way of the absence of a matrimonial cause. So that we would contend that on any assertion about a lack of jurisdiction there is an uncertain foundation presented by the applicant in the courts below to properly raise it now.

FRENCH CJ: There is a constitutional issue raised, is there not, on the applicant’s submissions at paragraph 37?

MR BERRY: Your Honour the Chief Justice, it is the case that this issue is now raised. I cannot take the matter any further. It has been raised, yes it has been raised, but the challenge to the matrimonial cause question was not dealt with below. We would simply say that once it is accepted that section 79(8) is valid, as was found by this Court in Fisher’s Case, the court was simply exercising a discretion under section 79(8) - - -

FRENCH CJ: This is a debate about whether 79, as applied in this case, extends beyond the bounds of validity.

MR BERRY: We would simply contend that it does, your Honour, on the interpretation of the statute and as contemplated by the framing of the marriage power itself. We would contend that it does contemplate orders being made or being able to be made, where parties have not separated in the particular circumstances of this case.

FRENCH CJ: A similar question was raised in Sterling, was it not, and special leave was granted, but the case, I think, resolved?

MR BERRY: Your Honour, it is the case that the matter was raised in Sterling and the matter did not proceed to the court. This question raises a slightly different issue as to the step beyond that, which is on the death of the parties and the proper exercise of discretion, under section 79(8) of the Act.

FRENCH CJ: Yes.

BELL J: In the way the challenge was put below the emphasis was upon the asserted failure of the primary judge to have regard to the principle in section 43A. Is that the way it was put, as distinct from a challenge to jurisdiction?

MR BERRY: It initially started, your Honour, as a challenge to jurisdiction and the learned primary judge delivered two judgments in the matter. In the first judgment, if you like, as a preliminary issue, which is found at the application book from pages 1 through to 6, the learned primary judge dealt with the issue of jurisdiction and dealt with the complaint about the absence of a matrimonial cause. Her Honour determined that there was a matrimonial cause in this matter and then the matter was reagitated again in the trial, which ran for several days, and her Honour recorded again at application book page 9, in paragraph 4, paragraph 1:

Whether the Court has jurisdiction to make an order for property settlement having regard to the fact that the parties had not intended to separate –

So there had been a morphing of the complaint from being the absence of the matrimonial cause to being, well, there was jurisdiction but it ought not to have been exercised because of the section 43 issue. What her Honour did was make a reference to - we contended before the Full Court and the Full Court did not uphold the applicant’s grounds of appeal on this issue - we contended that the learned primary judge made an explicable typographical error in her reasons which was explicable by the errors made by the applicant in presenting the section.

If I can refer your Honours to page 11 of the application book at paragraph 11, the primary judge made express reference to section 44(3) of the Act and we contended that that was an intended reference to section 43, and the reference to section 44(3) was in fact a reference given to the court by the applicant during the course of the proceedings. So we say in substance that her Honour dealt with the point and the Full Court - - -

BELL J: There was no analysis of how, in the case of a husband and wife who have been married for 40 years, the particular provision was taken into account beyond what you say is the reference in that paragraph?

MR BERRY: By the primary judge, your Honour, not beyond what was said in that paragraph, but by the time the matter came to the Full Court there was very extensive, we would contend, attention given to the issue because it was expressly raised as a ground of appeal by the appellant, and it was dealt with by the Full Court at application book pages 65 through to - - -

BELL J: There is another ground of distinction with Sterling that the case guardian in Sterling was the Protective Commissioner, or a statutory officer of that character, and here it was the daughter of the moving party.

MR BERRY: That is certainly a factual distinction, your Honour. There was certainly no complaint made about the case guardian – the appointment of the case guardian. There was no application for the discharge of the case guardian, and I do not understand there to be a serious complaint about the case guardian in the case. Your Honours, the section 43A point was expressly dealt with by the Full Court from pages 65 to 76 of the application book.

The grounds of appeal were dismissed on that basis, but when it comes to the Full Court exercising its discretion in the second judgment following the death of the wife it is plain that the Full Court had regard to the fact that this was an intact marriage, particularly at application book 120, paragraph 53. The court had express reference, being mindful of the fact that the marriage had not broken down, so it was taken into account. The court took into account that the husband would not be disturbed in his enjoyment of the joint assets, and that was dealt with later on page 121.

So we would contend that this was simply a case where the court, not having had to deal with the complaint about jurisdiction in the sense of it being a matrimonial cause complaint, but a question about the manner of exercise of discretion, we say the court properly dealt with all the previous authorities and formed a view based on the accumulated positions put in the previous authorities and formed a view on these facts, and we say there is not sufficient doubt attended by the way in which the court dealt with these particular facts. Unless there is anything further, your Honours, those are my submissions.

FRENCH CJ: Yes, thank you, Mr Berry. Mr Dowding, we will not need to trouble you, except on one question. It is clear, I think, on your submissions that you are raising a constitutional question, not going to the validity of section 79, but going to its valid construction.

MR DOWDING: That is correct, your Honour, and it rises directly out of what the Full Court said about it, having found that it was valid and once jurisdiction was found, they were obliged to exercise it.

FRENCH CJ: Yes, well 78B notices will obviously have to issue. What is your estimate of the time for this – there could be interveners, of course?

MR DOWDING: That is the issue. I would imagine the point would be covered in half a day’s hearing at the most.

FRENCH CJ: We would need to set at least a day, I would think, just in case the Commonwealth may well intervene.

MR DOWDING: Yes, may it please, your Honour.

FRENCH CJ: All right, application granted. Can I just mention that the time limits for filing submissions are to be determined from 1 July by the High Court Amendment Rules 2012 and there is a sheet of paper which should be available to you about those time limits in Court. Yes, thank you.

AT 12.09 PM THE MATTER WAS CONCLUDED