Sanders v Sanders [1967] HCA 33

High Court of Australia Barwick C.J. McTiernan and Windeyer JJ. Sanders v Sanders [1967] HCA 33

ORDER By consent vary the second order made by the Supreme Court of Norfolk Island herein by adding thereto the following words, namely, to be used by the petitioner so far as the same shall extend to provide and furnish a home for herself and the children of the marriage whilst minors and unmarried, which home shall be the property of the petitioner. Otherwise appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 16 Barwick C.J.

The Supreme Court of Norfolk Island on 30th March 1966 made a decree nisi for dissolution of the marriage of the appellant and the respondent. By that decree the Court made provision for the maintenance of the respondent and the children of the marriage. That provision included an order that the appellant "make a settlement upon the petitioner of the matrimonial home and the land on which it is situated and which is completely fenced, together with the land and part of the building thereon which is at present in use as a garage".

As the land to which this order referred was part of a larger area, some fifty-seven acres of land, the Supreme Court also ordered that a right of way be provided over other parts of the fifty-seven acres to permit of access to the matrimonial home by the respondent, the children and those who should want to visit her. To my mind, as a matter of expression, these orders in referring to the matrimonial home, as well as the subject land, included the furniture and appointments then in the matrimonial home: but in any case in the instant proceedings the Court made it clear that their inclusion in the settlement was intended. The nature of the intended settlement, however, was not clearly expressed in the decree, but it seems to have come to be understood by the parties and by the Supreme Court when making the order under appeal as intending that the matrimonial home should become the property of the respondent. No appeal was brought against this decree: and in any case it became absolute at the end of June 1966 (see s. 90).