Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1969, March 5 Kitto J.

By a deed made between a husband and his wife on the eve of the hearing of a petition by the wife for dissolution of the marriage the husband made certain provisions for the wife in the form of (a) a covenant to pay her specified weekly amounts until the granting of the decree absolute or the dismissal of the petition, (b) a covenant to pay her similar amounts during her life as from the granting of the decree absolute, (c) a covenant to assign to her certain policies of assurance on his life, (d) an immediate assignment of certain furniture and effects, (e) a covenant to pay her a small lump sum on the signing of the deed, and (f) a covenant to pay her solicitors their costs of the deed. These provisions were made by cl. 1. Clause 2 contained a covenant by the wife that she would accept the terms provided by the deed "in full settlement of all claims against the husband for alimony and maintenance of any description". Finally, cl. 3 contained a covenant by the husband, in order to secure to the wife the weekly amounts abovementioned, to consent, whenever required by the wife to do so, to an order for permanent alimony being made for the weekly payments, and not at any time to apply for a reduction or suspension of such payments.

There was a recital in the deed that the wife had indicated her intention to apply to the Court for an order for alimony pendente lite and, in the event of obtaining a decree absolute, to apply for permanent alimony. The petition was heard the next day. The deed was produced to the Court, and the Court made no order as to alimony or maintenance but expressly approved of the deed. I do not think it is correct to infer that the only purpose which the parties had in view with respect to the production of the deed to the Court was that of fulfilling the requirement of candour and obviating any suspicion of collusion. In view of the recital it seems to me that they intended the Court to exercise its jurisdiction as to alimony and maintenance, and contemplated that it would either make an order for the agreed payments (limited, necessarily, to the joint lives of the parties) or decide that the terms of the deed made proper provision for the wife and therefore made no order. The judge's approval of the deed implied, I think, a decision to make no order as to alimony or maintenance.