In the Marriage of Smith [1986] HCA 36

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan, Deane and Dawson JJ. In the Marriage of Smith [1986] HCA 36

ORDER Answer the questions raised as follows:

(a) The release comprised in cl. 7 of the deed dated 18 November 1983 was not effective for the purposes of s. 31(3) of the Family Provision Act 1982 NSW, notwithstanding the approval of the deed by the Family Court.

(b) The Family Court has no accrued, pendent or associated jurisdiction in the present matter itself to exercise the power of approval given by s. 31 of the Family Provision Act 1982 NSW.

Remit the matter to the Family Court to proceed in accordance with this judgment. Order that the costs of both parties in the cause removed be paid equally by the Commonwealth and the State of New South Wales.

Cur. adv. vult.

The following written judgments were delivered:—

1986, June 27 Gibbs C.J., Wilson and Dawson JJ.

These proceedings arose in the Family Court. The parties to the proceedings in that Court had been husband and wife, but the marriage was dissolved by a decree made on 13 January 1983. Subsequently, the parties reached agreement concerning the division of their property and embodied that agreement in a deed dated 18 November 1983, which was a "maintenance agreement" within the definition contained in s. 4 of the Family Law Act 1975 Cth, as amended. The deed, which was expressed to be binding on the heirs, executors, administrators and assigns of each party (cl. 1) provided that on payment by the wife to the husband of $10,000 the husband would transfer to the wife the whole of his right, title and interest in a property at Taren Point which the parties held as joint tenants: cll. 2-4. By cl. 5 the parties agreed that the agreement contained in the deed related to the whole of the financial matters between them and was intended to operate in relation to such financial matters in substitution for any rights of either of the parties under Pt VIII of the Family Law Act. Clause 7 of the deed was in the following terms: