Penfold v Penfold [1980] HCA 4

High Court of Australia Stephen, Mason, Murphy, Aickin and Wilson JJ. Penfold v Penfold [1980] HCA 4

ORDER Appeal allowed. Order of the Full Court of the Family Court set aside. Order for costs made by the Supreme Court of New South Wales restored. Respondent to pay appellant's costs of the appeal to the Full Court of the Family Court and of the appeal to this Court.

Cur. adv. vult.

The following written judgments were delivered:—

1980, Feb. 13 Stephen, Mason, Aickin and Wilson JJ.

This is an appeal by special leave from an order of the Full Court of the Family Court allowing an appeal from an order for costs made in the Supreme Court of New South Wales (Allen C.J. in F.L.D.). A decree for the dissolution of the parties' marriage was made by the Supreme Court in October 1968. Thereafter consequential orders were made, relating in the main to maintenance of the children of the marriage.

In May 1976 the appellant wife filed an application which in its amended form was presented on 10th March 1977. By this application she sought orders increasing the maintenance payable in respect of the children, orders relating to the enrolment of three of the children as boarders at educational institutions on the footing that the respondent would pay their fees and expenses, and orders relating to a trust and to the former matrimonial home in which the appellant claimed an interest.

The judge made orders increasing the maintenance to be paid to the appellant in respect of each of the four children of the marriage, the increases varying from $5 to $10 per week. He also ordered that the respondent should pay to the appellant any school fees already paid by her. As the respondent agreed to pay the fees and expenses of the enrolment of the three children as boarders at educational institutions, no order was made in relation to this matter. The judge noted that the parties contemplated that the children would undertake some form of tertiary education and that the orders for maintenance might require review on this account. This part of the order was his Honour's response to the appellant's application that the order for maintenance for each of the two younger children should continue in force until the child completed a chosen course of tertiary education. The judge refused to make an order with respect to the former matrimonial home partly on jurisdictional grounds and partly on the merits. The application to the extent to which it related to the trust and to the matrimonial home, was dismissed.