Taylor v Taylor [1979] HCA 38

High Court of Australia Gibbs, Stephen, Mason, Murphy and Aickin JJ. Taylor v Taylor [1979] HCA 38

ORDER Appeal allowed. Order that the judgment of the Full Court of the Family Court be set aside and in lieu thereof order that:

1. the order made by the Supreme Court of New South Wales, Family Law Division (Woodward J.) on 5th August 1975, in so far as it related to the transfer by Edward John Leo Taylor to Marie Ellen Taylor of his interest in the matrimonial home, be set aside;

2. the judgment of the Family Court (Hogan J.) be set aside; and

3. there be a rehearing of the application of Marie Ellen Taylor for a transfer to her by Edward John Leo Taylor of his interest in the matrimonial home.

The following written judgments were delivered:—

1979, Aug. 22 Gibbs J.

On or about 12th April 1975 the appellant, Mr. Taylor, was served with a petition issued under the Matrimonial Causes Act 1959 Cth, as amended, by his wife, the respondent, who sought a dissolution of the marriage between them and other relief. The appellant promptly consulted his solicitors and instructed them to defend the petition. Through their neglect no answer was filed, and the appellant was never informed of the date fixed for the hearing of the petition. It came on before Woodward J., sitting in the Family Law Division of the Supreme Court of New South Wales, on 5th August 1975 and was heard ex parte. Woodward J. pronounced a decree nisi for the dissolution of the marriage between the appellant and the respondent, and made orders for the custody and maintenance of the children of the marriage. He also ordered, under s. 86 of the Matrimonial Causes Act, that the appellant transfer to the respondent his interest in the matrimonial home at Edgeworth. When the appellant learned, later in August, that the decree and orders had been made, he instructed his solicitors to apply for their rescission but again, through the neglect of the solicitors, no action was taken.