Shaw v Shaw [1965] HCA 39

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Shaw v Shaw [1965] HCA 39

ORDER Application for special leave refused.

Cur. adv. vult.

The following written reasons for judgment were delivered:—

July 29 Barwick C.J.

I am of opinion that special leave should be refused in this case on the footing that the decision of the Full Court was demonstrably right. I would place the answers which it gave to the questions upon which its opinion was sought upon the ground that the agreement of the parties, which was placed before the Court for sanction, is clearly not an agreement within the scope and operation of s. 87 (1) (k) of the Matrimonial Causes Act 1959. It is an agreement that orders should be made under s. 87 (1) of the Act by consent of the parties if the Court is prepared so to do. The agreement contains no express term that any rights it may have conferred are to be accepted in lieu of rights under an existing order or of any right to seek an order under Pt VIII of the Act: nor does the agreement contain an express term that no variation shall be sought of the orders for which it provides. In my opinion, it is impossible to imply either of these terms. In particular, in my opinion, neither can be implied, as was suggested in argument, from the circumstance that the parties sought the Court's sanction to their agreement under s. 87 (1) (k). What they seem to have contemplated was that by sanctioning their agreement the Court would make the orders which it made in accordance with that agreement insusceptible of variation under s. 87 (1) (j). But no court is able under the Matrimonial Causes Act to make an order under s. 87 which is incapable of variation under s. 87 (1) (j): see Johnston v. Johnston decided by the Full Court of Victoria (unreported) and affirmed in this Court on that point: see [1] . The agreement which s. 87 (1) (k) contemplates is an agreement to accept the agreed benefits in lieu of rights under an existing order (which presumably will thereupon be discharged if it would otherwise have any further operation), or if there is no such order, in lieu of the right to seek an order under Pt VIII. The Court is given power to sanction such an agreement so that it will be binding on the parties according to its terms so far as they relate to matters within that part of the Act. No doubt, a Court asked to sanction such an agreement will consider closely its provisions realizing not merely that the parties are foregoing rights to the Court's immediate intervention but that they must thereafter rely upon the contractual rights which the agreement gives. The Court, in my opinion, under the Matrimonial Causes Act has no power of enforcement of the agreement. That must be done, if occasion arises, in some other appropriate Court.