Lansell v Lansell [1964] HCA 42

High Court of Australia Kitto, Taylor, Menzies, Windeyer, and Owen JJ. Lansell v Lansell [1964] HCA 42

ORDER This cause having been removed to this Court by the operation of s. 40A of the Judiciary Act 1903-1960, order as follows:—

1. Declare that sub-s. (1) of s. 86 of the Matrimonial Causes Act 1959 is a valid law of the Commonwealth.

2. Further declare that the order sought in paragraph 1 of the application in this cause dated 8th August 1962, namely an order that the respondent be required at his expense to execute a registrable transfer of certain land under the provisions of the Transfer of Land Act 1958 Vict. to the petitioner for life with remainder to the two named children of the marriage as tenants in common in equal shares, is, within the meaning of sub-s. (1) of the said s. 86, an order requiring a party to the marriage to make a settlement of property.

3. Order pursuant to s. 45 of the Judiciary Act 1903-1960 that the cause be remitted to the Supreme Court of Victoria for trial.

4. Order that the respondent pay the petitioner's costs of the proceedings in this Court.

Cur. adv. vult.

The following written judgments were delivered:—

July 30 Kitto J.

On 18th November 1947 a petition by a wife was filed in the Supreme Court of Victoria seeking, under the provisions of the Marriage Act 1928 Vict., the dissolution of her marriage with her husband on the ground of desertion for three years and upwards. On that petition a decree nisi was made on 20th May 1948, giving the petitioner the custody of the two children of the marriage and reserving the questions of alimony and maintenance. The decree was made absolute on 25th August 1948. No application has since been made by either party upon either of the reserved questions.

On 1st February 1961 the Matrimonial Causes Act 1959 Cth came into force. Thereafter, on 8th August 1962, the petitioner commenced an application in the dissolution proceedings, seeking an order that the respondent execute a registrable transfer of certain land, of which he was the registered proprietor under the Transfer of Land Act 1958 Vict., to the petitioner for life with remainder to the two children as tenants in common in equal shares.