RESPONDENT. RESPONDENT, Husband and Wife-Restitution of conjugal rights-Suit by husband on ground of
desertionDefence-Order of Court of another State for separation having effect of decree for judicial separation-Consent by husband to order being made- Conflict of laws - Recognition of foreign judgment - Final order - Summary Jurisdiction (Married Women) Act 1896 (W.A.) (60 Vict. No. 10), secs. 2, 3, 5 -Summary Jurisdiction (Married Women) Amendment Act 1902 (W.A.) (1 &2 Edw. VII. No. 7), sec. 2-Matrimonial Causes Act 1899 (N.S.W.) (No. 14 of 1899), sec. 5.
In 1919, a husband and wife being then domiciled and resident in Western Isaacs, Higgins, Australia, the wife made an application to the Court of Petty Sessions at and Starke JJ. Perth, under secs. 2 and 3 of the Summary Jurisdiction (Married Women) Act 1896 as amended by sec. 2 of the Summary Jurisdiction (Married Women) Amendment Act 1902, by a complaint that the husband had deserted her on 5th August 1919. In November 1919 the husband signed an agreement by him to an order being made for separation, for maintenance at a certain weekly rate and for a certain sum for costs, and an order was made by which it was adjudged that the complaint was true and it was ordered that the wife be no longer compelled to live with the husband, that maintenance should be paid at the agreed rate and that costs at the agreed sum should be paid to the wife. In 1925, when the husband was domiciled and resident in New South Wales and the wife was temporarily resident there, the husband instituted proceedings in the Supreme Court of New South Wales against the wife for restitution of conjugal rights on the ground that she had in or about July 1919 without just cause or excuse withdrawn from cohabitation with him and had kept and continued away from him and from cohabitation
with him without any just cause. The trial Judge found that that ground was substantiated and that the order of November 1919 was not an answer to the husband's petition. On appeal the Full Court held that the order of November 1919 was an answer to the husband's suit. On appeal to the High Court,
Held, by Knox C.J., Isaacs, Rich and Starke JJ. (Higgins and Powers JJ. dissenting), that the appeal should be dismissed:
By Knox C.J., Isaacs and Starke JJ., on the ground that the order of November 1919 was, SO far as separation was concerned, a final and conclusive order and, since it had the effect of a decree for judicial separation and was given by a Court of competent jurisdiction in the country where the parties were domiciled, was binding on the parties in the Courts of New South Wales and was an answer to the husband's suit;
By Isaacs J., on the ground also, and by Rich J. on the ground, that the agreement by the husband to the order of November…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ainslie v Ainslie [1927] HCA 23
Case
[1927] HCA 23
Decision Date
CaseChat Overview and Summary
The case involved a husband who sought a decree for restitution of conjugal rights against his wife in the Supreme Court of New South Wales. The wife defended the suit by relying on an order made by a Court of Petty Sessions in Western Australia. This order, made when both parties were domiciled in Western Australia, had been granted on the wife's complaint of desertion and included a provision that she was no longer compelled to cohabit with her husband, along with maintenance and costs. The husband had consented to this order being made. Subsequently, the husband acquired a domicile in New South Wales, and it was in this new jurisdiction that he initiated proceedings for restitution of conjugal rights.
The central legal issue before the High Court was whether the Western Australian order, which had the effect of a judicial separation, constituted a valid defence to the husband's suit for restitution of conjugal rights in New South Wales. Specifically, the court had to determine if a foreign judgment of this nature, particularly one made by consent and under legislation that allowed for its variation, was binding on the parties in a different jurisdiction, especially when the matrimonial domicile had changed. The court also considered whether the husband's consent to the Western Australian order provided just cause for the wife's continued separation.
A majority of the High Court held that the appeal should be dismissed. Several judges reasoned that the Western Australian order, in so far as it provided for separation, was a final and conclusive order. Given that it had the effect of a decree for judicial separation and was issued by a court of competent jurisdiction in the parties' domicile at the time, it was considered binding on the parties in New South Wales and therefore an answer to the husband's suit. Another ground for dismissal was that the husband's agreement to the order provided just cause for the wife to live apart from him, which also served as a defence to his claim for restitution of conjugal rights.
The High Court affirmed the decision of the Full Court of New South Wales, which had reversed the trial judge's decision. The majority found that the Western Australian order, while subject to variation in that state, was final and conclusive in its effect of relieving the wife from the obligation to cohabit with her husband for as long as it remained in force. This determination, made by a court of the domicile, was recognised as having extraterritorial effect and thus barred the husband's suit.