Ainslie v Ainslie

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.