Brown v Brown

[1906] HCA 85

i C.L.R.] OF AUSTRALIA.

595

[H k ;h c o u r t o f

A u s t r a l i a .]

THOMAS EDWIN BROWN

A p p e l l a n t ;

R e s p o n d e n t ,

MARY BROWN

R e s p o n d e n t .

1 Pe t it io n e r ,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH MALES.

l lu ’dinnd and irij'e—Judicial mparalion—Ciintody and maiiUeiiance of child not

H. C. OF A.

jirovidcd for in decree— Undertakhuj by wife not to apply for maintenance—

1900.

Matrimoni(d Causes Act (N.S. (I’.), {No. 14 of 1899), sec.

— Appieal inforind

pauperis—Costs.

.S rO S E Y ,

Dec. 90.

'I’he decree in a suit for judicial separation gave the husband custody of the

Griffith C .J.,

cliildren of the marriage, naming them, and contained an undertaking by the

J)arton and

Isriaes, J J .

wife not to claim at any time maintenance for herself so long as the parties

remained judicially separated.

Ihld, that, under the decision in Brown v. Brown, 8 C.L. R., 373, the Divorce Court had jurisdiction to entertain, and the wife was not precluded by the decree from making a subsequent application to the Court under sec. (iO of tlie Matrimonial Causes Act 1899 for an order against the husband for the custody and maintenance of a child of the marriage born after the decree, for which no provision had been asked for in the suit or made in the decree.

tfucre, whether an express undertaking by the wife not to make application

for maintenance of the child wo\dd have been binding.

I’he High Court.will not as a rule order au unsuccessful appellant in formd pauperis to pay costs of the appeal beyond the amount paid into Court us security.

Decision of Simpson'J., Sth May 1906, affirmed.

A ppe a l from an order of Simqdson J. in the Supreme Court of.

New South Wales in its Matrimonial Cau.ses Jurisdiction.

596 HIGH COURT

[1906.

H.	C. OF A.Tlie[^appellant and respondent in tliis appeal were respondent
1906. and petitioner respectively in a suit for judicial separation, and

B r o w nthe order fi’oin which the appeal was brought was an order made

B r o w n .by /Simpson J. after decree, giving the present respondent the V.

custody, and ordering the appellant to pay a certain sum for the maintenance, of a cliild of the marriage born subseiiuently to the decree. This was the child in respect of which the proceedings forming the siibject matter of the appeal in Brown v. Brown (1) were taken.

On application in Chambers O’Con'nor J. gave leave to appeal

in formd jxiuperis, and reduced the security to £1.

The facts and the proceedings are fully stated in the judgment of Grllfith C.J.

Appellant in person. The respondent was aware at the date of the decree that the child was about to be born. The decree was the result of a compromise by the parties of all their rights as again.st one another at that date, and all further liability on either side was put an end to. There was in effect a contract to leave one another alone for the future. The respondent should not have been allowed to re-open the matter by appljdng for maintenance of this child. Her undertaking not to apply for maintenance was intended to include all sucli claims whether in respect of such children or herself.

Even if she was entitled to make the application, there was no evidence before the Judge from which he could have inferred that the child was legitimate. There was no evidence of the age of the

child at birth.

It was born eight months after the decree, and

there is is no presumption of access during the separation. [He referred to Jones v. Jones (2); Gandy v. Gandy (3); Morris v. Davies (4).

[G r i f f i t h C.J.—The question of legitimacy cannot be raised now. The decision of the learned Judge may be quite wrong, but we have no materials before us to justify us in interfering with it. We are bound to act on the assumption that the child was legitimate.]

(I) 3 C.L.R., 37.1.(3) 7 P.D., 168.

(•2) I N.S.W . W .N., 88.

(4) 5C . & F., 163.

4 C.L.R.] OF AUSTRALIA.

597

The decree for judicial separation was a nullity, and therefore H- 0. o f a .

the Divorce Court liad no jurisdiction to entertain this applica­

tion. It is not open to parties to obtain a decree by consent, and

B k o w n

V.

therefore the parties are bound by their compromise, not by the

B r o w n .

terms of tlie decree.

By the compromise all questions of main­

tenance were for ever settled, [He referred to

Charlesworth. v.

Holt (1 )■]

Cowau, for tlie respondent, was not called upon.

G r if f it h C.J. This is an appeal from an order made by the learned Judge of the Divorce Court after a decree for judicial separation, giving the custody of a child of the marriage to the mother, and ordering the appellant, whom the learned Judge found to be the father of the child, to contribute to its main­ tenance. The order is appealed from substantially on the ground that all the (|uestions in dispute between the husband and the wife had been disposed of by the decree which was made on 24th March 1904. The decree, as drawn up, stated that the cause came on for hearing in the presence of the petitioner’s solicitor on the wife’s petition for judicial separation, and of the I’espondent in person, “ whereupon and upon reading the petition and affidavit verifying the same and the answer of respondent and hearing the evidence given oivd voc<'. of petitioner this Court by consent of both parties doth hereby order and decree ” as follows:—Finst, that the petitioner be judicially separated from the respondent. Some point was taken as to the decree being made by consent. But it appears that evidence was heard, so that no (]uestion arises on the abstract question whether the Court had jurisdiction to make an order for judicial separation by consent. The consent to be inferred from this decree is that the facts were admitted by the parties so far as was necessary to found the decree. Then the decree went on to direct that the re.spondent should have the custody of the six children described as the i.ssue of the marriage between the parties, and that the petitioner should be allowed to have access to them at certain times and places. Finally the decree contained an undertaking

•

(1) L.R. 9 Ex., 38.

598 HIGH COURT

[1906.

H.C. OF A. Ijy tlie petitioner in the.se words ;—“ The petitioner undertakes not

1906.	to c-laiin (now or at any future time) maintenance for lierself so
B r o w n	long as she is judicially separated.” A fortnight or so after this

V.

decree was pronounced another child was born, as to the paternity of which there was a dispute. The present appellant refu.sed to

B r o w s .

Griffith C.J.

contribute to its maintenance. Thereupon the present re.spondent proceededagainst him under the Deserted Wives and Child vert's Act 1901 for an order for maintenance, and obtained it; but on appeal to this Court the order was set aside on the ground that the jurisdiction to deal with the maintenance of the children of the marriage was, after tlie decree for judicial separation, in the Supreme Court, and the magi.strate had no jurisdiction, that power being reserved to tbe Court itself by the express terms of sec. GO of the Matrimonial Causes Act 1899, of which sub-sec. (1) provides th a t:—“ In any suit or other proceeding for obtaining a decree of judicial separation or of nullity or dissolution of mar­ riage the Court may—{a) make such order's as it deems just and proper with respect to the custodj^ maintenance aird education of the children tiie marriage of whose parents is the sirbject of such suit or other proceedings.” Srrb-.sec. (2) provides that:— Such orders aird directions may be made {a) from time to time by interim orders before making tbe final decree, or (h) by pro­ visions in the final decree, or (c) from time to time after the final decree upon application by petition for the purpose.” {See Brown V. Brovm) (1). It is settled, in the interpretation of that section, that the application need not be made by one of the parties to the suit, but may be made by anyone else in the interest of the child. On that point the case of Chctwynd v. Chetwynd (2) must be taken to have settled the law as to the rights of husbando and wife on such applications. This Court, in giving judgment in Brown v. Brown (1), pointed out that the remedy of the wife, if she wished to obtain maintenance for the child born under .such circumstances, was to make application to the Supreme Court. I said in the course of my judgment (3) :—“ Clearly then the Court had jurisdiction to make provision, by its decree or after­ wards, for this child, but it was not asked to do so. As was

(I) .3 C .RH ., 373.

(2) L.R., 1 P. & D., .39.

(3)

3C .L .R .,373, at p. 38.3.

4 C.L.H.J OF AUSTRALIA.

599

pointed out in Ex parte Bindon (1) it was open to the wife to

H. C. OF A,

make the application for alimony for the child, but she

1906.

chose not to do so. Further, it is open to the Court still to

B r o w s

V.

vary that decree on a proper application for that purpose.” B r o w s .

My learned brother Barton said (2):—“ So that, when the

Griffith C.J.

decree was made, the mother knew very well that there would .soon be another child to be maintained, and it was open to hei’ to make an application in respect of i t ; and there can be no doubt that the Court had jurisdiction to make an order att'ecting that child. It had assumed jurisdiction over the whole of the matter in controversy between the parties. However, no application was made for that purpo.se.” Then, after reading sec. ()0, he added;—“ So that the wife not only had the right to make application at the time, but she could have done so at any time after the decree.” And my learned brother, O’Connor, .said (8), “ It was laid down in Ex parte Bindon (1) that any per- ■son who wishes to have siach a decree varied must go tothe Divorce Court for a further order. Idle respondent might have gone to tliat Coui-t and a.sked to re-open the matter for the purpose of having a special adjudication as to the maintenance of this child which has been born since the decree. But that step has not been taken.” After that judgment was given by this Court, the I'espondeut took the step that this Court pointed out as the proper one for her to take, and pre.sented a petition in the Divorce Court in the regular form prescribed under the Act, asking for an order for the cmstody and maintenance of this child against the husband. At the hearing evidence was given on both sides, and the learned Judge came to the conclusion that the child was the chihl of the present appellant, and made the order for main­ tenance and cu.stody of the child, which is now appealed from. There is no ground for objecting to the order so far as regards the finding of fact. 'Die onh' ground, therefore, tliat is really open to the appellant is this—that the wife, bj' the undertaking given in the previous decree, is debarred from making the appli­ cation, that is to say, as between the parties themselves.

Jdie first subject for imiuiry is, what was the effect of the

(1) (1904) 4 S.R. (N.S.W .), 50.3.

(2) .3 C.L.R., 37.3, at p. .388.

(3) 3 C.L.R., .373, at pp. 391, 392.

■600 HIGH COURT

[ 1906.

H. C. OF A.

undertaking ? Both parties were aware tliat the cliild was

1906.expected to be born shortly after the decree. No provision was

B r o w n

made in the decree for its maintenance. The wife undertakes

V.

B r o w n .not to claim “ now or at any future time maintenance for her­

self.” In my opinion that cannot be construed as an undertaking not to claim maintenance for the child. That objection, therefore, fails. The learned Judge had jurisdiction to decide that this child was a child of the marriage. If there had been in the decree an undertaking by the wife that she would not make any applica­ tion to the Court for the custody and maintenance of the expected child, and any question were to arise as to the effect of such under­ taking, it would be a matter worthy of argument how far it was binding upon the wife. But as there is no such question arising here, I express no opinion on the subject, except to say that, whatever conclusion the Court might have come to it would be more a matter of form than of substance, for it is clear that, even if the wife were debarred from making an application, any other person might make it in the interest of the child.

Griffith C.J.

For these reasons I am of opinion that the appeal fails.

B a r t o n J. I am of the same opinion. I think that His Honor has made the matter perfectly clear, and I do not propose to add anything to what he has said.

I sa a c s

J.

I also agree with the judgment given by the Chief

Justice.

Cou'an, for the respondent, asked for costs of the appeal. [He referred to Brown and Poivles on Divorce, Oth ed , p. 463 ; Ward

successful appellant in forma 'pauperis gets such costs as ought to be allowed in such a case. Undoubtedly we have jurisdiction

v.

Ward (1).]

to allow costs. But we do not wish to give costs against a pauper

suitor.

The appellant referred to Johnson v. Lindsa'y a'lid Co. (2).

G r if f it h C.J. The practice undoubtedly is not to grant costs

in these cases.

The appellant was granted leave by Mr. Ju.stice

(I) 1 Sw. & Tr., 48-1; 29 L .J.P., 17.

(2) (1892) A.C., 110.

4 C.L.H.] OF AUSTRALIA.

601

O’Connor to proceed in forma paaperis, and the security was U-

1906.

reduced to £1.

The proper method, if the appellant has property

and should pay the costs, is to apply to have him dispaupered;

Brown

V.

but we will not grant leave to 4pply to dispauper, as we think

Brow .v.

this litigation has gone on long enougli. You will get the £1 G iittith C.J.

paid into Court.

Appeal dismissed.

Solicitor for respondent, E. IF. Downes.

C. A. W.

[HIGH COURT OK AUSTRALIA.

RICH . ..

A i’I'Ellant ;

P l .l in t if f ,

STRFLITZ BROS. & MOSS

R e s p o n d e n t s .

D e f e n d a n t s ,

ON APPEAL FRO.M THE SUPREME COURT OK

WESTERN AUSTRALIA.

Practice—New trial—Trial with ju ry—Misdirection—Fraud—Amendment oj H. C. OF A.

pleadings before High Court.

1906.

In a

.11 action tried witli a jury, the plaintiff sought to have a certain con­

P e r th ,

tract set aside on the ground of a conspiracy to defraud him.

The case was

Orf.29, .30, 31.

left to the jury generally, and they found for the defendants.

No objection

Nov. 1, 5.

was taken at the time to the Judge not having put specific questions to the

Griffith C.J., Barton and

j h r y .

Held, th a t the plaintiff was not en titled to a new tria l on the ground of m isdirection.

Hijrsins, JJ.

Qiuere, whether, under the circumstances, the plaintiff was, on the hearing of the appeal before the High Court, entitled to amend his pleadings in order to raise a new case suggested to be disclosed by the evidence, and to have a new trial.

By consent, and subject to terms, order of the Supreme Court of Western

Australia varied.