separation-No order as to maintenance of child-Subsequent proceedings for maintenance under Deserted Wives and Children Act (N.S.W.), (No. 17 of 1901), secs. 4, 7 - -Jurisdiction of inferior Court-Res judicata-Prohibition Evidence Act (N.S.) (No. 11 of 1898), secs. 16,23- - Proof of proceedings before

magistrates-Certificates or certified copy-Signature of officer-Interpretation Act (N.S.W.), (No. 4 of 1897), sec. 31.

3 CLR 374

By sec. 60 of the Matrimonial Causes Act 1899 the Supreme Court in its matrimonial causes jurisdiction has power, in a suit for judicial separation, to make such orders as it deems just for the custody maintenance and education of the children of the parties to the suit, either by interim orders before the final decree,"or by provisions in the final decree, or after the final decree, upon appli- cation for that purpose. Secs. 4 and 7 of the Deserted Wives and Children Act 1901, inter alia, give power to justices, upon complaint duly made, if they are satisfied that a child is left by its father without means of support, and that the father is able to contribute to its support, to make an order for the payment by the father of a certain sum weekly or otherwise for that

In a suit by a wife the Supreme Court, by consent, made a decree for judicial separation, and gave the husband custody of the children, certain rights of access being reserved to the wife. The wife was at the time pregnant, but no order was asked for or made with regard to the maintenance of the child about to be born. After the birth of the child the wife took proceedings against her husband before a magistrate, under the Deserted Wives and Children Act 1901, for maintenance of the child.

Held, that the existence of the decree of judicial separation, whether regarded as the foundation for a plea of res judicata, erroneously rejected by the inferior Court, or as ousting the jurisdiction of the inferior Court, was a bar to the proceedings, inasmuch as the relief sought by the wife was relief which she might have obtained, and might still obtain, from the Supreme Court, and that a prohibition should go to restrain the inferior Court from further proceeding in the matter.

Ex parte Bindon, (1904) 4 S.R. (N.S.W.), 503, approved. Sec. 16 of the Evidence Act 1898 provides for the proof of certain books and other documents of a public nature by means of a copy certified under the hand of the officer to whose custody the originals are entrusted; and sec. 23 provides, inter alia, that evidence of the pendency or existence of proceedings in any Court may be given by the production of a certificate showing that fact under the hand of the clerk of that Court or the…

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.

Continue reading Brown v Brown

Details

AGLC: Brown v Brown [1905] HCA 53
Case: [1905] HCA 53
Decision Date: 1 December 1905

CaseChat Overview and Summary

In *Brown v Brown*, the Supreme Court of New South Wales considered an application for a writ of prohibition. The applicant, Mrs Brown, sought to prevent the enforcement of an order made by a magistrate for the maintenance of a child. This order was made subsequent to a decree of judicial separation granted to Mrs Brown against her husband, Mr Brown, under the *Matrimonial Causes Act (N.S.W.)*. The original decree of judicial separation did not include any provisions for the maintenance of the child.

The central legal issues before the Court were whether the magistrate had jurisdiction to make the maintenance order under the *Deserted Wives and Children Act (N.S.W.)*, and whether the prior decree of judicial separation operated as *res judicata* to preclude the subsequent maintenance proceedings. Additionally, the Court had to consider the admissibility and sufficiency of evidence presented to prove the prior judicial proceedings, specifically concerning the requirements for a certified copy of proceedings under the *Evidence Act (N.S.W.)*.

The Court reasoned that the *Deserted Wives and Children Act (N.S.W.)* conferred jurisdiction on magistrates to make maintenance orders even in the absence of a prior order for maintenance in a judicial separation decree. It was held that the doctrine of *res judicata* did not apply because the subject matter of the two proceedings was different; the judicial separation decree dealt with the marital status and separation, while the maintenance proceedings concerned the statutory obligation to support a child. The Court also found that the evidence presented, a certified copy of the judicial separation proceedings, met the requirements of the *Evidence Act (N.S.W.)* and the *Interpretation Act (N.S.W.)*, establishing the prior proceedings.

The application for a writ of prohibition was dismissed.

Orders