Enforcement of order by justice-Jurisdiction-Discretion-Adultery of wife since order-Power of Court of General Sessions-Limitation of proceedings- Continuing offence-Marriage Act 1915 (Vict.) (No. 2691), secs. 84, 91, 93- Marriage (Maintenance) Act 1919 (Vict.) (No. 3010), sec. 4-Justices Act 1915 (Vict.) (No. 2675), sec. 210.

Sec. 84 of the Marriage Act 1915 (Vict.) provides that on the hearing of a complaint by a wife that her husband has left her without means of support any two justices shall, if satisfied that she is in fact without means of support and that her husband is able to maintain her or to contribute to her maintenance, make an order directing the husband to pay a weekly or monthly sum for her use. Sec. 91, as amended by the Marriage (Maintenance) Act 1919 (Vict.), sec. 4, provides that Any one justice may at any time inquire in a summary way into any allegation of disobedience of any such order as aforesaid may for that purpose summon and examine all proper parties and witnesses, and may either commit the offender until the order has been obeyed or may impose upon such offender a penalty of not less than five nor more than fifty pounds or may order that any sum or sums of money then due under any such order (together with the costs of the inquiry under this section) be levied by distress and sale of the goods and chattels of the offender together with the reasonable charges of such distress." Sec. 93 provides that where two justices have made an order under sec. 84 they shall transmit the same the clerk of the peace; and the Court of General Sessions,

33 CLR 370

whether an appeal against the same has been entered or not, may at any time quash confirm or vary such order either in whole or in part at its discretion and may substitute a new order in lieu thereof."

Held, that the subsequent adultery of a wife does not ipso facto annul an order made under sec. 84, and on an inquiry under sec. 91 a justice has no authority to refuse to enforce obedience to the order on the ground of such adultery, his only jurisdiction being to inquire whether the order has been disobeyed.

Held, also, that on an appeal by a husband to a Court of General Sessions against an order made under sec. 84, that Court may receive further evidence upon questions of fact and consider grounds which did not exist at the time

Sec. 210 of the Justices Act 1915 (Vict.) provides that " Where justices are authorized by law to make an order in respect of any offence or where any offence or act is punishable by summary conviction, if no time is specially limited for laying an information in the Act of Parliament relating to such case,…

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 Cook v Cook

Details

AGLC: Cook v Cook [1923] HCA 57
Case: [1923] HCA 57
Decision Date: 7 December 1923

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning the enforcement of a maintenance order. The appellant, Ellen Cook, sought to enforce a weekly maintenance order against her husband, Walter Henry Cook, the respondent. The respondent had failed to make payments, and when the appellant brought proceedings under section 91 of the *Marriage Act 1915* (Vic.), the magistrate dismissed the application on the grounds that the appellant had committed adultery since the order was made. The Supreme Court affirmed this decision, leading to the present appeal.

The central legal issues before the High Court were whether a wife's subsequent adultery automatically annulled a maintenance order, whether a single justice had the jurisdiction to refuse enforcement of such an order on the ground of adultery, and whether the proceedings were barred by the statute of limitations. The Court was required to interpret sections 84, 91, and 93 of the *Marriage Act 1915* (Vic.) and section 210 of the *Justices Act 1915* (Vic.).

The Court reasoned that the *Marriage Act* was designed to enforce a public policy of maintaining destitute wives and children, not merely to enforce a common law obligation. It held that subsequent adultery by a wife does not ipso facto annul a maintenance order made under section 84. Furthermore, a single justice inquiring into disobedience under section 91 has no authority to refuse enforcement on the ground of adultery; their jurisdiction is limited to determining whether the order has been disobeyed. The Court also considered that if the disobedience of a maintenance order constitutes an "offence" for the purposes of section 210 of the *Justices Act*, it is a continuing act, meaning the information is not necessarily out of time.

The appeal was allowed, and the case was remitted to the Court of Petty Sessions to be dealt with in accordance with the judgment. The Court found that the magistrate and the Supreme Court had erred in law by considering the wife's adultery as a ground to refuse enforcement of the maintenance order.

Orders