ON APPEAL FROM THE SUPREME COURT OF Husband and Wife-Parent and child-Maintenance-Agreement by wife renouncing
right to maintenance-Public policy-Marriage Act 1915 (Vict.) (No. 2691), secs. 83, 84, 87, 93-Justices Act 1915 (Vict.) (No. 2675), sec. 139. MELBOURNE,
Practice-Supreme Court of Victoria-Special case stated by Court of General Sessions March 25;
-No decision on merits-Power to refer case back to be heard-Justices Act April 8; May 12.
1915 (Vict.) (No. 2675), sec. 147.
Sec. 83 of the Marriage Act 1915 (Vict.) provides (inter alia) that where any husband has left his wife without means of support or where any father has left his children without adequate means of support, any justice may upon complaint thereof on oath being made by such wife or by the mother of such children, issue his summons to such husband or father to show cause why he should not support such wife or children. Sec. 84 provides that at the hearing of such complaint, whether the defendant is then present or not, any two justices shall inquire into the matter of the complaint; "and if they are satisfied that the wife or the children (as the case may be) are in fact without means of support and that the husband or the father is able to maintain her or them or to contribute to her or their maintenance, such justices (a) shall make an order in writing directing him to pay either weekly or monthly at their discretion and to such person or in such manner for her or their use as such justices think fit such moderate sum or allowance as they consider proper &.
Held, that the provisions of those sections are for the benefit of the public, and that the rights conferred by them cannot be renounced.
Held, therefore, that an agreement between a husband and a wife whereby the wife purported to relieve the husband of his obligation to support her did not prevent a Court of Petty Sessions from making an order under sec. 84 against the husband for the maintenance of the wife.
Held, also, that an agreement between the husband and the wife whereby she purported to relieve the husband of his obligation to support the child of the marriage did not prevent the Court of Petty Sessions from making an order under the same section against the husband for the maintenance of the child on the application of the wife.
Christie v. Christie, 25 V.L.R., 97; 21 A.L.T., 43, commented on. Sec. 147 of the Justices Act 1915 (Vict.) provides that in any case of appeal the Court of General Sessions before which the same is heard and deter- mined shall if so required by any party to such appeal state the facts specially for the determination of the Supreme Court thereon, in which case that Court may determine the same," &.
On an appeal to the Court of General Sessions from orders of…
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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Details
AGLC
Davies v Davies [1919] HCA 17
Case
[1919] HCA 17
Decision Date
CaseChat Overview and Summary
The parties to this dispute were Davies and Davies. The nature of the dispute and the specific court are not detailed in the provided text.
The legal issues before the court were not specified in the provided text.
The reasoning of the court and the legal principles it applied were not detailed in the provided text.
The final orders or outcome of the case were not stated in the provided text.