Jeffery v Jeffery - [1949] HCA 28

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY. Matrimonial Causes-Dissolution of marriage-Alimony pendente lite-Application

by wife before decree absolute-Application refused-Appeal to High Court as of right-Delay-Special leave to appeal-Appeal after decree absolute-Juris- SYDNEY,

diction of Court-Ante-dating of judgment-Matrimonial Causes Act 1899-1943 May 6;

(N.S.W.) (No. 14 of 1899-No. 9 of 1943), 38. 5, 41, 42, 43-Judiciary Act Aug. 4.

1903-1948 (No. 6 of 1903-No. 65 of 1948), 8. 51-High Court Rules, Order XXXVIII., r. 2; Part II., Section V., r. 1.

Upon an appeal from the dismissal, before the decree nisi for the dissolution of the marriage has been made absolute, of an application for alimony pendente lite the High Court may, under the combined operation of the High Court Rules, Order XXXVIII., r. 2, Part II., Section V., r. 1 and S. 37 of the Judiciary Act 1903-1948, make an order granting such alimony even though in the meantime the decree has been made absolute.

The purpose of alimony pendente lite is to make provision for a petitioning wife who otherwise would not be able to support herself properly and the facts that she has some resources and that an order for alimony would improve her financial position do not necessarily disentitle her from an order.

Principles governing and considerations affecting the discretion to order alimony pendente lite discussed.

Decision of the Supreme Court of the Australian Capital Territory (Simpson J.), reversed.

APPLICATION for special leave to appeal and APPEAL from the Supreme Court of the Australian Capital Territory.

On 15th July 1947, Marjorie Constance Jeffery, of Hove, Sussex, England, filed in the Supreme Court of the Australian Capital

78 CLR 571

Territory, a petition for the dissolution of her marriage with Charles Francis Jeffery, of Red Hill, Canberra, Australian Capital Territory, retired engineer, on the ground of his desertion of her for three years and upwards without just cause or excuse.

Appearance to the petition was entered by the husband on 31st July 1947.

On behalf of the wife a notice of motion for alimony pendente lite and an affidavit made by her in September 1947 in support of the motion was filed on 31st October 1947, and on 10th November 1947 an affidavit by the husband in answer to the wife's affidavit was filed.

On the application of the husband evidence of the wife and the two daughters of the marriage was taken on commission in England on 22nd September 1948 for use in the motion for alimony pendente lite.

A decree nisi for the dissolution of the marriage was made by the Supreme Court on 25th May 1948.

The motion for alimony pendente lite came on for hearing before the Supreme Court on 30th November 1948. The evidence given at the hearing, which included the evidence given on commission, showed that the husband and the wife were married at Brighton, England, on 28th December 1921. There were issue of the marriage two daughters, one aged twenty-four years and 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.

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Details

AGLC: Jeffery v Jeffery [1949] HCA 28
Case: [1949] HCA 28
Decision Date: 4 August 1949

CaseChat Overview and Summary

The case of *Jeffery v Jeffery* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of the Australian Capital Territory. The dispute arose from the wife's application for alimony pendente lite, which is financial support for a wife during divorce proceedings. The Supreme Court had dismissed her application, and the wife sought to appeal this decision to the High Court.

The legal issues before the High Court included whether it had jurisdiction to grant alimony pendente lite after a decree absolute for divorce had been made, and if so, whether it should exercise that jurisdiction. The court also had to determine the principles governing the discretion to award alimony pendente lite, particularly in circumstances where the wife had some resources but was not adequately supported. The question of whether the appeal could be heard as of right or required special leave, and the impact of delays on the appeal process, were also central to the determination.

The High Court reasoned that while the Supreme Court's jurisdiction to grant alimony pendente lite typically ceases upon a decree absolute, the High Court, in its appellate capacity, could make such an order if it ought to have been made by the lower court. This was facilitated by the Judiciary Act 1903-1948 and the High Court Rules, which allowed for the ante-dating of judgments. The Court clarified that the purpose of alimony pendente lite is to provide for a wife who cannot adequately support herself, and the mere fact that she has some resources or that an order would improve her financial position does not automatically disentitle her. The Court considered the wife's financial circumstances, including her expectant interest in her father's estate and the limited value of her readily accessible assets, in contrast to the husband's pension and investment income.

The High Court granted special leave to appeal and allowed the appeal. It ordered that the wife be paid a moderate allowance of £3 per week, to be ante-dated to the date of the Supreme Court's dismissal of her application, reflecting the period between the filing of the petition and the decree absolute.

Orders