Rubie v Rubie - [1911] HCA 71

13 CLR 350

PETER JOSEPH RUBIE

RESPONDENT,

JOSEPHINE CLARA RUBIE

ON APPEAL FROM THE SUPREME COURT OF Husband and wife-Divorce-Attachment-Disobedience of order for payment of

maintenance - Order im egularly made - Order for maintenance in decree absolute-Matrimonial Causes Act 1899 (N.S. W.) (No. 14), secs, 39, 40- SYDNEY,

Divorce Rules of October 27, 1892, rr. 119, 135, 136. Dec. 20, 21.

In October 1901 a petition for divorce was filed against the appellant by the respondent, his wife. The petition, which was personally served upon the appellant, contained a prayer for permanent alimony. The appellant did not enter any appearance in the suit, and, in November 1901, a decree nisi was granted directing the appellant to pay a periodical sum for maintenance. The decree nisi was served upon the appellant, and, in January 1902, was made absolute. The decree absolute contained an order for payment of maintenance in the same terms as had been provided in the decree misi. The appellant subsequently married again. In December 1910, the decree abso- lute was served upon the appellant, and an order of attachment was made against him for non-payment of maintenance due under this decree since the

Held, that under sec. 40 of the Matrimonial Causes Act 1899, and Rule 119 of 27th October 1892, an independent application should have been made for permanent maintenance by the respondent, and that the inclusion of such an order in the decree absolute was an irregularity. But held, also, that under all the circumstances the order so made was within the jurisdiction of the Court and was not contrary to natural justice, that it was too late to take advantage of the irregularity, and that attachment was properly granted for disobedience of the order.

13 CLR 351

There is a distinction, so far as regards the discretion of the Court to grant or refuse an attachment, between disobedience to an injunction against doing

Decision of Gordon J., May 2nd 1911, affirmed.

APPEAL from the Supreme Court (Gordon J.).

In October 1901 the respondent filed a petition for divorce against the appellant. The petition contained (inter alia), a prayer for permanent alimony. This petition was personally served upon the appellant, but no appearance was entered in the suit, nor did the appellant appear at the hearing. In November 1901 a decree nisi was granted for dissolution of the marriage and the appellant was directed to pay a periodical sum for the permanent maintenance of his wife. The decree nisi was duly served upon the appellant, and in January 1902 the decree was made absolute. The decree absolute contained a similar order for payment of permanent maintenance to the wife. The decree absolute was not then served upon the appellant, but he was apparently aware of it as he had since married again. The appel- lant subsequently to the decree absolute had made payments by way of maintenance to his wife, and had attempted to com- promise her claim for maintenace. In July 1910 an application…

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 Rubie v Rubie

Details

AGLC: Rubie v Rubie [1911] HCA 71
Case: [1911] HCA 71
Decision Date: 21 December 1911

CaseChat Overview and Summary

The case of *Rubie v Rubie* concerned an appeal to the High Court of Australia from an order of the Supreme Court of New South Wales. The dispute arose from an order for the attachment of the appellant, Mr Rubie, for non-payment of maintenance ordered in a decree absolute for divorce. The decree absolute, granted in January 1902, included an order for permanent maintenance for his wife, the respondent. Mr Rubie had not entered an appearance in the divorce proceedings, and the order for maintenance was included in the decree absolute without a separate, independent application for permanent maintenance being made by the respondent.

The primary legal issues before the High Court were whether the order for permanent maintenance, as included in the decree absolute, was valid, and if not, whether the subsequent order for attachment for disobedience of that maintenance order was properly granted. Specifically, the appellant argued that the order for maintenance was a nullity or, at best, irregularly made, and that the Court should not have exercised its discretion to grant an attachment for disobedience of an order that was potentially invalid or contrary to natural justice. The respondent contended that any irregularity was minor, that the appellant had notice of the maintenance claim and the proceedings, and that his delay in challenging the order meant it should be enforced.

The High Court, affirming the decision of Gordon J., held that while the inclusion of the maintenance order directly within the decree absolute, without a separate application, constituted an irregularity under sections 40 of the Matrimonial Causes Act 1899 (NSW) and Rule 119 of the Divorce Rules, it did not render the order a nullity. The Court reasoned that the order was within the general jurisdiction of the Court to make, and that the appellant had sufficient notice of the maintenance claim from the initial petition and the decree nisi. Furthermore, the appellant's subsequent conduct, including making some payments and attempting to compromise the claim, along with the significant delay in challenging the order, meant it was too late to take advantage of the irregularity. The Court found that the order was not contrary to natural justice and that attachment was therefore properly granted for its disobedience.

The appeal was dismissed.

Orders