Brown v Brown [1906] HCA 85; (1906) 4 CLR 595 (20 December 1906)

Thomas Edwin Brown Respondent, Appellant; and Mary Brown Petitioner, Respondent.

This is an appeal from an order made by the learned Judge of the Divorce Court after a decree for judicial separation, giving the custody of a child of the marriage to the mother, and ordering the appellant, whom the learned Judge found to be the father of the child, to contribute to its maintenance. The order is appealed from substantially on the ground that all the questions in dispute between the husband and the wife had been disposed of by the decree which was made on 24th March 1904. The decree, as drawn up, stated that the cause came on for hearing in the presence of the petitioner's solicitor on the wife's petition for judicial separation, and of the respondent in person, "whereupon and upon reading the petition and affidavit verifying the same and the answer of respondent and hearing the evidence given vivâ voce of petitioner this Court by consent of both parties doth hereby order and decree" as follows:—First, that the petitioner be judicially separated from the respondent. Some point was taken as to the decree being made by consent. But it appears that evidence was heard, so that no question arises on the abstract question whether the Court had jurisdiction to make an order for judicial separation by consent. The consent to be inferred from this decree is that the facts were admitted by the parties so far as was necessary to found the decree. Then the decree went on to direct that the respondent should have the custody of the six children described as the issue of the marriage between the parties, and that the petitioner should be allowed to have access to them at certain times and places. Finally the decree contained an undertaking by the petitioner in these words:—"The petitioner undertakes not to claim (now or at any future time) maintenance for herself so long as she is judicially separated." A fortnight or so after this decree was pronounced another child was born, as to the paternity of which there was a dispute. The present appellant refused to contribute to its maintenance. Thereupon the present respondent proceeded against him under the Deserted Wives and Children's Act 1901 for an order for maintenance, and obtained it; but on appeal to this Court the order was set aside on the ground that the jurisdiction to deal with the maintenance of the children of the marriage was, after the decree for judicial separation, in the Supreme Court, and the magistrate had no jurisdiction, that power being reserved to the Court itself by the express terms of sec. 60 of the Matrimonial Causes Act 1899, of which sub-sec. (1) provides that:—"In any suit or other proceeding for obtaining a decree of judicial separation or of nullity or dissolution of marriage the Court may—(a) make such orders as it deems just and proper with respect to the custody maintenance and education of the children the marriage of whose parents is the subject of such suit or other proceedings." Sub-sec. (2) provides that:—"Such orders and directions may be made (a) from time to time by interim orders before making the final decree, or (b) by provisions in the final decree, or (c) from time to time after the final decree upon application by petition for the purpose." (See Brown v. Brown)[1]. It is settled, in the interpretation of that section, that the application need not be made by one of the parties to the suit, but may be made by anyone else in the interest of the child. On that point the case of Chetwynd v. Chetwynd[2] must be taken to have settled the law as to the rights of husband and wife on such applications. This Court, in giving judgment in Brown v. Brown[3], pointed out that the remedy of the wife, if she wished to obtain maintenance for the child born under such circumstances, was to make application to the Supreme Court. I said in the course of my judgment[4]:—"Clearly then the Court had jurisdiction to make provision, by its decree or afterwards, for this child, but it was not asked to do so. As was pointed out in Ex parte Bindon1(1964) 4 S.R. (N.S.W.), 503. it was open to the wife to make the application for alimony for the child, but she chose not to do so. Further, it is open to the Court still to vary that decree on a proper application for that purpose." My learned brother Barton said[6]:—"So that, when the decree was made, the mother knew very well that there would soon be another child to be maintained, and it was open to her to make an application in respect of it; and there can be no doubt that the Court had jurisdiction to make an order affecting that child. It had assumed jurisdiction over the whole of the matter in controversy between the parties. However, no application was made for that purpose." Then, after reading sec. 60, he added:—"So that the wife not only had the right to make application at the time, but she could have done so at any time after the decree." And my learned brother, O'Connor, said[7], "It was laid down in Ex parte Bindon1(1904) 4 S.R. (N.S.W.), 503. that any person who wishes to have such a decree varied must go to the Divorce Court for a further order. The respondent might have gone to that Court and asked to re-open the matter for the purpose of having a special adjudication as to the maintenance of this child which has been born since the decree. But that step has not been taken." After that judgment was given by this Court, the respondent took the step that this Court pointed out as the proper one for her to take, and presented a petition in the Divorce Court in the regular form prescribed under the Act, asking for an order for the custody and maintenance of this child against the husband. At the hearing evidence was given on both sides, and the learned Judge came to the conclusion that the child was the child of the present appellant, and made the order for maintenance and custody of the child, which is now appealed from. There is no ground for objecting to the order so far as regards the finding of fact. The only ground, therefore, that is really open to the appellant is this—that the wife, by the undertaking given in the previous decree, is debarred from making the application, that is to say, as between the parties themselves.

The first subject for inquiry is, what was the effect of the undertaking? Both parties were aware that the child was expected to be born shortly after the decree. No provision was made in the decree for its maintenance. The wife undertakes not to claim "now or at any future time maintenance for herself." In my opinion that cannot be construed as an undertaking not to claim maintenance for the child. That objection, therefore, fails. The learned Judge had jurisdiction to decide that this child was a child of the marriage. If there had been in the decree an undertaking by the wife that she would not make any application to the Court for the custody and maintenance of the expected child, and any question were to arise as to the effect of such undertaking, it would be a matter worthy of argument how far it was binding upon the wife. But as there is no such question arising here, I express no opinion on the subject, except to say that, whatever conclusion the Court might have come to it would be more a matter of form than of substance, for it is clear that, even if the wife were debarred from making an application, any other person might make it in the interest of the child.

I am of the same opinion. I think that His Honor has made the matter perfectly clear, and I do not propose to add anything to what he has said.

[1] [1905] HCA 53; 3 C.L.R., 373.

[2] L.R., 1 P. & D., 39.

[3] [1905] HCA 53; 3 C.L.R., 373.

[4] [1905] HCA 53; 3 C.L.R., 373, at p. 383.

[5] (1964) 4 S.R. (N.S.W.), 503.

[6] [1905] HCA 53; 3 C.L.R., 373, at p. 388.

[7] [1905] HCA 53; 3 C.L.R., 373, at pp. 391, 392.

[8] (1904) 4 S.R. (N.S.W.), 503.

High Court of Australia

Brown v Brown [1906] HCA 85; (1906) 4 CLR 595 (20 December 1906)

HIGH COURT OF AUSTRALIA