Cooper v Cooper [1941] HCA 17;

Cooper v Cooper [1941] HCA 17; - HCA 1941 case summary — Zoe

[13]

The evidence disclosed that in August of 1937 the wife lodged a complaint under the Married Women's Protection Act 1922, alleging desertion on the part of her husband and that the husband had consented to an order that his wife should live separate and apart from him and that she should have the legal custody of the child of the marriage. No order was made as to maintenance, but the parties were given liberty to apply, which gave the parties an opportunity of themselves coming to an agreement. In fact, they entered into the deed of maintenance dated 22nd October 1937 already mentioned. By the terms of this deed, the husband covenanted with his wife as follows: - (a) To pay the sum of thirty shillings per week clear of all deductions for the support and maintenance of the child of the marriage until he attained twenty-one years of age and after that age so long as he lived with the complainant and engaged in study. Further, the husband covenanted to pay for all the child's clothing, education, and medical expenses. (b) To pay certain weekly sums by way of maintenance which increased from four pounds per week to eight pounds ten shillings per week. The sums which the husband covenanted to pay, material to this case, are: - 1. The sum of five pounds per week from 30th June 1939 to 30th June 1940. 2. The sum of five pounds ten shillings per week from 30th June 1940 to 30th June 1943. 3. The sum of six pounds ten shillings per week from 30th June 1943 to 30th June 1946. 4. The sum of seven pounds ten shillings per week from 30th June 1946 to 30th June 1949. 5. The sum of eight pounds ten shillings per week from 30th June 1949 and thereafter during the lifetime of his wife. And the husband also covenanted that as and from his death his estate should be charged with the payment of these weekly payments. Further, the husband assigned or agreed to assign to the wife for life, remainder to the child, certain property known as 32 Leura Street, free of encumbrances, and also gave over or agreed to give over and assign to his wife all his right, title and interest to the furniture and chattels contained in and about the premises known as 32 Leura Street.

[30]

Two issues arose for decision: first, whether the appellant had provided reasonable maintenance for the respondent; and, secondly, if he had not done so, whether the omission amounted to wilful neglect. The appellant relies upon the deed and his performance of it for a finding in his favour on these issues. He also relies upon it as a bar to the jurisdiction of the justices to deal with the respondent's application upon which the order, the subject of this appeal, was made. In my opinion there is no substance in this objection. There is nothing in the present Act or the deed enabling any distinction to be drawn which would exclude the principles applied in Davies v. Davies[8] - See also Bakewell v. Bakewell[9]; Iles v. Iles[10]. A fresh discussion of those principles is not necessary for the purposes of this case. Moreover, the observations of Lord Merrivale in Matthews v. Matthews[11] are in point: - "As to the first point, the language of the Act of Parliament supplies the test. The question before the magistrate was not whether this was an agreement which would be good at common law between independent parties and would exclude subsequent proceedings. What he had to determine was whether the husband had been guilty of wilful neglect to provide reasonable maintenance for his wife, and in order to determine that he had, of course, to look at what had taken place between the parties, and to look at the agreement and to see what the husband had done and was doing, but he still had to determine judicially whether the husband had been guilty of wilful neglect to provide reasonable maintenance for his wife. That depended on two things: First, whether he had failed to maintain her; secondly, whether he had done it wilfully. The magistrate took the view that although the husband had made a composition with his creditors and was living under the shelter of his father's protection, he was wilfully neglecting to provide some maintenance for his wife, and the magistrate found what sum he could certainly provide. I will come to that again in a moment. The learned magistrate in my judgment applied his mind to the right question and gave to the agreement between the parties its proper value, which was evidential value and not value by way of estoppel, and giving the proper effect to the agreement, that is, coming to the conclusion that it left it open to him to determine the question in the case and did not exclude the jurisdiction of the court, he considered the husband's position."

[32]

Sec. 11 provides that on proof on any application under the Act that the husband has omitted to supply reasonable maintenance wilful neglect shall be presumed, unless the husband shall prove the contrary. The order is attacked on the ground that this initial onus was not discharged. The evidence on this issue consisted of two parts: one relating to the wife's needs: the other tending to prove the means and position of the appellant. The evidence proved that the parties had been married for many years, the only child, a boy, being sixteen years of age at the time proceedings began. He attended a secondary school in Perth and resided with the respondent in the cottage provided for her under the deed. Since the deed was entered into the respondent had fallen into ill health. She was suffering from a disease of the heart and gall stones. In consequence, she was able to go out of doors but infrequently, and had not been able to take a holiday for over two years. No domestic servant was engaged to assist her, although when the respondent was too ill to go about she hired casual help. But there was no bedroom available in the cottage for a domestic servant. She estimated that the wages and cost of maintaining a servant in the house would be two pounds ten shillings per week. The respondent attended to her son, and incurred miscellaneous expenses on his behalf not provided for in the fixed category in the deed. Her sickness involved her in substantial weekly payments for medicines. Because of her state of health, the respondent could not travel to the city by the public conveyances without taking someone with her in case she collapsed. When she desired to attend church, which was a mile distant from the house, she was under the necessity of walking, because of the absence of any means of transportation. The evidence which the respondent gave about the appellant's means and position was that he was a solicitor conducting an office proper to the practice of his profession in Perth. He owned two motor cars, which the respondent said were "a Packard and the other a beautiful red car, a sedan." His pastimes were motoring and horse-racing. He had three trotting horses that he bought in New Zealand and took to Perth together with a trainer. Before the parties separated, the respondent said, "we went to everything." The appellant had been patron of the Hunt Club. In addition to the sum of five pounds per week, which the appellant was paying the respondent at the time of the proceedings, it has been observed that he provided her with the cottage and furniture referred to in the deed. It contained a lounge, dressing room and one bedroom. At the back, adjoining the wash-house, there was a room six feet by nine feet in which the son slept. The space between his bed and the dressing table was two feet six inches. The walls of the cottage were cracked, and, generally, it was in a bad state of repair. The bath was made of cement, and the bath heater was burnt out. The smoke from the fire in the wash-house filled that room and filtered into the son's bedroom. The valuation put on the cottage was £680. The respondent paid the rates and taxes. The rental value given by witnesses varied from seventeen shillings per week to twenty-seven shillings and sixpence per week. It was stated that if it were let the tenant would be a man earning four pounds to five pounds per week, that is, approximately, the basic or lowest wage level. Since the execution of the deed the respondent has become entitled to an annuity equivalent to three pounds per week under the will of her husband's grandfather. It is plain that her reasonable needs included not only what she required to live on, but help in the household, means to enable her to hire transport when reasonably necessary, and a more suitable house. These needs could not be met out of the money she was receiving under the deed. It was quite uncertain what was the net return that she would derive from the cottage if it were let. It needed substantial repairs. The evidence disclosed that since the complaint was issued the appellant offered to assist the respondent financially, but she refused the offer. There was ample justification for the finding by the justices that the maintenance provided by the appellant for his wife was not reasonable. Indeed, they stated in the course of their finding - and the statement was not attacked - that "it has not been disputed that the respondent is unable to make ends meet." The result was that the onus of proving that the appellant was not guilty of wilful neglect to provide the respondent with reasonable maintenance fell upon the appellant (sec. 11).

[33]

The next question for consideration is whether, upon the whole of the evidence, the justices were in error in finding that the onus was not discharged. The question then arises, What is the meaning of the term "wilful neglect" in sec. 2 of the Act? The word "neglect" in this section describes the omission by a husband to fulfil his duty to provide reasonable maintenance for his wife. He may fail in his duty either by omitting to provide his wife with any maintenance or by providing her with an amount of maintenance which is less than a reasonable amount. In the former case, if, being in a position to pay maintenance, he chooses not to provide it, his neglect is clearly wilful. In the second case, if he is able to provide the reasonable amount of maintenance and chooses not to provide her with that amount, he is also guilty of wilful neglect. It should be observed that sec. 7 of the Act provides that no order shall be made on the application of a married woman if it shall be proved among other things that she is of drunken habits or has committed adultery. But there was no such suggestion in this case, or that the conduct of the respondent was not at all times above reproach. The question arose in R. v. Downes[12] whether a parent should be convicted under sec. 37 of Act 31 & 32 Vict. c. 122 of the offence of wilfully neglecting to provide medical aid for his child to the detriment of his health. Lord Coleridge said: "By wilful neglecting, I understand an intentional and deliberate abstaining from providing the medical aid, knowing it to be obtainable"[13]. Bramwell B. said: "But the statute imposes an absolute duty upon parents whatever their conscientious scruples may be. The prisoner, therefore, wilfully - not maliciously - but intentionally, disobeyed the law"[14]. In In re Young and Harston's Contract[15] Bowen L.J. said: "That" (meaning wilful) "is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law, implies nothing blameable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent." There can be no question here but that the appellant intentionally refused to pay more by way of maintenance than the inadequate amount which the respondent received from him under the deed at the time the proceedings began. The fact that he entered into the deed and paid her such amounts in performance of the covenant thereunder is not in itself sufficient to exculpate him from the charge of wilful misconduct (Matthews v. Matthews[16]). As she was presently in need of a larger provision than he was paying to her, the fact that the deed operated during his life and charged the appellant's estate with the payment of maintenance after his death did not disentitle her to enforce her statutory right to obtain an order for the payment of a reasonable amount of maintenance. In the course of his evidence the appellant did not combat the respondent's evidence as to her needs and her inability to meet them with the means at her disposal. His evidence was devoted to showing that his financial position was such that he could not provide more than she was receiving under the deed. But his evidence affords no ground for saying that his refusal to pay more was not intentional and deliberate. It really proves that his refusal to do so was wilful. The evidence showed that the appellant's taxable income, according to his Federal assessment notice, for the year ending 30/6/1939 was £3,998. This income was arrived at after the deduction of £555 for State taxation. The amount of the Federal tax was £678. His net income for that financial year, therefore, after deducting taxation, was £3,177. In the course of his evidence the appellant gave particulars of the properties which he owned and of his current income and outgoings. From this evidence it appeared that he owned valuable properties, including at least three hotels, rent-producing buildings in the city of Perth, and farming lands. He admitted that his gross weekly income was £194, and produced a statement of outgoings amounting to £164 per week. This evidence related to the current year. It is evident that he was at pains to bring into his expenditure every possible item to present a conservative estimate of his income. But taking up his evidence at its face value there is a surplus of thirty pounds per week. To this sum, however, there is to be added the sum of ten pounds per week, the profit which, on his own admission, he expected to derive from the Rex Hotel, but which was omitted from his statement of his weekly income. There is thus an admitted surplus of £40 per week, out of which he was paying to the respondent the sum of £5 per week. It was not shown that for any reason he was prevented from paying such part of the surplus as would increase the maintenance which he was giving his wife to a reasonable amount. The evidence failed to rebut the presumption which was raised against him by sec. 11. The justices were, in my opinion, justified by the evidence in finding that the respondent had established her complaint that the appellant was guilty of wilful neglect to provide her with reasonable maintenance.

[34]

The next and final objection which is made to the order the subject of this appeal is that the sum ordered to be paid was excessive, having regard to the provisions of sec. 5 (c) of the Act. These provisions do not prohibit the justices from awarding maintenance in excess of any specified amount. In that respect they are unlike the corresponding provisions of the English Act: See Summary Jurisdiction (Married Women) Act 1895. These provisions prescribe a maximum of two pounds per week. Like a summary order made under the English Act an order under the Western-Australian Act has while in force the effect in all respects of a judicial separation (Married Women's Protection Act, sec. 10). In Cobb v. Cobb[17] Sir F. H. Jeune considered the principles upon which maintenance should be assessed under the English legislation. The President said: - "I do not wish to lay down any hard and fast rule; but I think those courts" (courts of summary jurisdiction) "may be well content to deal with questions of allowance on the principles, which, though not applied with absolute rigidity in this Division, are nevertheless generally recognized and accepted here as a practical guide in cases of judicial separation, the rule being that where there are no children of the marriage or where, if there are children, the wife has not to support them, she, if she has no means of her own, shall be allotted one-third of the husband's net income, or, if she has means apart from her husband, then her income is to be made up to one-third of the joint incomes. I do not mean this to be taken as a hard and fast rule"[18]. The removal of the prohibition against awarding more than two pounds per week permits of the application by the justices, even in the case where the combined income of the parties is large, of the principles which apply in assessing maintenance in the case of judicial separation. In the case of Stephenson v. Stephenson[19] the principles which should govern the assessment of maintenance in the courts of summary jurisdiction were again explained. In that case the court refused to set aside an order of the justices awarding the maximum allotment of two pounds per week. It appeared that the wife, who was employed intermittently, had earned over £100 in the year before the order was made, and that the husband's weekly earnings were £5 3s. 10d. Lord Merrivale made these observations: - "Regard must be had to two facts regarding that decision," (Cobb v. Cobb[20]) "namely (1) that the court was careful to point out that it does not lay down a hard and fast rule and (2) that the rules with regard to alimony and maintenance applied by the ecclesiastical courts were brought into operation with regard to persons of fixed incomes and usually of some wealth, and the court apportioned that income and that wealth in ordinary cases so as to provide one-third of the joint incomes for the maintenance of the wife. But the ecclesiastical courts never held themselves bound by hard and fast rules. The position of the parties and the circumstances were borne in mind and cases of departure from the ordinary rule not infrequently occurred. What we have to decide in this case is whether the justices have made an award in such a way that it is demonstrated that they have exercised no judicial discretion. For my part I am not able to say any such thing having regard to the precarious nature of the wife's employment, to the possible effect on it of the husband's desertion and to the admission by the husband that he was able to provide an allowance of £2 10s. a week if he chose. In this exceptional case I think there were grounds on which the justices in the exercise of a judicial discretion might have made the order which is appealed from2(1925) 133 L.T., at p. 400.."

[35]

In the present case the justices expressly said that the award of maintenance which they made was not based on a particular portion of the combined income. They found that the appellant's net income amounted to forty pounds per week. They also computed his gross annual income without deducting the outgoings of which he gave particulars or the amounts which he was liable to pay for Federal, State and other taxes. The gross income was computed at £4,030. The justices observed that if they took the amount of the appellant's means at that figure, and added to it the respondent's income, the combined income would be £4,264 and one-third of this sum would be £1,420, that is to say, at least twenty-seven pounds per week. For the purposes of this calculation they took the respondent's income as consisting of her annuity of three pounds per week and seventy-eight pounds, at which they determined the annual rental of the cottage. It is not to be supposed that the justices considered that the gross income of £4,020, which they stated was computed without any deduction for taxation, (the particulars of which are given) was the basis of their assessment. I cannot see any ground for attributing to the justices the error of supposing that the appellant should have at his disposal for the support of his wife and himself the moneys which they said he was bound to pay for taxation. After saying that the combined gross income was £4,264, and that one-third of that sum was £1,420, the justices said, and it seems to me that this is their definitive statement: "We do not propose to restrict our finding to a proportionate amount of the total income." By the total income it is evident that they meant the total net income of the appellant and respondent, because the sum awarded, namely, fifteen pounds per week, was a sum somewhat in excess of one-third of the total net income. The sum of fifteen pounds was very much less than one-third of the combined gross incomes. The justices added: - "We have to get back to the Act, which says the wife is entitled to a reasonable sum for maintenance. That is what we are concerned with. We have taken into consideration the fact that she has an income of three pounds per week from the Molloy estate and the house, one pound ten shillings as the maintenance of the boy, and we consider that the complainant is entitled to a further fifteen pounds a week from her husband, inclusive of the moneys payable under the deed, in order to maintain herself in the degree of comfort that we think she is entitled to, and in order to discharge her obligations to her husband and to her son by occupying a comfortable home in a suitable locality."

[54]

No order was made under sec. 5 (c) in 1937, at the request of the parties. They then negotiated at arms' length, each being represented by a separate solicitor. The result was the deed of October 1937. It was obviously intended to fix the respondent's maintenance for all time. Even if the appellant's income was subsequently decreased by a falling off in his business or by increased taxation, he would still be bound to pay the weekly sum agreed upon. Although any income derived from personal exertion would cease upon his death, her rights against his estate would continue unabated. No order made by the justices could extend beyond this date, so that it was a great benefit to her to obtain covenants to endure during her life, instead of having to rely on the success of an application to some court under some Testator's Family Maintenance Act, if she survived him. An order under such an Act could only operate on property owned by the appellant at the date of his death, so that if he chose to settle all his property in his lifetime his estate would be beyond the reach of the court; or he could remove himself and his assets to some country where there was no such Act. The deed would also operate although the respondent remarried after his death, whereas an order under such an Act would almost certainly be confined to her widowhood. The position therefore was that, at the date the complaint was lodged, the widow was in receipt of substantial and increasing benefits under the deed which should have been sufficient, especially having regard to her own means, to have afforded her reasonable maintenance according to the scale of living she seems to have enjoyed after her marriage. The appellant was making the payments for which he was liable thereunder regularly, and providing for the maintenance of his son. The respondent has a weak heart, but she is not incapacitated. Her health appears to be about the same as it was at the date of the deed. Her substantial complaint is that she ought to have a home in a better locality and be able to employ a permanent housekeeper and have a car. The respondent can let the home. Its rental value is thirty-five shillings a week. Allowing five shillings a week for outgoings, she would then have a net income of ten pounds a week for herself, which should be ample to enable her to live in reasonable comfort, if she desires to give up housekeeping and obtain that rest and change of air which she says is necessary for her health. It may be that, if the respondent had requested the appellant to pay for some extraordinary expenditure, not in the contemplation of the parties at the date of its execution, and he had refused to do so, he would have been guilty of omitting to supply reasonable maintenance in spite of having regularly made the payments provided for by the deed. In the present case the required repairs for the house might be such an expenditure. The appellant said he was willing to pay for these repairs, and, in my opinion, it would be advisable in his own interests to do so and subsequently to keep the house in repair. Indeed, it would be preferable if, with her consent and the sanction of the court, he bought a more modern house in a better locality and settled it upon her and the child in lieu of the present home.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Cooper v Cooper [1941] HCA 17; (1941) 65 CLR 162 (4 June 1941)

Parties

Legislation Cited (2)

Cases Cited (1)