Davies v Davies [1919] HCA 17

Davies v Davies [1919] HCA 17 - HCA 1919 case summary — Zoe

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Renton (1); Weiler v. Weiler (2). The strongest and the only direct authority in respondent's favour is Christie v. Christie (3), where Madden C.J. held that, where husband and wife enter into an agreement relieving the husband of the obligation of maintaining the wife, the jurisdiction of justices to make an order is abolished. A less direct authority is Graham v. Graham (4), where Holroyd J. held that a wife after obtaining an order of justices could release her husband from performing it. The learned Judge was greatly pressed by the argument that the agreement was invalid, but on the whole thought it was not, but his careful words are to be noticed (5) : "As far as I can judge the deed was a good answer to the application of the wife; it was a good answer to the charge of disobedience of this particular maintenance order." His Honor was apparently carefully avoiding the affirmance of the doctrine in Ohristie's Case, and was leaving open the question of the wife's tight to get a further order. 4 The point is whether the opinion of Madden C.J. in Christie's _ Case (3) was right. This depends on whether the enactment is one merely for the private benefit of the mother, or whether it is one of public policy for the benefit of the community. There are two principles well known to the law, each represented by a maxim. The one which is invoked by the respondent is Cuilibet licet renuntiare juri pro se introducto. The other is Priva- torum conventio juri publico non derogat. The latter principle is thus _ expressed by Lord Watson, speaking of the enactment in Anctil v. Manufacturers' Life Insurance Co. (6): "The rule of the Code appears to them" (their Lordships) "to be one which rests upon general principles of public policy or expediency, and which cannot be defeated by the private convention of the parties." The prin- ciple was again referred to and applied in Equitable Life Assurance Society of the United States v. Reed (7), by Lord Dunedin, and Was stated and applied in the judgment delivered by Rich J. for _ this Court in Wirth v. Wirth (8). (1) 25 C.L.R., 291. (5) 25 V.L.R., at p. 104. (2) 25 C.L.R., 109. (8) (1899) A.C., 604, at p. 609.

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tostarve. If there be a real and bond fide agreement to live apart, acted on, its effect is not to deprive desertion of unlawfulness, but to make desertion impossible until cohabitation is resumed (Buckmaster v. Buckmaster (1) ), and even the husband's failure to perform his agreement does not amount to desertion (Pape v. Pape (2) ). But the word "unlawfully " cannot mean that if there be reasonable cause for desertion or refusal of maintenance the jurisdic- "tion of the justices is excluded. The final words of sec. 87 are ; opposed to that construction, for they provide that " if any reason- _ able cause is shown for such desertion or refusal of maintenance as ~ aforesaid, the justices may in their discretion decline to make any order." But that necessarily implies a power, notwithstanding the 'reasonable cause - that is, notwithstanding the lawfulness of the act ; complained of - to make an order. Sec. 83, in short, as to the wife 'means, when it is read with secs. 84 and 87, that the justices, on com- plaint by or on behalf of a wife that she has been unjustifiably deserted or left without adequate means of support, and on proof _ that she is in fact without means of support and that her husband is able to maintain her or contribute to her maintenance, shall make a easonable order, if they find she has not been in fault ; but, if the husband has had reasonable cause for his desertion or refusal, may weigh the circumstances, and, if they think fit, either make or decline to make the order. The mandatory word " shall" is used in sec. 84, which refers to actual desertion or refusal to maintain; but in sec. 88, where the desertion or refusal is only intended, and where reasonable cause may possibly exist, the word "may" is used, and consequently there is no need for the discretionary qualification it the end of sec. 87. It is unnecessary to analyse with particularity the various pro-

Visions of the Part in order to show their character of public policy. It is sufficient to say that their intent in this respect must be the same with respect to the wife as it is with respect to children ; that 'as to the children no question of "' unlawfulness " occurs ; that the procedure indicates compulsion for public objects, as, for instance, nt, imprisonment, hard labour, the use of the word " offender " (1) LR. LP, & M,, 713. (2) 20 Q.B.D., 76.

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an ordinary case an appealable conviction or order is made in the presence of the party aggrieved, or on notice to him, which he dis- regards at his peril. If he desires a review of the order, conditions are prescribed, and one is that he must appeal ina certain time. But the special provisions of Parts III. and IV. of the Marriage Act necessarily include cases where the husband or father is absent and 'may know nothing of the proceedings for an indefinite time after _ the order is made. In fact the first he may know of it is when he is arrested. The Legislature therefore gives -him, by sec. 139 of the __ Justices Act and sec. 93 of the Marriage Act, the right to ask a Court of General Sessions to review the matter in his presence, and without the formalities and conditions of ordinary appeals. Further, sec. 983 carefully provides for the event that even the Court of General Sessions may not be able to meet. For instance, a husband in gaol may be able to show so glaring a case of injustice that it should be "remedied by his release instanter. And so the final words of sec. 93 expressly reserve the alternative procedure of application to the

Governor in Council for release. Sec. 93, however, does not, in my opinion, mean that there is a constant supervisory control by the Court of General Sessions over the order. In the present instance, the Court of General Sessions properly exercised the jurisdiction given by the section. The respondent after arrest applied to that Court to quash the order of Petty Sessions. But the order of General Sessions, though within its _ jurisdiction, being erroneous, the question arises as to the proper order to be now made. That depends on what order the Supreme Court ought to have made. In Coughlin v. Thompson (1) it was held that, in dealing with a case under sec. 139 of the Justices Act 1890, the Supreme Court has no power to remit the case for rehearing to the Court of General Sessions, and it was decided that Dobson v. Sinclair (2) was right, and that Russell v. Shire of Leigh (3), so far as inconsistent with the View stated, was wrong. In Russell's Case the Court of General
Sessions made a mistake not in its actual decision on the merits, but

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Court

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Before

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Judgment (130 paragraphs)