y. Tabor (3) in the case of a statute providing for an application v by a mortgagor: See also Admiralty Commissioners v. Valverda ™*'* - [1944] HCA 13 - HCA 1944 case summary

y. Tabor (3) in the case of a statute providing for an application v by a mortgagor: See also Admiralty Commissioners v. Valverda ™*'* - [1944] HCA 13 - HCA 1944 case summary — Zoe

[42]

is in receipt of or may be entitled to receive a pension from the H. ©. or A. State may be taken into consideration by the court (In re Catmull | (Deceased); Catmull vy. Watts (1)). The foregoing submissions ,, pare a show that contracting out is contemplated by the Act; that the Bi Act was passed to confer benefits only upon individuals or individuals "°*"'S of a particular class ; and in particular that the Act was not passed to relieve the public of a burden. They show that the real policy of the Act is not a policy of affecting the public, but a policy of redressing hardships and grievances within a limited family circle resulting from capricious or thoughtless or lack of exercise of the otherwise unrestricted power of testamentary disposition. In particular they show that this case is clearly distinguishable from Hyman vy. Hyman (2) and Davies vy. Davies (3), both of which cases were relied upon by the majority in the Court below. That Court fell into error in treating the Act as closely analogous to the legisla- tion under consideration in those two cases. The grounds of decision in Hyman v. Hyman (2) were: (a) that the power to grant alimony was given as a condition of the exercise of the power to grant divorce and thus change status (4) - thus destroying the wife's authority as an agent of necessity - and (b) that the agreement there in question amounted to the purchase of an indulgence to commit adultery (5). Davies vy. Davies (6) was decided on the grounds : (i) that the pro- visions as to maintenance are part of the law regulating the status of marriage in which the community is vitally concerned (7), (ii) that as a matter of pure construction of the statute an agreement is no bar (8), and (iii) of the penal provisions by which the duty is enforced (9). In In re T. Doogan (Deceased) (10) it was held that parties may contract themselves out of the benefits of the Act, and Davies v. Davies (3) was distinguished on the grounds that the indications there found that public as well as private interests were considered are not to be found in the present Act, and that the proviso to s. 5 (1) is a clear indication that the provision made by the Act is a matter of the private concern of the beneficiaries. In Re Jonathan Howard (11), In re H. A. Patrick (Deceased) (12), and In re Found ; Found v. Semmens (13) it was held that the respective contracts there concerned did not show an intention of contracting

[59]

public interest to prevent persons from becoming a charge upon the 1. ©. or A. public. Upon these grounds the learned Chief Justice was of opinion ie that In re T. Doogan (1) should be overruled, and that it was |jeperwas open to the court to make an order under the Act in favour of the b Sow, Morris. Nicholas C.J. in Eq. agreed with the conclusion of Jordan C.J., Latham 6. being of opinion that the Testator's Family Maintenance and Guar- dianship of Infants Act dealt with a subject matter of such a character that it should be held that persons had no power to exclude them- selves from the benefit of the Act, and his Honour was also of opinion that the particular language of the Act showed that contracting out of the Act would not be effective. Davidson J., on the other hand, referred to passages in judgments which indicated the danger of permitting judicial tribunals to roam unchecked in the field of what is vaguely described as public policy. He emphasized that there was no express provision in the Act preventing a widow from binding herself (or, it may be added, a widower from binding himself) not to take advantage of the Act. The Act contained no positive provision requiring a person to make provision for the maintenance of his family, and on this ground his Honour distinguished Hyman v. Hyman (2) and Davies v. Davies (3). In those cases there existed positive obligations of the husband, in the one case to support his wife so long as she was his wife, and, in the second case, to provide adequate maintenance for his wife and child. Davidson J. was of opinion that the provisions of the Act showed that it was concerned with the protection of individuals rather than with the protection of the public, and, in particular, that the Act had no relation to any diminution or alleviation of any public burden incurred in supporting necessitous persons. His Honour pointed out that the court was authorized to refuse to make an order in favour of any person whose conduct was such as to disentitle him to the benefit of an order. Such a provision looked more towards a private right than towards any principle that neces- sitous persons should be supported by their relatives rather than by the State. His Honour was therefore of opinion that it had not been satisfactorily shown that the contract was void as against public policy. I propose first to consider the general character of the Act and then to examine its particular provisions. The Act is entitled ; " An Act to assure to the widow or widower and family of a testator an adequate maintenance from the estate

[61]

of such testator." Section 3 is the principal section of the Act, and it provides that if a testator dying after a certain date disposes of or has disposed of his property. either wholly or partly by will in such a manner that the widow, husband, or children of such person are left without adequate provision for their proper maintenance, education, or advancement in life, the court may, at its discretion, and taking into consideration all the circumstances of the case, on application - by or on behalf of such wife, husband or children, order that provision be made for such maintenance, education, and advancement out of the estate of the testator. It will be observed that the Act does not adopt the form of conferring rights upon any persons relating to a testator's estate. The Act gives a right to apply to a court, but an - order, if made, does not give effect to any antecedent right of the i applicant. The Act vests a power in a court. It is urged for the respondent that if a statute provides that a court shall have - a particular power, then no private agreement between actual - or prospective litigants before that court can operate to deprive that court of its statutory power. But it is put on behalf of - the appellant that the agreement made in the present case does not purport to affect the jurisdiction of the court, but only to prevent a person making an application to a court, and that such an agree- ment may be quite effective. In Hunt v. Hunt (1) it was held that - a husband was entitled to an injunction restraining his wife from breach of an agreement not to take proceedings for restitution of conjugal rights. Notwithstanding the comments upon this case by Selborne L.C. in Cahill v. Cahill (2), the Court of Appeal in the case of Welch v. Welch (3) stayed proceedings for restitution of conjugal rights because the wife-petitioner had agreed not to institute such proceedings. So in Aldridge v. Aldridge (4) the court gave effect to an agreement not to institute proceedings for a decree of nullity of marriage.

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The question whether the respondent's covenant is an effective bar turns upon the construction of the provisions which are enacted - to effectuate the object expressed in the long title. There is much difficulty in supposing it to have been the legislature's intention that a covenant not to apply would preclude an application to the court by a widow left without adequate provision for her proper maintenance by reason of the manner in which her husband disposed by will of the property which passed under it. A widow left in that condition is affected by the very mischief which the Act was passed to remedy: and it would frustrate the object and purpose of the Act to hold her to a covenant not to apply for an adequate provision for her proper maintenance. These considerations apply with equal force to a covenant by a child. A widower is given the - same rights as a widow or child and the same considerations would apply to a covenant by him. Further, the powers which the Act confers upon the court are not exercisable by the court except on application by or on behalf of one, or members, of the family of the testator or testatrix, that is to say, widow, widower or child. It is to be presumed that the intention of the Act is not that the powers of the court should remain a dead letter: if they did there would be no remedy for the mischief at which the Act is aimed - See Banks v. Goodfellow (3). The Act would not be effective to remedy the mischief if the persons affected could preclude themselves by covenant not to apply to the court to exercise its powers. The duty of the court upon such an application is to take into consideration "all the circumstances of the case." If the Act does not by necessary implication render a covenant not to apply ineffective for that purpose, the result would be that, if there is such a covenant in a particular case, no cireum- stance except that the applicant made the covenant could be con- sidered by the court. It is a more reasonable construction to say that the words "all the circumstances of the case" would in that particular case include, not only the fact that the covenant was made, but also the other relevant circumstances. The Act specifies one ground only upon which the court may refuse to make an order, that is, if the conduct or character of the applicant is such as to dis- entitle him to the benefit of such an order.

y. Tabor (3) in the case of a statute providing for an application v by a mortgagor: See also Admiralty Commissioners v. Valverda ™'

At a glance

Court

Decision date

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Judgment (142 paragraphs)

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Cited By (8)