Opie v Opie [1951] HCA 47

High Court of Australia Dixon, McTiernan and Williams JJ. Opie v Opie [1951] HCA 47

ORDER Appeals allowed: Order dismissing motion to set aside bankruptcy notice set aside: in lieu thereof order that motion be allowed without costs: sequestration order dated 19th December 1950 set aside and in lieu thereof order that petition be dismissed without costs: no order as to costs of either appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 13 Dixon and Williams JJ.

These are two appeals from orders of the Federal Court of Bankruptcy (Clyne J.) which have been heard together as they relate to the same matter. The first is from an order dismissing a motion to set aside a bankruptcy notice made on 13th November 1950 and the second is from an order sequestrating the estate of the appellant made on 19th December 1950. The appellant is the husband of the respondent. He deserted his wife and child and left them without proper maintenance. The respondent obtained orders for maintenance for herself and child under the provisions of s. 7 of the Deserted Wives and Children Act 1901-1939 N.S.W., these orders being varied from time to time. In September 1950 there were arrears of maintenance under these orders amounting to £261.

Section 13A of the Deserted Wives and Children Act is in the following terms:—"(1) Where an order has been made under section seven for the support of a wife or child and it is made to appear upon oath to a police or stipendiary magistrate that default has been made by the defendant in making the payments directed by the order, and that an amount of more than ten pounds is due thereunder, the magistrate may grant a certificate in the prescribed form stating the amount due under the order at the date thereof without requiring notice of the application to be given to the defendant. (2) The person entitled to receive the money ordered to be paid may file or cause to be filed such certificate in the Supreme Court or in any District Court having jurisdiction within the district wherein the defendant resides or wherein any real property of his is situate, and the Prothonotary or the registrar of such District Court, as the case may be, shall enter judgment for such person for the amount stated to be due in the certificate together with the fees paid therefor and for filing the same and entering the judgment. Such judgment may be enforced in any manner in which a final judgment in an action may be enforced. Rules of court may prescribe the practice and procedure in the Supreme Court and in District Courts to be observed in connection with the filing of certificates and entering up of judgments thereon in pursuance of this section, and the fees to be paid."