R v Humby; Ex parte Rooney [1973] HCA 63

High Court of Australia McTiernan, Menzies, Gibbs, Stephen and Mason JJ. R v Humby; Ex parte Rooney [1973] HCA 63

ORDER Discharge the order nisi in so far as it is based on grounds 1 (b) and 2. Order that the cause be remitted to the Supreme Court of South Australia for any necessary determination of the matters raised by grounds 1 (a) and 1 (c) of the order nisi. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 McTiernan J.

The order nisi granted in this matter was granted by the Supreme Court of South Australia. Upon the return of the order before the Full Court the learned judges considered that the order nisi raised inter se questions which resulted in its removal into the High Court. An order was made by the Chief Justice that the order nisi be argued before the Full Court of the High Court. The applicant in the matter is the defendant in proceedings in a court of summary jurisdiction of the State of South Australia. The respondents in the matter are the special magistrate before whom the hearing of the proceedings commenced, and the complainant who instituted the proceedings.

The complaint is headed "Community Welfare Act, 1972" (this is an Act of the State of South Australia), and concludes with a reference to s. 169 of this Act. This is a penal provision for the enforcement of a "maintenance order" made under the Act. First it is averred in the complaint that on 30th March 1962 the Supreme Court of South Australia, pursuant to the provisions of the Matrimonial Causes Act 1959 Cth, ordered the defendant to pay a certain weekly sum for the maintenance of his children. Secondly, it is averred, following the language of s. 169 (1) that the defendant disobeyed the Court's order and that arrears of maintenance are due and payable. The marriage of the defendant with the mother of the children was dissolved at the time the order was made. It was dissolved on the petition of the defendant. Section 84 (1) of the Matrimonial Causes Act 1959 provides, "Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances." It appears that the order for the payment of maintenance for the children of the marriage was made by the Master of the Supreme Court of South Australia in accordance with the practice of the Court at the time.