Rodgers v Rodgers [1964] HCA 25

High Court of Australia McTiernan, Taylor and Owen JJ. Rodgers v Rodgers [1964] HCA 25

ORDER Appeal dismissed. Costs of the appellant to be paid by the respondent.

Cur. adv. vult.

The Court delivered the following written judgments:—

April 17 McTiernan, Taylor and Owen JJ.

This is an appeal by special leave from an order of the Full Court of the Supreme Court of New South Wales by which an order for maintenance made by Nield J. on 14th December 1961 was set aside and by which other provision for the maintenance of the appellant and her children was made. Substantially the order of the Full Court is attacked on two grounds. In the first place it is said that the order of the learned trial judge was made in the exercise of a judicial discretion and that no grounds appeared before the Full Court justifying an interference with it. Alternatively it is said that the order of the Full Court, in so far as it made other provision for the maintenance of the appellant and her children, should be set aside and that this Court should make such provision as it thinks proper in the circumstances. The original order was made in proceedings before Nield J. when two petitions (one under the Matrimonial Causes Act, 1899-1957 N.S.W. and the other under the Matrimonial Causes Act 1959 Cth) for dissolution of the appellant's marriage to the respondent and a third petition for dissolution by the respondent was heard together. At the same time Nield J. had before him a summons by the appellant issued under the Married Women's Property Act, 1901 N.S.W. and by which she claimed to be entitled to a joint interest in the business carried on by the respondent, or by certain associated companies of which he was for all practical purposes the proprietor, and in a cottage at Northbridge of which the respondent was the registered proprietor. The claim which was made by the appellant also extended to the furniture and other items then in the cottage.