THE MAINTENANCE ACT 1965

THE MAINTENANCE ACT of 1965

No. 44

263

An Act to Consolidate and Amend the Law Relating to the Making of Orders for the Maintenance of Wives, Husbands, Children and Illegitimate Children, and for Confinement, Medical and like Expenses and Funeral Expenses, and for the Enforcement of such Orders and of similar Orders made in certain other States, Territories and Countries, and for purposes connected therewith

[Assented to 23 November 1965]

PART I-PRELIMINARY

1. Short title. This Act may be cited as "The Maintenance Act of 1965."

2. Commencement of this Act. (I) Except as provided in subsection (2) of this section, this Act shall come into operation on a date to be fixed by the Governor in Council by Proclamation published in the Gazette.

(2) The Governor in Council may, by the Proclamation under subsection (1) of this section, or by a subsequent Proclamation or Proclamations, fix a date or dates for the commencement of Division 2 of Part III of this Act, or for the commencement of the several provisions of Part IV of this Act, later than the date fixed by the Proclamation under subsection (1) of this section for the commencement of this Act.

Act (other than Division 3 of Part IV) commenced 1 November 1967: Proclamation, Gazette 14 October 1967, p. 577.

3. Arrangement of Act. This Act is divided into Parts, Divisions, Subdivisions and a Schedule, as follows:-

PART I-PRELIMINARY (SS. 1-7);

PART II-MAINTENANCE AND OTHER ORDERS (SS. 8-40);

DIVISION I-JURISDICTION AND POWERS OF MAGISTRATES COURTS (ss. 8-20);

Subdivision (I)-General (ss. 8-9);

Subdivision (2)-Orders against Husbands for Maintenance of Wives, and against Parents for Maintenance of Children (ss. 10-12);

Subdivision (3)-Orders against Wives for Maintenance of Husbands (s. 13);

Subdivision (4)-Orders against Fathers or Mothers for Maintenance of Illegitimate Children (ss. 14-15);

Subdivision (5)-Orders against Putative Fathers for Preliminary Expenses and for Maintenance of Unborn Children (ss. 16-17);

264 MARRIAGE AND DIVORCE Vol. 11

Subdivision (6)-Orders for Funeral Expenses (ss. 18-19);

Subdivision (7)-Orders for Medical and like Expenses (s.20);

DIVISION 2-NoMINAL, PRELIMINARY AND INTERIM ORDERS (ss. 21-24);

Subdivision (I)-Nominal Orders (ss. 21-22); Subdivision (2)-Preliminary and Interim Maintenance Orders

(ss. 23-24);

DIVISION 3-GENERAL (ss. 25-30); Subdivision (I)-Commencement and Duration of Orders

(ss. 25-29); Subdivision (2)-Evidentiary (5. 30);

DIVISION 4-DISCHARGE, SUSPENSION, VARIATION AND ANNULMENT OF ORDERS (ss. 31-37);

DIVISION 5-PROCEDURAL (ss. 38-40);

PART III-ENFORCEMENT OF ORDERS MADE IN QUEENSLAND (ss.41-66);

DIVISION I-ENFORCEMENT BY IMPRISONMENT, REGISTRATION OF CERTIFICATE OF ARREARS, RECOGNIZANCES, OR SALE OF GOODS (ss. 41--47);

DIVISION 2-ENFORCEMENT BY ATTACHMENT OF EARNINGS (ss. 48-64);

DIVISION 3-GENERAL (ss. 65-66);

PART IV-RECIPROCAL ENFORCEMENT OF ORDERS (SS. 67-108); DIVISION I-INTERPRETATION AND ADMINISTRATION (ss. 67-71);

DIVISION 2-INTERSTATE MAINTENANCE (ss. 72-81);

DIVISION 3-0VERSEAS MAINTENANCE (ss. 82-98);

DIVISION 4-GENERAL (ss. 99-108);

PART V-MISCELLANEOUS (ss. 109-140); THE SCHEDULE.

4. Repeals and Savings. (1) The Acts and enactments set out in the Schedule to this Act are hereby repealed to the extent and as from the respective dates indicated in that Schedule:

Provided that, except as in this Act expressly or by necessary implication provided, and without limiting the operation of "The Acts Interpretation Acts, 1954 to 1962,"-

(a) All persons, things and circumstances appointed or created by or under any provision of the repealed Acts or existing or continuing under any provision of the repealed Acts immediately prior to the commencement of this Act or of the corresponding provision of this Act shall, under and subject to this Act, continue to have the same status, operation and effect as they respectively would have had if the repealed Acts had not been repealed;

MAINTENANCE ACT OF 1965 SS. 3, 4 265

(b) In particular, and without affecting the generality of the foregoing paragraph (a) of this subsection-

(i) the repeal of the repealed Acts shall not disturb the continuity of status, operation, or effect of any Proclamation, regulation, rule, order, complaint, summons, warrant, application, appeal, determination, decision, endorsement, direction, declaration, certificate, consent, approval, disapproval, confirmation, objection, appointment, registration, condition, recognizance, notice, fee, liability, or right made, effected, issued, served, granted, given, passed, fixed, accrued, incurred, or acquired or existing Or continuing by or under any provision of the repealed Acts prior to the commencement of this Act or of the corresponding provision of this Act;

(ii) any proceedings commenced under" The Maintenance Acts, 1949 to 1954," prior to the commencement of this Act, and not concluded prior to that commencement, shall for all the purposes of this Act be deemed to have been commenced under this Act and may be continued and an order made thereon accordingly;

(iii) where the original or duplicate of an order made in another Australian State or in a Territory of the Commonwealth has been received, prior to the commencement of Division 2 of Part IV of this Act, from that State or Territory, accompanied by a request that the order be made enforceable in Queensland, and that order could, under" The Interstate Destitute Persons Relief Acts, 1914 to 1944," had those Acts not been repealed, have been directed to be enforced in Queensland, the original or duplicate of the order and the request shall be deemed to have been received in Queensland after the commencement of Division 2 of Part IV of this Act, and the provisions of that Division, with such modifications as are necessary, shall apply to and with respect to every such request accordingly;

(iv) where an application has, prior to the commencement of Division 2 of Part IV of this Act, been made by or on behalf of a person for whose benefit an order, as defined in "The Interstate Destitute Persons Relief Acts, 1914 to 1944," has been made in Queensland to forward the order for enforcement in another Australian State or in a Territory of the Commonwealth, and that order could have been so forwarded under those Acts, had those Acts not been repealed, the application shall be deemed to have been made in Queensland after the commencement of Division 2 of Part IV of this Act, and the provisions of that Division, with such modifications as are necessary, shall apply to and with respect to every such application accordingly;

(v) where a maintenance order, as defined in " The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," has, prior to the commencement of Division 3 of Part IV of this Act, been transmitted to Queensland from England or Ireland or from a State or country (not being an Australian State or a Territory of the Commonwealth), that was, immediately prior to the commencement of

266 MARRIAGE AND DIVORCE Vol.U

Division 3 of Part IV of this Act, a reciprocating State under the said "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," and that is a reciprocating country under this Act, the order shall be deemed to have been transmitted to Queensland after the commencement of Division 3 of Part IV of this Act, and the provisions of that Division, with such modifications as are necessary, shall apply to and with respect to every such order accordingly;

(vi) where a maintenance order, as defined in " The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," has, prior to the commencement of Division 2 of Part IV of this Act, been transmitted to Queensland from another Australian State or a Territory of the Commonwealth that was, at the time of that transmission, a reciprocating State under the said "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," the order shall be deemed to have been received in Queensland for registration and enforcement pursuant to Division 2 of Part IV of this Act and the provisions of that Division, with such modifications as are necessary, shall apply to and with respect to every such order accordingly;

(vii) where an application has been made, prior to the commencement of Division 3 of Part IV of this Act, under " The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," for a maintenance order, as defined in those Acts, against a person resident in England or Ireland, or in a State or country (not being an Australian State or a Territory of the Commonwealth), that was, immediately prior to the commencement of Division 3 of Part IV of this Act, a reciprocating State under the said" The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," and that is a reciprocating country under this Act, the application shall be deemed to have been made after the commencement of Division 3 of Part IV of this Act, and the provisions of that Division, with such modifications as are necessary, shall apply to and with respect to every such application accordingly;

(viii) where a provisional order was made, prior to the commencement of Division 3 of Part IV of this Act, in England or Ireland, or in a State or country (not being an Australian State or a Territory of the Commonwealth) that was, immediately prior to the commencement of Division 3 of Part IV of this Act, a reciprocating State under "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," and that is a reciprocating country under this Act, and the provisional order has been received in Queensland for confirmation under the said " The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," the order shall be deemed to have been received in Queensland after the commencement of Division 3 of Part IV of this Act, and the provisions of that Division, with such modifications as are necessary, shall apply to and with respect to every such provisional order accordingly;

MAINTENANCE ACT OF 1965 s.4 267

(ix) where an order made under the repealed Acts for the enforcement of an order enforceable under this Act was in force immediately prior to the commencement of this Act, that enforcement order shall, if a like order of enforcement could be made under this Act, continue in force as if it were such like order, and compliance therewith may be enforced or non-compliance therewith punished accordingly;

(x) where an order enforceable under the repealed Acts and enforceable under this Act was, prior to the commencement of this Act, disobeyed or not complied with, that disobedience or non-compliance shall be deemed to have occurred after the commencement of this Act and any proceedings relating to that disobedience or non-compliance may be taken or, if already commenced, may be concluded, under this Act, and the several provisions of this Act, with such modifications as are necessary, shall apply to and with respect to those proceedings accordingly;

(xi) every penalty imposed under any provision of the repealed Acts and not enforced or recovered prior to the commencement of the corresponding provision of this Act may be enforced or recovered as if the repealed Acts had not been repealed;

(xii) every proceeding for an offence against any provision of the repealed Acts (other than an offence of failing to comply with an order) commenced or pending immediately prior to the commencement of the corresponding provision of this Act may be carried on and prosecuted as if the repealed Acts had not been repealed and no such proceeding shall abate or be discontinued or prejudicially affected by anything in this Act contained;

(xiii) every investigation or enquiry commenced under the repealed Acts may be continued and concluded as if the repealed Acts had not been repealed, and any offence against any provision of the repealed Acts (other than an offence of failing to comply with an order) committed prior to the commencement of the corresponding provision of this Act may be investigated and prosecuted and any penalty may be imposed and enforced with respect thereto as if the repealed Acts had not been repealed.

(2) Notwithstanding the provisions of subsection (1) of this section, where a State or country (not being an Australian State or a Territory of the Commonwealth) that was, immediately prior to the commencement of Division 3 of Part IV of this Act, a reciprocating State under " The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959" (hereinafter in this subsection referred to as "the repealed Acts") is not a recipliocating country under this Act-

(a.) a maintenance order made in that State or country and enforceable in Queensland under or pursuant to the repealed Acts is not enforceable in Queensland under this Act; and

268 MARRIAGE AND DIVORCE VoI.ll

(b) every warrant or other process arising out of any such order previously issued in Queensland and not executed ceases to have effect,

but this subsection does not affect the validity of anything done for the enforcement of the order under or in pursuance of the repealed Acts while that State or country was a reciprocating State under the repealed Acts.

Acts referred to: Acts Interpretation Acts, 1954 to 1962, title ACTS OF PARLIAMENT,

Vol. 1, p. 82. Maintenance Acts, 1949 to 1954, now repealed. Interstate Destitute Persons Relief Acts, 1914 to 1944, now repealed. Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959,

repealed as from the commencement of Division 3 of Part IV of this 1965 Act.

Orders in Council, etc., under the Acts repealed by this Act, continued in force by this section, are listed in the Table of Contents, p. 241, allte.

5. Transitional. (1) (a) Where, immediately prior to the commencement of this Act, an order made under "The Maintenance Acts, 1949 to 1954," was enforceable in Queensland under those Acts, that order shall, on and from the commencement of this Act, and for all the purposes of this Act, be deemed to be an order made under Part II of this Act.

(b) Where, immediately prior to the commencement of this Act, an order for the payment of moneys made by a court in Queensland under any other Act was enforceable in Queensland under "The Maintenance Acts, 1949 to 1954," that order shall, on and from the commencement of this Act, be enforceable under this Act as if it were an order made under Part II of this Act.

(2) Where, immediately prior to the commencement of Division 2 of Part IV of this Act, an order was enforceable in Queensland under " The Interstate Destitute Persons Relief Acts, 1914 to 1944," that order shall, on and from the commencement of that Division, and for all the purposes of this Act, be deemed to be an order registered under that Division in the court for the place where payments under the order were required to be made.

(3)-(a) Where, immediately prior to the commencement of Division 3

of Part IV of this Act, an order made by a court of summary jurisdiction in England or Ireland, or in a State or country (not being an Australian State or a Territory of the Commonwealth) that was, immediately prior to the commencement of that Division, a reciprocating State under "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," and that is a reciprocating country under this Act, was enforceable in a court of summary jurisdiction in Queensland, that order shall, on and from the commencement of that Division, and for all the purposes of this Act, be deemed to be an order registered or, as the case may require, confirmed, under that Division;

MAINTENANCE ACT OF 1965 SS. 4, 5 269

(b) Where, immediately prior to the commencement of Division 2 of Part IV of this Act, an order made by a court of summary jurisdiction in another Australian State or in a Territory of the Commonwealth was enforceable in Queensland under "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," that order shall, for the purposes of subsection (2) of this section, be deemed to be an order that was, immediately prior to the commencement of that Division, an order enforceable in Queensland under "The Interstate Destitute Persons Relief Acts, 1914 to 1944," and the provisions of that subsection shall apply to and with respect to every such order accordingly.

(4) Where, immediately prior to the commencement of Division 3 of Part IV of this Act, an order was enforceable in the Supreme Court of Queensland under "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," that order continues to be enforceable in that Court as if those Acts had not been repealed and the provisions of those Acts continue to apply in relation to that order accordingly.

(5) Where-(a) immediately prior to the commencement of this Act, an order

of the Supreme Court of Queensland; or (b) immediately prior to the commencement of Division 3 of

Part IV of this Act, an order registered in the Supreme Court of Queensland under" The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959,"

was enforceable in a court of summary jurisdiction in Queensland by reason of a direction given under subsection (1) of section 47A of" The Matrimonial Causes Acts, 1864 to 1953," or under subsection (1) of section 6B of" The Guardianship and Custody of Infants Acts, 1891 to 1952," that order shall-

(c) in the case of an order referred to in paragraph (a) of this subsection-on and from the commencement of this Act be enforceable as if it were an order made under Part II of this Act by the court for the place where payments under the order were, by virtue of the direction, required to be made; or

(d) in the case of an order referred to in paragraph (b) of this subsection, on and from the commencement of Division 3 of Part IV of this Act be enforceable as if it were an order registered under that Division in the court for the place where payments under the order were, by virtue of the direction, required to be made,

but nothing in this Act contained shall prejudice the operation of the said section 47 A or the said section 6B or of the said" The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," as the case may be, with respect to the discharge. suspension or variation of the order or the substitution of a new order therefor.

(6) On and from the commencement of this Act, an order that was, immediately prior to the commencement of this Act, enforceable in a court of summary jurisdiction in Queensland under-

(a) " The Interstate Destitute Persons Relief Acts, 1914 to 1944";


(b) "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959 ";

(c) " The Matrimonial Causes Acts, 1864 to 1953"; (d) "The Guardianship and Custody of Infants Acts, 1891 to

1952" ; (e) the Matrimonial Causes Act 1959 of the Commonwealth, as

amended by subsequent Acts, may be enforced in Queensland by any of the means provided for in Part III of this Act and that Part shall apply to and with respect to every such order accordingly.

(7) This Act shall apply to all complaints and applications made under any provision of this Act, whether the matter of the complaint or application arose before or after the commencement of that provision.

(8) For the purposes of this section, an order that is suspended for the time being shall be deemed to be an order that is enforceable.

(9) Where, immediately prior to the commencement of this Act, an order made under" The Maintenance Acts, 1949 to 1954," was enforceable in any other Australian State, or any Territory of the Commonwealth or any other country, by virtue of any laws corresponding to "The Interstate Destitute Persons Relief Acts, 1914 to 1944," or "The Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959," that order shall, for the purposes of this section, be deemed to have been, immediately prior to the commencement of this Act, enforceable in Queensland.

Acts referred to: Maintenance Acts, 1949 to 1954, repealed. Interstate Destitute Persons Relief Acts, 1914 to 1944, repealed. Maintenance Orders (Facilities for Enforcement) Acts, 1921 to 1959,

repealed. Matrimonial Causes Acts, 1864 to 1953, not reprinted. Guardianship and Custody of Infants Acts, 1,891 to 1952; see now

Children's Services Act of 1965, No. 42, 1965 Annual Volume, p. 517.

Matrimonial Causes Act 1959 (Commonwealth). For the date of repeal of the repealed Acts, see note to s. 4.

6. Severability. This Act, including every Proclamation, Order in Council and regulation hereunder shall be read and construed so as not to exceed the legislative power of Queensland to the intent that where any enactment hereof or provision of any Proclamation, Order in Council, or regulation hereunder would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment or provision to the extent to which it is not in excess of that power.

7. Interpretation. (1) Without limiting the operation of "The Acts Interpretation Acts, 1954 to 1962," in this Act, unless the context otherwise indicates or requires, the following terms have the meanings set against them respectively, that is to say-

"Adopted" -(a) adopted in accordance with the law of Queensland, or the

law of another State or of a Territory of the Commonwealth; or

MAINTENANCE ACT OF 1965 ss.5-7 271

(b) adopted in a country outside Australia and the Territories of the Commonwealth, if the adoption was effective according to the law of that country and the adoption is recognised by the law of Queensland as having effect in Queensland;

" Child "-in relation to any person or persons, includes an illegitimate or adopted child of that person, or as the case may be, of those persons, but does not include a child of that person or those persons adopted by another person or persons; and "mother", "father" and "parent", in relation to a child, shall be construed accordingly;

" Child of the family" -in relation to the parties to a marriage or to either of them and whether or not either party to the marriage is dead-

(a) any child of both parties; and (b) any child of either party who has been accepted as one of

the family by the other party; and" mother", "father", and" parent", in relation to a child of the family, shall be construed accordingly;

" Clerk of the court" -A clerk of the court as defined in "The Justices Acts, 1886 to 1964";

" Commonwealth "-The Commonwealth of Australia; " Court "-A Magistrates Court constituted by a Stipendiary

Magistrate sitting alone; " Minister "-The Minister for Justice and Attorney-General or

other Minister of the Crown for the time being charged with the administration of this Act;

"Preliminary Expenses", in respect of the confinement of a woman-

(a) the expenses of the maintenance of the woman during the period of two months immediately preceding the confinement;

(b) reasonable medical, surgical, hospital and nursing expenses attendant upon the confinement; and

(c) the expenses of the maintenance of the woman and the child or children born to the woman during the confinement for three months immediately after birth;

" Queensland "-The State of Queensland; " Repealed Acts "-The Acts repealed by section four of this Act,

or any of them; "The commencement of this Act " -The commencement of the

provisions of this Act other than the provisions for which a later date is fixed pursuant to subsection (2) of section two of this Act;

"Territory of the Commonwealth", includes a Territory under the trusteeship of the Commonwealth;

" Woman ", includes girl.

(2) For the purposes of the interpretation of" child of the family", a child of either party to the marriage shall, in the absence of proof to the contrary, be taken to have been accepted by the other party as one of the family if it is proved that at any time the child was ordinarily a member of the family household.


(3) For the purposes of this Act, a man and a woman married by a subsisting marriage, whether monogamous or polygamous, shall, if the marriage is lawful and binding in the place where it was solemnized, be regarded as husband and wife.

(4) For the purposes of this Act-(a) in determining whether a person has been left without adequate

means of support provided by another person, the court shall have regard to the accustomed condition in life, but not the means (not being means provided by that other person), or earning capacity, of the first-mentioned person; and

(b) the fact that payments have been made by the defendant for or towards the maintenance of a person for whose benefit an order is sought since the date of the complaint may be disregarded by the court in determining whether that person is left without adequate means of support provided by the defendant at the date of the hearing of the complaint, unless the court is satisfied that the defendant bona fide intends to continue to provide adequate means of support for that person.

(5) A reference in this Act to a person for whose benefit an order is sought or made shall not be construed as a reference to a person who makes a complaint or application on behalf of another person.

(6) A reference in this Act to an order shall be read and construed, where the order has been varied, as a reference to the order as varied from time to time.

(7) Where an order enforceable under this Act is for the benefit of two or more persons it shall be deemed to be a separate order in respect of each of the persons for whose benefit the order was made.

Acts referred to: Acts Interpretation Acts, 1954 to 1962, title ACTS OF PARLIAMENT,

Vol. I, p. 82. Justices Acts, 1886 to 1965, title JUSTICES, Vol. 8, p. 105.

Semble the expression "confinement expenses", (cf. "preliminary expenses"), as employed in s. 16 (1) of the Infant Life Protection Act of 1905 did not include loss of wages occasioned by the confinement, Latimer v. Fleming, [1943] Q.W.N. 17; 37 Q.J.P.R. 50.

As to orders for preliminary expenses, see ss. 16, 17. For the Queensland law relating to adoption, see Adoption of Children Acts,

1964 to 1967, 1964 Annual Volume, p. 551. As to the interpretation to be placed upon this Act, cf. Flinn v. Flinn, [1951]

St. R. Qd. 117, at pp. 120 et seq.

PART II-·MAINTENANCE AND OTHER ORDERS

DIVISION i-JURISDICTION AND POWERS OF MAGISTRATES COURTS

Subdivision (1)-General 8. General jurisdiction of Magistrates Court in respect of maintenance orders. (1) Subject to this Act, a court shaH have jurisdiction to make ~U to discharge, suspend, or vary any of the following kinds of orders, namely:-

(a) an order against a husband for the maintenance of his wife; (b) an order against a father for the maintenance of children of

the family; (c) an order against a wife for the maintenance of her husband;

MAINTENANCE ACT OF 1965 ss. 7, 8 273

(d) an order against a mother for the maintenance of children of the family;

(e) an order against a father for the maintenance of his illegitimate child;

(f) an order against a mother for the maintenance of her illegitimate child;

(g) an order against a father for preliminary expenses in respect of the birth of his illegitimate child;

(h) an order against a father for funeral expenses in respect of the death of his illegitimate child, or of the mother of such a child;

(i) an order against a husband, wife, father, or mother for or towards the cost of medical, surgical, psychiatric, dental, hospital, or nursing care or treatment of a wife, husband, or child, or of funeral expenses in relation to any such person;

(j) such nominal, preliminary and interim orders as are provided for by this Part.

(2) A court shall have jurisdiction to make an order under this Part-

Ca) if the person against whom the order is sought is resident in Queensland; or

(b) if the person for whose benefit the order is sought is resident in Queensland:

Provided that, where proceedings are taken under section ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, eighteen, nineteen, or twenty of this Act and the court, on objection taken by or on behalf of the defendant, is of opinion that the proceedings should have been taken in another court of similar jurisdiction in Queensland, it may remit the proceedings to that other court for hearing and determination and the proceedings shall then be deemed to have been taken in that other court and the hearing of the objection so taken shall be deemed not to be a commencement of the hearing of the complaint.

(3) Subject to this section, a court shall have jurisdiction to make an order under this Part whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order, took place before the commencement of this Act or outside Queensland.

(4) Nothing in this Act shall limit or affect the operation of any provision of any other Act (whether relating to child welfare or family welfare or children's services or social services, or otherwise), or any law, by which any person is or may be required to make contribution to or payment on account of the maintenance or support of any other person.

(5) Where it is necessary for the court to be satisfied, before making an order under this Act, that the complainant has been, is, or is about to be, left without adequate means of support provided by the defendant, the court shall not make the order if, upon the evidence before the court, it is satisfied that the defendant had, has, or will have, as the case may be, just cause or excuse for so leaving the complainant.

Subsection (1 )-For the orders referred to, see 55. 10-21. As to orders under the repealed Acts, see 5. 5.

Agreement between the parties does not oust the jurisdiction of the court, s. 125.


Subsection (2)-Compare Yirrell v. Yirrell (1939), 62 C.L.R. 287; Healy v. Healy, [1945] St. R. Qd. 65.

Subsection (4 )-As to maintenance of children in need of assistance and children in care, see Children's Services Act of 1965, ss. 119-130, 1965 Annual Volume, p. 517.

As to the maintenance jurisdiction of the Supreme Court, and the circumstances in which such jurisdiction is exclusive, see Matrimonial Causes Act 1959-1965, s. 8 (Commonwealth).

Subsection (5 )-As to adequate means of support, see s. 7 (4). Semble proof of wife's adultery may be "just cause" within the meaning of

this section. Compare Smith v. Smith, Ex parte Smith, [1950] St. R. Qd. 113; 44 Q.J.P.R. 122. It has since been held in England that the husband's bona fide belief, induced by the wife, that she had committed adultery was a good defence not only to a charge of desertion but also to a charge of wilful neglect to maintain her. See Chilton v. Chilton, [1952] P. 196; [1952] 1 All E.R. 1322. See also Keys v. Keys (1953), 70 W.N.(N.S.W.) 161.

Quaere whether a husband's bona fide belief-not induced by the wife-that his wife has committed adultery would justify the ,refusal of a maintenance order. See the decision of the Court of Appeal in Allen v. Allen, [1951] 1 All E.R. 724. In that case such a defence failed because a petition for divorce, based on the wife's alleged adultery had previously been dismissed.

A husband's reasonable and honest belief, induced by his wife's conduct, that she has committed adultery, unless her conduct is reasonably capable of an innocent explanation, is a defence to a charge of desertion. See Hartley v. Hartley, [1955] 1 All E.R. 625. It would also justify failure to maintain her and oblige the court to dismiss the complaint, provided always that a superior court had not then negatived such an allegation on the hearing of a petition for divorce, after which event such a finding of fact would be conclusive to prevent him from establishing such a belief. See West v. West, [1954] P. 444, where the Court of Appeal explained Alien v. Allen [1951] W.N. 322; [1951] 1 All E.R. 724.

On the procedure where one party proposes to rely on a reasonable belief that the other party has committed adultery, see Sullivan v. Sullivan, [1956] 1 All E.R. 611. But a mere suspicion that the wife has committed adultery is no defence under this section. Prima facie a magistrate would be justified in refusing an order where the husband shows that he left her under a bona fide reasonable belief in her adultery based on her acts; in those circumstances the existence of such a belief negatives desertion. See Kopp v. Kopp, [1956] Q.W.N. 41; 51 Q.J.P.R. 1, where Philp, S.P.J., distinguishing Chilton v. Chilton, [1952] P. 196; [1952] 1 All E.R. 1322, held that a stipendiary magistrate was justified in making an order against the husband.

See also Cox v. Cox, [1958] 1 All E.R. 569, where the Probate Divorce and Admiralty Division after considering Glenister v. Glenister, [1945] P. 30; [1945]1 All E.R. 510 and distinguishing Haswell v. Haswell and Sanderson (1859), 1 S.W. & T.R. 502 allowed the wife's appeal against the dismissal of her complaint by justices who had found that the husband had a bona fide and reasonable belief that she had committed adultery and in consequence of which he had withdrawn from cohabitation. Their lordships held that the husband was guilty of desertion since he had no evidence of opportunity for his wife to commit adultery and therefore his belief in her adultery was not founded on reasonable grounds.

Semble withdrawal from cohabitation by a wife in whom her husband has deliberately induced a belief that he is carrying on an adulterous association would constitute constructive desertion. Compare Baker v. Baker, [1954] P. 33; [1953] 2 All E.R. 1199, where the court applied Glenister v. Glenister, [1945] P. 30; [1945] 1 All E.R. 513. A wife who does not justify her withdrawal would not be entitled to maintenance. The justices should record their reasons for their decision. See Foster v. Foster, [1954] P. 67; [1953] 2 All E.R. 518. For an example of an unsuccessful attempt by the wife to justify her refusal to return to cohabitation after constructive desertion, see Green v. Green, [1954] S.A.S.R. 104.

Where the spouses have separated by consent, the onus of proving that the husband has agreed to maintain her lies on the wife. See Stringer v. Strillga, [1952] P. 171.


A husband cannot be found guilty of wilful neglect to provide reasonable maintenance where no matrimonial misconduct has been established against him. See Lilley v. Lilley, [1958] 3 All E.R. 528. In that case the birth of a child some four years after the marriage had caused a gravely aggravated mental or nervous disorder in the wife which developed into an invincible repugnance to sexual intercourse. Uncontradicted medical evidence adduced in support of her complaint showed that she suffered from a neurosis which produced an active revulsion to any physical contact with the husband and that if she returned to him she would have a serious break-down in health. The wife did not allege that the husband was guilty of any matrimonial misconduct but contended that he was liable to maintain her at common law. The magistrate dismissed her complaint and the Divisional Court dismissed her appeal.

Where a wife took proceedings for maintenance against her husband alleging constructive desertion and declared in cross-examination that she would never return to her husband, it was held by the Full Court that the wife had not thereby lost her right to an order for maintenance, Thompson v. Thompson, Ex parte Thompson, [1961] Q.W.N. 26.

In Casey v. Casey, [1952] 1 All E.R. 453, the husband constructively deserted the wife by unreasonably refusing to allow her, upon her return from a neighbour's, to enter the matrimonial home. They met in a street a fortnight later, when the husband asked her whether she would come back, adding: "I do not want you. I only want you to come and look after the children." The justices before whom she sought maintenance dismissed the summons, on the ground that she had unjustifiably refused to return. On appeal the Court decided that the wife was not bound to accept such an offer, which did not involve readiness and willingness to cohabit in the ordinary sense of the word.

On constructive desertion after resumption of cohabitation, see Lane v. Lane, [1952] P. 34.

In support of a complaint alleging constructive desertion a wife tendered in documentary evidence two notes (in one of which her husband had told her to "clear out" and in the other to "get out") that she had produced upon the hearing of a prior complaint based on persistent cruelty on tbe part of her husband which bad been dismissed. The justices ruled that in the circumstances the evidence given at the previous hearing was inadmissible. Upon appeal a divisional court, overruling Bright v. Bright, [1954] P. 270; [1954] 2 All E.R. 1511, and applying Foster v. Foster, [1954] P. 67; [1953] 2 All E.R. 518, held that the course adopted by the justices was wrong and remitted the case for rehearing, Cooper v. Cooper (No.2), [1954] 3 All E.R. 358.

Constructive desertion may be established where the husband, in spite of warnings that his wife might leave the matrimonial home, has persisted in a course of conduct which a reasonable man would have known would probably have had that result. Compare Waters v. Waters, [1956] P. 344; [1956] 1 All E.R. 432.

In Marjoram v. Marjoram, [1955] 2 All E.R. I, a divisional court heard an appeal by a wife against an order dismissing her complaint for maintenance. She alleged that her husband had deserted her. The husband set up a case of constructive desertion occasioned by her sluttishness, which took the form of filthy habits and gross neglect of the children. The justices decided that the wife must be held responsible for breaking off relations with him and that the husband was justified in taking the course he did. They therefore dismissed her complaint; they dismissed also the husband's. The learned president said in the course of his judgment: "As far as the court is aware, there is no decision in which 'sluttishness' alone has been held to be a sufficient ground for a charge of constructive desertion." The court remitted the case for rehearing before another panel of justices. See however Sangster v. Sangster, [1954] S.A.S.R. 129.

In Harvey v. Harvey, [1956] P. 102; [1955] 3 All E.R. 772, the Court of Appeal, assuming that the husband had constructively deserted the wife when she left him because of the intolerable behaviour of an adult son, held that the desertion was terminated by agreement when the husband procured the removal of the basis of that constructive desertion. After the husband had got rid of the son the wife returned to the matrimonial home, but remained only four days; and the court held that the issue whether the husband had been guilty of constructive desertion after her return must be determined as a fresh que~ti'(]n by the magistrates.


See hereon Staples v. Staples (1937), 31 Q.J.P.R. 180. See also Kelly v. Kelly; Ex parte Kelly, [1945] St. R. Qd. 19; 39 Q.J.P.R. 43, which followed and applied Spicer v. Spicer, Ex parte Spicer, [1936] St. R. Qd. 220; 30 Q.J.P.R. 108.

In Kelly v. Kelly, [1939] G.L.R. 462, Ostler, J., held that the husband's abnormal sexual demands upon his wife, though not amounting to persistent cruelty, justified her in refusing to live with him and entitled her to an order of separation and maintenance. Contrast Leng v. Leng (1946), 62 T.L.R. 722; [1946] 2 All E.R. 590 (husband's neurotic condition held by divisional court not to justify wife's refusal to live with him, since it did not constitute desertion on his part).

See also R. v. Aitkin and Coffey, Ex parte Coffey, [1941] Q.W.N. 48; 35 Q.J.P.R. 146 (mandamus against magistrate for improperly declining jurisdiction).

9. Matters affecting amount of orders. (1) In determining the amount that a defendant is to be ordered to pay by an order under section ten, eleven, twelve, fourteen, fifteen, or seventeen of this Act, the court shall have regard, where appropriate, to-

(a) the accustomed condition in life of the person for whose benefit the order is to be made; and

(b) any evidence before the court as to the means and earning capacity of the defendant and that person and the ability of the defendant to pay maintenance,

but may, in its discretion, disregard-(c) the ~arnings or savings from earnings from an occupation

engaged in by that person, or any part of those earnings or savings, if it is satisfied that that person engaged in that occupation solely or mainly because that person was, or reasonably expected to be, left without adequate means of support; and

(d) the earning capacity of that person, if it is satisfied that that person would engage in an occupation solely or mainly because that person is, or reasonably expects to be, left without adequate means of support.

(2) In the case of an order for the benefit of a child of the family [o(an illegitimate child, the expression-

(a)" defendant", in paragraph (b) of subsection (1) of this section; and

(b) " that person ", in paragraphs (c) and (d) of that subsection, includes the parent of the child, not being the parent who is the defendant.

(3) In determining the amount that a defendant is to be ordered to pay by an order under this Part-

(a) in respect of a child who is a "child in care" within the meaning of" The Children's Services Act of 1965 "; or

(b) in respect of a child for whose maintenance assistance has been given by the Director of the Department of Children's Services under" The Children's Services Act of 1965,"

no regard shall be had to the fact that the child is such a " child in care" or that such assistance has been given.

Act referred to: Children's Services Act of 1965, No. 42, 1965 Annual Volume, p. 517.

A defendant presently unable to contribute to the support of the complainant may be ordered to pay nominal maintenance, s. 21, which order is not enforceable, s. 22.


In order to obtain a substantial order for maintenance it must be shown that the defendant is able to maintain or to contribute to the maintenance of his wife or children, Ravanni v. Robinson (1896), 7 Q.L.J. 131. But it is sufficient to show that the defendant has the capacity and opportunity, if he so wishes, to obtain means or income, even though in fact he is not possessed of means and income, Poulsen v. Nobbs (1898), 9 Q.L.J. 59; 9 Q.L.J. (N.C.) 24; Smith v. Gwynne, [1906] St. R. Qd. 251; [1906] Q.W.N. 48; R. v. Acting Police Magistrate at Brisbane; Ex parte Arndt, [1930] St. R. Qd. 154; Hewitt v. Hewitt (1910), 4 Q.J.P.R. 198; [1911] Q.W.N. 18.

As to evidence of ability to maintain or contribute to the maintenance of the wife or child, see Hickey v. Ringelstein, B.C.R., 10 April, 1896; Digest, 1861-1924, col. 579; Ravanni v. Robinson, supra; Schuhkraft v. Teis (1921), 15 Q.J.P.R. 146.

As to proof of husband's ability to contribute, see Walker v. Walker (1937), 57 C.L.R. 630. It is elementary law that, in assessing the amount of maintenance, justices ought to take into account not merely the husband's basic wage, but his earning capacity. It is wrong to eliminate from their calculations overtime pay or the capacity to earn it, Klucinski v. Klucinski, [1953] 1 All E.R. 683.

It is not the intention of the Act to allow justices to apportion the income of a husband between the parties in what they consider fair proportions, Mott v. Mott, [1929] Q.W.N. 38. An amount agreed upon between the parties to be paid to the wife upon separation is some evidence of what is sufficient for the wife's maintenance, but not conclusive, ibid.

For power to direct a defendant to disclose his employer, his earnings, etc., see s. 126.

As to documentary proof of a defendant's earnings, see s. 120. In determining the amount of maintenance to be paid by a husband for the

maintenance of his wife justices ought not to make an order for an inadequate amount in order to force the wife to agree to a reconciliation. Semble, if they wish to effect a reconciliation, they ought to have recourse to s. 130 in the conditions therein set out. Compare Wharton v. Wharton, [1952] 2 All E.R. 939.

In many cases a complainant wife could not reasonably be expected to realize her capital assets. For instance, if all that she had was the house in which she lived with her children she could not be expected to sell it, or if all she had was a policy of insurance she could not be expected to surrender it, Biberfeld v. Berells, [1952] 2 All E.R. 237, at p. 243.

The appeal court will not interfere with the quantum of a magistrate's order for the maintenance of an earning wife which it considers not unreasonable. See, for example, Stretton V. Strettoll, [1956] Q.W.N. 13.

See also cases noted to s. 10 under the heading "the order".

Subdivision (2)-Orders against Husbands for Maintenance of Wives, and against Parents for Maintenance of Children

10. Court may order husband to maintain wife. Where the court, upon complaint made by or on behalf of a wife, is satisfied-

(a) that she is left by her husband without adequate means of support provided by him and was so left on the date alleged in the complaint; or

(b) that her husband is about to remove out of Queensland or into a distant part of Queensland and leave her without adequate means of support provided by him,

the court may order the husband to pay for or towards her maintenance such amount as it thinks reasonable.

General-Some of the cases noted to this section were decided upon statutory provisions in which it was necessary to prove desertion. They have, however, been included as being of assistance to the question of "leaving without means of support".

As to orders made under the repealed Acts, see s. 5. As to adequate means of support, see s. 7 (4). For matters affecting the amount of the order, see s. 9.

278 MARRIAGE AND DIVORCE VoJ.ll

As to maintenance orders against wives for the maintenance of husbands, see s. 13.

As to maintenance of children by fathers, see ss. 11, 14. As to the effect of resumption of cohabitation, see s. 111. As to the effect of an offer by the defendant to provide a home, see s. 112. Agreement between the parties does not oust the jurisdiction of the court,

s. 125. As to documentary proof of a defendant's earnings, see s. 120. For power to require a defendant to disclose his employer, earnings, etc.,

see s. 126. For power to proceed Ex parte, see s. 116. As to enforcement of orders, see ss. 41-66. As to reciprocal enforcement of Queensland, interstate, and foreign

maintenance orders, see ss. 67-108. As to making and enforcement of orders against persons resident in other

parts of the British dominions, see Maintenance Orders (Facilities for Enforcement) Act, 1920 (Imperial), p. 363, post.

As to discharge, suspension and annulment of orders, see ss. 31-37. As to nominal orders, see ss. 21, 22. As to proof of marriage, see s. 109. A maintenance order cannot be refused

on the ground that the marriage is voidable where nullity proceedings have not been taken, Svanosio v. Svanosio, [1918] V.L.R. 267.

As to liability of a married woman having property for maintenance of her children, compare Married Women's Property Acts, 1890 to 1952, s. 22, p. 408, post.

On the question of adjournment of the proceedings upon extraneous or extrajudicial grounds see Lee v. Saint, [1958] V.R. 126; [1958] A.L.R. 545.

Left without adequate means of support-This refers to the omission of the husband to supply means of support and not to his physical departure, Walker v. Walker (1937), 57 C.L.R. 630; Renton v. Renton (1918), 25 C.L.R. 291. An order was made in favour of a wife who had left her husband's house upon him failing to provide food, in Hewitt v. Hewitt, [1911] Q.W.N. 18; 4 Q.J.P.R. 198.

The word "left" requires that there should be proved some fault on the part of the defendant which contributed to the wife or child being without means of support. The wife need not prove that she has been compelled to leave her husband; it is enough that his conduct has justified her in living apart from him, although it has not compelled her to live apart, Donkin v. Donkin; Ex parte Donkin, [1963] Qd. R. 36. See also Bayne v. Bayne; Ex parte Bayne, [1962] Qd. R. 561. See also s. 112.

Some positive breach of marital obligation is required to constitute leaving without means of support, Leonard v. Leonard (1923), 40 W.N.(N.S.W.) 108. H is not sufficient to find that the wife is in fact without means of support unless it is further shown that she is without means of support through some fault of her husband, Chan tier v. Chantler (1906), 4 C.L.R. 585. Compare Reakes v. Reakes (1928), 45 W.N.(N.S.W.) 123.

The fact that at the time of desertion a husband leaves his wife with some means of support win not prevent such leaving from being a leaving without means of support if it is his intention not to support her when such means have been exhausted, R. v. Mackie, [1908] V.L.R. 689.

As to payments made since the date of the complaint, see s. 7 (4) (b).

When a husband leaves his wife promising to make her an adequate allowance and makes such allowance up to the time of commencement of the proceedings, a wife is left with or without means of support according as the justices believe or do not believe that the husband will carry out his promise in the future, Nash v. Nash, [1919] V.L.R. 593.

Where a wife leaves her husband of her own accord, as where husband and wife agree to live apart, the husband does not desert his wife or leave her without means of support, Single v. Single, [1927] St. R. Qd. 145; [1927] Q.W.N. 24; 21 Q.l.P.R. 34. And see McGuigan v. McGuigan, [1932] St. R. Qd. 131; 26 QJ.P.R. 108. If a wife leaves home secretly and does not communicate her address to her husband she cannot take proceedings for maintenance on the ground that she is left without means of support in the place where she i's then


residing, Hegney v. Hegney, [1920] V.L.R. 343. Where a woman leaves her husband of her own accord and without justification, he does not leave her without means of support unless the wife has in the meantime put an end to the position which she herself has created by a sincere and bona fide offer to return home, Male v. Male, [1912] V.L.R. 455; Ex parte Pullen (1899), 15 W.N.(N.S.W.) 269, approved in Chantler v. Chantler (1906), 4 C.L.R. 585; Rodekirchen v. Rodekirchen, [1924] St. R. Qd. 44; [1924] Q.W.N. 10. As to an offer by the defendant to provide a home, see s. 112.

Proof of a consensual separation of the spouses without their having made an agreement for the wife's maintenance is sufficient to rebut the common-law presumption that a husband is liable to maintain his wife; and to that extent the onus is on the wife to prove his liability. See Stringer v. Stringer, [1952] 1 All E.R. 373, where the Court, allowing the husband's appeal, so held and further held that, in the absence of any demand by the wife before she took out the summons, the justices were wrong in making a maintenance order.

This legislation throws upon the wife the onus of satisfying the magistrate that she has been left without support. See Bennett v. Bennett, [1957] St. R. Qd. 473; 52 Q.J.P.R. 29, where Philp, J., distinguished Mackay v. Mackay, [1951] S1. R. Qd. 198. See also Dewar v. Dewar, [1957] Q.W.N. 38. A wife who voluntarily leaves her husband without cause and refuses to return to him has not thereby been left without support, Bennett v. Bennett, supra, following Chantler v. Chan tIer, [1906] 4 C.L.R. 585.

Where the parties had separated by mutual consent without any agreement, express or implied, on the part of the husband, to maintain the wife, and there was no subsequent change in their circumstances, an order of justices for her maintenance was set aside on appeal. See Pinnick v. Pinnick, [1957] 1 All E.R. 873.

Where a husband left his wife in a foreign country with her consent and came to Australia, whither she followed him without his consent, and he refused to support her, it was held that his conduct amounted to desertion, Ex parte Siggerson (1862), 1 S.C.R.(N.S.W.) 30.

Where a wife obtained an order for restitution of conjugal rights and the husband was willing to comply with it but the wife refused to return to him, it was held that she was not deserted, Ex parte Somerville (1925), 42 W.N.(N.S.W.) 108. A wife refusing to comply with an order for restitution of conjugal rights is not deserted, Hunter v. Hunter (1915), 32 W.N.(N.S.W.) 52.

If parties are living apart in pursuance of an agreement made before marriage, or of a deed of separation or by mutual consent, there can be no desertion unless and until cohabitation has been resumed, Edwards v. Edwards (1922), 25 W.A.L.R. 125; Connor v. Connor (1922), 24 W.A.L.R. 77.

An agreement between husband and wife whereby the wife purports to renounce the right of herself and her child to maintenance is void as being contrary to public policy, Davies v. Davies (1919), 26 C.L.R. 348. See also s. 125.

There must be some evidence that the wife is without means of support, Kelly v. Kelly (1894), 6 Q.L.J. 72, apparently overruling Re Hansford (1877), 5 S.C.R. 3. A wife having an allowance of £200 per annum from an uncle was held on the facts to be without sufficient means of support, Ex parte Proctor (1897), 13 W.N.(N.S.W.) 177. Where a wife has for a considerable time and without remonstrance on her part been living apart from her husband the presumption is that she is not without means of support, R. v. Collins (1881), 7 V.L.R. (L.) 74. As to adequate means of support, see s. 7 (4).

As to jurisdiction to make an order of maintenance in favour of a married woman whose husband has executed and faithfully performed a contract to pay her periodically a fixed sum for her support, compare Morton v. Morton, [1942] 1 All E.R. 273.

Quaere whether, in view of the present debased currency, a wife would be estopped by a deed of separation, executed several years ago, under which the husband has maintained the periodical payments for her maintenance in accordance with his covenant. See Tulip v. Tulip, [1951] P. 378; [1951] 2 All E.R. 91, where the Court of Appeal, reversing decision of Barnard, J., thought that the wife was entitled to have the husband's covenant reviewed in the light of the chanl:ed circumstances.


The wife must prove that she lacked means of support both at the time of laying the complaint and at the time of the adjudication. See Storor v. Storor, [1957] Q.W.N. 11; 51 Q.I.P.R. 79, when the Full Court set aside an order made by a magistrate in the wife's favour.

For an example of a wife's failure to prove that she was without adequate means of support, see Hunter v. Hunter, [1950] St. R. Qd. 37; 44 Q.I.P.R. 62.

For an example of a perverse order of maintenance in favour of a wife, where the magistrate was influenced by extraneous considerations, see Fleming v. Fleming, [1942] 2 All E.R. 337; 167 L.T. 191.

See also, as to a deserting wife's claim for maintenance, Richardson v. Richardson (1942), 86 Sol. 10. 254, applying Papadopoulos v. Papadopoulos, [1930] P. 55; Munt v. Munt, [1947] Q.W.N. 2; 41 Q.l.P.R. 62; Thomas v. Thomas (1946), 62 T.L.R. 166; [1946] 1 All E.R. 170.

In determining whether the wife will be left without means of support it is proper for the court to regard her capacity to earn money for her support by her own labours. See Vautier v. Vautier, [1954] St. R. Qd. 170; 48 Q.l.P.R. 124, where the Full Court applied dicta of Denning, L.l., in Rose v. Rose, [1951] P. 29 at pp. 31, 32, not following Buchanan v. Buchanan (1948),48 S.R.(N.S.W.) 430.

In order to ascertain whether the wife has been left without adequate means of support it is necessary to consider the spouses' mode of living and their condition or station in life, which mayor may not be commensurate with the husband's means; but such means should be considered only in relation to his abili.ty to pay. See Young v. Young, [1957] Q.W.N. 6; 51 Q.l.P.R. 45, where Mansfield, C.l., followed and applied Flinn v. Flinn, [1951] St. R. Qd. 117; and Vautier v. Vautier, [1954] St. R. Qd. 170. See also s. 7 (4).

Reasonable cause for leaving-The order will be refused where there was, is, or will be, just cause for leaving the complainant without adequate means of support, s. 8 (5).

The order-An order may be made for a limited period, Kleiden v. Rosemblatt, [1903] S1. R. Qd. 148. Where such an order has been made and at its termination a man still leaves his wife or child without means of support, a further application for maintenance may be made, ibid. As to termination of an order, see Leahy v. McKenzie, [1922] St. R. Qd. 130. See also ss. 28, 29, 31-36.

As to retrospective orders, see s. 27. As to nominal orders, and the circumstances in which they may be made, see

s. 21. For matters affecting the amount of orders, see s. 9. It is not the intention of the Act to allow justices to apportion the income of

a husband between the parties in what they consider fair proportions, Matt v. Matt, [1929] Q.W.N. 38; 23 Q.J.P.R. 116. An amount agreed upon between the parties to be paid to the wife upon separation is some evidence of what is sufficient for the wife's maintenance, but not conclusive, ibid.

The probative duty of a wife of ability on the part of the defendant to maintain her does not arise until the hearing of the complaint. Accordingly where the evidence was that, although the husband had been out of employment at different times before the hearing, he was at the time of the hearing in work and earning more than £15 a week, the magistrate was held justified in deciding that he was able to maintain his wife or contribute towards her maintenance to the extent of £3 lOs. a week. The wife had been in casual employment before laying the complaint and the magistrate was entitled to take into consideration what she would be likely to earn in such employment. Fardell v. Fardell, [1958] Q.W.N. 4. Where the effect of an order is to go beyond the legitimate purpose of providing adequate support for a wife's maintenance it is unreasonable and will be set aside. See, for example, Colvin v. Colvin; Ex parte Colvin, [1958] Qd. R. 144; 52 Q.J.P.R. 114. In that case notwithstanding that the wife who for two years after leaving her husband had earned her own living and had an earning potentiality of at least £10 a week the magistrate ordered the husband, a salesman in a furniture factory, whose means were £19 a week, to contribute £3 a week. The Full Court applying Vautier v. Vautier, [1954] S1. R. Qd. 170, allowed the husband's appeal.

Vautier v. Vautier, [1954] S1. R. Qd. 170; 48 Q.l.P.R. 124 and Colvin v. Colvin, supra, were explained and distinguished in Carlson v. Carlson; Ex parte Carlson, [1958] Qd. R. 149; 52 Q.J.P.R. 117, where the Full Court held that the magistrate who had heard it was not bound to dismiss the wife's claim merely because she was able to work and maintain herself and remitted the case to him to proceed with the hearing of any evidence to be adduced by the defendant.


See also Groves v. Groves; Ex parte Groves, [1961] Qd. R. 27. On the question of quantum the Supreme Court will not interfere with a

magistrate's order for the maintenance of an earning wife which it considers not unreasonable. See for example, Stretton v. Stretton, [1956] Q.W.N. 13; 50 Q.J.P.R. 51.

It is the duty of a magistrate making an order under this legislation to state explicitly the reasons that have led him to make it, Ex parte Powter (1946), 46 S.R.(N.S.W.) 1.

There is no power under this section to order imprisonment in default of compliance with an order for maintenance, Smith v. Gwynne, [1906] St. R. Qd. 251; [1906] Q.W.N. 48; Moore v. MacDonald, [1924] St. R. Qd. 184. But see s. 42, where the defendant has failed to comply with the order.

Effect of prior proceedings, or proceedings in the Supreme Court-Leaving without means of support appears to be a continuing wrong. See Kelly v. Kelly (1894), 6 Q.L.J. 72, per Harding, J. As to how far dismissal of an earlier complaint is a bar to subsequent proceedings, see Burton v. Tuckey, [1903] St. R. Qd. 331; Claxton v. Claxton, [1905] St. R. Qd. 87; [1905] Q.W.N. 37; Kleiden v. Rosemblatt, [1903] St. R. Qd. 148; R. v. Police Magistrate at Brisbane; Ex parte Jeffs, [1915] St. R. Qd. 69; [1915] Q.W.N. 10; 9 Q.J.P.R. 10; Ex parte Shussler (1905), 5 S.R.(N.S.W.) 656; Ex parte James (1918), 35 W.N.(N.S.W.) 95; Burgess v. Sargant (1932), 27 Tas. L.R. 74; Feletti v. Goldie (1903), 3 S.R.(N.S.W.) 292; Gilbey v. Stanton (1880), 14 S.A.L.R. 64; Trigg v. Kettle, [1915] Y.L.R. 167; Counsel v. Counsel, [1920] Y.L.R. 439; Ex parte Toomey (1901), 1 S.R.(N.S.W.) 24.

As to the jurisdiction of a magistrates court to make an order for maintenance of a wife notwithstanding that a previous order for maintenance has been discharged, cf. Jackson v. Jackson (1941), 41 S.R.(N.S.W.) 45. See also on successive summonses R. v. Sunderland Justices; Ex parte Hodgkinson (1945), 61 T.L.R. 456; [1945] 2 All E.R. 175; 38 Q.L.R. 666, where the King's Bench Division granted a mandamus directed to the justices to hear and determine the application for an order of affiliation, a previous summons having been dismissed on the merits, but fresh evidence produced. Principles that should be observed and applied by justices in adjudicating on a fresh complaint for maintenance, in respect of the weight to be given to a previous decision dismissing the complaint, have recently been formulated from the authorities by Townley, J., delivering the judgment of the Full Court, in Gittany v. Gittany, [1953] St. R. Qd. 278, at p. 295; 48 Q.J.P.R. 8, at p. 25.

An order may be made for maintenance of a child whose parentage is not in question notwithstanding the presentation of a petition for divorce against the wife subsequently to the application for the order, R. v. Acting Police Magistrate at Brisbane; Ex parte Arndt, [1930] St. R. Q. 154. But where an application for maintenance of the child is before the Supreme Court, the magistrate should not hear an application for maintenance (ibid., at p. 159), and where the wife takes or has taken proceedings for divorce or judicial separation in the Supreme Court and that Court has complete jurisdiction to deal with the matters involved in the application for maintenance, the jurisdiction of the magistrate is ousted with respect to maintenance of both wife and children, R. v. Police Magistrate at Brisbane; Ex parte Inglis, [1934] St. R. Qd. 281; 29 Q.J.P.R. 2; Brown v. Brown (1905), 3 C.L.R. 373; Bindon v. Bindon (1904), 4 S.R.(N.S.W.) 503; Ex parte Hollingworth (1920), 20 S.R.(N.S.W.) 619. But see Patey v. Patey, [1923] Y.L.R. 521. Jurisdiction is not ousted unless the petition has been served before the hearing, Peach v. Peach (1924),24 S.R.(N.S.W.) 317.

As to the maintenance jurisdiction of the Supreme Court, and the circumstances in which such jurisdiction is exclusive, see Matrimonial Causes Act 1959-1965, s. 8 (Commonwealth).

In Ex parte Quinn (1919), 19 S.R.(N.S.W.) 55, it was held that a decree for judicial separation not dealing with the question of maintenance does not render inoperative an order for maintenance made prior to the decree.

11. Court may order father to maintain children. Where the court, upon complaint made on behalf of a child of the family, is satisfied

(a) that the child is left by the father without adequate means of support providedby him and was so left on the date alleged in the complaint; or


(b) that the father is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by him,

the court may order the father to pay for or towards the maintenance of the child such amount as it thinks reasonable.

As to orders under the repealed Acts, see s. 5. As to adequate means of support, see s. 7 (4). For matters affecting the amount of the order, see s. 9. As to the duration of orders for the maintenance of children, see ss. 25-27. Generally, see notes tD s. 10. As to discharge, variation, suspension of orders, see ss. 31 et seq. As to maintenance Df children in need of assistance, and children in care,

see Children's Services Act of 1965, ss. 119-130, 1965 Annual Volume, p. 572. For the effect of the return of the child to the father and maintenance by him

for one month, see s. 111. The fact that a child is a child of the State under the Children's Services

Act of 1965, supra, does not interfere with the right to take proceedings under this Act for maintenance, R. v. Acting Police Magistrate at Brisbane; Ex parte Arndt, [1930] 81. R. Qd. 154. See also, ibid., s. 119 (2).

Semble, in general, in determining what is a reasonable sum to order the father to pay to the mother for the infant's maintenance, the mother's means are a relevant circumstance to be taken into account; but there may be circumstances (e.g. if the mother is at work and the child is young and delicate and has no one to lDOk after him and the husband's means are sufficient to support both) where the mother's means should not be a criterion. See Re W. (infants), [1956] 1 All E.R. 368, where the Court of Appeal approved Re T. (an infant), [1955] 2 All E.R. 830.

For power to proceed ex parte, see s. 116. As tD documentary evidence of earnings, see s. 120. For power to require a defendant to disclose his employer, earnings, etc.,

see s. 126. A father does not leave his child without means of support where it has been

taken from his home without his consent and he refuses to maintain it unless it is returned to his home, Chant/er v. Chant/er (1906), 4 C.L.R. 585; M'Farland v. M'Farland (1875), 1 V.L.R. (L.) 303. For the effect of an offer to provide a home, see s. 112.

Where separate complaints for leaving without means of support are made in respect of wife and children, a single order for maintenance cannot be made on both, Lohde v. Lohde, [1916] St. R. Qd. 117; [1916] Q.W.N. 28; 10 Q.J.P.R. 78.

As to leaving without means of support, see also the notes to s. 10. For the misdemeanour of desertion of children under fourteen years of age,

~e~ Criminal Code, s. 364, title CRIMINAL LAW, Vol. 3, p. 391. Compare IbId., s. 286, Vol. 3, p. 352. For the summary offence of neglecting children, see Children's Services Act of 1965, s. 69, 1965 Annual Volume, p. 549.

12. Court may order mother to maintain children. Where the court, upon complaint made on behalf of a child of the family, is satisfied-

(a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or

(b) that the mother is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by her,

the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable.

As to orders under the repealed Acts, see s. 5. As to adequate means of support, see s. 7 (4).


For matters affecting the amount of the order, see s. 9. As to liability of a married woman having property for maintenance of her

children, d. Married Women's Property Acts, 1890 to 1952, s. 22, p. 408, post. As to leaving without means of support, see notes to s. 10. Generally, see notes to ss. 10, 11. As to commencement and duration of orders, see ss. 25-27. As to discharge, variation, suspension of orders, see ss. 31 et seq. For power to proceed Ex parte, see s. 116. As to documentary evidence of earnings, see s. 120. For power to require a defendant to disclose her employer, earnings, etc.,

see s. 126.

Subdivision (3)-Orders against Wives for Maintenance of Husbands 13. Court may order wife to maintain husband. Where the court, upon complaint made by or on behalf of a husband, is satisfied that the husband is unable to support himself adequately and-

(a) that he is left by his wife without adequate means of support provided by her and was so left on the date alleged in the complaint; or

(b) that his wife is about to remove out of Queensland or into a distant part of Queensland and leave him without adequate means of support provided by her,

the court may order the wife to pay for or towards his maintenance such amount as it thinks reasonable, having regard to his accustomed condition in life, his means and earning capacity at the time of the hearing, and any evidence before the court as to his wife's means, earning capacity and ability to pay maintenance.

As to adequate means of support, see s. 7 (4). As to leaving without means of support, see notes to s. 10. Generally, see notes to s. 10. As to duration and commencement of orders, see ss. 27-29. As to discharge, suspension, variation of orders, see ss. 31 et seq. For the effect of resumption of cohabitation, see s. 111.

Subdivision (4)-Orders against Fathers or Mothers for Maintenance of Illegitimate Children

14. Court may order father to maintain illegitimate child. Where the court, upon complaint made on behalf of an illegitimate child, is satisfied that the defendant is the father of the child and-

(a) that the child is left by the defendant without adequate means of support provided by him and was so left on the date alleged in the complaint; or

(b) that the defendant is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by the defendant,

the court may order the defendant to pay for or towards the maintenance of the child such amount as it thinks reasonable.

As to orders under the repealed Acts, see s. 5. Affiliation orders may be annulled under s. 35. As to adequate means of support, see s. 7 (4). For matters affecting the amount of the order, see s. 9. For the necessity of corroboration, see s. 30. Where proceedings are taken the complaint must allege that the child

is left without adequate means of support, Hurley v. Ward, [1908] St. R. Qd. 37; [1908] Q.W.N. 9; 1 Q.I.P.R. 165.

A mother who is an infant need not sue by her next friend, Ex parte Townsend (1906), 6 S.R.(N.S.W.) 260.


An application may be made on behalf of the deceased mother of an illegitimate child and an order may be made on such an application, Lynam v. Field (1916), 10 Q.J.P. 211 (Mag. Cas.); Ex parte Austen (1897), 18 L.R. (N.S.w.) (L.) 216.

Proceedings can be taken by a married woman who has given birth to an illegitimate child, Pearce v. Kitchin (1931), 26 Tas. L.R. 38.

As to complaints for maintenance of illegitimate children born to married women, see Ex parte Letherbarrow; Re McMurray (1938), 38 S.R.(N.S.W.) 281; Page v. Northrope, [1938] V.L.R. 285; Sherwood v. Ambrose (1938), 33 N.Z.M.C.R. 127.

The liability of the father to maintain an illegitimate child is not affected by the fact that the mother is able to maintain it, Cox v. Short, [1910] St. R. Qd. 112; [1910] Q.W.N. 13; 3 Q.J.P.R. 245; Ravanni v. Robinson (1896), 7 Q.L.J. 131. But see s. 15 as to liability of the mother to support the child.

A bona fide offer by a father to provide a home for his illegitimate child, the child being in the custody of the mother, is no answer to a complaint against the father for leaving such child without means of support, Russ v. Carr, [1909] V.L.R. 78.

There is no power to adjourn an application for maintenance of an illegitimate child on the ground that an action is pending against the defendant for seduction of the mother where no provision is in fact made for the sustenance of the child, R. v. Police Magistrate at South Brisbane; Ex parte Hinchcliff, [1911] Q.W.N. 26; 5 Q.J.P.R. 115.

As to how far a prior order fixing the paternity of the child operates as an estoppel or as corroborative evidence on a subsequent application. see Baxter v. Baxter, [1914] V.L.R. 444; Hanley v. McMasters (1889), 15 V.L.R. 322; Howard v. Doig (1899), 18 N.Z.L.R. 766; McKinley v. Delaney, [1915] V.L.R. 66; 19 C.L.R. 525; Ex parte Lahood (1921), 21 S.R.(N.S.W.) 306; Ex parte Rowan (1877), Knox (N.S.W.) 321. The dismissal of a pre-natal application for confinement expenses does not affect the right of the child to maintenance, Burgess v. Sargant (1932), 27 Tas. L.R. 74.

As to whether a complaint under this section is a civil proceeding or will support an action for malicious prosecution, see Jones v. Foreman. [1917] N.Z.G.L.R. 798.

It has been decided by the King's Bench Division that the bastardy laws of England have no application where a bastard, or a child appearing to be a bastard, is born within the country of a woman domiciled abroad. See O'Dea v. Tetau, [1951] 1 K.B. 184; [1950] 2 T.L.R. 339; [1950] 2 All E.R. 695, where an affiliation order made by a magistrate against the putative father (an Englishman) in favour of a German woman resident and domiciled in Germany, who had given birth to a bastard child in Germany, was held, to have been made without jurisdiction. Their Lordships followed R. v. Blane (1849), 13 Q.B. 769; 116 E.R. 1458, and explained R. v. Humphreys, Ex parte Ward, [1914] 3 K.B. 1237; [1914-15] All E.R. Rep. 189. R. v. Blane, supra, and O'Dea v. Tetau, supra, were followed by a divisional court in R. v. Wilson; Ex parte Pereira, [1952] 2 All E.R. 706. Compare the effect of s. 8 (2), (3).

On the length of gestation, see Wood v. Wood, [1947] P. 103; 63 T.L.R. 450; [1947] 2 All E.R. 95 (period, 346 days), Re S.B. an infant; B. v. B., [1949] 1 Ch. 108; 65 T.L.R. 142 (period of 188 days too short to be accepted in law without proof of prematurity; independent evidence of husband's non-access and of child's maturity at birth; presumption of legitimacy displaced). On gestation, see also Hadlum v. Hadlum, [1949] P. 197; 65 T.L.R. 30; [1948] 2 All E.R. 412, where the Court of Appeal, dismissing the husband's appeal against the dismissal of his petition for divorce, held that in the face of medical evidence given at the hearing of the petition on behalf of the wife-to the effect that fertilization could occur so long as seventeen days after insemination and that when such a delay occurred a birth 349 days after coitus was scientifically possible, though highly improbable-the judge was entitled to hold that the length of the period between the coitus and birth did not establish that the husband was not the father of the child. However, in M-.T-. v. M-.T-. and Official Solicitor Guardian ad litem for an Infant Child, [1949] P. 331; 65 T.L.R. 75, upon an issue to determine the paternity of an infant born 340 days after the last possible date of intercourse, Ormerod, J., held, after hearing expert evidence, that in the light of modern gynaecological knowledge it was impossible for the child, who at birth was normal in every respect, to be legitimate.


15. Court may order mother to maintain illegitimate child. Where the court, upon complaint made on behalf of an illegitimate child is satisfied-

(a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or

(b) that the mother is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by the mother,

the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable.

As to orders under the repealed Acts, see s. 5. As to adequate means of support, see s. 7 (4). For matters affecting the amount of the order, see s. 9. Generally, compare notes to s. 14.

Subdivision (5)-Orders against Putative Fathers for Preliminary Expenses and for Maintenance of Unborn Children

16. Court may order payment of preliminary expenses, etc. (1) Where the court, upon complaint made by or on behalf of a woman, is satisfied

(a) that she is pregnant by the defendant (not being her husband) or has been delivered of a child or a stillborn child of whom the defendant (not being her husband) is the father; and

(b) that he has not made adequate provision for the payment of her preliminary expenses,

the court may order the defendant to pay for preliminary expenses such amount as it thinks reasonable.

Where a woman might, but for her death, have made a complaint under this subsection, the complaint may be made by any person who has paid or is liable to pay the preliminary expenses.

(2) A complaint referred to in subsection (1) of this section or a claim referred to in subsection (8) of this section shall not be made after the expiration of twelve months after the birth or stillbirth of the child.

(3) An order shall not be made under subsection (1) of this section where the woman for whose benefit the order is sought is pregnant unless the court is satisfied by the evidence or a certificate of a medical practitioner that the woman is quick with child.

(4) Where an order under subsection (1) of this section was made in the case of a woman who was pregnant by the defendant and-

(a) the woman is not delivered of a child or a stillborn child before a date specified in the order for the purposes of this subsection, being a date not later than six months after the order was made; or

(b) the woman is delivered of a stillborn child before the date so specified,

the order ceases to have effect on the date so specified or on the delivery of the stillborn child, as the case may be.

(5) Where an order ceases to have effect on the date specified in the order for the purposes of subsection (4) of this section any moneys paid under the order and not disbursed shall be repaid to the defendant.


(6) Where an order ceases to have effect on the delivery of a stillborn child, any moneys paid under the order and not disbursed shall, as directed by the court-

(a) be paid to the woman; (b) be repaid to the defendant; or ( c) be divided between the woman and the defendant in such

proportions as the court thinks fit.

(7) Where an order is made under subsection (1) of this section in the case of a woman who is pregnant by the defendant-

(a) the court may, at any time while the order is in force, with or without any application for that purpose, and, if upon application, after notice of such application given in such manner and to such persons as the court may direct, give such directions as the court thinks proper with respect to the disbursement of any amounts paid under the order, but not so as to direct the disbursement, before the woman is delivered of a child or stillborn child, of amounts aggregating more than one-half of the amount to be paid under the order; and

(b) amounts paid under the order shall not be disbursed otherwise than in accordance with directions so given.

(8) Where a complaint has been made under section fourteen of this Act, the court may, if a claim for preliminary expenses is made at the hearing of the complaint, and subject to subsection (2) of this section, make an order under subsection (1) of this section for the payment of those expenses, notwithstanding that a complaint has not been made under this section.

(9) Where a claim referred to in subsection (8) of this section is made, the court shall, on the application of the defendant, if it is of opinion that the defendant would be prejudiced unless the hearing were adjourned, adjourn the hearing for such period as it thinks fit.

(10) The adoption of a child, whether before or after the commencement of this Act, does not prevent the making of an order for preliminary expenses in the same manner as if the child had not been adopted and does not affect the validity or operation of any order for preliminary expenses in respect of the child.

(11) The death of a child, whether before or after the commencement of this Act, does not prevent the making of an order for preliminary expenses in the same manner as if the child had not died.

(12) In this section" child" includes an adopted child. As to orders under the repealed Acts, see s. 5. For what are preliminary expenses, see s. 7. Justices have jurisdiction to entertain an application for confinement expenses

even after making an order of maintenance, Everest v. Henry, [1943] V.L.R. 154.

17. Court may order future maintenance of illegitimate child upon complaint for preliminary expenses. (1) Where a court makes an order under section sixteen ofthis Act for or towards the payment of preliminary expenses, being an order made before the birth of the child to which it relates, the court may, upon complaint made by or on behalf of the


person who made the complaint under section sixteen of this Act, if it appears probable that the child will, at the expiration of three months after birth, be without adequate means of support provided by the father of the child, order the father to pay for or towards the maintenance of the child such amount as it thinks reasonable.

(2) An order under subsection (1) of this section takes effect-

(a) where a certified copy of the registration of the birth of the child is produced to the clerk of the court by which the order is made within a period of three months after the birth of the child-at the expiration of that period; or

(b) where such a certified copy is not so produced-upon the production to the clerk of that certified copy.

(3) An order under subsection (1) of this section does not take effect if the child to whom it relates is stillborn or dies or is adopted before the order would otherwise take effect.

(4) An order under subsection (1) of this section shall not be made requiring a person to make payments for or towards the maintenance of a child unless-

(a) the person has consented to the making of the order; or

(b) the person has been given notice of the complainant's intention to apply for the order.

(5) Where a certified copy of the registration of the birth of the child in relation to whom an order has been made under subsection (1) of this section is produced to the clerk of the court, the clerk shall forthwith send by post to the defendant at his usual or last known place of residence or business notice in writing of the name of the child, if shown in the certified copy, and of the date and place of birth of the child and the date on which and place at which the first payment under the order is required to be made.

For what are preliminary expenses, see s. 7. As to adequate means of support, see s. 7 (4). For matters affecting the amount of the order, see s. 9.

Subdivision (6)-Orders for Funeral Expenses 18. Court may order payment of funeral expenses of children. (1) Where-

(a) the court, upon complaint made by or on behalf of a parent (in this paragraph referred to as "the complainant") of a legitimate child (including an adopted child) is satisfied that the child was a child of the family who died before attaining the age of sixteen years, and-

(i) that the complainant was, at the date of the death, entitled to receive payments from the other parent under an order for the maintenance of the child;

(ii) that an order for the maintenance of the complainant was, at the date of the death, in force under which the other parent was directed to make payments for the benefit of the complainant; or


(iii) that at the date of death there was in force an order under section twenty-one of this Act directing the payment by the other parent of a nominal amount in respect of the child or the complainant; or

(b) the court, upon complaint made by or on behalf of a parent of a legitimate stillborn child, is satisfied that the child quickened and that an order for the maintenance of the parent was in force at the date of the stillbirth,

and the court is also satisfied that the other parent of the child has not made adequate provision for the funeral expenses of the child, the court may order the other parent to pay such amount as it thinks reasonable for or towards the funeral expenses of the child.

(2) Where a parent of a child might, but for that parent's death, have made a complaint under subsection (1) of this section, the complaint may be made by any person who has paid or is liable to pay the funeral expenses of the child.

(3) Where the court, upon complaint made by or on behalf of the mother of an illegitimate child, is satisfied that the child was stillborn or died either before attaining the age of sixteen years or, in the case of a child for whose maintenance an order had been made in the lifetime of the child. while the mother was entitled to receive payments under the order, and that the defendant-

(a) was the father of the child or had been adjudged to be the father of the child in any other legal proceedings; and

(b) has not made adequate provision for the funeral expenses of the child,

the court may order him to pay such amount as it thinks reasonable for or towards the funeral expenses of the child.

(4) Where the mother of an illegitimate child or of an illegitimate stillborn child has died, a complaint under subsection (3) of this section may be made by any person who has paid or is liable to pay the funeral expenses of the child.

(5) An order shall not be made under subsection (3) of this section in relation to a stillborn child unless the court is satisfied that the child quickened.

(6) An order shall not be made under this section upon a complaint made more than twelve months after the stillbirth or the death of the child to whcJm it relates.

(7) An order shall not be made under subsection (1) of this section in respect of the funeral expenses of a child whose death occurred before the commencement of this Act.

19. Court may order father to pay funeral expenses of mother of illegitimate child. (I) Where the court, upon complaint made by any person, is satisfied-

(a) that the defendant is the father of an illegitimate child (including a child that quickened but was stillborn) or has been so adjudged in any other legal proceedings;

(b) that the mother of the child died during and in consequence of her pregnancy or in consequence of the birth or stillbirth of the child; and

MAINTENANCE ACT OF 1965 ss.I8-20 289

(c) that the defendant has not made adequate provision for the funeral expenses of the mother,

the court may order him to pay such amount for or towards the funeral expenses of the mother as it thinks reasonable.

(2) An order shall not be made under this section upon a complaint made more than twelve months after the death of the mother.

Subdivision (7)-Orders for Medical and Like Expenses 20. Orders for medical and like expenses. (1) Where the court, upon complaint made by or on behalf of-

(a) a person for whose maintenance an order (not being an order for preliminary expenses) has taken effect and is in force under this Part; or

(b) a person in respect of whom there has been made an order under section twenty-one of this Act that is in force under this Part,

is satisfied-(c) that any medical, surgical, psychiatric, dental, hospital, or

nursing care or treatment is or was reasonably required to be rendered in respect of that person;

(d) that the amount ordered to be paid for the maintenance of that person is not sufficient to enable adequate provision to be made thereout for or towards the cost of that care or treatment;

(e) that the person against whom the order was made has not made adequate provision for or towards that cost, and it is just and equitable in all the circumstances of the case that he payor contribute towards that cost,

the court may order him to pay for or towards that cost such amount as it thinks reasonable.

(2) Where the court, upon complaint made on behalf of a child in respect of whom an order for preliminary expenses has been made, is satisfied-

(a) that any care or treatment referred to in paragraph (c) of subsection (1) of this section-

(i) where the child has not attained the age of three months, is reasonably required to be rendered in respect of that child; or

(ii) where the child has attained that age, was reasonably required and was in fact rendered in respect of that child before he attained that age;

(b) that the amount ordered to be paid for preliminary expenses was not sufficient to enable adequate provision to be made thereout for or towards the cost of that care or treatment; and

(c) the person against whom the order was made has not made adequate provision for or towards that cost and it is just and equitable in all the circumstances of the case that he payor contribute towards that cost,

the court may order him to pay for or towards that cost such amount as it thinks reasonable.

1.

290 MARRIAGE AND DIVORCE V.I.ll

(3) Where an order is made under this section for the payment of moneys for or towards the cost of any care or treatment referred to in paragraph (c) of subsection (1) of this section, the court may, at any time, with or without any application for that purpose, and, if upon application, after notice of such application given in such manner and to such persom; as the court may direct, give such directions as the court thinks proper with respect to the disbursement of the amount ordered to be paid but so that no moneys are disbursed before the care or treatment to which the payment relates has been rendered.

(4) The adoption of a child does not prevent the making of an order under this section in the same manner as if the child had not been adopted and does not affect the validity or operation of any such order in respect of the child.

(5) Where complaint might have been made under this section by or on behalf of a person but for that person's death, the complaint may be made by any person who has paid or is liable to pay the cost of any care or treatment referred to in paragraph (c) of subsection (I) of this section.

(6) An order shall not be made under this section in respect of the cost of any care or treatment that was rendered before the commencement of this Act, or upon a complaint made more than twelve months after the care or treatment to which the complaint relates was rendered.

DIVISION 2-NoMINAL, PRELIMINARY AND INTERIM ORDERS

Subdivision (I)-Nominal Orders

21. Nominal orders. Where, upon the hearing of a complaint under this Part for the maintenance of a person, the court is satisfied that it would make an order for the maintenance of that person but for the fact-

(a) that that person is not presently left without adequate means of support; or

(b) that the defendant is not presently able to contribute to the support of that person,

the court may nevertheless make an order setting out its findings on the complaint and directing the payment by the defendant of a merely nominal amount in respect of that person.

Nominal orders are not enforceable, s. 22. As to orders under the repealed Acts, see s. 5. As to adequate means of support, see s. 7 (4). As to variation, suspension, discharge of orders, see S5. 31 et seq.

22. Nominal orders not to be enforced. Proceedings shall not be taken under this Act to enforce payment of the nominal amount directed to be paid by an order made under section twenty-one of this Act, but, if that amount is varied under section thirty-one of this Act, proceedings may be taken to enforce payment of any amount payable under the order as varied.

MAINTENANCE ACT OF 1965 5s.20.24 291

Subdivision (2)-Preliminary and Interim Maintenance Orders 23. Ex parte order for preliminary maintenance of child. (1) Upon ex parte application made to a Stipendiary Magistrate or to any two justices (whether sitting as a Magistrates Court or otherwise) at any time after the making of a complaint made under Subdivision (2) of Division 1 of this Part for the maintenance of a child of the family, the Magistrate or justices may order the defendant to pay weekly for the maintenance of the child such amount (being not more than four dollars per week) as the Magistrate or justices may think reasonable until the expiration of three months from the making of the order or until the making or refusal of an order for the maintenance of the child under this Part (whichever first occurs).

(2) The evidence of any person who is examined on an application under subsection (1) of this section shall be taken down in writing and shall be read over and signed by that person.

(3) An order under this section shall be in writing, signed by the Magistrate or by the justices. shall forthwith be sent, together with the depositions of the witnesses who gave evidence in support of the application, to the clerk of the court at which the summons issued upon the complaint is returnable, and shall, subject to subsection (1) of this section, be enforceable as if it were an order made by that court.

(4) An order under this section may be made without prior notice being given to the defendant and shall not be subject to suspension, variation, or appeal, and any moneys paid thereunder shall not, irrespective of the outcome of the proceedings upon the complaint, be recoverable.

(5) The hearing of an application under this section shall be deemed not to be a commencement of the hearing of the complaint, and the complaint may be heard and determined by a court whether constituted by the Stipendiary Magistrate who heard the application or by any other Stipendiary Magistrate.

Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965.

24. Interim orders for payment of maintenance pending determination of case. (1) Upon any occasion when the hearing of a complaint made for the purpose of obtaining an order for the maintenance of a wife, husband, or child of the family is adjourned for a period of not less than seven days (whether or not the hearing has previously been so adjourned), the court may, after such enquiry as it thinks necessary, order the defendant to pay, for or towards the maintenance of the wife, husband, or child such amount as it thinks reasonable.

(2) An order under this section shall not be subject to suspension, variation, or appeal, and shall remain in force until the expiration of a period of three months from the date on which the order is made or until the complaint again comes before the court (whichever first occurs), and any moneys paid thereunder shall not, irrespective of the outcome of the proceedings upon the complaint, be recoverable.

(3) The making of an order under this section shall, unless the hearing of the complaint has otherwise commenced, be deemed not to be a commencement of the hearing of the complaint, and the complaint may be heard and determined by a court whether constituted by the Stipendiary Magistrate who constituted the court that made the order or by any other Stipendiary Magistrate.


DIVISION 3-GENERAL

Subdivision (i)-Commencement and Duration of Orders 25. Orders for maintenance of children. Subject to this Act-

(a) an order shall not be made under this Part in respect of a child who has attained the age of sixteen years; and

(b) an order for the maintenance of a child ceases to have effect when the child attains the age of sixteen years, or dies, or is adopted, or the person against whom the order was made dies (whichever first occurs).

As to orders under the repealed Acts, see s. 5. Note the effect of s. 26.

26. Extension of maintenance order after child's sixteenth birthday. (1) This section applies to any child for whose maintenance an order (in this section referred to as a " maintenance order ") is or, at the time the child attained the age of sixteen years, was in force under this Act or under the repealed Acts.

(2) Where, upon application made to a court on behalf of a child to whom this section applies, it appears to the court that, in the case of a child who has not attained the age of sixteen years, the child will, after he attains that age, be engaged in a course of education or training or, in the case of a child who has attained that age, the child is or will be so engaged, and that the maintenance order made in respect of the child should be continued or revived, as the case may require, with or without variation, for the purpose of making provision for or towards the maintenance of the child while he is so engaged and for or towards the meeting of the expenses of the course, the court may order-

(a) where the child has not attained the age of sixteen yearsthat the maintenance order continue and be in force for such amount and for such period (not exceeding two years from the date on which he attains that age, unless the defendant consents to a longer period) as may be specified in the order under this section; or

(b) where the child has attained the age of sixteen years--that the maintenance order revive on and from a date to be specified in the order under this section (not being a date earlier than the date on which the order is made) and that the maintenance order thereafter be in force for such amount and for such period (not exceeding two years from the date so specified, unless the defendant consents to a longer period) as may be specified in the order so made.

(3) A court may, from time to time, by a subsequent order under this section, extend the period specified in any previous order so made for such further period (not exceeding two years, unless the defendant consents to a longer period) from the date of expiry of the previous order as may be specified in the subsequent order.

(4) An order under this section shall not require payments to be made under a maintenance order after the date on which the child attains the age of twenty-one years.


(5) An application under this section shall be heard by the court for the place where payments under the maintenance order are or were required to be made, unless-

(a) the parties to the application consent to the hearing of the application by a court sitting at another place; or

(b) the hearing of the application is adjourned, upon the application of either party, to a court sitting at another place.

As to orders under the repealed Acts, see s. 5.

27. Orders for maintenance of wife, husband, or child may include limited provision for past maintenance. Subject to this Part, an order under this Part for the maintenance of a person may, whether or not any application in that behalf has been made, be made to take effect from a past date, not being earlier than three months before the date on which the order is made, and where an order takes effect from a past date, the court may direct the past maintenance to be paid in one sum or by instalments as the court directs.

28. Duration of order for support of wife or husband. An order under this Part for the maintenance of a wife or husband ceases to have effect, if not earlier discharged or terminated, upon the death of the wife or husband (whichever death first occurs).

29. Recovery of arrears after cessation of order. (1) The fact that an order under this Part for the maintenance of a person ceases to have effect does not prevent the enforcement of the order so far as it relates to any period before it ceased to have effect.

(2) Subsection (1) of this section does not apply where the order ceases to have effect by reason of the death of the defendant.

Subdivision (2)-Evidentiary 30. Order relating to illegitimate child not to be made in certain cases. Where it is necessary for the purposes of obtaining an order under this Part to satisfy the court that the defendant is the father of an illegitimate child, or that a woman is with child by the defendant (not being her husband), the order shall not be made-

(a) upon the evidence of the mother (or, as the case may be, woman) unless her evidence is corroborated in some material particular; or

(b) if the court is satisfied that, at about the time the child was conceived, the mother (or, as the case may be, woman) was a common prostitute or had intercourse with men other than the defendant.

General-For actions to which these provisions are relevant, see ss. 14, 16, 17, 19,20.

As to annulment of affiliation orders, see s. 35. Other evidentiary provisions are contained in ss. 109 et seq. Corroborative Evidence of Paternity.-The corroborative evidence must be

evidence of some person other than the mother, Ridley v. Whipp (1916), 22 C.L.R. 381. Thus a complainant cannot corroborate her own evidence by producing a letter which she swears is in the handwriting of the defendant, Crutchfield v. Lee, [1934] V.L.R. 146.

In Jeffery v. Johnson, [1952] 2 Q.B. 8; [1952] 1 All E.R. 450, the Court of Appeal, overruling Johnson v. Pritchard (1933),97 J.P. Jo. 754, and Moore v. Hewitt, [1947] K.B. 831; [1947] 2 All E.R. 270, on this point, and applying the reasoning of Goddard, c.J., in the latter case, held that the complainant mother


was a competent witness to prove that a letter was in the handwriting of the respondent (who therein admitted paternity of the bastard the subject of the affiliation proceedings) and that if her evidence were accepted the statements contained in the letter became corroboration in a material particular of her evidence that the respondent was the father of the child.

On the question of the essentials of corroborative evidence see Flohr v. McMahon; Ex parte McMahon, [1956] St. R. Qd. 253; 50 Q.1.P.R. 94, where the Ful! Court, in dismissing the defendant's appeal against a maintenance order, found it unnecessary to decide whether it should adopt the recent view of the Court of Appeal in Jeffery v. Johnson, [1952] 2 Q.B. 8; [1952] 1 AI! E.R. 450, in preference to that adopted in earlier cases by the Supreme Court of Queensland and other Australian courts.

Evidence showing only that, e.g., the parties were engaged or were keeping company, or that acts of mere familiarity had passed between them, or that an opportunity for intercourse at the relevant time had occurred, would not be corroboration of the allegation of paternity, Jensen v. Ilka, [1960] Qd. R. 274.

In Homberg v. Kenny; Ex parte Kenny, [1964] Q.W.N. 50, the complainant alleged that the defendant was the father of her illegitimate child born as a result of intercourse in a hotel room booked by the re5pondent in hiS! name. The defendant in evidence admitted having had intercourse with the complainant four years before and having been in her company on the relevant day, but denied that he had gone to a hotel with her, or that intercourse had occurred. The hotel proprietor gave evidence that a room had been booked under a name very similar to that of the defendant, and that the room had been used on the relevant night pursuant to that booking. It was held that the complainant's evidence had been corroborated.

The corroborative evidence need not necessarily be evidence on oath; admissions may furnish corroboration, Callan v. Harty (1928), 22 Q.J.P.R. 78.

Corroborative evidence need not extend to the whole of the evidence as to paternity; it is sufficient if some material particular of such evidence is corroborated, O'Leary v. McKee, [1924] St. R. Qd. 211.

Corroborative evidence of paternity must be such as to produce a reasonable belief in the mind of the magistrate that the applicant's allegations are true, Dunne v. Campbell, [1930] St. R. Qd. 214; 24 Q.J.P.R. 98. Thus it must show words or conduct on the part of the defendant which are more consistent with guilt than innocence, Bradford v. Crutch, [1930] Q.W.N. 19.

Evidence of physical opportunity for intercourse is not on its own corroborative of paternity, Davies v. D'Ennett, [1910] St. R. Qd. 140; [1910] Q.W.N. 20; 4 Q.J.P.R. 7, but it is so where the circumstances are such that it is probable that advantage was taken of such opportunity, O'Leary v. McKee, supra; Ridley v. Whipp (1916), 22 C.L.R. 381. The false denial of opportunity, proved by testimony other than that of the mother, is evidence from which guilt in relation to that opportunity may be inferred, Burton v. Laycock, [1930] St. R. Qd. 312, as also may false denial of other matters which would tend to throw suspicion on the defendant, Jacobs v. Must, [1917] Q.W.N. 5; 10 Q.J.P.R. 125; Collie v. Collie, [1922] V.L.R. 269; Morrison v. Taylor, [1927] V.L.R. 62; Pitman v. Byrne, [1926] S.A.S.R. 207; Herrick v. Tanner (1912), 31 N.Z.L.R. 282; Hoxman v. Barnden (1914), 33 N.Z.L.R. 957. Evidence of opportunity and of previous acts of intercourse between the parties may amount to corroboration, Moore v. MacDonald, [1924] St. R. Qd. 184. But it seems that acts of intimacy after the date of conception are not corroborative, Field v. Shead (1909), 3 Q.J.P.R. 1. With respect to the time at which familiarity must be proved to have taken place, see Dalton v. Rigney, [1916] N.Z.L.R. 113; Warren v. Howson (1870),4 S.A.L.R. 6; Whitaker v. Johnston (1899), 18 N.Z.L.R. 589; Ritter v. Martin (1905), 8 G.L.R. 150; Hockey v. Rossiter, [1929] S.A.S.R. 240; Standfield v. Byrne, [1929] S.A.S.R. 352; Harding v. Porta, [1934] V.L.R. 79. Evidence that defendant was the father of an earlier child of complainant was held to be corroborative, Galbally v. Watkins (1892), 18 V.L.R. 67.

An offer to pay accompanied by denial of paternity is not corroborative evidence, Harvey v. Church (1898), 17 N.Z.L.R. 19, but a payment to the mother by the alleged father pursuant to an agreement wherein he denied paternity and expressed the payment to be made "to avoid publicity and litigation" was held corroborative of the mother's evidence, Sprott v. Waterman, [1931] V.L.R. 234. Payment of money unaccompanied by such a denial may amount to corroboration. Mellor v. Forster, [1906) Q.W.N. 54.


Where admissions are accompanied by a complete denial of paternity, the Court may disregard the denial and give effect to the admissions, Moore v. Mahony (1901), 27 V.L.R. 166. As to respondent's behaviour and words when charged as supplying corroboration, see also Frost v. Allen (1919), 15 Tas. L.R. 12; Coulston v. Taylor (1909), 28 N.Z.L.R. 807; Anson v. Parker, [1928] N.Z.L.R. 490; Ex parte Thrift (1924),24 S.R.(N.S.W.) 450; Ex parte McPherson (1932), 32 S.R.(N.S.W.) 525; Ex parte Gorton (1932), 49 W.N.(N.S.W.) 192; Mars v. McMahon, [1929] S.A.S.R. 179.

Physical resemblance between a child of nine months and the alleged father was held not sufficient corroboration of the mother's evidence, Field v. Hansen, [1923] V.L.R. 89.

As to what amounts to corroborative evidence upon which paternity may be found, see also Cox v. Short, [1910] St. R. Qd. 112; [1910] Q.W.N. 13; 3 Q.J.P.R. 245; Walduck v. Messenger, [1922] St. R. Qd. 35; 16 Q.J.P.R. 27; Zimmerman v. Stanford (1898), 9 Q.L.J. (N.C.) 3; Farr v. Thornton, [1903] St. R. Qd. 312 (where Zimmerman v. Stanford, supra, was disapproved); Gotts v. McVay, [1908] Q.W.N. 10; 2 Q.J.P.R. 45; Payne v. Corcoran, [1912] St. R. Qd. 62; [1912] Q.W.N. 12; 6 Q.J.P.R. 3; Schafer v. Busteed, [1913] Q.W.N. 6; 6 Q.J.P.R. 173; Wendt v. Lind, [1913] St. R. Qd. 240; [1913] Q.W.N. 53; 7 Q.J.P.R. 139; Harper v. Counter, [}913] St. R. Qd. 249; [1913] Q.w.N. 55; 7 Q.J.P.R. 161; Lihou v. Chalmers, [1914] St. R. Qd. 164; [1914] Q.W.N. 26; 8 Q.J.P.R. 104; Matthews v. Colless, [1915] St. R. Qd. 159; [1915] Q.W.N. 23; 9 Q.J.P.R. 141; Grice v. Reimer, [1915] Q.W.N. 24; 9 Q.J.P.R. 177; O'Leary v. McKee, [1924] St. R. Qd. 211 (defendant forced complainant to sign a document exculpating him); Dunne v. Campbell, [1930] St. R. Qd. 214; 24 Q.J.P.R. 98; Bates v. Griffiths, [1935] Q.W.N. 20; 29 Q.J.P.R. 71; McVeity v. Blain (1908),2 QJ.P.R. 153; Dempsey v. Bright (1910), 4 Q.J.P.R. 182; Bourke v. Ramsay (1922), 17 Q.J.P.R. 1; NUrmberger v. Reynolds, [1931] Q.W.N. 24; 25 Q.J.P.R. 110; Win wood v. Cooper, [1929] Q.W.N. 37; 23 Q.J.P.R. 122 (date of conception); Bradford v. Crutch, [1930] Q.W.N. 19; King v. Deel, [1932] Q.W.N. 4.

On corroboration, see Lloyd v. Guthrie; Ex parte Guthrie, [1937] St. R. Qd. 253 (evidence of paternity held sufficient), Polkinghorne v. Collins, [1939] Q.W.N. 13; 33 Q.J.P.R. 59, and Holland v. Roberts (1938), 158 L.T. 313 (evidence of mere opportunity insufficient), Hayter v. Hayter, [1937] S.A.S.R. 59 (unsuccessful prior attempt at sexual intercourse held sufficient corroboration), Skeggs v. Wallace (1938), 29 Tas. L.R. 75 (admitted paternity of previous child attributed to one .act of intercourse not necessarily corroboration); Sherwood v. Ambrose (1938), 33 N.Z.M.C.R. 127 (interview: no corroooration), Petricevich v. Rapana, [1939] a.L.R. 484 (false denial of paternity held sufficient corroboration), Hobbs v. Davies; Ex parte Davies, [1943] St. R. Qd. 131; 37 Q.J.P.R. 77 (equivocal expression used by defendant in reply to a question by the girl's mother held, in the circumstances, sufficient corroboration of paternity), Moore v. Hewitt, [1947] K.B. 831; [1947] 2 All E.R. 270 (long-continued association of parties on terms of close affection and no evidence that complainant was associating with other men held sufficient corroboration; secus letters produced by complainant which she alleged were written to her by defendant). See however Jeffery v. Johnson, [1952] 2 Q.B. 8; [1952] 1 All E.R. 450.

See Flaherty v. Piva; Ex parte Piva, [1960] Qd. R. 53 for ,a case of corroboration of a mother's evidence of identification by solicitor's letter and cross-examination and also for observations made on the power of the court to take judicial notice of the limits within which normal ovulation occurs.

See also Jensen v. Ilka, [1960] Qd. R. 274 in which O'Leary v. McKee, Ex parte McKee, [1924] St. R. Qd. 211 was followed and Ridley v. Whipp, [1916] 22 C.L.R. 381 was applied. In that case the statement of the defendant, relied on as corroooration, was held not to amount to corroboration as it did not by its own force tend to show that the defendant was the father of the child.

See also Hampson v. Asher,: Ex parte Asher, [1960] Qd. R. 383 and Popovic v. Derks, [1961] V.R. 413.

As to viability, see Clark v. Clark, [1939] P. 228; [1939] 2 All E.R. 59 (period of gestation 174 days).

An order may be made even without the evidence of the mother, Ex parte Austen (1897), 18 L.R.(N.S.W.) (L.) 216.

Common prostitute-For who are prostitutes, see Skinner v. R. (1913), 16 C.L.R. 336; R. v. De Munck, [1918] 1 K.B. 635; [1918-19] All E.R. Rep. 499.


DIVISION 4-DISCHARGE, SUSPENSION, VARIATION, AND ANNULMENT OF ORDERS

31. Court may discharge, suspend, or vary order. (1) Upon application made by or on behalf of a party to an order (including an order as varied) made under this Part, a court may, subject to this Division, at any time make an order-

(a) discharging the order; (b) suspending the order in whole or in part until a specified day

or until further order; or (c) varying the order in any specified particular.

(2) An application under subsection (1) of this section shall be heard by the court for the place where payments under the order are required to be made unless-



(3) An order shall not be discharged, suspended, or varied under this Division unless the court is satisfied-

(a) that the order or, if the order has been varied, the original order or any order varying the original order was obtained by fraud or upon the basis of the existence of a marriage that did not in fact exist;

(b) that new facts or circumstances have arisen that have not previously been disclosed to a court and that by reason of those facts or circumstances it is reasonable to discharge, suspend or vary the order; or

(c) that facts or circumstances were in existence at the time of the making of the order or, if the order has been varied, the original order or any order varying the original order that have not previously been disclosed to a court and that were not and could not by the exercise of reasonable diligence have previously been known to the party presently seeking the discharge, suspension, or variation of the order, and that by reason of those facts or circumstances it is reasonable to discharge, suspend or vary the order.

(4) An order-(a) that is in force under this Part may be-

(i) discharged, suspended, or varied as from any past or future day;

Oi) suspended in respect of any past or future period; or (b) that has ceased to have effect, may be discharged, suspended,

or varied from any past day, or suspended in respect of any past period,

specified in the order that effects the discharge, suspension, or variation.

(5) The fact that the defendant is in default in complying with an order shall not preclude the discharge, suspension, or variation of that order.

As to appeals, see s. 134. As to annulment of an affiliation order, see s. 35. As to discharge of orders apparently abandoned, see s. 36. As to suspension of orders, see also ss. 32, 34.


Qutere, whether on an application by the husband for reduction in amount of maintenance the Court has jurisdiction to grant an increase, Ex parte Taylor (1924),41 W.N.(N.S.W.) 81.

Service of a petition for divorce on the applicant does not oust the Court's jurisdiction under this section, Ex parte Holden (1929), 29 S.R.(N.S.W.) 575; 46 W.N.(N.S.W.) 122, 194. But it was held that the magistrate had no jurisdiction to vary on the ground of a wife's adultery when a petition by the husband for divorce on that ground had been served, Ex parte Gray (1927), 45 W.N.(N.S.W.) 27. See also Matrimonial Causes Act 1959-1965, s. 8 (Commonwealth).

For principles to be employed on applications for variation, compare Dewar v. Dewar, [1962] Qd. R. 569.

On the question of the evidence necessary to justify variation of a maintenance order on the ground of change of circumstances, see Riethmuller v. Riethmuller, [1951] St. R. Qd. 109; 45 Q.J.P.R. 118.

Semble inquiry into the validity of a marriage is within a magistrate's jurisdiction under this section. See Emmett v. Emmett, [1940] W.A.L.R. 26.

For an example of variation in part by a single judge, see Buckley v. Buckley, [1946] Q.W.N. 44.

As to the effect of a variation in whole, see Jacksoll v. Jackson (l941), 41 S.R.(N.S.w.) 45.

On the question of fresh evidence, compare Roberts v. Rober/s, [1954] P. 472 at pp. 478, 479, where Lord Merriman, P., applied Ramsdale v. Ramsdale (1945), 173 L.T. 393.

For an example of an order for an increased amount of maintenance compare Le Roy-Lewis v. Le Roy-Lewis, [1954] 3 All E.R. 57.

See Bowen v. Bowen, [1958] 1 All E.R. 770. In that case, after the parties had been divorced on the petition of the wife, who some five years before the institution of the suit had obtained a maintenance order for £2 a week and did not apply for maintenance to the judge, the husband sought a variation from the justices, who revoked the order and in their reasons stated that if the wife's circumstances deteriorated she could apply again to the court. The Divisional Court, applying Trathan v. Trathan, [1955] 2 All E.R. 701, held that the justices had no jurisdiction to revoke the order in question, because there was not in existence any complaint asking them to do it. The result was that their lordships allowed the appeal and ordered that the original order be varied by reduction of the amount from £2 a week to Is. a month so that it should be kept alive.

On an application to vary an order on the ground that the applicant is without means, it is for the applicant to prove that fact, Schuhkraft v. Teis (1921), 15 Q.J.P.R. 146.

The refusal by a wife of a bona fide offer on the part of her husband to provide her with a home and to support her was held to be sufficient cause for the discharge of a maintenance order, unless she had such grounds for refusing to live with him as would constitute a defence to a suit for restitution of conjugal rights, Stanton v. Stanton (1931), 26 Tas. L.R. 90. See now s. 112.

An order was discharged where it was subsequently discovered that material evidence on which it was made was false, Huett v. Neasey (1923), 19 Tas. L.R.4.

An order for maintenance is not terminated by subsequent connubial intercourse between the parties or by resumption of cohabitation, unless an intention by the parties to abandon the order is shown, Leahy v. McKenzie, [1922] St. R. Qd. 130. But see now s. 111. It appears that such an intention or subsequent adultery on the part of the wife are merely grounds for annulment and that the order continues until discharged upon a proper application. See Leahy v. McKenzie, supra; Cook v. Cook (1923), 33 C.L.R. 369; White v. White, [1923] St. R. Qd. I; 17 Q.J.P.R. 12.

It has been held that the fact that an illegitimate child has been adopted under the Infant Life Protection Acts, 1905 to 1935, s. 15, title CHILDREN, Vol. 4, p. 90, does not affect the maintenance order but may be a ground for variation of the order, Howie v. Barron, [1929] Q.W.N. 1; 23 Q.J.P.R. 1. For the law relating to adoption, see now Adoption of Children Acts, 1964 to 1967, 1964 Annual Volume, p. 551.


A variation order was made to take effect from a date prior to the application for variation in Bartley v. Bartley (1920), 14 Q.I.P.R. 36 (Mag. Cas.). But see Nurmberger v. Reynolds, [1931] Q.W.N. 24; 25 Q.I.P.R. 110; Ex parte Roxburgh (1919), 19 S.R.(N.S.W.) 375.

Where in a suit fDr divorce the Supreme CDurt finds desertion by the wife, which finding is inconsistent with the finding on which the maintenance order was based, payments under the maintenance .order should be terminated, Catts v. Catts (1929), 47 W.N.(N.S.W.) 1. Where a wife disobeyed an .order fDr restitutiDn .of conjugal rights subsequently to an order for maintenance in her favour, the amount of maintenance was reduced to nothing, Leonard v. Leonard (1923), 40 W.N.(N.S.W) 108.

As to discharge of an order where a wife has been sentenced to a term .of imprisonment, see McWilliam v. McWilliam (1899), 18 N.Z.L.R. 821.

A maintenance order ceases to be effective for the enforcement of arrears after the death of the defendant, Re Carle (1911), 7 Tas. L.R. 19. See also Henry v. Harper (1904), 29 V.L.R. 667; R. v. Sturt (1865), 5 W.W. & a'B. (L.) 174; ss. 28, 29. But an agreement to provide maintenance in consideration of proceedings not being taken under this Act may continue to render the estate liable to make such payments for maintenance accruing after the death of the party, Soltness v. Bridges, [1916] G.L.R. 619.

An order for maintenance in favour of a child is not extinguished by the fact that the child subsequently lives with the father and is maintained by him. Lobley v. Lobley, [1909] V.L.R. 383.

32. Effect of suspension of order. (1) Where an order is suspended under this Division until a specified day, the order, unless earlier revived pursuant to section thirty-four of this Act, shall without any further or other order revive and again take effect upon the specified day.

(2) Where an order is suspended until further order it shall not again take effect unless and until an order reviving it is made under section thirty-four of this Act.

(3) Subject to subsection (4) of this section, the fact that an order is suspended under this Division shall not prevent the enforcement of the order so far as it relates to any period before the day as from which the suspension took or takes effect.

(4) Where an order is suspended under this Division, the court may order that the whole or any part of any moneys owing under the order as at the day from which the suspension took or takes effect shall not be recoverable under this Act during the period of the suspension, and thereupon no certificate in relation to those moneys shall be granted under section forty-five of this Act during that period.

As to revival of suspended order, see s. 34.

33. Plural births. Where an order made under this Part for the maintenance of an illegitimate child is made before the birth of the child and two or more children are born, an application may be made under this Division for variation of the order to provide for the maintenance of the additional child or children.

34. Court may revive suspended order. (I) Upon application made by or on behalf of any person for whose benefit an order was made that has been suspended under this Division until a specified day or until further order, a court may make an order reviving the suspended order in whole or in part, with or without variation, as the court thinks fit.

(2) An application under subsection (1) of this section shall be heard by the court for the place where the suspending order was made unless


MAINTENANCE ACT OF 1965 ss.31·35 299


(3) A suspended order may be revived from any past day, or, subject to subsection (1) of section thirty-one of this Act, any future day, specified in the reviving order, and shall from that day have and (where necessary) be deemed to have had effect accordingly.

(4) Where the court revives an order from a past day, the court may direct that payment in respect of any period before the date of the reviving order be made in one sum or by such instalments as the court specifies in the reviving order.

Orders may be suspended under s. 31.

35. Court may annul affiliation order. (1) Where-(a) an order has been made under this Part; and (b) it was necessary to satisfy the court making the order that the

defendant was the father of an illegitimate child or that a woman was with child by the defendant (not being her husband),

the defendant may at any time make an ex parte application to the court for the annulment of the order.

(2) If evidence is given to the court on oath, either oraIIy or on affidavit-

(a) showing that evidence material to the question of the paternity of the child is available and that the evidence was not produced at the time the order was made; and

(b) disclosing the nature of that evidence and the names and addresses of the witnesses who are to be caIIed to give that evidence,

the court may, upon such terms as to costs or otherwise as it thinks fit, issue a notice directed to all persons (other than the child) to be affected thereby, calling upon them to show cause why the order should not be annulled.

(3) An application under this section for the annulment of an order shaH be heard and determined by the court for the place where payments under the order are required to be made unless-

(a) the applicant and every person to whom a notice referred to in subsection (2) of this section is directed, consent to the hearing of the application by a court sitting at another place; or

(b) the hearing of the application is adjourned, upon the application of the applicant or any such person, to a court sitting at another place.

(4) The court shaH entertain an application to annul an order notwithstanding that the applicant is in default in complying therewith.

(5) The court shaII receive and consider the evidence recorded at the original hearing or on appeal as weII as the fresh evidence submitted.

(6) If, at the conclusion of the evidence in chief submitted by the applicant, no fresh evidence material to the question of paternity has been submitted, the application shaH be dismissed.

(7) At the hearing the onus is upon the applicant to prove that he is not the father of the child.


(8) If the court finds that the applicant is not the father of the child the court shall so declare and annul the order but otherwise the application shall be dismissed.

(9) If the order is annulled, the defendant is released from payment of any amount due and unpaid under the order, but is not, except as provided in subsection (11) of this section, entitled to recover from any person any amount paid under and by virtue of the order.

(10) If the order is annulled, the annulment does not, except as provided in subsection (9) of this section, affect the previous operation of the order or anything duly suffered or done thereunder.

(11) Where an affiliation order has been annulled under this section and any court, whether before or after the annulment of the order, and whether in proceedings under this Act or otherwise, has adjudged to be the father of the child who was the subject of the annulled order a person other than the person against whom the annulled order was made, the person against whom the annulled order was made may recover from that other person, by proceedings as for a debt, in any court of competent jurisdiction, all moneys paid by him under the annulled order, and the certificate of the clerk of the court for the place where payments under the annulled order were required to be made as to the payments made under the annulled order shall be admissible in evidence in those proceedings and shall be prima facie proof of the matters certified to therein.

For the making of the orders referred to, see ss. 14, 16, 17, 19, 20.

36. Discharge of orders apparently abandoned. (I) Where the court, upon ex parte application by the clerk of the court for the place where payments under an order are required to be made, is of opinion that the order appears to have been abandoned, the court shall, upon such terms as it thinks fit, issue a notice directed to all persons (other than children) to be affected thereby, calling upon them to show cause why the order should not be discharged.

(2) The court may, in a proper case, dispense with the service of a notice issued under subsection (1) of this section in the case of any person or persons to whom the notice is directed.

(3) An application under subsection (1) of this section shall be heard and determined by the court for the place where payments under the order are req uired to be made unless the hearing of the application is adjourned upon the application of the clerk of the court, or of any person served with a notice as aforesaid and desirous of showing cause, to a court sitting at another place.

(4) Where the court hearing an application under subsection (1) of this section is satisfied-

(a) that during the twelve months immediately preceding the application no payment under the order has been made by or on behalf of the person against whom the order was made;

(b) that the person for whose benefit the order was made appears to have abandoned the order, or, where that person is a child, the person or persons, other than the child, interested in enforcing the order appears or appear to have abandoned the order; and

:-'lAINTENANCE ACT OF 1965 ss.35-37 301

(c) that either-(i) all persons to whom the notice under subsection (1) of this

section was directed (not being any such person upon whom service of the notice is dispensed with under subsection (2) of this section) fail to appear; or

(ii) if any of those persons appear, cause is not shown to the satisfaction of the court why the order should not be discharged-

the court shall discharge the order. (5) Where an order is discharged under this section, it may be

discharged as from any past day. (6) The court shall entertain an application under this section to

discharge an order notwithstanding that the person against whom the order was made is in default in complying therewith.

37. Variation of order as to place of payment. (1) Subject to this section, so much of an order for or towards the maintenance of a person as relates to the place where payments under the order are required to be made may from time to time be varied upon application made to the court by-

(a) any person who may make an application under section thirtyone of this Act; or

(b) the clerk of the court for the place where payments under the order are required to be made.

(2) An application under subsection (1) of this section shall specify the place where it is desired that future payments under the order be made.

(3) The court, on an application under subsection (1) of this section, may-

(a) determine the application without requiring the attendance of any person, including the applicant; or

(b) upon such terms as the court thinks fit, issue a notice directed to all persons to be affected thereby, calling upon them to show cause why the order should not be so varied.

(4) An application under subsection (1) of this section shall-(a) where the court determines the application without requiring

the attendance of any person-be determined by the court for the place where payments under the order are required to be made;

(b) where the court issues a notice under paragraph (b) of subsection (3) of this section-be heard by the court for the place where payments under the order are required to be made unless-

(i) the applicant and every person to whom a notice referred to in paragraph (b) of subsection (3) of this section is directed consent to the hearing of the application by a court sitting at another place; or

(ii) the hearing of the application is adjourned, upon the application of the applicant or any such person, to a court sitting at another place.

(5) Where the court is satisfied that the order can be more conveniently enforced at the place specified pursuant to subsection (2) of this section, the court may vary the order by directing that payments under the order shall, from a date specified by the court, be made to the


clerk of the court for the place specified as aforesaid in the application, which place shall, from the date so specified and until the order is further varied under this section, be for all the purposes of this Act the place where payments under the order are required to be made.

(6) Where an order is varied under this section, the clerk of the court that varied the order shall send to the clerk of the court for the place where payments under the order are required, pursuant to the order of variation, to be made-

(a) all records in his office relating to the order; and (b) a copy, certified as a true copy by the clerk of the court that

varied the order, of the order of variation, and the clerk of the court for the place where payments under the order are required, pursuant to the order of variation, to be made shall thereupon be the officer ordinarily having the custody of the records relating to the order.

DIVISION 5-PROCEDURAL

38. Orders to direct mode of payment. An order made by a court under this Part shall direct that-

(a) the moneys payable under the order be paid to the clerk of the court for the place specified in the order;

(b) the moneys payable under the order for or towards the maintenance of a person be paid, except where otherwise provided in this Part, weekly, monthly, or otherwise periodically;

(c) the moneys payable under the order, other than moneys referred to in paragraph (b) of this section, be paid in one sum or by instalments or partly in one sum and partly by instalments; and

(d) in any case where payments are to be made weekly, monthly, or otherwise periodically or by instalments, the payments shall commence on a date specified in the order, which date may, subject to this Act, be a past or future date.

39. Forwarding of orders to other courts. Where an order referred to in section thirty-eight of this Act directs that payments under the order be made to the clerk of the court for a place other than the place where the order is made, the clerk of the court that made the order shall transmit to the clerk of the court for the place where payments under the order are required, pursuant to the order, to be made-

(a) the complaint and record of the proceedings thereon; and (b) a copy, certified as a true copy by the clerk of the court that

made the order, of the order, and, for all the purposes of this Act, every such order shall thereupon be deemed to have been made by the court for the place where payments under the order are required to be made and the clerk of that court shall be the officer ordinarily having the custody of the records of those proceedings. 40. Regulations under this Part. Without limiting the generality of section one hundred and thirty-nine of this Act, the Governor in Council may, from time to time, make regulations, not inconsistent with this Act, prescribing and regulating-

(i) the procedure of Magistrates Courts in and in relation to proceedings under this Part;


(ii) the duties of the clerk of the court under this Part; (iii) the accounts, records and books to be kept by the clerk of the

court for the purposes of this Part, and the method of keeping those accounts, records and books;

(iv) the fees, costs and charges that may be charged, awarded and made under this Part;

(v) the forms to be used under this Part; and (vi) generally any act, matter, or thing required or necessary or

convenient to be prescribed or regulated for giving effect to this Part.

PART III-ENFORCEMENT OF ORDERS MADE IN QUEENSLAND

DIVISION I-ENFORCEMENT BY IMPRISONMENT, REGISTRATION OF CERTIFICATE OF ARREARS, RECOGNIZANCES, OR SALE OF GOODS

41. Interpretation. Without limiting the operation of "The Acts Interpretation Acts, 1954 to 1962," in this Part, unless the context otherwise indicates or requires, the term "maintenance order" means an order made under Part II of this Act for the payment of money, whether in one sum, by instalments, by periodical payments, or for costs, or enforceable as if so made; and, if such an order has been varied, includes the order as so varied; and includes such an order that has ceased to have effect, if any arrears are recoverable under the order.

Act referred to: Acts Interpretation Acts, 1954 to 1962, title ACTS OF PARLIAMENT,

Vol. 1, p. 82. All enforcement proceedings may be taken concurrently or successively,

s. 127.

42. Court may commit defendant to prison for disobedience of Order for payment of moneys. (1) Where, upon complaint made by the clerk of the court for the place where payments under a maintenance order are required to be made or by or on behalf of the person for whose benefit a maintenance order was made or, where that person is a child, by or on behalf of the parent or other person having the lawful care or charge of that child, the court is satisfied that-

(a) the defendant, being a male person, has disobeyed or failed to comply with the maintenance order; and

(b) a sum of money (in this section referred to as " arrears ") due under the maintenance order is unpaid,

the court may order that, in default of payment of the arrears and of any costs awarded in the enforcement proceedings, the defendant be imprisoned for such term, not exceeding twelve months, as the court thinks proper.

(2) The clerk of the court shall not make a complaint under subsection (1) of this section except upon a written application so to do made by or on behalf of the person for whose benefit the original order was made or, where that person is a child, by or on behalf of the parent or other person having the lawful care or charge of that child.

The application referred to in this subsection may be either general or specific and, if general, may be complied with from time to time at the discretion of the clerk of the court.


(3) A complaint under subsection (1) of this section shall be heard by the court for the place where payments under the maintenance order are required to be made unless-

(a) the parties consent to the hearing of the complaint by a court sitting at another place; or

(b) the hearing of the complaint is adjourned, upon the application of either party, to a court sitting at another place.

(4) For the purposes of making an order under subsection (1) of this section, the court may receive evidence of any and every payment directed by the maintenance order to be made which, having become payable after the making of the complaint, was in arrears and not paid at the date of the hearing, as if the complaint had been duly made in respect both of those payments and of the arrears that were due at the date of the making of the complaint, and in every such case the term " arrears " in this section shall be construed as including those payments.

(5) A defendant is not liable to serve a period of imprisonment in respect of his failure to pay any arrears if he has previously served a period of imprisonment in respect of his failure to pay those arrears.

(6) A defendant remains liable to pay any arrears (other than arrears due under an order made under section eighteen, nineteen, or twenty of this Act) notwithstanding his having served a term of imprisonment in respect of his failure to pay those arrears and those arrears may be recovered under any other provision of this Act.

(7) Where it appears that any arrears referred to in a complaint under subsection (1) of this section have been paid after the service of the summons or the issue of a warrant in connection with proceedings under this section for the recovery of those arrears and before the execution of the warrant of commitment, the court may, upon ex parte application made by the clerk of the court, order the person summoned or apprehended to pay the costs of and incidental to the proceedings and such an order may be enforced as if it were a maintenance order as defined in section forty-one of this Act.

(8) A warrant of commitment with respect to an order that a defendant be imprisoned for a term for failing to pay arrears may be issued only by the clerk of the court that made the order of commitment.

(9) Where the clerk of the court issues a warrant of commitment with respect to an order that a defendant be imprisoned for a term for failing to pay arrears and those arrears have been reduced by payment since the order was made, the clerk shall state accordingly on the warrant and the term of imprisonment shall be reduced by the number of days that, as nearly as possible, bears to the total number of days in the term the same proportion as the amount paid bears to the amount of the arrears.

(10) A person imprisoned for failure to pay arrears may payor cause to be paid to the keeper of the gaol in which he is imprisoned-

(a) an amount equal to the arrears or to so much of the arrears as has not previously been paid; or

(b) any lesser amount. (11) Where the amount referred to in paragraph (a) of subsection (10)

of this section is paid to the keeper of the gaol, he shall release the person by whom or on whose behalf it is paid unless the person is also in custody under another warrant.


(12) Where an amount referred to in paragraph (b) of subsection (10) of this section is paid to the keeper of the gaol by or on behalf of a person, the term of imprisonment for which the person is directed by the warrant of commitment to be imprisoned shall be deemed to have been reduced by the number of days that, as nearly as possible, bears to the total number of days in the term the same proportion as the amount paid bears to the amount of the arrears of maintenance and, on the expiration of the term as so reduced, the person shall be released unless he is also in custody under another warrant.

(13) Where complaints are made under subsection (1) of this section in respect of two or more maintenance orders, and-

(a) the same person is entitled to receive the payments under each of the maintenance orders; and

(b) the person against whom the complaints under subsection (1) of this section are made was the defendant against whom the maintenance orders were made,

the court shall hear and determine all the complaints at the same time and shall, in determining the term for which the defendant shall be imprisoned, have regard to the total amount due in respect of all of the maintenance orders in respect of which the complaints under subsection (1) of this section were made, and may make an order under that subsection accordingly.

(14) Where a person for whose benefit a maintenance order was made has died and arrears were owing under the order as at the date of death, a complaint may be made under this section by the personal representative of the deceased person or by the clerk of the court on the written application so to do made by that personal representative.

The court must consider evidence as to arrangements made between the parties that certain payments made by a third person are to be accepted by the applicant as payment, Ex parte McQueliin (1929), 29 S.R.(N.S.W.) 346; and where enforcement is sought by a person other than the wife or child the court should inquire whether the enforcement is really required for support of the wife or child, Ex parte Rumble (1928), 46 W.N.(N.S.W.) 34.

On an application for enforcement the court cannot inquire into the validity of the order sought to be enforced, Ex parte Roach (1908),25 W.N.(N.S.W.) 103.

An order to maintain a child is enforceable until the child attains sixteen years of age, but where a child had attained an advanced age it was held to be a matter for the discretion of the justices whether the order will be enforced, Elfverson v. Tronson, [1906] Q.W.N. 41. But see Cook v. Cook (1923), 33 C.L.R. 369.

The limitation of one year under the Justices Acts, 1886 to 1965, s. 52, title JUSTICES, Vol. 8, p. 130, does not apply to proceedings under this section to enforce an order, R. v. Justices of Brisbane; Ex parte Lovenberry, [1906] St. R. Qd. 12; [1906] Q.W.N. 4. Failure to comply with an order gives. in any event, a cause of complaint de die in diem, Cook v. Cook (1923), 33 C.L.R. 369.

Under a similar section it was held that a book kept by the Clerk of Petty Sessions for the time being, and purporting to contain entries of all payments made under a maintenance order to the holders of such office could not be evidence upon an inquiry into an allegation of disobedience of such order. Cohen v. MacDonough, [1906] V.L.R. 521. See also Aarons v. Aarons, [1907] V.L.R. 21. But now see s. 124.

As to whether under this section the court has power to order the defendant to pay arrears by instalments, see Aarons v. Aarons, [1907] V.L.R. 21; Lobley v. Lobiey, [1909] V.L.R. 383.

A husband is liable to be committed for successive breaches of an order, and the fact that he has been committed for one breach will not prevent his being committed for another, Aarons v. Aarons, supra; Gage v. Dupin (1900), 17 W.N.(N.S.W.) 172.


Arrears of maintenance do not constitute a debt provable in bankruptcy, Barnett v. Barnett (1926), 20 Q.l.P.R. 166. But note now the provisions of s. 45 whereby arrears may be registered as a civil judgment. As to whether the enforcement of orders is confined to the procedure provided in this Act, see Falconer v. Falconer, [1910] V.L.R. 489, and Granger v. Granger, [1919] V.L.R. 288.

Where a person against whom a maintenance order has been made for the maintenance of two children is in arrears with his payments for both, a separate complaint must be made against him in respect of each child. See Easterbrook v. Easterbrook, [1957] 2 All E.R. 177. Note however the provisions of subsection (13) .

As to postponement of the warrant of commitment, see s. 44. For power of the Governor in Council to release on recognizance persons

imprisoned under this Act, see s. 138. For a defence, see s. 65. All enforcement proceedings may be taken concurrently or successively,

s. 127. As to enforcement by attachment of earnings, see ss. 48 et seq. The court has a general power to make an attachment of earnings order

when any enforcement proceedings are brought, s. 51.

43. Court not to order imprisonment in certain cases. (1) A court shall not order a defendant to be imprisoned pursuant to this Division if it is satisfied-

(a) that the defendant has not, and has not had, the means and ability, and could not by reasonable effort have had the means and ability, to comply with the maintenance order under which the moneys are due and unpaid; or

(b) that for any other reason the maintenance order should not be enforced by imprisonment.

(2) Where a court that is ordering a defendant to be imprisoned under this Division for the non-payment of a sum is aware that a court has previously refused to order the defendant to be imprisoned for non-payment of a sum (in this subsection referred to as " the original sum ") included in that sum, the court shall have regard only to the amount by which the sum still due and unpaid exceeds the original sum unless the court is satisfied that, since that refusal, the means and ability of the defendant to pay the original sum have so altered as to make it reasonable for him to be ordered to be imprisoned for non-payment of the original sum.

(3) Notwithstanding the provisions of section two of "The Maintenance and Alimony Relief Act of 1935," that Act shall not apply with respect to the enforcement of a maintenance order by an order of imprisonment under this Division, and that Act shall be read and construed as if it contained no reference to a maintenance order enforceable under this Act.

Act referred to: Maintenance and Alimony Relief Act of 1935, p. 359, post.

See notes to s. 42. For a defence, see s. 65.

44. Postponement of issue of warrant of commitment. The court may, on ordering a defendant to be imprisoned under this Division, or the clerk of the court may, at any time after the making of such an order, upon such conditions as the court or the clerk thinks fit-

(a) postpone the issue or execution of the warrant of commitment for any period;

MAINTENANCE ACf OF 1965 ss. 42·45 307

(b) order that the warrant of commitment be issued or executed for such part of the amount found to be due and unpaid and any costs awarded to be paid as is specified in the order;

(c) order the amount found to be due and unpaid and any costs awarded to be paid by instalments,

and if the defendant fails to comply with any such condition or to pay any instalment ordered to be paid the clerk of the court may direct the execution of the warrant.

45. Registration of arrears as civil judgment. (1) Where it is made to appear on oath to the court for the place where payments under a maintenance order (other than an order made under section eighteen, nineteen, or twenty of this Act) are required to be made that a sum of money due under the maintenance order (being an amount of not less than one hundred dollars) is unpaid, the court may, upon ex parte application made by or on behalf of the person for whose benefit the order was made and subject to subsection (4) of section thirty-two of this Act, grant a certificate stating the amount due under the maintenance order at the date of the certificate.

(2) The person for whose benefit the maintenance order was made may file the certificate or cause the certificate to be filed in a court of competent jurisdiction having jurisdiction in respect of the place where payments under the order are required to be made, or the place where the defendant resides, or where any real property of the defendant is situate, and the Registrar of that court shall enter judgment for that person for the amount stated in the certificate to be due together with the fees paid for the certificate and for filing it, and entering the judgment, and shall forthwith send notice in writing of the entry of judgment to the clerk of the court that granted the certificate.

(3) Subject to the following provisions of this section, such a judgment may be enforced in any manner in which a final judgment in an action in the court in which the judgment is entered may be enforced.

(4) Where a judgment is entered under this section, proceedings to enforce the judgment shall not be commenced-

(a) unless an affidavit has been filed stating-(i) that no proceedings are pending in any other court for the

recovery of any of the arrears of maintenance included in the amount of the judgment; and

(ii) that the maintenance order has not been discharged, suspended, varied, or annulled since the date of the certificate to which the judgment relates in such a way as to affect any of the arrears of maintenance included in the amount of the judgment; and

(b) except within a period of fourteen days after the date on which that affidavit was sworn.

(5) One application may be made under subsection (I) of this section in respect of two or more maintenance orders, if-

(a) the applicant is entitled to receive the payments under each of the maintenance orders; and

(b) the defendant in each of the proceedings in which those maintenance orders were made was the same person.


(6) Where one application is made in accordance with subsection (5) of this section one certificate may be granted in respect of the total amount due under all of the maintenance orders in respect of which the application was made.

(7) All such Rules of Court as may be deemed necessary or convenient for regulating the practice and procedure of the Supreme Court, of the District Court and of the Magistrates Court, 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, may be made, and the provisions of" The Supreme Court Act of 1921," " The Supreme Court Acts Amendment (Rules Ratification) Act of 1928," " The District Courts Acts, 1958 to 1964," and" The Magistrates Courts Acts, 1921 to 1964," shall, as the case may require, apply and extend in respect of such Rules of Court.


Acts referred to: Supreme Court Act of 1921, title SUPREME COURT. Supreme Court Acts Amendment (Rules Ratification) Act of 1928,

title SUPREME COURT. District Courts Acts, 1958 to 1965, title DISTRICT COURTS, Vol. 4,

p. 455. Magistrates Courts Acts, 1921 to 1964, title MAGISTRATES COURTS,

p. 27, ante. See notes to s. 42. As to enforcement by attachment of earnings. see ss. 48 et seq. For a defence, see s. 65. All enforcement proceedings may be taken concurrently or successively,

s. 127.

46. Court may order defendant to enter into recognizance to perform obligations under order. (1) A court may-

(a) at the time of the making of a maintenance order (other than an order made under section eighteen, nineteen, or twenty of this Act); or

(b) at any time, and from time to time, while such a maintenance order is in force, upon complaint made by or on behalf of the person for whose benefit the maintenance order was made,

order the defendant to enter into a recognizance, with or without sureties, to the satisfaction of a justice for the due performance of his obligations under the maintenance order for a specified period, not exceeding twelve months at anyone time.

(2) An order shall not be made under this section unless the court is satisfied-

(a) that the defendant has persistently failed to comply with the requirements of the maintenance order; or

(b) that he has by his conduct indicated an intention to make default in complying with the requirements of the maintenance order.

(3) Upon the making of an order under this section, the court may, if the defendant does not immediately enter into the required recognizance with the required sureties, order the defendant to be imprisoned until

(a) the expiration of the term, not exceeding twelve months, specified by the court;

(b) he enters into the required recognizance; or

,\lAINTENANCE ACT OF 1965 ~S. 45·47 309

(c) he performs his obligations under the maintenance order in respect of the period referred to in subsection (I) of this section,

whichever first happens.

(4) Where it appears to a justice upon complaint on oath that the defendant has failed to observe any of the conditions of his recognizance, the justice may issue a summons under his hand requiring the defendant to attend before a court to be dealt with according to law or may issue a warrant under his hand to apprehend the defendant and bring him before a court to be dealt with according to law.

(5) \Vhere the court is satisfied that the defendant has failed to observe any condition of his recognizance, the court may adjudge him to be guilty of a breach thereof and order that the recognizance, in respect of the defendant and any surety or sureties or any of them, be forfeited.

(6) Where the court, Linder subsection (5) of this section, orders a recognizance to be forfeited, it shall cause the recognizance to be estreated and such estreat shall be effected in accordance with section four of " The Crown Remedies Acts, 1874 to 1956":

Provided that any moneys arising out of the estreat of any such recognizance shall be applied for or towards the payment of maintenance due or becoming due under the maintenance order.

Act referred to: Crown Remedies Acts, 1874 to 1956. title CROWN, Vol. 4, p. 338.

See notes to s. 42. As to enforcement by attachment of earnings, see ss. 48 et seq. The court has a general power to make an attachment of earnings order

when any enforcement proceedings are brought, s. 51. For a defence, see s. 65. All enforcement proceedings may be taken concurrently or successively.

s. 127.

47. Orders for seizure of goods, chattels, securities, rents, etc. (I) Upon the making or during the operation of a maintenance order, the court may, upon ex parte application made by or on behalf of the person for whose benefit the order was made, by order authorise and direct a person named in the order during the operation of the order and from time to time, if necessary, to seize and sell to the extent necessary to satisfy the order, any goods, chattels and securities belonging to the defendant or to demand and receive to that extent any annuity, rents and other income (not being earnings within the meaning of Division 2 of this Part) payable to the defendant or any moneys credited to the defendant in any bank account or other like account and to apply the proceeds of any such sale or any moneys so received, after deducting therefrom his costs and charges, towards the payment of the amounts required to be paid under the maintenance order.

(2) Any person so authorised and directed shall have full power and authority to do all acts and things, including the execution of transfers, receipts, discharges and acquittances, necessary to give full effect to the seizures, sales, demands and receipts so authorised and directed.

(3) Any person who fails to comply with a demand made upon him under subsection (1) of this section by a person authorised and directed by the court in that behalf shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.


(4) One application may be made under subsection (1) of this section in respect of two or more maintenance orders, if-

(a) the applicant is entitled to receive the payments under each of the maintenance orders; and

(b) the defendant in each of the proceedings in which those maintenance orders were made was the same person.

(5) Where one application is made in accordance with subsection (4) of this section, one order may be made under subsection (1) of this section in respect of all the maintenance orders in respect of which the application was made.

(6) Where an order is made under this section, the applicant shall forthwith deliver a copy of the order to the clerk of the court.


See notes to s. 42. It appears that an order cannot be made under this section attaching property

in the hands of the Crown. See Ex parte Pownall (1907), 24 W.N.(N.S.W.) 135. As to enforcement by attachment of earnings, see ss. 48 et seq. The court has a general power to make an attachment of earnings order

when any enforcement proceedings are brought, s. 51. For a defence, see s. 65. All enforcement proceedings may be taken concurrently or successively,

s. 127.

DIVISION 2-ENFORCEMENT BY ATTACHMENT OF EARNINGS

48. Interpretation. (1) Without limiting the operation of "The Acts Interpretation Acts, 1954 to 1962," in this Division, unless the context otherwise indicates or requires, the following terms have the meanings set against them respectively, that is to say:-

"Attachment of earnings order "-An order under subsection (3) of section forty-nine of this Act or such an order as varied from time to time;

" Defendant "-In relation to a maintenance order or to proceedings in connection with a maintenance order-the person against whom the order was made;

" Earnings "-In relation to a defendant-any sums payable to the defendant-

(a) by way of wages or salary (including any fee, bonus, commission, overtime payor other emolument payable in addition to wages or salary); or

(b) by way of pension, including-(i) an annuity in respect of past services, whether or not the

services were rendered to the person paying the annuity; and

(ii) periodical payments in respect of or by way of compensation for the loss, abolition, or relinquishment, or any diminution in the emoluments, of any office or employment,

but does not include any pension payable to the defendant under the Social Services Consolidation Act 1947, as amended by subsequent Acts, the Australian Soldiers' Repatriation Act 1920, as amended by subsequent Acts, or the Seamen's War Pensions and Allowances Act 1940, as amended by subsequent Acts, of the Commonwealth;


" Employer" -In relation to a defendant-a person (including the Crown in right of the State, a Minister of the Crown in right of the State, and any statutory authority representing the Crown in right of the State) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the defendant;

" Maintenance order" -An order made under section ten, eleven, twelve, thirteen, fourteen, fifteen, or seventeen of this Act, or enforceable as if so made, and, if such an order has been varied, includes the order as so varied, and includes-

(a) an order made pursuant to section twenty-one of this Act where the nominal amount directed by the order to be paid has been varied under section thirty-one of this Act;

(b) any of the abovementioned orders that has ceased to have effect, if any arrears are recoverable under the order; and

(c) an order for the payment of costs in any proceedings in which any of the abovementioned orders was made;

" Net earnings "-In relation to a pay-day-the amount of the earnings becoming payable by a particular employer on that pay-day, after deduction from those earnings of-

(a) any sum deducted from those earnings under Division 2 of Part VI of the Income Tax and Social Services Contribution Assessment Act 1936, as amended by subsequent Acts, of the Commonwealth; and

(b) any sum deducted from those earnings that would be an allowable deduction-(i) under section 82H of that Act, as so amended, other than

life insurance premiums, not being life insurance premiums payable in respect of superannuation; or

(ii) under section 82HA of that Act, as so amended; " Normal deduction "-In relation to an attachment of earnings

order and in relation to a pay-day-an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day, or, where there is no last preceding pay-day, the date on which the employer became, or last became, the defendant's employer;

" Pay-day" -An occasion on which earnings to which an attachment of earnings order relates become payable;

" Protected earnings "-In relation to an attachment of earnings order and in relation to a pay-day-the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day, or, where there is no last preceding pay-day, the date on which the employer became, or last became, the defendant's employer.

(2) In this Division-(a) a reference to a person entitled to receive payments under a

maintenance order is a reference to a person entitled to receive payments under the maintenance order either directlv or through another person or for transmission to another person; and


(b) a reference to proceedings relating to an order includes a reference to proceedings in which the order may be made.

Acts referred to: Acts Interpretation Acts, 1954 to 1962, title ACTS OF PARUAMENT,

Vol. 1, p. 82. Social Services Act, 1947·1965 (Commonwealth). Repatriation Act, 1920·1965 (Commonwealth). Seamen's War Pensions and Allowances Act 1940·1965 (Commonwealth) . Income Tax and Social Services Contribution Assessment Act 1936·1964

(Commonwealth). For the application of this Division, see ss. 62, 63. All enforcement proceedings may be taken concurrently or successively,

s. 127.

49. Application for attachment of earnings order. (1) A person entitled to receive payments under a maintenance order may apply in writing-

(a) where the name of an employer is specified in the application, either to the court for the place where payments under the order are required to be made or to the court for the place where the employer's place of business is situate; or

(b) where the name of an employer is not so specified, to the court for the place where payments under the order are required to be made,

for an attachment of earnings order. (2) An application under subsection (1) of this section may be made

without specifying the name of any particular employer. (3) If the court is satisfied that the defendant is a person to whom

earnings are payable or are likely to become payable and-(a) that, at the time when the application was made, there was

due under the maintenance order and unpaid an amount equal to not less than-

(i) in the case of an order for weekly payments-four payments; or

(ii) in any other case-two payments; or (b) that the defendant has persistently failed to comply with the

requirements of the order, the court may order a person who appears to the court to be the defendant's employer in respect of those earnings or a part of those earnings to make out of those earnings or that part of those earnings payments in accordance with section fifty of this Act.

Where an application for an attachment of earnings order is made to a court other than the court for the place where payments under the maintenance order are required to be made, the clerk of the court to which the application is made shall, for the purpose of enabling that court to ascertain the matters set out in subparagraph (a) of the preceding paragraph of this subsection, obtain from the clerk of the court for the place where payments under the maintenance order are required to be made a certificate referred to in section one hundred and twenty-four of this Act.

(4) The court shall not make an attachment of earnings order if it appears to the court, in a case to which paragraph (a) of subsection (3) of this section applies, that the failure of the defendant to make payments under the maintenance order was not due to his wilful refusal or culpable neglect.


(5) An attachment of earnings order shall specify either generally or in relation to any particular pay-day or pay-days the normal deduction rate, that is to say, the rate at which the court considers it to be reasonable that the earnings to which the order relates should be applied in satisfying the requirements of the maintenance order but not exceeding the rate that appears to the court to be necessary for the purpose of-

(a) securing payment of the sums from time to time falling due under the maintenance order; and

(b) securing payment within a reasonable time of any sums already due and unpaid under the maintenance order and any costs incurred in proceedings relating to the maintenance order that are payable by the defendant.

(6) An attachment of earnings order may specify a higher normal deduction rate to apply for a specified number of pay-days after the order comes into force and a lower normal deduction rate to apply to subsequent pay-days.

(7) An attachment of earnings order shall also specify the protected earnings rate. that is to say, the rate below which, having regard to the resources and needs of the defendant and of any person for whom he must or reasonably may provide, the court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under the order.

(8) An attachment of earnings order shall provide that payments under the order are to be made to the clerk of the court specified in the order.

(9) An attachment of earnings order shall contain such particulars as the court thinks proper for the purpose of enabling the person to whom the order is directed to identify the defendant.

(10) An attachment of earnings order shall be served on(a) the defendant; and (b) the person to whom the attachment of earnings order is

directed, and ~hall not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.

(11) Where an attachment of earnings order is made by a court other than the court for the place where payments under the maintenance order are required to be made, the clerk of the court that made the attachment of earnings order shall forthwith advise accordingly the clerk of the court for the place where payments under the maintenance order are required to be made.

The court has a general power to make an attachment of earnings order when any enforcement proceedings are brought, s. 51.

All enforcement proceedings may be taken concurrently or successively, s. 127.

For the effect of an order, see s. 50, and as to its priority, see s. 54. As to service of the order, see s. 58. For a defence, see s. 65. As to discharge or variation of the order, see s. 52. As to cessation of the order, see s. 53.


50. Employer to make payments under attachment of earnings order. (1) An employer to whom an attachment of earnings order is directed, being an attachment of earnings order that is in force, shall, in respect of each pay-day, if the net earnings of the defendant exceed the sum of-

(a) the protected earnings of the defendant; and (b) so much of any amount by which the net earnings that became

payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day,

pay, so far as that excess permits, to the clerk of the court specified in the order-

(c) the normal deduction in relation to that pay-day; and (d) so much of the normal deduction in relation to any previous

pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day.

(2) A payment made by the employer under subsection (l) of this section is a valid discharge to him as against the defendant to the extent of the amount paid.

(3) Where the clerk of the court to whom moneys are paid under an attachment of earnings order is not the clerk of the court for the place where payments under the maintenance order are required to be made, he shall from time to time transmit the moneys so paid to him to the clerk of the court for the place where payments under the maintenance order are required to be made.

As to the priority of the order, see s. 54. As to discharge or variation of the order, see s. 52. As to cessation of the order, see s. 53. For the procedure wht~re more than one order is in force, see s. 55. The person to whom the order is directed may apply to the court to determine

whether certain payments are earnings, s. 57. The dismissal of a person because of the making of an order is an offence,

s. 60. Failure to comply with an order is an offence, s. 59.

51. Court may make attachment of earnings order instead of other order. (1) Where any proceedings are brought in a court to enforce a maintenance order, the court may, instead of making any other order, make an attachment of earnings order.

(2) Unless the court otherwise orders, where an attachment of earnings order is in force, no warrant or other process shall be issued or order made in proceedings for the enforcement of the maintenance order that were begun before the making of the attachment of earnings order.

For other enforcement orders, see S5. 41-47. All enforcement proceedings may be taken concurrently or successively,

s. 127.

52. Discharge or variation of attachment of earnings order. (1) The court by which an attachment of earnings order has been made may, on the application of the defendant or a person entitled to receive payments under the maintenance order, make an order discharging, suspending, or varying the attachment of earnings order.

(2) An order suspending or varying an attachment of earnings order shall be served on-

(a) the respondent to the application; and

MAINTENANCE ACT OF 1965 ss. SO-53 315

(b) the person to whom the attachment of earnings order is directed,

and shall not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.

(3) Where an order discharging, suspending, or varying an attachment of earnings order is made by a court other than the court for the place where payments under the maintenance order are required to be made, the clerk of the court that made the order of discharge, suspension, or variation shall forthwith advise accordingly the clerk of the court for the place where payments under the maintenance order are required to be made.

53. Cessation of attachment of earnings order. (1) An attachment of earnings order shall cease to have effect-

(a) upon being discharged under section fifty-two of this Act; (b) upon the annulment or, unless the court otherwise orders

under this section, upon the discharge, suspension, or variation of the maintenance order in relation to which the attachment of earnings order was made; or

(c) unless the court otherwise orders, upon the making of any other order for the enforcement of the maintenance order in relation to which the attachment of earnings order was made.

(2) Where it appears to the court discharging a maintenance order that arrears under the order will remain to be recovered under the order, the court may order that the attachment of earnings order shall not cease to have effect until those arrears have been paid.

(3) Where it appears to the court suspending a maintenance order that arrears under the order will remain to be paid and those arrears relate to a period before the day as from which the suspension took or takes effect, the court may-

(a) order that the attachment of earnings order shall not cease to have effect until those arrears have been paid; or

(b) order that the attachment of earnings order be suspended for the period of the suspension of the maintenance order; or

(c) order that the attachment of earnings order be varied and continue to have effect as varied until those arrears have been paid.

(4) Where a court varies a maintenanee order the court may order an attachment of earnings order to be varied and to continue to have effect as so varied.

(5) Where-(a) an attachment of earnings order ceases to have effect by virtue

of an order made by a court other than the court that made the attachment of earnings order; or

(b) an order is made pursuant to subsection (2), (3) or (4) of this section by a court other than the court that made the attachment of earnings order,

the clerk of the first-mentioned court shall forthwith advise accordingly the clerk of the court that made the attachment of earnings order.


(6) Where-(a) an attachment of earnings order ceases to have effect; or (b) an order is made pursuant to subsection (2), (3) or (4) of this

section, the clerk of the court that made the attachment of earnings order shall forthwith give notice accordingly to the person to whom the attachment of earnings order was directed.

(7) Where an attachment of earnings order ceases to have effect, the person to whom the attachment of earnings order is directed shall not incur any liability in consequence of his treating the order as still in force at any time before the expiration of seven days after the date on which the notice required by subsection (6) of this section is served on him. 54. Compliance with attachment of earnings order. An attachment of earnings order made under this Division shall have priority over any other order directed to the defendant's employer with respect to any earnings payable or likely to become payable to the defendant, and the defendant's employer shall, notwithstanding anything in any other Act or law contained, but subject to this Division, comply with the attachment of earnings order.

Failure to comply with the order is an offence, s. 59. For another offence by employers, see s. 60. For notice to be given by employers, see s. 56. For a right of employers to apply to the court, see s. 57.

55. Where two or more attachment of earnings orders are in force. (1) Where, on any occasion on which earnings become payable to a defendant, there are in force in relation to those earnings two or more orders, one or more of which is an attachment of earnings order and the other or others of which is an order or are orders of the like nature, the person to whom the orders are directed-

(a) shall comply with those orders according to the relative dates on which they took effect and shall disregard any order until an earlier order has been complied with; and

(b) shall comply with any order as if the earnings to which that order relates were the residue of the defendant's earnings after the making of any payment under any earlier order.

(2) For the purposes of this section, an attachment of earnings order that has been varied shall be deemed to have been made as so varied on the day upon which the attachment of earnings order was made. 56. Notice to defendant of payments made. (1) A person who makes a payment in compliance with an attachment of earnings order shall give to the defendant a notice specifying particulars of the payment.

(2) Where a person on whom an attachment of earnings order that is directed to him is served-

(a) is not the defendant's employer at the time when the order is served on that person; or

(b) is the defendant's employer at that time but ceases to be the defendant's employer at any time thereafter-

that person shall give notice in writing accordingly to the clerk of the court that made the order, and shall give that notice-

(c) where paragraph (a) of this subsection applies, forthwith after service on that person of the order; or

(d) where paragraph (b) of this subsection applies, forthwith after that person ceases to be the defendant's employer.

As to service, see s. 58.


57. Determination as to what payments are earnings. (1) The court by which an attachment of earnings order has been made shall, on the application of the person to whom the order is directed, determine whether payments to the defendant of a particular class or description specified in the application are earnings for the purposes of that order.

(2) A person to whom an attachment of earnings order is directed who makes an application under subsection (1) of this section does not incur any liability for failing to comply with the order with respect to any payments of the class or description specified in the application that are made by him to the defendant while the application or any appeal from a determination made on the application is pending.

(3) Subsection (2) of this section does not apply in respect of any payment made after the application has been withdrawn or any appeal from a determination made on the application has been abandoned.

58. Service. Any order or document that is required or permitted to be served on a person under this Division may be served on that person-

(a) as if that order or document was a summons under "The Justices Acts, 1886 to 1964"; or

(b) by sending a copy thereof to him at his usual or last known place of residence or business by registered post.

Act referred to: Justices Acts, 1886 to 1965, title JUSTICES, Vo!' 8, p. 105.

As to service of summonses, see ibid., s. 56, Vo!. 8, p. 132. As to service by post, see also Acts Interpretation Acts, 1954 to J 962, s. 39,

title ACTS OF PARLIAMENT, Vol. 1, p. 100. As to necessity of proving prepayment of postage, see Walthamstow Urban

D.C. v. Henwood, [1897] 1 Ch. 41. As to posting generally, see 15 Halsbury's Laws of England, 3rd ed., p. 406;

22 English and Empire Digest (Rp!.) p. 361 et seq.

59. Offence. (1) Any person who fails to comply with any requirement of this Division or of any attachment of earnings order under this Division that is applicable to him shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.

(2) It is a sufficient defence to a person charged with an offence arising under subsection (1) of this section if he proves that he took all reasonable steps to comply with the requirement or attachment of earnings order.


60. Dismissing an employee, etc., by reason of the making of an attachment of earnings order. (1) Any person who dismisses an employee or injures him in his employment, or alters his position to his prejudice, by reason of the circumstances that an attachment of earnings order has been made in relation to the employee or that the person is required to make payments under such an order in relation to the employee shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.


(2) In any proceeding for an offence against this Act arising under subsection (1) of this section, if all the facts and circumstances constituting the offence, other than the reason for the action of the person charged with having committed the offence, are proved, the burden lies upon that person to prove that he was not actuated by the reason alleged in the charge.


See further s. 61.

61. Reimbursement of wages and reinstatement. (1) Where any person is convicted of an offence against this Act arising under subsection (1) of section sixty of this Act, the court by which he is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position.

(2) Any amount ordered to be reimbursed under subsection (1) of this section may be recovered from the person convicted as aforesaid as if it were part of the penalty to which that person is liable under subsection (1) of section sixty of this Act.

62. Application of this Division. This Division shall have effect in relation to a defendant notwithstanding any Act or law that would otherwise prevent the attachment of his earnings or limit the amount capable of being attached.

63. Wages Attachment Acts not to apply with respect to maintenance orders. Notwithstanding anything contained in " The Wages Attachment Acts, 1936 to 1940," those Acts shall not apply with respect to the attachment of earnings of a defendant for the purposes of recovery of moneys due by the defendant under a maintenance order enforceable under this Act.

Act referred to: Wages Attachment Acts, 1936 to 1940, title LABOUR, Vol. 8, p. 733.

64. Payments by Crown, etc. The provisions of this Division shall have effect in relation to deductions from earnings falling to be paid by the Crown in right of the State, or by a Minister of the Crown in right of the State, or a statutory authority representing the Crown in right of the State, or out of Consolidated Revenue, and those earnings shall be treated as falling to be paid by the permanent head or principal officer of the department, sub-department, branch, section, office, or other body concerned, but the provisions of subsection (3) of section one hundred and twenty-six of this Act do not apply to that permanent head or principal officer.

DIVISION 3-GENERAL 65. Provision where defendant maintained wife, husband or child during any period. Where proceedings are taken under this Part in respect of a failure to make payments for or towards the maintenance of a person, it shall be a sufficient answer to those proceedings so far as relates to the failure to make payments during any period if it is proved that during that period the defendant adequately maintained that person.

66. Regulations under this Part. Without limiting the generality of section one hundred and thirty-nine of this Act, the Governor in Council may, from time to time, make regulations, not inconsistent with this Act, prescribing and regulating-

(i) the seizure and sale of goods, chattels and securities;


(ii) the demand and receipt of annuities, rents and other income (other than earnings within the meaning of Division (2) of this Part);

(iii) the procedure of Magistrates Courts in and in relation to proceedings under this Part;

(iv) the duties of the clerk of the court under this Part;

(v) the fees, costs and charges that may be charged, awarded or made under this Part;

(vi) the forms to be used under this Part; and (vii) generally any act, matter, or thing required or necessary or


PART IV-RECIPROCAL ENFORCEMENT OF ORDERS

DIVISION I-INTERPRETATION AND ADMINISTRATION

67. Interpretation. (1) Without limiting the operation of "The Acts Interpretation Acts, 1954 to 1962," in this Part, unless the context otherwise indicates or requires, the following terms have the meanings set against them respectively, that is to say:-

"Another Australian State "-An Australian State other than Queensland;

"Australian State "-A State or Territory of the Commonwealth; " Certified copy"-

(a) in relation to a maintenance order or other order of a court (not being an order made under the Matrimonial Causes Act 1959, as amended by subsequent Acts, of the Commonwealth)-a copy of the order certified to be a true copy by an officer of the court that made the order or a copy of such a copy certified to be a true copy by an officer of a court in or by which the order has been registered or confirmed;

(b) in relation to a maintenance order or other order made under the Matrimonial Causes Act 1959, as amended by subsequent Acts, of the Commonwealth-a certificate of the order issued under the rules made under that Act, or a copy of such a certificate certified to be a true copy by an officer of a court in which the order has been registered under that Act; and

(c) in relation to a record of the evidence of a witness in proceedings before a court-a copy of the record certified to be a true copy by an officer of that court;

" Collector "-(a) in relation to Queensland-the Collector of Maintenance,

the Deputy Collector of Maintenance, or an Assistant Collector of Maintenance appointed under this Division; and

(b) in relation to another Australian State-an officer appointed under the law of that Australian State whose duties, or part of whose duties, are similar to those of the Collector of Maintenance, the Deputy Collector of Maintenance, or an Assistant Collector of Maintenance, appointed under this Division;


" Collector's Certificate"-(a) in relation to a Queensland order, or an overseas order

enforceable in Queensland-a certificate in or to the effect of the prescribed form signed by the Collector; and

(b) in relation to a maintenance order made in another Australian State, or an overseas order that is or has been enforceable in another Australian State-a certificate in or to the effect of such form prescribed by or under the law of that other Australian State as corresponds with the form of Collector's certificate prescribed for the purposes of this Part;

" Complainant "-In relation to a maintenance order or to proceedings in connection with a maintenance order-the person for whose benefit the maintenance order was made, or a person acting on behalf of that person;

" Country "-Includes any State, Province, or other part of a country outside Australia, or any Territory of such a country;

" Country having restricted reciprocity "-A reciprocating country that is for the time being declared by a Proclamation in force under section ninety-eight of this Act to have restricted reciprocity with Queensland;

" Court "-In relation to any order made or to be made, or any act, matter or thing done or to be done in any place outside Queensland-a court or magistrate, or a justice or justices, or any other person or persons, exercising judicial powers in that place;

" Defendant "-In relation to a maintenance order or to proceedings in connection with a maintenance order-the person against whom the order was made;

" Depositions "-In relation to a witness in proceedings-the record, or a certified copy of the record, of the evidence of that witness in those proceedings;

" Interstate order" -A maintenance order--(a) made in another Australian State by a court of summary

jurisdiction or by a magistrate or justices; (b) made by the Supreme Court of another Australian State

(whether under the law of that Australian State or under a law of the Commonwealth) and registered, for the purposes of enforcement, in a court of summary jurisdiction in that Australian State under a law of that Australian State or under a law of the Commonwealth;

" Justice "-In relation to the exercise or discharge of any power, authority, duty or function, a justice of the peace authorised to exercise or discharge that power, authority, duty or function in accordance with the law of the place where it is exercised or discharged;

" Maintenance order "-An order (whether made before or after the commencement of this Act and whether made in Queensland or elsewhere) being-

(a) an order whereby a person is ordered to pay money, whether in one sum or by instalments, or to pay sums of money periodically, for or towards the maintenance of another person or by way of recoupment of moneys spent in, or provided for the maintenance of another person; or

MAINTENANCE ACT OF 1965 So 67 321

(b) an order made under, or of a kind similar to an order made under section sixteen, eighteen, nineteen or twenty of this Act-

and, if such an order has been varied, includes the order as so varied and all orders (wherever made) by which it has been varied, and includes an order for the payment of costs in any proceedings in which an order referred to in paragraph (a) or (b) of this definition was made;

" Officer "-In relation to a court, includes a person, or one of the persons, constituting the court;

" Overseas order "-In relation to a reciprocating country-(a) in the case where in a Proclamation under section

ninety-eight of this Act declaring that country to be a reciprocating country it is also declared that maintenance orders made in that country shall be enforceable in Queensland in accordance with the provisions of Division 3 of this Part as on and from a date specified in the Proclamation-a maintenance order made on or after that date in that country by a court of competent jurisdiction; and

(b) in any other case-a maintenance order made in that country by a court of competent jurisdiction whether before or after the making of the Proclamation;

" Queensland order" -A maintenance order-(a) made in Queensland by a court of summary jurisdiction; or (b) made by the Supreme Court of Queensland (whether under

the law of Queensland or under a law of the Commonwealth) and registered, for the purposes of enforcement, in a court of summary jurisdiction in Queensland under a law of Queensland or under a law of the Commonwealth;

" Reciprocating country" -A country that is for the time being declared by a Proclamation in force under section ninety-eight of this Act to be a reciprocating country for the purposes of this Part;

" Under Secretary "-The Under Secretary, Department of Justice; the term includes the Assistant Under Secretary, Department of Justice.

(2) A reference in this Part to a certified copy of an order shall, where the order has been varied or otherwise affected by a provisional order of one court that has effect by virtue of the fact that it has been confirmed (whether with or without modification) by another court, be read as including a reference to both a certified copy of the provisional order and a certified copy of the confirming order.

(3) A reference in this Part to an order made by a court shall be read as including a reference to an order made by another court on an appeal in connection with proceedings that originated in the first-mentioned court.

(4) For the purposes of this Part, where a person is working in a place, whether temporarily or permanently, he shall be deemed to be resident in that place, as well as in the place where he is in fao resident.

Acts referred to:

11

Acts Interpretation Acts, 1954 to 1962, title ACTS OF PARLIAMENT, Vol. 1, p. 82.

Matrimonial Causes Act 1959 (Commonwealth).


68. Collector of Maintenance. (1) For the purposes of this Part the Governor in Council may appoint a Collector of Maintenance, a Deputy Collector of Maintenance, and as many Assistant Collectors of Maintenance and other officers as are necessary for the administration of this Part.

(2) The Collector of Maintenance, the Deputy Collector of Maintenance, every Assistant Collector of Maintenance and every other officer appointed under subsection (1) of this section shall be appoin~ed and hold their respective offices under, subject to and in accordance with "The Public Service Acts, 1922 to 1965," and may hold their respective offices in addition to any other offices already held under those Acts.

(3) Upon the commencement of this Part-(a) the Clerk of the Court, Brisbane, shall be the Collector of

Maintenance; (b) the Assistant Clerk of the Court, Brisbane, shall be the

Deputy Collector of Maintenance; and (c) every other Clerk of the Court in Queensland shall be an

Assistant Collector of Maintenance, each by virtue of his respective office and without further or other appointment of any kind.

(4) The Deputy Collector of Maintenance and every Assistant Collector of Maintenance shall have and may exercise, subject to any directions of the Collector of Maintenance and to the regulations made under this Act, all the powers, duties and functions of the Collector of Maintenance.

Act referred to: Public Service Acts, 1922 to 1965, title PUBLIC SERVICE.

General powers of the Collector are set out in s. 69. For the Collector's participation in the reciprocal enforcement interstate of

maintenance orders, see ss. 72-81. As to overseas maintenance, see ss. 82-108. The Collector is given a right of appearance by s. 71.

69. Powers, etc., of the Collector. (1) The Collector has power to do all things necessary or convenient to be done for the enforcement in Queensland of maintenance orders that are enforceable in Queensland by virtue of this Part.

(2) The Collector shall-(a) receive moneys payable to him pursuant to orders enforceable

under this Part and moneys remitted to him by Collectors for other Australian States and authorities in reciprocating countries and give receipts for moneys so received;

(b) keep proper accounts of all moneys received, remitted or paid by him;

(c) remit to Collectors for other Australian States and to the proper authorities in reciprocating countries moneys received by him in respect of maintenance orders made for the benefit of persons residing in those other Australian States or in those countries, and payable to or for the benefit of those persons, together with proper accounts in respect of those moneys; and

(d) pay other moneys received by him to the persons entitled thereto,

and has such other powers, authorities, duties and functions as are specified in this Part or are prescribed.

MAINTENANCE ACT OF 1965 S'!I.68·72 323

(3) The Collector may by instrument in writing delegate to an officer of the Department of Justice any of his powers, authorities, duties and functions under this Part in respect of any case or class of cases specified in the instrument, and that officer or member may act in accordance with the delegation.

(4) The provisions of section seventy of this Act shall apply with respect to acts done by any delegate of the Collector in pursuance of such delegation.

As to the Collector's participation in the reciprocal enforcement interstate of maintenance orders, see ss. 72-81.

As to overseas maintenance, see 55. 82-108.

70. Protection of Collector. The provisions of Part X of "The Justices Acts, 1886 to 1964," relating to the protection of a justice with respect to any act done by him shall, with such modifications as are necessary, extend and apply to and with respect to acts done by the Collector, or by the Deputy Collector or an Assistant Collector, or any person authorised by the Collector, Deputy Collector, or an Assistant Collector in pursuance of this Act.

Act referred to: Justices Acts, 1886 to 1965, title JUSTICES, Vol. 8, p. 105.

71. Appearance of Collector, etc. In all proceedings under this Part the Collector, Deputy Collector, every Assistant Collector, and any person authorised by the Collector, Deputy Collector, or an Assistant Collector, is entitled to appear, to be heard, to give evidence, and to call, examine and cross·examine witnesses.

DIVISION 2-INTERSTATE MAINTENANCE

72. Transmission of Queensland orders for enforcement in other States. (l) Where a Queensland order is presently enforceable in Queensland under this Act but is not presently enforceable in any other Australian State, and it appears to the Collector that the defendant is resident in, or proceeding to, another Australian State, the Collector may send to the Collector for that other Australian State-

(a) three certified copies of the order; (b) a Collector's certificate relating to the order; (c) such information and material as the Collector possesses for

facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a request in writing that the order be made enforceable in that other Australian State.

(2) Where-(a) a Queensland order is, under the law of another Australian

State, enforceable in that other Australian State; and (b) the Collector is satisfied that there are reasonable grounds

for believing that the defendant is not resident in, or proceeding to, that other Australian State, or it appears to the Collector that there is some other good reason why the order should no longer be enforceable in that other Australian State,

he may send to the Collector for that other Australian State a request in writing that the order be made no longer enforceable in that other Australian State and, for the purposes of this Act, the order shall, upon the sending of the request, be deemed to cease to be enforceable in that other Australian State.

324 MAIUUAGE AND DIVORCE VoL 11

(3) The fact that a Queensland order has ceased to be enforceable in another Australian State by reason of action taken in that other Australian State as a result of a request made under subsection (2) of this section does not prevent a further request under subsection (1) of this section that the order be again made enforceable in that other Australian State.

(4) Where a Queensland order is, in pursuance of a request under subsection (I) of this section, made enforceable in another Australian State-

(a) the order ceases to be enforceable in Queensland; (b) the order remains unenforceable in Queensland unless and

until it ceases to be enforceable in that other Australian State; and

(c) every warrant or other process under this Act arising out of the order previously issued in Queensland and not executed ceases to have effect.

As to confirmation in Queensland of provisional orders made in other States, iee s. 80.

As to the Collector generally, see ss. 68-71.

73. Enforcement in QueeiWand of orders made in other Australian States. (1) Where the Collector receives from a Collector for another Australian State-

(a) three certified copies of an interstate order made in that State; (b) a Collector's certificate relating to the order; and (c) a request in writing that the order be made enforceable in

Queensland, he shall, ifit appears to him that there are reasonable grounds for believing that the defendant is resident in, or proceeding to, Queensland, send the documents to the clerk of such court in Queensland as the Collector deems appropriate, with a request that the order be registered in that court.

(2) Where a request is so made the clerk of the court shall (whether or not the order is of such a kind as could be made in Queensland) register the order by filing in the court a certified copy of the order and the Collector's certificate and noting the fact and date of the registration on that certified copy, and shall forthwith notify the Collector of the fact of the registration.

(3) An interstate order so registered is, until the registration is cancelled, enforceable in Queensland, both as regards any arrears payable under the order and as regards amounts becoming due under the order after it is so registered.

(4) Upon registration of an interstate order-(a) the Collector shall notify the Collector for the other Australian

State accordingly; (b) the clerk of the court in which the order is registered shall cause

a certified copy of the order to be served upon the defendant, together with a notice of the registration of the order in Queensland-(i) specifying the amount, if any, of the arrears due under the

order; (ii) stating that payments under the order are to be made to the

clerk of the court for the place where the order is so registered; and

MAINTENANCE ACT OF 1965 ss. 72·75 325

(iii) giving an address at which such payments may be made; and (c) all moneys due or becoming due under the order are payable

to the clerk of the court for the place where the order is so registered.

(5) Where-(a) an interstate order is registered in Queensland under this

section; and (b) the Collector receives from the Collector for the other Australian

State a request in writing that the order be made no longer enforceable in Queensland,

the Collector shall request the clerk of the court in which the order is registered to cancel the registration of the order, and the clerk of the court shall thereupon cancel the registration by noting the fact and date of the cancellation on the certified copy of the order filed in the court.

(6) Where the registration of an interstate order is so cancelled(a) the order ceases to be enforceable in Queensland; (b) the order remains unenforceable in Queensland unless and

until it is again registered in Queensland; and (c) every warrant or other process under this Act arising out

of the order previously issued in Queensland and not executed ceases to have effect.

As to the provisional variation in Queensland of interstate orders, see ss. 75-80.

As to the Collector generally, see ss. 68-71. As to proceedings for enforcement of interstate orders made enforceable in

Queensland, see s. 81.

74. Collector to notify original State when defendant leaves Queensland. Where an interstate order has been registered in Queensland under this Division, and the Collector has reasonable grounds for believing that the defendant is no longer resident in Queensland, but is resident in, or proceeding to, another Australian State, he shall forthwith notify the Collector in the State in which the order was made of the fact and shall give him such information as he possesses concerning the whereabouts and intended movements of the defendant.

75. Provisional variation, etc., in Queensland of interstate orders. (1) Where an interstate order made by a court of summary jurisdiction, or by a magistrate or justices, is enforceable in Queensland by virtue of this Division, an application in writing in accordance with the prescribed form may be made by or on behalf of the complainant or the defendant to the court in Queensland for the place where payments under the order are required to be made for an order discharging, suspending, varying, or reviving the interstate order, and that court has jurisdiction to hear and determine the application.

(2) Where a Queensland order made by a court of summary jurisdiction is enforceable in another Australian State by virtue of provisions corresponding with this Division, an application in writing in accordance with the prescribed form may be made by or on behalf of the complainant or the defendant to a court in Queensland that would have had jurisdiction to make an order under section thirty-one of this Act in relation to the Queensland order had the Queensland order not been

326 MARRIAGE AND DNORCE Vol. 11

made enforceable in that other Australian State, for an order discharging, suspending, varying or reviving the Queensland order, and that court has jurisdiction to hear and determine the application.

(3) The applicant shall cause notice of an application under this section to be served, not less than fourteen days before the hearing of the application, upon the Collector personally or by post and the Collector shall, forthwith upon receipt by him of the notice, notify the Collector for the Australian State in which the interstate order was made, or the Queensland order is enforceable, as the case may be, accordingly.

(4) While a Queensland order is enforceable in another Australian State under the law of that other Australian State, no application for the discharge, suspension, variation, or revival of the order shall be made in Queensland except in accordance with this section.

As to an order made in the absence of the defendant, see s. 76. For the law to be applied in applications under this section, see s. 77. The order made under this section is provisional only, s. 78.

76. Discharge, suspension or variation of order made in absence of defendant. Where-

(a) an application is made under subsection (1) of section seventyfive of this Act by a defendant for the discharge, suspension, or variation of an interstate order;

(b) the defendant neither appeared at the hearing of the complaint upon which the original interstate order was made, nor was served personally in the State or Territory in which that order was made with a summons issued pursuant to the complaint upon which that order was made; and

(c) the application is made within six months after service on the defendant of notice of the registration of the order in Queensland, or within such further period of time as the court may, in a particular case, allow,

the defendant may, in addition to raising any matter that may be raised on an application under section thirty-one of this Act, raise any ground of opposition that he could have raised in the original proceedings.

77. Law to be applied. In an application under section seventy-five of this Act, the law to be applied shall, except in matters of practice or procedure, be the law of the Australian State in which the original order was made.

Compare, as to overseas maintenance, s. 94.

78. Order of variation, etc., to be provisional only. (1) Except as provided in subsection (2) of this section, an order made on an application under section seventy-five of this Act discharging, suspending, varying, or reviving a maintenance order shall be provisional only and shall have no effect unless and until confirmed (either with or without modification) by a competent court of the Australian State in which the maintenance order was made or is enforceable, and shall be expressed accordingly.

(2) Where the respondent to the application has been personally served in Queensland with notice of the application, or appears on the hearing of the application, any order made on the application shall recite that fact, and the order has effect forthwith in Queensland.

MAINTENANCE ACT OF 1965 58.75·80 327

(3) Where an order made on an application under section seventy-five of this Act is expressed to be provisional, the clerk of the court that made the provisional order shall send a certified copy of the order, together with the depositions of the witnesses, to the Collector for transmission to the Collector for the other Australian State.

(4) Where an order referred to in subsection (3) of this section has been confirmed (whether with or without modification) by a competent court of the other Australian State, the order has effect in Queensland as so confirmed.

79. Procedure where provisional order remitted by court of other Australian State. (1) Where a provisional order made under the foregoing provisions of this Division is remitted by a court in another Australian State to the court in Queensland that made the provisional order for the taking of further evidence, the court in Queensland, or, if requested by that court, another court of similar jurisdiction in Queensland, shall, after notice has been given to the Collector and to such persons and in such manner as the court thinks fit, proceed to take the evidence.

(2) Where the further evidence is taken by a court in Queensland other than the court that made the provisional order, the first-mentioned court shall cause the depositions of the witnesses to be transmitted to the court that made the provisional order.

(3) When the further evidence is taken by the court in Queensland that made the provisional order or is received by that court from another court in Queensland that took the further evidence, the first-mentioned court shall cause the depositions of the witnesses to be sent to the court in the other Australian State.

(4) If, when the further evidence has been taken, it appears to the court that made the provisional order that the order ought not to have been made, the court may rescind the order and may, ifit thinks fit, make a fresh provisional order on the application under section seventy-five of this Act.

80. Confirmation in Queensland of provisional orders made in other Australian States. (1) Where the Collector receives-

(a) a certified copy of-(i) a provisional order made by a court in another Australian

State discharging, suspending, varying, or reviving a Queensland order made by a court of summary jurisdiction and enforceable in that Australian State; or

(ii) a provisional order made by a court in another Australian State discharging, suspending, varying, or reviving an interstate order made by a court of summary jurisdiction in that other Australian State and enforceable in Queensland by virtue of this Division; and

(b) the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made,

the Collector shall, on behalf of the party on whose application the provisional order was made in the other Australian State, make or cause to be made an application-

(c) in the case of an order referred to in subparagraph (i) of paragraph (a) of this subsection-to a court in Queensland that would have had jurisdiction to make an order under


section thirty-one of this Act in relation to the Queensland order had the Queensland order not been made enforceable in that other Australian State; or

(d) in the case of an order referred to in subparagraph (ii) of paragraph (a) of this subsection-to the court in Queensland for the place where payments under the order are required to be made,

for an order confirming the provisional order.

(2) The Collector shall cause notice, in accordance with the prescribed form, of the application under this section to be served on the respondent to the application not less than seven days before the hearing of the application.

(3) Upon the hearing of such an application, the court may-(a) confirm the provisional order (either with or without

modification) ; (b) discharge the provisional order; or (c) adjourn the proceedings and remit the provisional order to the

court that made it with a request that that court take further evidence and further consider its provisional order.

(4) Where a provisional order is confirmed under this section (whether with or without modification), the order as so confirmed has effect in Queensland as if it were an order to the like effect made by the court in Queensland.

81. Proceedings for enforcement. (1) Where an interstate order is enforceable in Queensland by virtue of this Division-

(a) all proceedings may be taken for the enforcement of the order; and

(b) the provisions of this Act shall, so far as they are applicable and with such modifications as are necessary, apply to and in relation to proceedings for the enforcement of the order,

as if it were a maintenance order made under Part II of this Act by the court for the place in Queensland where payments under the order are required to be made.

(2) The Collector may take or cause to be taken any proceedings that are authorised by subsection (1) of this section, and, notwithstanding the provisions of subsection (2) of section forty-two of this Act, a request made by the Collector shall be sufficient authority for the clerk of the court to whom the request is made to make a complaint under subsection (1) of that section.

(3) Where proceedings are so taken or caused to be taken by the Collector, the court shall, unless it is satisfied by evidence to the contrary, presume that the enforcement of the order (being an order of the kind referred to in paragraph (a) of the definition of "maintenance order" in subsection (1) of section sixty-seven of this Act) is required for the actual support of the person for whose benefit the order was made and that no moneys have been paid under the order since its registration in Queensland other than any moneys so paid to the clerk of the court for the place in Queensland where the order is registered.

For metho<ls of enforcing orders, see ss. 41-66.


DIVISION 3-OVERSEAS MAINTENANCE

82. Transmission of maintenance orders made in Queensland for enforcement in reciprocating countries. (1) Where a Queensland order is presently enforceable in Queensland under this Act but is not presently enforceable in any other Australian State and it appears to the Collector that the defendant is resident in, or proceeding to, a reciprocating country, the Collector may send to the Under Secretary-

(a) three certified copies of the Queensland order;

(b) a Collector's certificate relating to the Queensland order;

(c) such information and material as the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a request in writing that the Under Secretary should seek to have the Queensland order made enforceable in that reciprocating country,

and the Under Secretary shall, on receipt on those documents, transmit the documents referred to in paragraphs (a), (b) and (c) of this subsection to the reciprocating country concerned, or cause those documents to be so transmitted, with a request in writing that the Queensland order be made enforceable in that reciprocating country.

(2) This section does not apply in relation to an order under section fourteen, sixteen, seventeen, eighteen, nineteen or twenty of this Act, or under any corresponding previous enactment, where the order relates to an illegitimate child, or to the mother of an illegitimate child, unless the defendant appeared in the proceedings in which his paternity ofthe child was held to be established, or was duly served with a summons to appear in those proceedings, or consented to the making of the order in those proceedings.

Compare Maintenance Orders (Facilities for Enforcement) Act, 1920 (Imperial), s. 2, p. 363, post.

As to the Collector generally, see ss. 68-71. For what is a reciprocating country, see s. 98. As to cancellation of registration of a Queensland order in a reciprocating

country, see s. 84. For general provisions, see ss. 99-108.

83. Power to make provisional order agaiust person resident in reciprocatillg rouatry. (1) Upon application made in writing in accordance with the prescribed form to a court in Queensland for a maintenance order of a kind that may be made under Subdivision (2) or (3) of Division 1 of Part II of this Act against any person, and upon proof that that person is resident in, or proceeding to, a reciprocating country, the court may, in the absence of that person, make any order it could have made under either of those Subdivisions if a summons had been duly served on that person and he had failed to appear at the hearing.

(2) An order made under subsection (I) of this section shall be provisional only and shall have no effect unless and until confirmed (either with or without modification) by a competent court in a reciprocating country in which the defendant is resident at the time of that confirmation, and shall be expressed accordingly.


(3) Where a court makes an order under subsection (1) of this section, the clerk of the court shall send to the Collector

(a) the depositions of the witnesses; (b) three certified copies of the order; and (c) a statement of the grounds on which the making of the order

could have been opposed if the defendant had appeared at the hearing.

(4) Upon receiving the documents, the Collector shall send the documents, together with any information and material the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant to the Under Secretary for transmission to the reciprocating country referred to in subsection (1) of this section.

(5) Where any such provisional order has come before a court in a reciprocating country for confirmation and the order has by that court been remitted to the court in Queensland that made the order for the purpose of taking further evidence, the court in Queensland or, if requested by that court, another court of similar jurisdiction in Queensland, shall, after notice has been given to such persons and in such manner as the court thinks fit, proceed to take the evidence.

(6) Where the further evidence is taken by a court in Queensland other than the court that made the provisional order, the first mentioned court shall cause the depositions of the witnesses to be transmitted to the court that made the provisional order.

(7) When the further evidence is taken by the court in Queensland that made the provisional order or is received by that court from another court in Queensland that took the further evidence, the first mentioned court shall cause the depositions of the witnesses to be transmitted to the court in the reciprocating country.

(8) If, when the further evidence has been taken, it appears to the court that made the provisional order that the order ought not to have been made, the court may rescind the order and may, if it thinks fit, make a fresh provisional order on the application under subsection (1) of this section.

(9) Where a court in a reciprocating country in which the defendant is for the time being resident confirms (whether with or without modification) a provisional order made under this section, the order has effect in Queensland as so confirmed.

(10) Where a court in a reciprocating country confirms (whether with or without modification) a provisional order made under this section, then, in any proceedings arising out of or relating to the order, it shall be presumed, unless the contrary is proved, that the defendant was resident in that reciprocating country at the time when the order was confirmed.

(11) The provisions of Subdivision (1) of Division 3 of Part II of this Act shall, so far as the same are applicable, apply to and with respect to any order made under this section, or under a corresponding provision of the repealed Acts.


For what is a reciprocating country, see s. 98. As to cancellation of registration of a Queensland order in a reciprocating

country, see s. 84. For subdivisions (2) and (3) of Division 1 of Part II, see ss. 10-13. For general provisions, see ss. 99-108.


84. Cancellation of registration. (1) Where-(a) a Queensland order is, under the law of a reciprocating

country, enforceable in that reciprocating country; and (b) the Collector is satisfied that there are reasonable grounds

for believing that the defendant is not resident in, or proceeding to, that reciprocating country, or it appears to the Collector that there is some other good reason why the order should no longer be enforceable in that reciprocating country,

the Under Secretary may, at the request of the Collector, send, or cause to be sent, to an appropriate authority in that reciprocating country a request in writing that the order be made no longer enforceable in that reciprocating country and, for the purposes of this Act, the order shall, upon the sending of the request of the Under Secretary, be deemed to cease to be enforceable in that reciprocating country.

(2) The fact that a Queensland order has ceased to be enforceable in a reciprocating country by reason of action taken in that reciprocating country as a result of a request made by the Under Secretary under subsection (1) of this section does not prevent a further request under section eighty-two of this Act that the order be again made enforceable in that reciprocating country.

(3) Where a Queensland order is, in pursuance of a request made by the Under Secretary under section eighty-two of this Act, made enforceable in a reciprocating country-

(a) the order ceases to be enforceable in Queensland and remains unenforceable in Queensland so long as it is enforceable in that reciprocating country; and

(b) every warrant or other process under this Act arising out of the order previously issued in Queensland and not executed ceases to have effect.

See ss. 82, 83. For what is a reciprocating country, see s. 98. For general provisions, see ss. 99-108.

85. Registration of overseas order. (1) Where the Under Secretary receives-

(a) a certified copy of an overseas order; and (b) a certificate signed by an officer of a court or other authority

in the reciprocating country relating to the order and containing-(i) a statement that the order is, at the date of the certificate,

enforceable in that reciprocating country; and (ii) a statement as to the amount of any arrears due under

the order, distinguishing any amount in respect of which the defendant has been imprisoned,

the Under Secretary shall, if it appears to him that there are reasonable grounds for believing that the defendant is resident in, or proceeding to, Queensland, send the documents received by him to the Collector.

(2) In the case of an overseas order in the nature of an affiliation order, or an overseas order consequent upon such an order, the Under Secretary shall not send the documents relating to the order to the Collector if it appears to the Under Secretary from those documents that the defendant did not appear in the proceedings on which the order was made or consent to the making of the order.


(3) In the case of an overseas order originating in a country having restricted reciprocity, the Under Secretary shall not send the documents relating to the order to the Collector unless the Under Secretary is satisfied that the order is a maintenance order of such a kind as can be made under Part II of this Act.

(4) Where the Collector receives from the Under Secretary the documents referred to in subsection (1) of this section, he shall send the documents to the clerk of such court in Queensland as the Collector deems appropriate, with a request that the order be registered in that court.

(5) Where a request is so made, the clerk of the court shall register the overseas order by filing in the court a certified copy of the order and the certificate relating thereto and noting the fact and date of the registration on that certified copy, and shall forthwith notify the Collector of the fact of the registration.

(6) An overseas order so registered is, until the registration is cancelled, enforceable in Queensland, both as regards any arrears payable under the order and as regards amounts becoming due under the order after it is so registered.

(7) Upon registration of an overseas order-(a) the Collector shall notify an officer of the court or other

authority in the reciprocating country accordingly; (b) the clerk of the court in which the order is registered shall cause

a certified copy of the order to be served upon the defendant, together with a notice of the registration of the order in Queensland-

(i) specifying the amount, if any, of the arrears due under the order;

Oi) stating that payments under the order are to be made to the clerk of the court for the place where the order is so registered; and



For what is a reciprocating country, or a country having restricted reciprocity, lIee s. 98.

Certain overseas orders are provisional until confirmed in Queensland, s. 86. The registered order may be made enforceable interstate, ss. 87, 88. As to cancellation of registration, see s. 90. As to variation of overseas orders, see ss. 91, 92, 94. For general provisions, see ss. 99-108.

86. Confirmation of provisional orders made overseas. (1) Where-(a) an overseas order (other than an order in the nature of an

affiliation order, or an order consequent upon such an order) has no effect under the law of the reciprocating country in which it is made unless and until confirmed by a court outside that reciprocating country (whether or not it appears from the order that it may be confirmed by a court in Queensland);

(b) a certified copy of the order and the depositions of the witnesses in the proceedings in which the order is made, together with a statement of the grounds on which the making of the order could have been opposed if the defendant had appeared at the hearing, have been received by the Under Secretary; and

MAINTENANCE ACf OF 1965 ss. 85, 86 333

(c) it appears to the Under Secretary that-(i) there are reasonable grounds for believing that the defendant

is resident in, or proceeding to, Queensland; and (ii) the order will have effect under the law of the reciprocating

country if it is confirmed by a court in Queensland, the Under Secretary shall send the documents received by him to the Collector.

(2) In the case of a provisional order made in a country having restricted reciprocity, the Under Secretary shall not send the documents relating to the order to the Collector unless the Under Secretary is satisfied that the order is of such a kind as could be made (otherwise than as a provisional order) under Part II of this Act.

(3) Where the Collector receives from the Under Secretary the documents referred to in subsection (1) of this section he shall send the documents to the clerk of such court in Queensland as the Collector deems appropriate.

(4) Upon receipt of the documents by the clerk of the court, a summons may be issued by any justice calling upon the defendant to appear before the court to show cause why the provisional overseas order should not be confirmed.

(5) At the hearing it shall be open to the defendant to raise any ground of opposition that he could have raised in the original proceedings or any ground of opposition that he could have raised had the proceedings on which the provisional overseas order was made been heard in Queensland, and the statement referred to in subsection (1) of this section shall be conclusive evidence that the grounds referred to in that statement are the grounds of opposition that could have been raised in the original proceedings.

(6) If the defendant, having been served in Queensland with the summons, does not appear at the hearing, or if the defendant appears at the hearing but fails to satisfy the court that the order ought not to be confirmed, the court may-

(a) confirm the provisional order (either with or without modification) ;

(b) discharge the provisional order; or (c) adjourn the proceedings and remit the provisional order to the

court that made it, with a request that that court take further evidence and further consider its provisional order.

(7) Where a provisional overseas order is confirmed under this section (whether with or without modification), the order as so confirmed has effect in Queensland as if it were an order to the like effect made by the court in Queensland.

(8) If, at the hearing, the court is of opinion that it is necessary to remit the case to the court that made the provisional order for the taking of further evidence, the case may be so remitted.

(9) Where the court confirms a provisional overseas order (whether with or without modification) the court shall direct that the moneys payable under the order be paid to the clerk of the court for the place


specified in the confirming order, and the provisions of sections thirtyeight and thirty-nine of this Act shall, where necessary, and with any necessary modifications, apply.


For registration of confirmed orders, see s. 88. For cancellation of registration, see s. 90. For enforcement of orders, see s. 91. For variation of orders, see ss. 92-94. For what are reciprocating countries, countries having restricted reciprocity,

see s. 98. General provisions-See ss. 99-108.

87. Order enforceable in Queensland may be sent to another Australian State. (1) Where an overseas order is enforceable in Queensland under this Division, and it appears to the Collector that there are reasonable grounds for believing that the defendant has ceased to reside in Queensland and is resident in, or proceeding to, another Australian State, the Collector may send to the Collector for that Australian State-

(a) three certified copies of the overseas order; (b) a Collector's certificate relating to the order; (c) such information and material as the Collector possesses

for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a request in writing that the order be made enforceable in that Australian State,

and, if he does so, shall forthwith notify an appropriate officer in the reciprocating country of the fact that he has so sent the documents.

(2) Where a request is made under subsection (1) of this section-(a) the order ceases to be enforceable in Queensland, and, if the

order has been registered in a court in Queensland, that registration shall be deemed to be cancelled;

(b) the order remains unenforceable in Queensland unless and until it is registered, or again registered, in Queensland; and

(c) every warrant or other process under this Act arising out of the order previously issued in Queensland and not executed ceases to have effect.

R~. Rp!!istr<>t;nrl of ovp,..;;ejlS orders registered or confirmed in another Australian State. (1) Where-

(a) the Collector receives from the Collector for another Australian State-

(i) three certified copies of an overseas order; (ii) a Collector's certificate signed by the Collector for that

Australian State reLtting tn the order; and (iii) a request in writing that the order be made enforceable

in Queensland; and (b) it appears from the Collector's certificate that-

(i) the order has been registered in, or confirmed by, a court in that Australian State under a law of that Australian State corresponding with this Division; and


(ii) the order was, at the date of the certificate, presently enforceable in that Australian State in accordance with that law,

he shall, if it appears to him that there are reasonable grounds for believing that the defendant is resident in, or proceeding to, Queensland, send the documents to the clerk of such court in Queensland as the Collector deems appropriate, with a request that the order be registered in that court.

(2) Where a request is so made, the clerk of the court shall (whether or not the order is of such a kind as could be made under Part II of this Act) register the order by filing in the court a certified copy of the order and the Collector's certificate and noting the fact and date of the registration on that certified copy, and shall forthwith notify the Collector of the fact of the registration.

(3) An overseas order so registered is, until the registration is cancelled, enforceable in Queensland, both as regards any arrears payable under the order and as regards amounts becoming due under the order after it is so registered.

(4) Upon registration of the overseas order-(a) the Collector shall notify the officer of the court or other

authority in the reciprocating country accordingly; (b) the clerk of the court in which the order is registered shall cause

a certified copy of the order to be served upon the defendant, together with a notice of the registration of the order in Queensland-


(ii) stating that payments under the order are to be made to the clerk of the court for the place where the order is so registered; and



For what are reciprocating countries, see s. 98. As to enforcement of orders, see s. 91. For general provisions, see ss. 99-108.

89. Transmission of documents where defendant not in Queensland. Where the Under Secretary receives documents relating to an overseas order (including a provisional order) that have been transmitted to Queensland for the purpose of having the order made enforceable or confirmed in Queensland and it appears to the Under Secretary that the defendant is not resident in, or proceeding to, Queensland, but is resident in, or proceeding to, another Australian State, or a reciprocating country other than that in which the order was made, the Under Secretary may, instead of taking steps with a view to the registration or confirmation of the order in Queensland-

(a) transmit the documents to the Collector for that other Australian State or to an appropriate authority in that other reciprocating country together with such information and material as he possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

336 MARRIAGB AND DIVORCB Vol. 11

(b) give to the officer of a court or other authority in the reciprocating country in which the order was made notice of the fact that he has so transmitted the documents.

For what are reciprocating countries, see s. 98. For general provisions, see ss. 99-108.

90. Cancellation of registration. (1) Where-(a) an overseas order is registered or confirmed under this Division;

and (b) the Collector receives a request in writing made by an officer

of the court that made the order or some other competent authority in the reciprocating country that the order be made no longer enforceable in Queensland,

the Collector shall send the request to the clerk of the court for the place where payments under the order are required to be made who shall file the request and, if the order is registered under this Division, cancel the registration of the order by noting the fact and date of the cancellation on the certified copy of the order filed in the court.

(2) Where such a request has been so filed-(a) the overseas order ceases to be enforceable in Queensland; (b) the order remains unenforceable in Queensland unless and

until it is registered, or again registered, in Queensland; and (c) every warrant or other process under this Act arising out

of the order previously issued in Queensland and not executed ceases to have effect.


91. Proceedings for enforcement. (1) Where an overseas order is enforceable in Queensland by virtue of this Division-

(a) all proceedings may be taken for the enforcement of the order; and

(b) the provisions of this Act shall, so far as they are applicable and with such modifications as are necessary, apply to and in relation to proceedings for the enforcement of the order,

as if it were a maintenance order made under Part II of this Act by the court for the place in Queensland where payments under the order are required to be made.

(2) The Collector may take or cause to be taken any proceedings that are authorised by subsection (1) of this section, and, notwithstanding the provisions of subsection (2) of section forty-two of this Act, a request made by the Collector shall be sufficient authority for the clerk of the court to whom the request is made to make a complaint under subsection (1) of that section.

(3) Where proceedings are so taken or caused to be taken by the Collector, the court shall, unless it is satisfied by evidence to the contrary, presume that enforcement of the order (being an order of the kind referred to in paragraph (a) of the definition of" maintenance order" in subsection (I) of section sixty-seven of this Act) is required for the actual support of the person for whose benefit the order was made, and that no moneys

MAINTENANCE ACf OF 1965 ss. 89-93 337

have been paid under the order since its registration or confirmation in Queensland other than moneys so paid to the clerk of the court for the place in Queensland where payments under the order are required to be made.


For methods of enforcement of orders, see ss. 41-66. For general provisions, see ss. 99-108.

92. Variation, etc., in Queensland of overseas orders. (1) Where an overseas order is enforceable in Queensland by virtue of this Division an application in writing in accordance with the prescribed form may be made by or on behalf of the defendant to the court for the place in Queensland where payments under the order are required to be made for an order discharging, suspending, or varying the overseas order, and that court has jurisdiction to hear and determine the application.

(2) Where a Queensland order made by a court of summary jurisdiction is enforceable under the law of a reciprocating country in which the defendant is for the time being resident, an application in writing in accordance with the prescribed form may be made, by or on behalf of the complainant, to a court in Queensland that would have had jurisdiction to make an order under section thirty-one of this Act in relation to the Queensland order had the Queensland order not been made enforceable in that reciprocating country for an order varying or (if the order has been suspended) reviving the Queensland order, and that court has jurisdiction to hear and determine the application.

(3) The applicant shall cause notice of an application under this section to be served upon the Collector personally or by post not less than fourteen days before the hearing of the application.

(4) The court shall, as far as practicable, hear and determine an application under this section as if it were a similar application under Division 4 of Part II of this Act.

For the law to be applied, see s. 94. Division 4 of Part II comprises ss. 31-37. As to when the order will be provisional only, see s. 95. For what are reciprocating countries, see s. 98. For general provisions, see ss. 99-108.

93. Variations, etc., in Queensland of overseas order made in absence of defendant. Where-

(a) an application is made under section ninety-two of this Act by a defendant for the discharge, suspension or variation of an overseas order;

(b) the defendant neither appeared at the hearing of the complaint upon which the original overseas order was made nor was served personally in the country in which that order was made with a summons issued pursuant to the complaint upon which that order was made;

(c) the application is made within six months after service on the defendant of notice of the registration of the overseas order in Queensland, or within such further period of time as the court may, in a particular case, allow,

the defendant may, in addition to raising any matter that may be raised on an application under section thirty-one of this Act, raise any ground of opposition that he could have raised had the proceedings on which the overseas order was made been heard in Queensland.


94. Law to be applied. In an application under section ninety-two of this Act, the law to be applied shall be the law of Queensland.

Compare, as to interstate maintenance, s. 77.

95. Certain orders to be provisional only. (1) Where the court proposes to make an order on an application under section ninety-two of this Act and a court in the reciprocating country will, if the order is provisional only, have jurisdiction to confirm the order, the order shall be provisional only and shall have no effect unless and until confirmed (either with or without modification) by such a court, and shall be expressed accordingly.

(2) Where a provisional order is made in accordance with this section, the clerk of the court shall send a certified copy of the provisional order, together with the depositions of the witnesses, to the Collector who shall send the documents to an officer of the court in the reciprocating country having jurisdiction to confirm the provisional order.

(3) Where a court in the reciprocating country confirms (whether with or without modification) a provisional order made on an application under section ninety-two of this Act, the order has effect in Queensland as so confirmed.

(4) Notwithstanding anything contained in this section, if a provisional order made on an application under subsection (2) of section ninety-two of this Act is confirmed (whether with or without modification) by a court in a reciprocating country (not being the country specified in the order) in which the defendant is resident at the time of the confirmation, the order has effect in Queensland as so confirmed.


96. Procedure where provisional order remitted by court in reciprocating country. (1) Where a provisional order made in accordance with section ninety-five of this Act is remitted by a court in a reciprocating country to the court in Queensland that made the provisional order for the taking of further evidence, the court in Queensland or, if requested by that court, another court of similar jurisdiction in Queensland shall, after notice has been given to such persons and in such manner as the court thinks fit, proceed to take the evidence.

(2) Where the further evidence is taken by a court in Queensland other than the court that made the provisional order, the first-mentioned court shall cause the depositions of the witnesses to be sent to the court that made the provisional order.

(3) When the further evidence is taken by the court in Queensland that made the provisional order or is received by that court from another court in Queensland that took the further evidence, the first-mentioned court shall cause the depositions of the witnesses to be transmitted to the court in the reciprocating country.

(4) If, when the further evidence has been taken, it appears to the court that made the provisional order that the order ought not to have been made, the court may rescind the order and may, ifit thinks fit, make a fresh provisional order on the application under section ninety-two of this Act.



97. Confirmation in Queensland of provisional orders of variations, etc., made in reciprocating countries. (1) Where the Collector receives

(a) a certified copy of-(i) a provisional order made by a court in a reciprocating

country discharging, suspending, varying, or reviving a Queensland order made by a court of summary jurisdiction and enforceable in that reciprocating country; or

(ii) a provisional order made by a court in a reciprocating country discharging, suspending, varying, or reviving an overseas order made in that reciprocating country and enforceable in Queensland by virtue of this Division; and

(b) the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made,

the Collector shall, on behalf of the party on whose application the provisional order was made in the reciprocating country, make or cause to be made an application-

(c) in the case of an order referred to in subparagraph (i) of paragraph (a) of this subsection-to a court in Queensland that would have had jurisdiction to make an order under section thirty-one of this Act in relation to the Queensland order had the Queensland order not been made enforceable in that reciprocating country; or

(d) in the case of an order referred to in subparagraph (ii) of paragraph (a) of this subsection-to the court in Queensland for the place where payments under the order are required to be made,

for an order confirming the provisional order.

(2) The Collector shall cause notice, in accordance with the prescribed form, of the application under this section to be served on the respondent to the application not less than seven days before the hearing of the application.

(3) Upon the hearing of such an application, the court may-(a) confirm the provisional order (either with or without

modification) ; (b) discharge the provisional order; or (c) adjourn the proceedings and remit the provisional order to

the court that made it with a request that that court ta ke further evidence and further consider its provisional order.

(4) Where a provisional order is confirmed under this section (whether with or without modification) the order as so confirmed has effect in Queensland as if it were an order to the like effect made by the court in Queensland.

As to service of documents, see s. 107. For what are reciprocating countries, see s. 98.

98. Governor in Council may declare reciprocating countries. (l) Where the Governor in Council is satisfied that the law of any country makes provision for the enforcement in that country of maintenance orders made in another country, and that under that law Queensland orders may be made enforceable in that country, the Governor in Council may, by Proclamation, declare that country to be a reciprocating country for the purposes of this Division.


(2) If it appears to the Governor in Council that the jurisdiction of the courts of a country specified, or to be specified, in a Proclamation under subsection (1) of this section to make maintenance orders extends to the making of orders that are not of the same kind as orders that may be made in Queensland under Part II of this Act, the Governor in Council may, by the same or a subsequent Proclamation, declare that that country has restricted reciprocity with Queensland.

(3) In a Proclamation made under subsection (1) or (2) of this section the Governor in Council may specify, in relation to the country to which the Proclamation applies, a date, which may be before or after or the same day as the date of the Proclamation, and declare that maintenance orders made in that country on or after that date shall be enforceable in Queensland in accordance with the provisions of this Division.

(4) The Governor in Council may, by the like Proclamation, revoke or vary or further vary any Proclamation made under this section.

(5) Where a country that has been a reciprocating country ceases to be a reciprocating country-

(a) a maintenance order made in that country and enforceable in Queensland by virtue of this Division ceases to be so enforceable; and

(b) every warrant or other process under this Act arising out of any such order previously issued in Queensland and not executed ceases to have effect,

but this subsection does not affect the validity of anything done under this Act for the enforcement of a maintenance order while that country was a reciprocating country.

(6) At least once in every year the Under Secretary shall cause to be published in the Gazette a list of the names of the reciprocating countries, showing the respective dates upon which they became reciprocating countries and indicating which of those countries are countries having restricted reciprocity and where a date has been specified pursuant to subsection (3) of this section with respect to any such country indicating that date.

(7) Production of a copy of the Gazette containing such a list is evidence of the matters stated in the list and of the fact that a country shown in the list as a reciprocating country of either class continues to be a reciprocating country of that class.

DIVISION 4----GENERAL 99. Transfer of order to another court. (1) Where an interstate order or an overseas order is enforceable in Queensland, the court for the place where payments under the order are required to be made, may, where it is satisfied, upon ex parte application made by the clerk of the court or by or on behalf of the defendant, that the order can be more conveniently enforced at another place in Queensland, direct the transfer of the order to a court at that other place.

(2) Where the court gives a direction under subsection (1) of this section, the clerk of the court shall-

(a) send to the clerk of the court to which the order is directed to be transferred-

(i) all records in his office relating to the order; and (ii) a copy, certified as a true copy by the clerk of the court

that directed the transfer of the order, of the direction to transfer the order; and

MAINTENANCE ACf OF 1965 ss. 98-102 341

(b) notify the Collector accordingly. (3) Upon the transfer of an order pursuant to a direction under

subsection (1) of this section-(a) the Collector shall notify the Collector in the other Australian

State or the officer of the court or other authority in the reciprocating country, as the case may be, accordingly;

(b) the clerk of the court to which the order has been transferred shall cause to be served upon the defendant a certified copy of the direction under subsection (1) of this section, together with a notice-


(ii) stating that payments under the order are to be made to the clerk of the court to which the order has been transferred; and


to the clerk of the court to which the order has been transferred and that court shall, for all the purposes of this Act, be the court for the place where payments under the order are required to be made.

100. Payments uader this Part. Where a maintenance order is enforceable in Queensland under this Part the receipt of the clerk of the court for any moneys under the order paid to him is a sufficient discharge of the liability of a person to pay those moneys in accordance with the order.

101. Collector to notify changes in orders enforceable in other AustraUIlIl States or reciprocating countries. Where the operation of a Queensland order enforceable in another Australian State or in a reciprocating country, or the operation of an interstate order or overseas order enforceable in Queensland, is affected by an order (other than a provisional order), event or other matter made, occurring, or arising in Queensland, of which the Collector has notice, the Collector shall send to the Collector for the other Australian State, or to an appropriate officer in the reciprocating country, a certified copy of the order, or a notice in writing giving particulars of the event or other matter, by which the operation of the order so enforceable has been so affected.

102. CoUector to note changes in orders made or enforceable in Queensland. (1) Where the Collector receives from the Collector for another Australian State or from an appropriate officer in a reciprocating country a certified copy of an order (other than a provisional order), or a notice in writing giving particulars of an event or other matter made, occurring, or arising in that other Australian State, or in that reciprocating country, and affecting, in a manner appearing from the certified copy or notice, the operation of a Queensland order enforceable in that other Australian State or in that reciprocating country, or of an interstate order or overseas order enforceable in Queensland under this Part-

(a) the Collector shall forward the certified copy or notice to the clerk of the court for the place in Queensland where payments under the order are or, had the Queensland order not been made enforceable in that other Australian State or in that reciprocating country, would be required to be made; and


(b) the clerk of the court to whom the certified copy or notice is so forwarded shall-

(i) file the certified copy or notice in the court; and (ii) if the complainant or defendant is resident in Queensland,

cause a copy of the order or notice to be served on the complainant or defendant, as the case may be.

(2) Where a certified copy or notice is filed in accordance with subsection (1) of this section in relation to a maintenance order, the order, event, or matter has the like effect in Queensland as it appears from the certified copy or notice to have in that other Australian State or reciprocating country.

(3) Subsections (1) and (2) of this section do not apply in relation to an order made in a reciprocating country affecting a maintenance order in a manner adverse to the defendant unless it appears from the documents received by the Collector that the defendant appeared on the hearing of the proceedings.

103. Conversion of currency. (1) For the purposes of this Part, an overseas order (inciucting a provisional order), or a certificate or notice originating in a reciprocating country, that refers to an amount of money (including an amount of arrears) expressed in the currency of a reciprocating country shall be deemed to refer to the amount that was the equivalent amount in Australian currency on the prescribed date on the basis of the telegraphic transfer rate of exchange that prevailed on that date.

(2) For the purposes of this section, a certificate signed by the Under Secretary or the Collector, or the Collector for another Australian State, and purporting to be based on information obtained by him from a bank, that a specified amount in Australian currency was, on a specified date, the equivalent of a specified amount in another currency on the basis of the telegraphic transfer rate of exchange prevailing on that date is evidence of the matter stated in the certificate.

(3) Where a certificate in accordance with subsection (2) of this section has been filed in a court in Queensland in relation to an order, certificate, or notice, every copy of that order, certificate, or notice served on any person shall be accompanied by a copy of the first-mentioned certificate.

(4) Where, under section sixty-nine of this Act, the Collector is required to remit an amount of money to a country outside the Commonwealth, he shall remit such amount in the currency of that country as he is able to remit by the expenditure of that first-mentioned amount.

(5) In this section" the prescribed date" means-(a) in relation to a maintenance order registered under this Part

or a certificate with respect to the arrears payable under a maintenance order sought to be so registered-the day upon which the order is registered;

(b) in relation to a provisional order confirmed under this Part-the day upon which the order is confirmed; or

(c) in relation to an order or notice referred to in subsection (1) of section one hundred and two of this Act-the day upon which the certified copy of the order or the notice is filed in a court in accordance with that subsection.


104. Translation of orders, records, etc. Where a certified copy of an order of a court (including a provisional order), a record of the evidence of a witness, or other document arising out of, or relating to, proceedings in a court outside the Commonwealth is not in the English language, it shall not be used for the purpose of registering an order under this Part, or received in evidence in proceedings under this Part, unless it is accompanied by a translation of the document into the English language certified under the hand of an officer of that court to be a correct translation, or bearing the seal of that court, and where such a document is accompanied by such a translation-

(a) the translation may be received in evidence to the same extent as the document of which it is a translation and shall, unless the contrary is proved, be deemed to be a correct translation;

(b) all notations made on the document shall be made also on the translation; and

(c) any copy of the document served on any person shall be accompanied by a copy of the translation.

105. Certificate of payment of arrears. In any proceedings under or for the purposes of this Part, a certificate purporting to be signed by the clerk of the court, the Collector, the Collector for another Australian State, or an officer of a reciprocating country in which a maintenance order was made or is enforceable, concerning amounts paid or unpaid under a maintenance order is evidence of the facts stated in the certificate.

106. Evidentiary. (1) For the purposes of this Part, and in all proceedings under or arising out of this Part, a document purporting to be-

(a) a certified copy of an order (including a provisional order) of a court;

(b) the record, or a certified copy of the record, of the evidence of a witness in proceedings before a court;

(c) a certificate or notice of a kind referred to in this Divisionshall, unless the contrary is proved, be taken to be such a certified copy, record, certificate, or notice, and shall be admitted in evidence without proof of the signature of the person purporting to have signed it or of his official position.

(2) The depositions of a witness in proceedings before a court in another Australian State or in a reciprocating country, received in Queensland for the purposes of this Part, shall be admissible in evidence in proceedings under this Part in a court in Queensland.

Compare Maintenance Orders (Facilities for Enforcement) Act, 1920 (Imperial), ss. 8, 9, p. 366, post.

107. Service of documents. (1) Except where the contrary intention appears in this Part-

(a) where a document is required or permitted by this Part to be served on a person, the provisions of subsections (1) and (2) of section one hundred and fourteen of this Act shall apply with respect to that service;

(b) where a notice (not being a document referred to in paragraph (a) of this subsection) is required or permitted by this Part to be given to a person, the provisions of subsection (3) of section one hundred and fourteen of this Act shall apply with respect to the giving of that notice.


(2) Notwithstanding the provisions of subsection (1) of this section, any request or notice required or permitted by this Part to be made or given by the Under Secretary or the Collector to any person and any document required or permitted by this Part to be sent by the Under Secretary or the Collector to any person may be sent to that person by post. 108. Regulations under this Part. Without limiting the generality of section one hundred and thirty-nine of this Act, the Governor in Council may, from time to time, make such regulations, not inconsistent with this Act, prescribing and regulating-

(i) the procedure of Magistrates Courts in and in relation to proceedings under this Part;

(ii) the duties of the Collector, the Deputy Collector, Assistant Collectors and clerks of the court under this Part;

(iii) the accounts, records and books to be kept by the Collector and by clerks of the court for the purposes of this Part and the method of keeping those accounts, records and books;

(iv) the fees, costs and charges that may be charged, awarded and made under this Part;

(v) the forms to be used under this Part; and (vi) generally any act, matter, or thing required or necessary or


PART V-MISCELLANEOUS

109. Proof of marriage, etc. (1) Where it is necessary for the purposes of obtaining an order under this Act to prove a marriage, the order shall not be made unless-

(a) direct evidence of the marriage is produced to the court; or (b) evidence on oath is given of the time, place and circumstances

of the marriage. (2) In proceedings under this Act, the court may receive as evidence

of the facts stated in it a document purporting to be either the original or a certified copy of or extract from a certificate, entry or record of a birth, adoption, death, or marriage alleged to have taken place, whether in Queensland or elsewhere.

The words "direct evidence" merely require that there should be some evidence of marriage beyond reputation, Ex parte Hogan (1855), Legge (N.S.W) 880.

The complainant must prove the marriage, Axon v. Axon (1937), 59 C.L.R. 395. As to the effect of the presumption of validity arising from formalities of marriage baving taken place, the presumption that bigamy has not been committed, and the presumption of death of a former husband from seven years absence, see ibid. There is evidence of the marriage by affidavit for purposes of this section where a wife gives evidence on oath as to the marriage and signs the deposition which was also signed by the justices, Re Hansford (1877), 5 S.C.R. 3; Ex parte Sigerson (1862), 1 S.C.R.(N.S.W.) 30. As to cohabitation and evidence of a marriage ceremony in a foreign country as proof of marriage, see Ex parte Sigerson, supra.

It is for the compLainant to prove that she is the defendant's lawful wife. Where the defendant alleges that his marriage with the complainant was invalid by reason of a prior subsisting marriage to which she wa~ a party, if, on the baLance of probabilities, t'he magistrate (after giving due consideration to the presumption of the continuance of her former husband's life, where it is reasonably likely that in the ordinary course of nature he would survive) is not satisfied that he was alive at the date of the second marriage, that marriage must be upheld as valid. See Axon v. Axon (1937), 59 C.L.R. 395, at pp. 403-408.


110. Husbands and wives competent and compellable witnesses. A husband and a wife are competent and compellable witnesses in any proceedings under this Act, and any evidence given by a husband or a wife in those proceedings may be used in any court-

(a) in proceedings to which the husband and wife are parties and in which they are competent and compellable witnesses; and

(b) in proceedings for perjury committed in the course of giving that evidence.

For the crime of perjury, see Criminal Code, s. 123, title CRIMINAL LAW, Vol. 3, p. 285.

On the scope and meaning of the former section as interpreted by the Full Court see Re Bradbury, deceased, [1958] Q.W.N. 2. This section does not exclude the depositions showing the circumstances in which the original order was made upon an application for variation of a maintenance order. So held in Cumming v. Cumming; Ex parte Cumming, [1960] Qd. R. 34.

111. Resumption of cohabitation, etc., For the purposes of this Act-(a) the resumption of cohabitation by husband and wife, and the

maintenance of the wife by the husband or of the husband by the wife, for a continuous period of one month or longer shall be prima facie evidence of intention to abandon a maintenance order made for the benefit of the wife, or as the case may be, husband, in force at the date of resumption of cohabitation; and

(b) the return of a child of the family-(i) to his father, with the consent of the mother;

(ii) to his mother, with the consent of the father; or (iii) to his father or mother, with the consent of any person

interested in maintaining a maintenance order made for the benefit of the child,

and the maintenance by that father or, as the case may be, mother, of that child, for a continuous period of one month or longer, shall be prima facie evidence of intention by the mother, father, or other person, as the case may be, to abandon a maintenance order made for the benefit of the child, in force at the date of that return.

On the interpretation of paragraph (a) of this section, compare and contrast Hewitt v. Hewitt, [1952] 2 Q.B. 627; [1952] 2 All E.R. 250. See also Perry v. Perry, [1952] P. 203 (C.A.). Semble mere residence of the spouses under the same roof would not be sufficient: what will put an end to the order is not residence but cohabitation. See the judgment of Lord Goddard, C.]., in Thomas v. Thomas, [1948] 2 K.B. 294, at pp. 299-300; [1948] 2 All. E.R. 98.

The reasons t'hat led to a previous desertion may be of vital importance. If, e.g., on the first occasion the wife was driven out by a course of conduct that justified her withdrawal, a resumption of cohabitation must be on the basis that t'he husband will abstain from renewing that course of conduct. Any real indication, though over a very short period, that the offending spouse is going to behave as before, might amount to constructive desertion, although insufficient without the past history, Lane v. Lane, [1952] P. 34, at p. 37.

There can be no resumption of cohabitation within the meaning of this section between a couple whose marriage has been dissolved. The fact therefore that the parties live together after judgment absolute as if they were husband and wife does not bring them within the provisions of paragraph (a) of this section. Compare Prest v. Prest, [1949] 2 All E.R. 790; [1950] P. 63; 65 T.L.R. 729.


112. Offer to provide home. Where-(a) the conduct of a party to a marriage constitutes just cause

or excuse for the spouse of that party to live separately or apart, and-

(i) occasions the spouse to live separately or apart; or (ii) occasions the spouse to live separately or apart and to take a

child of the family from the matrimonial home; or

(b) the conduct of a parent constitutes just cause or excuse for a child of the family to live separately or apart, and occasions the child to live separately or apart,

a bona fide offer by that party or parent to provide a home for the spouse or child, as the case may be, is not of itself a sufficient answer to a complaint under this Act for the maintenance of the spouse or child, or a sufficient reason for the discharge, suspension, or variation of an order under this Act for the maintenance of the spouse or child, and, in the case of a child, the court may, if it appears just so to do having regard primarily to the welfare of the child, make a maintenance order for the benefit of the child notwithstanding that the parent is willing to receive and maintain the child in his or her own home or elsewhere.

An order for maintenance cannot be made where the husband or father makes a bona fide offer to receive back and maintain his wife or child and there is no reason why the offer should not be accepted; Winks v. Winks, [1911] St. R. Qd. 41; [1911] Q.W.N. 12; 4 Q.J.P.R. 193; Crowe v. Crowe, [1933] Q.W.N. 39; Teitzel v. Teitzel, [1927] Q.W.N. 18; 21 Q.J.P.R. 57; Chantler v. Chantler (1906), 4 C.L.R. 585; Emmett v. Emmett (1917), 11 Q.J.P.R. 125; R. v. Collins (1881), 7 V.L.R. (L.) 74; Jolley v. Jolley (1879), 5 V.L.R. 145. But an offer that is not bona fide is no bar to an order, Kelly v. Kelly (1894), 6 Q.L.J. 72; Knight v. Knight (1931),26 Tas. L.R. 135. As to the onus of proof with respect to bona fides, see Pollock v. Pollock (1932), 26 Q.J.P.R. 146; Winks v. Winks, supra. The question whether an offer to maintain is bona fide is one for the magistrate where there is some evidence upon which he may decide it, Winks v. Winks, supra; Hewitt v. Hewitt, [1911] Q.W.N. 18; 4 Q.J.P.R. 202; Henderson v. Henderson, [1918] Q.W.N. 16; 11 Q.J.P.R. 128.

A bona fide offer is no bar to an order in favour of a wife where the wife has reasonable grounds to anticipate future violence, Crowe v. Crowe, supra; Re Hansford (1877), 5 S.C.R. 3.

For examples of offer of a home by the defendant husband, see Staples v. Staples, [1938] St. R. Qd. 162; 31 Q.J.P.R. 180; Regal v. Regal; Ex parte Regal, [1939] St. R. Qd. 63; 33 Q.J.P.R. 10; Ex parte Powter (1946) 63 W.N.(N.S.W.) 34; Munt v. Munt, [1947] Q.W.N. 2; 41 Q.J.P.R. 62. For the implications of bona fide as applied to such an offer, see Healy v. Healy, [1945] St. R. Qd. 65; 39 Q.J.P.R. 93. For an example of an unreasonable refusal of an offer of a home out of the jurisdiction, see Carrington v. Carrington, [1953] Q.W.N. 7, where Hanger, J., set aside a maintenance order.

113. Application of "The Justices Acts, 1886 to 1964". (1) So far as is not inconsistent with this Act, the provisions of "The Justices Acts, 1886 to 1964," relating to complaints, summonses and warrants and the service or execution thereof, and the proof of such service or execution, and relating to proceedings in Magistrates Courts, orders made by Magistrates Courts and other acts and things done by Magistrates Courts, shall, with all necessary adaptations and modifications, extend and apply to and with respect to complaints, summonses and warrants made or issued and proceedings instituted and orders made by and other acts and things done by a court or justice under and by virtue of this Act


in like manner as if the complaints, summonses and warrants had been made or issued, the proceedings instituted, the orders made, or the other acts and things done under" The Justices Acts, 1886 to 1964 ":

Provided that the provisions of section one hundred and thirty-nine of "The Justices Acts, 1886 to 1964," with respect to the place where a complaint of a simple offence or breach of duty may be heard and determined shall not apply with respect to proceedings under this Act.

(2) The provisions of Part X of" The Justices Acts, 1886 to 1964," relating to the protection of a justice with respect to any act done by him shall, with such modifications as are necessary, extend and apply to and with respect to acts done by a clerk of the court in pursuance of this Act.


Jurisdiction to make an order for maintenance of an illegitimate child is not affected by the fact that the child is at the time the order is made out of the Petty Sessions District or out of Queensland, Nurmberger v. Reynolds, [1931] Q.W.N. 24; 25 Q.J.P.R. 110.

As to complaints, see Justices Acts, 1886 to 1965, ss. 42 et seq., title JUSTICES, Vol. 8, p. 123.

As to summonses, see ibid., ss. 53 et seq., Vol. 8, p. 130. As to warrants, see ibid., ss. 57 et seq., Vol. 8, p. 133. As to service of summonses and warrants, see ibid., S8. 56, J 03, 142, Vol. 8,

pp. 132, 151, 166. As to service, see also s. 114, post. As to complaints and summonses, see also s. 115, post. As to warrants, see also s. 116, post.

114. Service of documents, etc. (1) Any document required or permitted by this Act to be served on a person shall, unless otherwise provided by this Act, be served as if it were a summons and the provisions of subsection (1) of section one hundred and thirteen of this Act shall apply accordingly.

(2) If the court, on evidence on oath or by affidavit, is satisfied that from any cause any summons or other document required or permitted by this Act to be served on a person has not been and cannot promptly be served on that person, the court may make such order for substituted or other service of the summons or other document or for the substitution for service of notice by advertisement or otherwise as to the court seems just.

(3) Any notice (not being a document referred to in subsection (1) of this section) required or permitted by this Act to be given to a person may, unless otherwise provided by this Act, be given to that person-

(a) by serving it on that person as though it were a summons under this Act; or

(b) by sending it to that person by registered post at his usual or lastknown place of address or business.

See also s. 113. As to service by post, see also, Acts Interpretation Acts, 1954 to 1962, s. 39,

title ACTS OF PARLIAMENT, Vol. 1, p. 100. As to the necessity of proving prepayment of postage, see Walthamstow

District Council v. Henwood, [1897] 1 Ch. 41. See as to posting generally, 15 Halsbury's Laws of England, 3rd ed., p. 406;

22 English and Empire Digest (Rpl.), pp. 361 et seq.

348 MARRIAGE AND DIVORCE VoL 11

115. Complaints to be in writing and on oath, etc. (1) A complaint made for the purposes of this Act shall be in writing and on oath before a justice.

(2) A justice before whom any complaint is made under this Act(a) may issue a summons addressed to the defendant to attend

the court upon the hearing of the complaint; (b) if satisfied by oath that the whereabouts of the defendant are

unknown to the complainant, or that the defendant is about to remove out of Queensland or into a distant part of Queensland, or has so moved, and that such removal or intended removal may unreasonably delay the hearing of the complaint or may tend to defeat any of the provisions of this Act or may enable the defendant to avoid service of a summons under this Act, may issue a warrant for the apprehension of the defendant and for his being brought before a court pursuant to this Act.

(3) Two or more complaints made under this Act against a defendant by a complainant, whether on the complainant's own behalf, on behalf of other persons, or both on the complainant's own behalf and on behalf of other persons, may, if the court thinks fit, be heard and determined by the court at the same time, but an order in respect of each complaint shall be a separate order.

(4) Where complaints are made under this Act against a defendant by a complainant on behalf of more than one child of the family or more than one illegitimate child, the complaints may be joined in the one form of complaint and one summons may be issued in respect of all complaints so joined, but an order in respect of each complaint shall be a separate order.

(5) Where complaints for the maintenance-(a) of a child of the family are made by the same person against

the father as well as the mother of the child; (b) of an illegitimate child are made by the same person against

a person alleged to be the father of the child as well as against the mother of the child-

the complaints may, if the court thinks fit, be heard and determined by the court at the same time, but an order in respect of each complaint shall be a separate order.

As to waiver of the irregularity that the complaint is not on oath by failure to object, see Ashlin v. Coulson (1932), 27 Tas. L.R. 5.

The justice is not bound to issue a summons without examination and inquiry, and a mandamus will not be granted where the justice in his discretion oonsiders that to issue it would be vexatious, Crozier v. Myers (1915), 17 N.Z.G.L.R. 583.

As to complaints and summonses, see also the provisions of the Justices Acts, 1886 to 1965, title JUSTICES, noted to s. 113, ante.

116. Court may proceed in defendant's absence in certain cases. (1) Where the defendant does not appear before the court in obedience to a summons issued in relation to a complaint under this Act or on any day to which the hearing of that complaint is adjourned, the court may, upon proof that the summons was duly served on the defendant a reasonable time before the day appointed for his appearance-

(a) issue a warrant for the apprehension of the defendant, and adjourn the hearing of the complaint until the defendant is brought before the court; or


(b) proceed to hear and determine the complaint in the absence of the defendant.

(2) Where a warrant has been issued under this Act for the apprehension of a defendant (whether in the first instance or upon the defendant failing to appear as aforesaid) and the court is satisfied that, after strict enquiry and search, the defendant cannot be found, the court may proceed to hear the complaint in the absence of the defendant.

(3) The enquiry and search made for the defendant for the purposes of this section may be proved by the evidence given orally or by affidavit of the person or persons who made such enquiry and search.

Where a warrant was issued out of court in one district pursuant to this section for the apprehension of a person in default under a maintenance order made against him, and that person was apprehended and taken before a court in another district, it was held by the Full Court that the court in the district where that person was apprehended had no jurisdiction to hear the complaint against him, and should have remanded him in custody to the court out of which the warrant had issued, Uppman v. Uppman; Ex parte Uppman, [1961] Q.W.N. 27.

As to warrants, compare the provisions of the Justices Acts, 1886 to 1965, title JUSTICES, Vol. 8, noted to s. 113, ante.

For power to set aside an order made in the absence of the defendant, see s. 118.

117. Applications to be in writing. (1) An application to a court for the purposes of this Act shall be in writing made to the court at which the application is, by the application, set down for hearing.

(2) Except where an ex parte application may be made under this Act, the court may, after service of notice of the application upon such persons as appear to the court to be affected by the application, proceed to hear the application whether or not any person to whom any such notice has been issued is present at the hearing.

(3) Any person on whom any such notice has been served shall be entitled to be heard and may be represented by counselor solicitor, and may examine and cross-examine the witnesses giving evidence for or against him respectively.

118. Court may set aside order made in the absence of the defendant. (1) Where a court proceeds pursuant to section one hundred and sixteen of this Act to make an order against a defendant who was not served with a summons and who did not appear at the hearing, the defendant may, within twenty-one days after the order comes to his notice, (proof of which time lies upon the defendant) or, with the leave of the court, at any later date, apply to the court that made the order to set aside the order and rehear the matter of the complaint in respect of which the order was made.

(2) Notice in writing of intention to make an application under subsection (I) of this section shall be lodged with the clerk of the court, and a copy thereof, together with notice of the place, date and time fixed for the hearing of the application, shall be served upon the person who was the complainant in the proceedings in which the order was made.

(3) Upon proof of due service of the notice referred to in subsection (2) of this section, the court may, if it thinks it just in the circumstances of the case so to do, set aside the order made in the absence of the defendant on such terms as to costs as it thinks fit, and may proceed to rehear the matter of the complaint in respect of which the order was made in accordance with the provisions of Part II of this Act.


(4) Any order made pursuant to subsection (3) of this section may be made to take effect from any date upon which the order set aside could have been made to take effect pursuant to section twenty-seven of this Act.

(5) The provisions of this section shall be in addition to and not in diminution of the provisions of section one hundred and thirty-four of this Act.

As to orders made in the absence of the defendant, see s. 116.

119. Complaints or applications made on behalf of persons. (1) A complaint or an application under this Act purporting to be made on behalf of a person is, in the absence of evidence to the contrary, deemed to be made on behalf of that person.

(2) Where a complaint or an application under this Act may be made by a person on behalf of a child that person may make the complaint or application whether or not he has been duly authorised so to do.

120. Evidence of earnings. (1) Where, in proceedings before a court for the purposes of this Act, it is material to ascertain the earnings of a person, the court may receive as evidence of those earnings a statement in writing signed by-

(a) the employer of that person; or (b) a person employed by that employer as manager, secretary,

accountant, or in such other capacity as, in the opinion of the court, qualifies him to testify of his own knowledge as to the earnings of the person whose earnings are in question.

(2) A document purporting to be a statement in writing referred to in subsection (1) of this section shall, in any proceeding under or by virtue of this Act, unless the contrary is shown, be deemed without further proof to be such a statement.

For power of the court to require a defendant to disclose his earnings, his employer, etc., see s. 126.

121. Payments under orders. (1) Subject to any directions given under this Act with respect to the appropriation of moneys and to any express directions given by the defendant in relation thereto any moneys received under an order for the payment of moneys made under this Act by the person entitled to receive those moneys shall be deemed a payment made by the defendant to that person, so as to discharge, to the extent of the moneys received, firstly any sums due and unpaid under the order (a sum due at an earlier date being discharged before a sum due at a later date) and secondly any costs incurred in proceedings relating to the order that were payable by the defendant in respect of any previous proceedings for the enforcement of the order.

(2) Subject to any directions given under this Act with respect to the appropriation of moneys and to any express directions given by the defendant in relation thereto, the Collector or clerk of the court, as the case may be, may disburse any moneys received by him from the defendant in relation to a maintenance order whether or not those moneys were, at the time of such disbursement, due and owing under the maintenance order.

See further ss. 122, 123.

122. Further orders. (1) Where an order under this Act directs the payment of moneys, the court may, by that or a subsequent order, give such directions as it thinks necessary relating to the mode of payment


of moneys under the order, for regulating the receipt and disbursement of the moneys, for investing and applying the proceeds of the sale of any goods, chattels, or securities directed to be sold or any annuity, rents or income directed to be collected, under an order made under this Act, for ensuring the proper appropriation of those moneys or for causing any child for whose benefit those moneys are payable to be properly brought up and educated.

(2) A direction may be given under subsection (1) of this section, at the discretion of the court-

(a) either with or without any application for the direction; and (b) either upon notice of any such application being given to the

defendant against whom the order was made or without any such notice being given.

See further ss. 121, 123.

123. Appropriation of moneys. (1) Where-(a) the clerk of the court for the place where payments under

two or more orders made against the same defendant are required to be made under this Act receives from the defendant an amount that is less than the total amount payable under those orders; and

(b) no order for the appropriation of that amount has been given by the defendant to the clerk,

the clerk shall, subject to section one hundred and twenty-one of this Act, and to any direction given under section one hundred and twentytwo of this Act, appropriate that amount to the payment of the sums payable under each of the orders in such manner as the clerk thinks proper or, where a manner is prescribed, in that manner.

124. Certificate of clerk of the court. (1) A certificate purporting to be under the hand of a clerk of the court for a place where payments under an order enforceable under this Act are required to be made-

(a) that any payment under the order is or is not recorded in his office at that place; or

(b) that an amount stated in that certificate in respect of such payments was in arrears and not paid on a date specified therein,

shall be received in evidence and shall be prima facie proof of the matters certified to therein.

(2) Upon production of a certificate pursuant to subsection (1) of this section, it shall be presumed, until the contrary is proved, that the payments which are recorded in the office of the clerk of the court and referred to in the certificate are the only payments that have been made.

125. Agreement no bar to making of maintenance order. An agreement by a husband, wife, father, or mother shall not take away or restrict any of the liabilities of the husband, wife, father, or mother under this Act in respect of the maintenance of a person, or affect the operation of a maintenance order against the husband, wife, father, or mother, or the right of the court to make any such order, but the court may, having regard to the existence of the agreement and to all the circumstances of the case, refuse to make any such order.

See on this point Davies v. Davies (1919), 26 C.L.R. 348; Hyman v. Hyman, [1929] A.C. 601; Cooper v. Cooper (1941), 65 C.L.R. 162, at p. 165.

See further Litherland on Maintenance of Deserted Wives and Children, 2nd ed., pp. 153, 197.


126. Court may require defendant to state his employer, etc. (1) In any proceedings under this Act, the court may-

(a) direct the defendant to attend before the court, at a specified time, to be examined concerning his means and ability to comply with any order enforceable against him under this Act;

(b) direct the defendant to state to the court or to furnish to the court within a specified period a statement signed by the defendant specifying-(i) the name and address of his employer or, if he has more

employers than one, of each of his employers; (ii) particulars as to the defendant's earnings; and (iii) such particulars as the court thinks are necessary to enable

the defendant to be identified by any of his employers; or (c) direct any person who appears to the court to be indebted

to the defendant or to be the employer of the defendant to furnish to the court, within any time fixed by the court, a statement signed by him or on his behalf containing such particulars as are specified in the direction of his indebtedness to the defendant or of all the earnings of the defendant that became payable by that person during a specified period, as the case may be.

(2) A document purporting to be a statement referred to in subsection (1) of this section shall be received in evidence in any proceedings under this Act and shall, unless the contrary is shown, be deemed without further proof to be such a statement.

(3) Any person who-(a) without reasonable cause or excuse, refuses or fails to comply

with a direction under this section that is applicable to him; or

(b) in any statement furnished to a court pursuant to the provisions of this section, makes a statement that he knows to be false or misleading in a material particular or does not believe on reasonable grounds to be true,

shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.


See further as to evidence of earnings, s. 120.

U7. Proceedings for the enforcement of orders. Except as in this Act otherwise provided, all proceedings under this Act for the enforcement of an order enforceable in Queensland under this Act or for the recovery of moneys due under an order enforceable in Queensland under this Act may be taken concurrently or successively with any other such proceedings under this Act.

As to the enforcement of orders, see ss. 41-66, 81, 9l.

128. Hearing of complaints in camera. (1) Except as hereinafter provided, upon and during the hearing of a complaint under Subdivision (4), (5), or (6) (so far as it relates to an illegitimate child or the mother of an illegitimate child) of Division I of Part II of this Act, no person shall be or be permitted to be present in the court except the following-

(a) the adjudicating magistrate, the officers of the court and a member of the Police Force;


(b) the complainant and the defendant and their respective counsel and solicitors;

(c) the mother or sister or other relative or friend of the complainant if so desired by the complainant;

(d) any person whilst being examined as a witness; (e) the mother or sister or other relative or friend of any female

witness if so desired by the witness whilst being examined; (f) an officer of the Department of Children's Services; (g) an officer of the Public Service authorised by the Minister

so to appear pursuant to section one hundred and thirty-two of this Act; and

(h) any representative of any organisation or institution interested in the care of deserted wives or children, illegitimate children, or the mothers of illegitimate children, and permitted by the adjudicating Magistrate to be present:

Provided that the court may, if of the opinion that there are special circumstances that make it necessary or desirable in the interests of the proper administration of justice so to do, permit any other person to be present.

(2) The provisions of subsection (1) of this section shall, with such modifications and adaptations as are necessary, extend and apply to the hearing of-

(a) any appeal against a decision or order made upon any complaint referred to in that subsection; and

(b) any application for the discharge, suspension, variation, or annulment of a maintenance order made upon any such complaint and any appeal against a decision or order made upon any such application.

(3) Notwithstanding the provisions of section seventy of "The Justices Acts, 1886 to 1964," where, in any proceedings under this Act, the court is satisfied that there are special circumstances that make it necessary or desirable in the interests of the proper administration of justice that the proceedings, or any part of the proceedings, should not be heard in open court, the court may order that any persons, not being party to the proceedings or their counselor solicitors, shall be excluded during the hearing of the proceedings, or the part of the proceedings, as the case may be.


129. Publication of proceedings. (1) Any person who publishes, or causes to be published, in a newspaper or periodical, or by means of broadcasting, television, or public exhibition any report or account of the proceedings or any part of the proceedings referred to in subsection (1) of section one hundred and twenty-eight of this Act shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.

(2) The court, in relation to any proceedings under this Act, may by order prohibit the publication of-

12

(a) any report or account of the proceedings or any part of the proceedings; or

(b) the name or address or any other information reasonably likely to disclose the identity of any person involved in or connected with the proceedings.


(3) Any person who publishes or causes to be published in a newspaper or periodical, or by means of broadcasting, television, or public exhibition any matter the publication of which is prohibited by reason of an order made under subsection (2) of this section shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.

(4) Where an offence against this Act arising under any provision of this section is constituted by the publication of the prohibited matter in a newspaper or periodical, the proprietor, publisher and printer of that newspaper or periodical shall each also be guilty of the offence and liable to the penalty as prescribed.

(5) In this section the terms "newspaper", "proprietor", " publisher" and "printer" shall respectively have the meanings assigned to those terms by " The Printers and Newspapers Act of 1953."

(6) Subject to subsection (7) of this section, this section and any order under this section applies so as not to prevent or prohibit the publication of a report of any proceedings under this Act-

(a) in, or in any separate volume or part of, any bona fide series of law reports not forming part of any other publication and comprising solely reports of proceedings in courts of law; or

(b) in any publication of a technical character bona fide intended for circulation amongst members of the legal or medical profession.

(7) A report authorised by subsection (6) of this section shall not contain any name or address or any other information reasonably likely to disclose the identity of any person involved in or connected with any proceedings referred to in subsection (1) of this section or any proceedings with respect to which an order has been made under subsection (2) of this section.

Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1965.

Act referred to: Printers and Newspapers Act of 1953, title PRINTING.

130. Conciliation. (I) If, upon the hearing of a complaint or application under this Act, it appears to the court-

(a) that the proceedings result directly or indirectly from a dispute or difference between husband and wife; and

(b) that there are reasonable prospects of settling the dispute or difference by conciliation-

the court may, at any stage of the proceedings, do all such things and take all such steps as may, in the opinion of the court, effect a settlement of the dispute or difference by conciliation.

(2) If the husband and wife fail to be reconciled, the court may complete the hearing and determination of the proceedings unless, in the absolute discretion of the court, it appears that the court is or is likely to be biassed by any statement or admission not provable or admissible in evidence made by the husband or wife, or by his or her demeanour, in the course of any thing done or step taken by the court under this section.


(3) Neither the fact that a husband or wife made a statement or admission in the course of any thing done or step taken by the court under this section to effect a reconciliation nor that statement or admission shall be used in evidence in any proceedings under this Act or under any other Act or law.

The rule as to communications "without prejudice" applies with special force to negotiations for reconciliation. Such discussion is privileged from disclosure, even though nothing was said to that effect, and must not influence an adjudicating magistrate. See the observations of Cohen, L.J., and Denning, LJ., in McTaggart v. McTaggart, [1949] P. 94; [1948] 2 All E.R. 754, on the position of a probation officer. See also the decision of the Court of Appeal in Mole v. Mole, [1950] 2 All E.R. 328 (letter written to probation officer by husband privileged), applying McTaggart v. McTaggart, supra and not accepting the correctness of Bostock v. Bostock, [1950] 1 All E.R. 25.

Except in matters relating to the maintenance of infants, it is not desirable that a magistrate or justices, at any stage of the hearing, should see the parties separately and individually, even with the consent of counsel. Where the bench desires to see the spouses apart from their legal advisers, it should see them together. Compare the observations of Evershed, M.R., in Stevens v. Stevens, [1954] 2 All E.R. 381 at 384.

131. Costs. Except as may be otherwise prescribed, the court may, in any proceedings under this Act, in its discretion, order the payment of such costs by such parties as to the court seems just and reasonable.

132. Appearance by officers of the Public Service. (1) The Minister may authorise one or more officers of the Public Service to appear on behalf of the complainant or applicant in any proceedings under this Act to which the officer's authority extends.

(2) Any such authority may be given in respect of particular proceedings, or any class or classes of proceedings, under this Act.

(3) An officer so authorised shall be entitled to appear and be heard in any proceedings to which his authority extends as if he were the complainant or applicant in those proceedings.

(4) Professional costs may be allowed in respect of any such appearance and any professional costs so allowed shall, when recovered, be paid to Consolidated Revenue.

133. Children in care. Where an order for the maintenance of a child is enforceable under this Act, and the child becomes a " child in care" under" The Children's Services Act of 1965," all moneys becoming due thereafter under the order whilst the child remains a " child in care" shall, upon payment or recovery, be disbursed by the clerk of the court to the Director of the Department of Children's Services for or towards the maintenance of the child.

Act referred to: Children's Services Act of 1965, No. 42, 1965 Annual Volume, p. 517.

134. Appeals. (1) Except as otherwise provided in this Act, the provisions of Part IX of " The Justices Acts, 1886 to 1964," relating to appeals from the decisions of justices, shall extend and apply to and with respect to all proceedings under this Act.

(2) Where an appeal is made pursuant to subsection (1) of this section against an order directing the payment of moneys or against an order varying such an order, the court to which the appeal is made may stay the order and, if it thinks fit, in addition may make a temporary order to take effect during the pendency of the appeal.

356 MARRIAGE AND DIVORCE Vol 11

(3) A court making a temporary order under subsection (2) of this section may exercise all the powers of the court that made the stayed order.

(4) A temporary order made under subsection (2) of this section may, upon service of a copy thereof upon the clerk of the court that made the order appealed against, be enforced in the same manner in all respects as if it were a final order, but shall not be subject to appeal, nor, except by the court by which it was made, to discharge, suspension, or variation.

(5) Where an order has been made under section sixteen of this Act for the benefit of a pregnant woman, and the defendant in his notice of appeal requests that the appeal be not heard before the birth of the child, the appeal court may, in its discretion, order that the appeal be adjourned to the first sittings of the appeal court to be held after a period of one month after the birth of the child or to any subsequent sittings of the court.

(6) At the request of either party to an appeal against a decision on a complaint made on behalf of a child, the child shall be produced in court.


135. General penalty. Any person guilty of an offence against any provision of this Act for which no specific penalty is provided shall be liable to a penalty not exceeding two hundred dollars or imprisonment for a term not exceeding six months.


136. Summary proceedings. (1) All offences against this Act may be prosecuted in a summary way under" The Justices Acts, 1886 to 1964."

(2) A prosecution for an offence against this Act may be instituted at any time within twelve months after the commission of the offence or within six months after the commission of the offence comes to the knowledge of the complainant, whichever is the later period.

(3) Proceedings for an offence against this Act may be commenced by any person authorised by the Minister or by any clerk of the court.

(4) The provisions of subsection (2) of this section shall not limit the time for taking any proceedings under this Act for the enforcement of an order enforceable under this Act or for the recovery of moneys due under such an order.

(5) A complaint under section forty-two of this Act may be made at any time.


137. Common law, etc., liability of husband preserved. Nothing in this Act shall take away or diminish any liability of a husband under any other Act or law in respect of contracts made by a wife deserted by her husband without reasonable cause.

138. Power of Governor in Council to release on recognizance persons imprisoned pursuant to this Act. (1) The Governor in Council, on the recommendation of the Crown Law Officer, may direct the discharge from prison of any person (hereinafter in this section called the " defendant") imprisoned in default of compliance with any order enforceable in Queensland under this Act or ordered to be imprisoned

MAINTENANCE ACT OF 1965 88.134-138 357

for breach at any time of a recognizance as hereinafter in this section provided, and the Governor in Council may, in any such case, direct the discharge subject to the condition that the defendant enter into a recognizance as hereinafter provided.

(2) Every such recognizance-(a) shall be in such amount and with or without sureties as the

Governor in Council on such recommendation directs; (b) shall be conditioned that the defendant comply with the

aforesaid order so far as such order directs him to pay maintenance for the benefit of any person, or if the Governor in Council on such recommendation thinks fit, shall be conditioned that the defendant pay any specified sum less than the sum directed in the aforesaid order; and

(c) may, if the Governor in Council on such recommendation thinks fit, contain additional conditions with respect to all or any of the following matters-

(i) for securing the person for whose benefit the order was made against molestation by the defendant;

(ii) as to the abstention of the defendant from intoxicating liquor and as to prohibiting him from residing in, frequenting, or visiting premises where such liquor is sold or disl)osed of; and

(iii) generally, for securing that the defendant will be of good behaviour.

(3) Where a recognizance is entered into under this section, the defendant shall be released from custody but shall be liable to be ordered to be imprisoned again in the circumstances hereinafter set out.

(4) Where it appears to a justice upon complaint on oath that the defendant has failed to observe any of the conditions of his recognizance, the justice may issue a summons under his hand requiring the defendant to attend before a court to be dealt with according to law or may issue a warrant under his hand to apprehend the defendant and bring him before a court to be dealt with according to law.

(5) Where the court is satisfied that the defendant has failed to observe any condition of his recognizance, the court may adjudge him to be guilty of a breach thereof and order that the recognizance be forfeited, and may thereupon order that the defendant be imprisoned for the unexpired portion of the term for which he was originally ordered to be imprisoned or (as the case may be) until he has complied with the order referred to in subsection (1) of this section.

(6) Where the court, under subsection (5) of this section, orders a recognizance to be forfeited, it shall cause the recognizance to be estreated and such estreat shall be effected in accordance with section four of " The Crown Remedies Acts, 1874 to 1956 " :

Provided that any moneys arising out of the estreat of any such recognizance shall be applied for or towards the payment of moneys due or becoming due under the order.

(7) For the purposes of this section the term" Crown Law Officer" means the Attorney-General or Solicitor-General.

Act referred to: Crown Remedies Acts, 1874 to 1956, title CROWN, Vol. 4. p. 338.

As to imprisonment, see s. 42.


139. Regulations. (I) The Governor in Council may, from time to time, make such regulations, not inconsistent with this Act, prescribing all matters and things that are necessary or convenient for carrying out or giving effect to this Act.

(2) Regulations may be made under this Act at any time after the passing hereof.

For regulations, see Table of Contents, p. 242. ante.

140. Publication of Proclamations, etc. (I) Every Proclamation, Order in Council and regulation made under this Act shall-

(i) be published in the Gazette; (ii) upon its publication in the Gazette, be judicially noticed and

such publication shall be conclusive evidence of the matters contained therein;

(iii) take effect from such publication unless, in the case of any such regulation, a later date is specified in that or in any other regulation for its commencement when in such case it shall take effect from that later date;

(iv) be laid before the Legislative Assembly within fourteen sitting days after such publication if the Legislative Assembly is in session, and, if not, then within fourteen sitting days after the commencement of the next session.

(2) If the Legislative Assembly passes a resolution of which notice has been given at any time within fourteen sitting days after any such Proclamation, Order in Council, or regulation has been laid before it disallowing such Proclamation, Order in Council, or regulation, or part thereof, that Proclamation, Order in Council, regulation, or part shall thereupon cease to have effect but without prejudice to the validity of anything done in the meantime or to the making of a further Proclamation, Order in Council, or regulation.

THE SCHEDULE (Section 4)

Collective Title of Act I Extent of Repeal

" The Interstate Destitute The whole Persons Relief Acts, 1914 to 1944 "

" The Maintenance Acts. 1949 The whole to 1954 "

" The Maintenance Orders The whole (Facilities for Enforcement) Acts, 1921 to 1959"

Date of Repeal

The date of the commencement of Division 2 of Part IV of this Act

The date of the commencement of this Act

The date of the commencement of Division 3 of Part IV of this Act

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THE MAINTENANCE ACT 1965

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