the mother or any reputable person) in case of the desertion by any father of his child or children or where any child shall have been left by the father without adequate means of support and the like proceed- ings may thereupon in every such case be taken against the father and such inquiry be had touching his ability to maintain such child or children aud the like order or orders be made in respect thereof as are hereinbefore directed or authorised respectively with regard to the desertion or maintenance of a wife.
Certa.in prima facie evidence of desertion is established by The Deserted Wives and Children Act Amendment Act of 1858, s. 7, post.
The fact that a child is a child of the State under The State Children Act of 1911 (title CHILDREN) does not interfere with the right to take proceed- ings under this Act for mnintennnce (B. v. Acting Police Magistrate at Brisbanr
Ex parte Arndt, [ 1930] St. R. Qd. 154). · '
The word ''child'' in this section means a person under the age of twenty-one years (Elf'vcrson v. Tronson, [1906] Q.W.N. 41, further cited uurh•r s. 9, post).
Deserted W-ives ancl Children Act of
1840. ss. 7, 8.A father does not leave his child without means of support where it hn,s been taken from his home without his consent and he refuses to maintain it unless it is returned to his home ( Chantler v. Chantler (1906), 4 C.L.R. 585;
M'Farlancl v. M'Fatland (1875), 1 V.L.R. (L.) 303). See further, notes to s. 2, ante.
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 Loth (Lollde v. Lohde, [1916] St. R. Qd. 117; [1916] Q.W.N. 28; 10 Q.J.P.R.
78).
As to desertion and leaving without means of support, see also the notes to s. 2, ante.
For the misdcme:mour of desertion of children under fourteen years of age, sec 'I'he Criminal Code (1899), s. 364, title CRIMINAL LAW. Cf. ibid., s. 286. For the summary offence of neglecting children, see The Children's Protection Act, 1896, s. 1, title CHILDREN.
8. Provisions as to illegitimate children.-rrhe preceding section
~hall ('Xtend to and include illegitimate children as well as childl'en horn in wedlock
Provided that no man shall be taken to be the father of any illegitimate child upon the oath of the mother only
Proviclt>d also that in every case where it shall appear to the Justices that th~ mother· of an illegitimate child is able to contribute to its support it f.lhall he lawful for them to <lirect that she shall so contribute as well as th<> i'atlH'I' in such proportions respectively an(l in sueh ma11ner as such J'ustiees shall think fit and if in any such case it shall appear that the mother only is of such ability it shall be lawful for the Justices to make an order in respect of her alone.
Provision for recovery from the father of an illegitimate child of confine·
ment expenses and burial expenses is made by The Infant Life Protection Act of 1905, s. 16, title CHILDREN. See notes to that section. And under that section proceedings may be taken against the father of an illegitimate child for maintenance even before the birth of the child. Where proceedings are so 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.J.P.R. 165).
A mother who is an infant need not sue by her next friend (Ex parte Townsend (1906), 6 N.S.W.S.R. 260).
An applieation may be made on behalf of the deceased mother of an illegitimate ch,ild and an order may be made on such an application (Lynarn
"· Fielrl (1916), 10 Q.J.P. 211 (Mag. Cas.); Ex patte Austen (1897), 18 N.S.W.L.R. (L.) 216).
Proceedings can be taken by a married woman who has given birth to an illegitimate child (Pemce v. Kitchin (1931), 26 Tas. L.R. 38). A husband or wife cannot give evidence that he or she had no intercourse with the other spouse during the time when the child was conceived, on the ground that such evidence would tend to bastardise the child (Russell v. Russell, [19241 A.O. 687; Dic7t v. Dick, [1927} St. R. Qd. 365; [1927] Q.W.N. 56; Allen v.
Noble, [1013] Q.W.N. 4; 6 Q.J.P.R. 123; Martin v. Smith, [1932] Q.W.N. 25;
Halsbury's Laws of England (2nd ed.), Vol. 10, p. 663). But a wife may give evidence of intercourse with a man other ~han her husband (Pearce v.
Kitchin, S1lpra; Dick v. Dick, S?tpra). And evidence of non·access may be given by other persons (Dick v. Diclv, supra).
There is no jurisdiction to make an order for maintenance of an illegitimate child which has ceased to be a Queensland child, but the mere fact that the child is out of Queensland for the time beinq does not prevent an order from being- made (N7t.rmber_qrr v. Reunolds! f1931J. Q.W:N. 24; 25 Q.J.P.R. 11?).
Cf. 0. v. T. [1932] W.A.L.R. 65 (clnld concewed m State, but born outs1de and had alw~ys remained outside; no jurisdiction).
Desertion of an illegitimate <•hild must be a dN>ertion which leaves the child without means of support ( R. v. ,T1t.qtice.~ of South Brisbanr, ex parte Thornton, ["190a 1 Rt. R. Qd. ~;)~), and in Ruch n <·n~e the eoml_lh~int must allege that the child was left w1thout adeqnatc men ns of support ( tbui.).
s. 8.
JJ arriage and Divorce. [VoL VI ..
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).
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 susten·
ance of the child (R. v. Police Magistrate at Smtih Brisbane, Ex parte·
Hinchcliff, [1911] Q.W.N. 26; 5 Q.J.P.R. 115).
At 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 N.S.W.S.R. 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.
Corroborative Evidence of Paternity.-~The corroborative evidence must be evidence of some person other than the mother (Riclley v. Whipp (1916),.
22 C.L.R. 381). 'l'hus a complainant cannot corroborate her own evidence by producing a letter which she swears is in the handwriting of the defendant
( Crtdchfield v. Lee, [1934] V.L.R. 146).
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 evidenee 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 reason- able 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 corrobora- tive 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 ( 0 'Leary v. McKee,.
s1tpra; Riclley 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- (19]2), 31 N.Z.L.R. 282; Hoxman v. Barnclen (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 corrobora-·
tive (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 N.Z.G.L.R. 150; Hockey v ..
Rossiter, [1929] S.A.S.R. 240; S·tandfielcl 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. Ch1trch (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 andt
Deserte£l TV-ives
anclChildren Act of
1840. ss. 8, 9.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 a~missions are ac~ompanied. by a complete denial of paternity, the Court nuty disregard the demal and g1ve effect to the admissions (Moore v.
Mahony (1901), 27 V.L.R. 166). As to respondent's behaviour and words when eharged as supplying corroboration, see also Frost v. Allen (1919) 15 Tas. L.R.
12; Cmtlston v. Taylor (1909), 28 N.Z.L.R. 807; Anson v. P~rker [1928]
N.Z.L.R. 490; Ex parte Thrift (1924), 24 N.S.W.S.R. 450; Ex parte M~Pherson (1932), 32 N.S.W.S.R. 525; Ex parte Gorton (1932), 49 N.S.W.W.N. 192; Mars v. McMahon, [1929] S.A.S.R. 179.
Physical rcscmhlanee 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 1 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 J 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. Q~. 62; f19121 Q.W.N. 12; 6 Q.~.P.R. 3; Schafer v. Busteed, (1913]
Q.W.N. h; 6 Q.J.P.R. 173; Wendt v. Ltnd, (1913] St. R. Qd. 240; (1913]
Q.W.N. 53; 7 Q.J.P.R. 139; Harper v. Co1mter, [1913] St. R. Qd. 249;
[1913] Q.W.N. 55; 7 Q.J.P.R. 161; Lihon 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. Reirrler, [1915 J Q.W.N. 24; 9 Q.J.P.R.177; O'Leary v. McKee, [1924] St. R. Qd. 211 (defendant .forced <•.omplainnnt to sign a document exculpating him); Dunne v. Ca-mpbell, 119:10 I Ht. R. Qcl. :.ll4; 24 Q .. T.P.R. 98; Bates v. Griffiths, f1935] Q.W.N. 20;
~ll Q .. T.P.R. 71; MeV city v. Blain (1908), 2 Q.J.P.R. 153; Dempsey v. Bright (1910), 4 Q .• T.P.R. 182; Bourke v. Ram.~ay (1922), 17 Q.J.P.R. 1; Nurrnberger v. BCJJnolds, [1931] Q.W.N. 24; 25 Q.J.P.R. 110; Winwood v. Cooper, [1929 j Q.W.N. 37; 23 Q.J.P.R.l22 (date of conception); Bradford v. Crutch, [19301 q.W.N. 19; King v. Deel, [1932] Q.W.N. 4.
An order may be made even without the evidence of the mother (Ex parte Austen (1897), 18 N.S.W.L.R. (L.) 216).
9. Proceedings for enforcing orders under this Act.-It shall be lawful for the Justices by whom any order shall have been made under this Act touching the support of any v;rife or child or for any other two Justices from time to time in a summary way (with or without any application for that purpose) to make such orders in writing as they may think necessary for better securing the payment and regulating the receipt of the allowance directed for such wife's or child's support or for investing and applying the proceeds of the goods or rents if any directed to be sold or collected or for ensuring the due appropriation of such allowance to the bona fide purposes of maintenance or for eausing the child or children to be properly brought up and educated
and any one Justice shall have power at any time in a summary way to inquire into the disobedience or alleged disobedience of or non- eompliance with any such order or with any order made by any Court of Quarter Sessions as hereinafter mentioned and for that purpose to summon and examine all proper parties and witnesse<s and to enforce compliance or punish the non-compliance with such order either by committal of the offending party until the same shall have been complied with or by the imposition of a fine not less than five pounds nor more than fifty pounds.
As to security for payment, see also The Deserted Wives and Children Act Amendment Act of 1858, s. 3, po8t. As to enforcement of the order, see also s. 10 of thn.t A<'.t, po.qf, und s. 3, ante.
Enforcement hy imprisonment is not restrictE'cl by The Maintenance and Alimony Relief Act of 1935, post.
ss. 9, 10.
Marriage and Divorce. [Vol. VI.
A moiety of the penalty may be directed to be applied for the use of the wife or child ( s. 16, post).
An order may in effect be discharged under s. 12 of The Deserted "\Vives and Children Act Amendment Act of 1858, post. :B'or the grounds for discharge, see notes to that section.
Where the Court finds that the order has not been complied with it has no discretion in exercise of which it may refuse to make any order (Coole v.
Coole ( 1923), 33 C.L.R. 369). But the Court must consider evidence as to arrangements made between the parties that certain payments made by a third person are to be aecepted by the applicant as payment (Ex parte McQuellin (1929), 29 N.S.W.S.R. 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 N.S.W.W.N. 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
N.S.W.W.N. 103).
An order to maintain a child is enforceable until the child attains twenty- one years of age (Elfverson v. Tronson, [1906] Q.W.N. 41). 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 (ibid.). But see Coole v. Coole, supra.
The limitation of six months under The .T ustices Act of 1886, s. 52 (title .JusTICES), 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 (Coole v. Coole (1923), 33 C.L.R. 369).
The person upon whose complaint an order was made for payment to some other person is entitled to take proceedings under this section (Barton v.
Barton (1896), 22 V.L.R. 607; Granger v. Granger, [1919] V.L.R. 288). Where an order has been made for periodical payment to the Clerk of Petty Sessions of a district, the Clerk of Petty Sessions may make a complaint for enforcement of the order (R. v. J1tstices of Brisbane, Ex parte Lovenberry, supra).
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.
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; Lob ley v. Lob ley, [1909] V.L.R. 383.
A husband is liable to be eommitted 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 (Aw·ons v. Aarons, supra; Gage v. D1tpin (1900)~
17 N.S.W.W.N. 172).
Arrears of maintenance do not constitute a debt provable in bankruptcy (Barnett v. Barnett (1926), 20 Q . .T.P.R. 166). An action does not lie fo1·
the recovery of arrears of maintenance due under an order made under s. 2,, ante (Falconer v. Falconer, [1910] V.L.R. 489). As to whether the enforce- ment of orders is confined to the proeedure provided in this Act, see ibid., and Granger v. Granger, [1919] V.L.R. 288.
10. Proceedings for penalties &c.-All proceedings under this Act whether before two Justices or one Justice shall be had and taken and all sum:rnonses to parties and witnesses and warrants (where necessary) for enforcing the same shall be issued and served or executed respectively and all such fines as aforesaid shall be imposed and recovered and every person feeling aggrieved by the imposition of any such fine or by any order of any two ,Justices under this Act shall be entitled to appeal therefrom upon the terms and in the manner and form respec- tively which are prescribed by an Act of the Governor and Council of
Deserted lVit,es and Ohildre·n Act of
1840. ss. 10-12~the said Colony passed in the fifth year of the reign of His late Majesty King William the Fourth intitulec1 "A·n Act to Regulate Summary Proceedings be[o1·e J1~stices of the Peace" so far as the provisions of the said Act shall be applicable.
Summary proceedings before justices are now regulated by The Justices.
Acts, 1886 to 1932, title JusTICES.
An appeal only lies under this section where an order has been made;
there is no appeal where a complaint is dismissed (Howley v. Heron (1916)~
10 Q.J.P.R. 141).
Appeal lies to the Supreme Court from ::m order under this Act. Sefr 'l'hc .Justices Act of 1886, Part IX; White v. White, [1923] St. R. Qd. 1, 69; 17 Q.J.P.R. 12, further cited under s. 12 of The Deserted Wives and Children Act Amendment Aet of 1858, post. Abandonment of an uppeal under 'l'he Justices Act of 1886, ss. 237 ct seq. (title .TUS'l'lCES), by consent of parties does not operate to prevent the right of appeal by way of quashing order under ss. 209- et seq. of that Aet (1Ja1Jies v. D'Ennett, [1910] St. H .. Qd. 140; [1910J Q.W.N. 20; 4 Q .. T.P.R. 7).
For an instance of the costs of appeal being awarded against a wife, see Monlton v. Mo7tllon, [1906] Q.W.N. 37.
11. Quarter Sessions may modify orders.-Provided always it shall be lawful for any Court of Quartet· SPssiom; holden for the district.
witlliu wh ic·lt any ordm· under this Act :-;hall have 1wen made ( whethe1·
an appeul HgainHt the ~mill(' shall have~ bc•en entered or not) to quash confirm or vary any sneb orde1· either in the who1e or in part at their diserrtion or to substitute a new ordel' in lieu thereof and for that purpoHe every onler 1nade by any two Justices under this Act shall be- transmitted by such Justices under their hands aml seals to the Clerk of the Peace of the district within twenty clays next after the making of such order.
It n.ppearR thnt au applientiou under this section to quash, vary or confirm an order is not an ''appeal'' within s. 3 ( 4) of The Supreme Court Act of 1921
(title SuPREME CouRT) nnd that jurisdiction under this section is not now exercisable by the Supreme Court or a judge thereof. See Salisbury v. Damro~
[1918] St. R. Qd. 199; [1918] Q.W.N. 36; 12 Q.J.P.R. 97, also cited under s. 12 of The Deserted Wives and Children Act Amendment Act of 1858, post. Under- the last-mentioned section, however, two justices may exercise the power to vary orders contained in this section. As to the extent of that power, see notes to that section.
The effect of this section is to subject the whole matter to a re-hearing, and further evidence may be received and grounds of fact which did not exist.
at the time of the order may be considered (Cool.; v. Cool.; (1923), 33 C.L.R.
369).
As to the effect of the words ''whether an appeal against the same shall have been entered or not", see Davies v. Davies (1919), 26 O.L.R. 348.
An order was quashed on further evidence in HowarcZ v. Paradise, [1909J Q.W.N. 19; 3 Q.J".P.R. 5.
An order is not rendered invalid by failure of tile justices to sign it (E:r;
parte Armstrong (1858), Legge (N.S.W.) 1122).
12. Two Justices may bind any child as an apprentice.-It shall be lawful for any two Justices sitting in Petty Sessions with the consent of either of the parents if living and within the Colony but if otherwise then without such consent to bind by indenture and put out any child in respect of whose maintenance any order shall have been made under this Act (such child having attained the age of thirteen yearn but not otherwise) an apprentice until he or she shall attain the age of twenty-one years to any mastel' or mistress willing to receive