A MAINTENANCE CLAIM.

Pukekohe & Waiuku Times, Volume 3, Issue 189, 24 April 1914, Page 1

A MAINTENANCE CLAIM.

Wright Versus Wright.

Early in April a maintenance cate I was part heard in the Pukekohe Magistrate's Court before Mr F. V. Frazer, S.M. Jane Wright, of Patumahoe, sued her husband, A. W. Wright, now of Papatoetoe, for maintenance for herself and for their twelve-year-old eon. Mr Hclmerien appeared for complainant and Mr Towle for defendant.

Subsequently the case was argue;] in Auckland. The merit* of the case are explained in Mr Frazer's judgment: "There are two complaints, one asking for maintenance for Mrs Wright, the wife of defendant, and the other asking for the maintenance of the child of the marriage, the custody of whom is vested in Mrs Wright. "Ihe case presents some rather unusual features. It appears that the parties entered into a deed of separation on the 24th September, 1908. The deed contained a provision that the defendant thould assign to the complainant household furniture valued at £ls, and should pay her the sum of £350 for the support and maintenance of herself and her son. The complainant undertook on her part to maintain herself and her son, and to release and indemnify the defendant from and ajainst all liabilities and claims in respect thereof. The detd of separation was duly carried into effect, and Mrs Wright bought and stocked a email poultry farm with the £350, and a sum of £l4O of her own money. She has been unable to make ih3 business pay, and has been steadily losing about £3O a year. She is in poor health and is unable to carry on the work of the farm.

"It was contended by Mr Tonle, for the defendant, that the deed of separation barred the complainant's right to an order for her own maintenance, as section 24 of the Destitute Persons Act, 1910, which permits the Court to go behind such a deed, apparently does not extend to a case where the applicant is not actually destitute—that is, permanently or temporarily unable to support herself by her own means or labour. He further submitted that section 42 was not retrospective, and could not affect a case such as this, where the deed was entered into before the passing of the Act of 1910. In renoect of the child, Mr Towle tubmitted that aB the £350 paid over to the complainant for her own and the child's maintenance had not been exhausted no order could be made, as the complainant was really in the position of a trustee or quasi-trustee for the child, and held the £350, or some portion of it, on behalf of the child. I think that, on the authority of ae:tion 17 (6) ar.d section 24, the Court has power to go behind the deed of separation, in spite of the fact that the deed was entered into before the passing of the Act of 1910. Ihe Act of 1908 contains a somewhat similar provision (section 19), limited, however, to cases where the wife is actually destitute. The paramount intention of the Destitute Persons Act is that the Court shall have full power to place the burden of the support of destitute wives and children upon the husbands and fathers, so that tin state will not have to provide maintenance for them so long as the natural guardians are in a position to do so. It is permissible to con-

' strue an Act iestrosp°ctivcl / where it best accords with the intention of the legislature and the nature of the remedy so to do, and the Court is bound in Buch cases to safeguard the interests of persons affected by the Act by taking into consideration all the circumstances of each case. In the case cf Mrs Wright, the Magistrate has a discretionary power to make an order—at all events if he is satisfied that she is a destitute perton. Section 24 is certainly contradictory in its terms, the words "if and bo long as the other b a destitute person" apparently limiting the obligation to maintain, but not the right of a Magistrat3 to make an order for maintenance. The words in question are not found in the corresponding section} 6 ard 27. I am inclined to think that the only way to give due effect to the words is to read them as governing the whole section. Even if 1 take the opposite view, however, it is cct char that I should make an order for maintenance in favour of Mrs Wright. She had still in hand assets of an easily realisable nature, representing a considerable part of the £350 paid over to her by the defendant, and in view of her state of health it will probably be the wisest course to realise those assets instead of carrying on the farm. Sa long as she is able to maintain herself adequately out of this fund, 1 do not think that, unlesß the conditions and circumstances of the parties are changed considerably, 1 should make an order for maintenance in her favuur.

"in the case of the child the position is different. Section 27 does rot place the bar of proving destitution in the way of the Court, and it is clear that I may make an order in his favour if it appears that the fund applicable for his maintenance is inadequate for the purpose. The child is not a party to the deed, which is eo far as he is concerned, merely a contract between his father and mother, whereby in consideration of the payment of a sum of money the latter undertakes the sole responsibility of his maintenance and support. It cancot affect the right of the Court to say that the child must be maintained by his father if his mother is unatle to do so, and to see that the burdtn shall not fall upon the State. He is now at an age at which his maintenance is more costly than it has been previously. Bearing in mind the inadequacy of the sum paid to the complainant under the deed of separation, and the fact that she is unable to pay her way, I have decided to make an order for the payment by the defendant to tha clerk of the Magistrate's Court at Fukekohe of the sum of 12s 6d per week, for the maintenance of the son of the complainant, the first of such payments to be made on Thursday, the 23rd April, 1914, and thereafter on each succeeding Thursday. The complainant will be allowed £2 2s COotS.

"It la only fair to the arlidtor who prepared the deed of separation to add thit he acted bona tida for both par tie?, at the suggestion of a third party, who was on friendly term? with Mr aud Mis Wright, and that the sum of £350 was then considered by both to ue an adequate allowance. Circumstances have so altered since 1909 that it cannot b3 said that it is now adequate, but there can be no doubt that although Mrs Wright did not have independent legal advice at the time, she was in no way misled or unfairly treated by the solicitor in question. He appeals merelj to have put oi record what had previously been agreed on by the parties."