Brown v Brown [1906] HCA 85

Brown v Brown [1906] HCA 85

The wife was not precluded by her undertaking in the decree from seeking or being granted an order for the custody and maintenance of a child of the marriage born after the decree, as there was no provision or undertaking concerning that child in the original order, and s 60 of the Matrimonial Causes Act 1899 gives the Court ongoing jurisdiction to make such orders.

Parties
Appellant: Thomas Edwin Brown; Respondent: Mary Brown
Jurisdiction
Australia
Judgment Date
20 December 1906
Procedural Posture
Appeal / Appeal From Order After Judicial Separation Decree
Outcome
Appeal dismissed
Legal Topics
Judicial Separation, Custody of Children, Maintenance After Decree, Variation of Orders in Matrimonial Proceedings, Application in Forma Pauperis, Costs on Appeal
Family Law Judicial Separation Custody of Children Maintenance After Decree Variation of Orders in Matrimonial Proceedings Application in Forma Pauperis Costs on Appeal

Case Brief

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Parties

Thomas Edwin Brown

Appellant

Mary Brown

Respondent

Procedural Posture

Appeal / Appeal From Order After Judicial Separation Decree

Legal Issues

  1. 1 Whether, after a decree for judicial separation and an undertaking by the wife not to seek maintenance, the wife could apply for custody and maintenance of a child born after the decree under s 60 Matrimonial Causes Act 1899
  2. 2 Effect of consent undertakings in matrimonial decrees on subsequent applications for maintenance/custody
  3. 3 Jurisdiction to vary or make further orders regarding children after decree

Ratio Decidendi

The wife was not precluded by her undertaking in the decree from seeking or being granted an order for the custody and maintenance of a child of the marriage born after the decree, as there was no provision or undertaking concerning that child in the original order, and s 60 of the Matrimonial Causes Act 1899 gives the Court ongoing jurisdiction to make such orders.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • The sum of £1 paid into Court as security to be paid out; no further order as to costs given the appellant proceeded in forma pauperis