"NOT UNLIMITED"

Evening Post, Volume CXVI, Issue 19, 22 July 1933, Page 5

"NOT UNLIMITED"

MAGISTRATE'S POWER

UNDER DESTITUTE PERSONS

cACT

"It should always be remembered that to make a summary order separating husband and wife judicially is a very serious matter involving farreaching consequences, and in my <pinion in all such cases the procedure prescribed by tho Destitute Persons Act should be accordingly followed and the evidence carefully scrutinised," said Mr. Justice MacGrcgor in delivering a reserved judgment yesterday dismissing an appeal by Nina Christina Judd against a decision of Mr. J. Miller, S.i'.l., refusing to grant her separation and guardianship orders against her husband, Raymond Hector judcl.

The Magistrate had made a maintenance order in favour of the wife, but had refused her application for the other two orders, holding that none of the four grounds specified in tho Destitute Persons Act had been proved except failure to maintain, which failure, in his opinion, was not "wilful and without reasonable cause." Mr. Justice MacGregor said that after consideration he was satisfied the Magistrate was right. It had been contended for tho appellant that a Magistrate might in his discretion make a separation order (or a guardianship order) in any case "if he thinks fit, having regard to all the circumstances of the case." "In other words," said his Honour, "counsel maintained that a Magistrate had absolute discretion to grant a separation order to a wife, whenever from the evidence it appeared to him desirable that she and her husband should no longer live together. This would certainly give to Magistrates a-much wider discretion than the jurisdiction conferred on the Supreme Court in eases of judicial separation.. . . In my opinion the jurisdiction of the Magistrate is not unlimited but. is defined in and circumscribed by the express terms of section 17 of . the Destitute Persons -Act." '

His Honour said that in tho present caso tho solo ground- alleged by the wife against her husband was that he had failed, and intended to fail, to provide her and her infant child with maintenance. Yet the complainant at once went on to pray for (1) a separation order; (2) a guardianship order, and . (?>) a maintenance order. This was, of course, clearly wrong, and would in itself," in his opinion, have justified the Magistrate in refusing to make any order other than a maintenance order on tho present complaint. The appeal was dismissed on the merits of tho caso, with costs £3 3s. At tho hearing Mr. R. R. Scott appeared for.tho appellant and Mi\ C. R. Barrett for tho respondent. .