Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

Taylor v. Taylor [1855] NSWSupC 20 [habeas corpus - maintenance, deserted wives]

habeas corpus - maintenance, deserted wives

Supreme Court of New South Wales, Moreton Bay

14 September 1855

Source: Moreton Bay Courier, 14 September 1855

In Chambers, 14th September, 1855

Taylor v. Taylor.

Important decision upon the Deserted Wives and Children's Act 4th Victoria, No. 5.

The defendant was arrested upon a warrant of Mr. Buckley, a Justice of the Peace, in the District of Moreton Bay, upon a charge of having deserted his wife and leaving her without support. The defendant was arrested upon this warrant in Sydney, and brought before their Worships. Messrs. Hill and Kemp, for the purpose of ordering the defendant to be forwarded under the warrant to Moreton Bay. Mr. Ryan Brenan appeared for the defendant before their Worships, and had the case remanded until Monday, the 17 th instant, under the assurance of that gentleman applying for a writ of Habeas Corpus, contending that the defendant was illegally in custody, and illegally arrested.

It appears that Mr. Ryan Brenan applied for and obtained a writ of Habeas Corpus, and had the defendant brought before Mr. Justice Therry, in chambers, this day, when it appeared on affidavit that defendant had not resided at Moreton Bay for the last two years; that he had been at the diggings, and had appointed to meet his wife in Sydney for the purpose of making it his then and future place of residence; that she came to Sydney several months ago, but before the defendant had arrived in Sydney she proceeded to Moreton Bay, where she has since resided. And it appears that on the 31 st day of August last she went before Mr. Buckley, J.P., and laid her information, charging the defendant with having deserted her and left her without means of support, whereupon he issued the warrant before mentioned for the apprehension of the defendant.

Mr. Ryan Brenan appeared on behalf of the defendant, upon the writ of Habeas Corpus, and contended that his Worship, Mr. Buckley, upon the information, should have in the first instance issued his summons, calling upon the defendant to appear and show cause why he deserted, neglected, or refused to support his said wife, and that he was not empowered by the terms of the said Act to, in the first instance, issue a warrant for the apprehension of the defendant until he had caused the defendant to be served with such summons, and that he failed to appear to show cause why the complainant should not be supported by him, and if a warrant issued, that it should appear on the face of the warrant that a summons had issued and that the defendant failed to appear to such summons; and he contended also that it was competent for the defendant, by his attorney or other person to communicate to the magistrates, if summoned to appear, as contemplated by the Act, that the defendant was ready and willing to support his wife at Sydney, where he thought fit to reside, and upon that undertaking the magistrates' jurisdiction would be ousted, and consequently he could not arrest the defendant at all. And further, that it was not competent for the wife to select her own place of residence, and she having done so in this instance, the defendant, if summoned, would have had an opportunity of thus answering the charge of desertion, and remove the necessity of magisterial interference in the matter. Mr. Brenan referred to the first and second sections of said Act, and also to Dwarris on Statutes, showing the strictness with which such enactments are construed, whereupon His Honour, after some discussion, concurred in the view taken by Mr. Brenan, and discharged the prisoner.

Published by the Division of Law, Macquarie University