Escenario laboral como un sujeto-maestro con un rol específico y el impacto de su labor

solicitors32 _{for more money had prompted Thomas Barlow to engage his own}

solicitor, Arthur Haynes.33 _{Haynes, a member of one of Western Australia’s}

pioneering families,34 _{would become a long-term participant in the subsequent}

legal actions and would be pivotal in the eventual vexatious litigant proceedings.

Typically for the period there was no suggestion that custody of the children would be with anyone other than the mother. Money was the main area of disagreement and, in October 1917, a verbal agreement was made between the parties that Thomas would increase weekly payments to £3.35 _However,

by 1920 Barlow was pressing for more and, in an effort to put “an end to all

29 _{“Alleged Negligence: Commissioner of Railways sued”, West Australian,25 May 1917,}

4.

30 _{“Action against Commissioner of Railways”, West Australian, 26 May 1917, 8.} 31 _{Western Australia, Certifi cate of Title, Volume 757 Folio 1, 27 September 1920. By the}

late 1990s the properties had been demolished and the streets absorbed into a modern industrial estate.

32 _{Two solicitors were WM Nairn in 1918 and JP Dwyer of Unmack and Thomas in 1920.}

See SROWA, WAS 202, Cons 3580/586, Supreme Court Appeals, Judgment of McMillan CJ, dated 17 December 1924.

33 _{SROWA, WAS 202, Cons 3677/1440, Supreme Court Appeals, Evidence of Arthur}

Goodwin Haynes, 10 December 1926.

34 _{His father was Richard Septimus Haynes (1857–1922), lawyer and politician. Haynes}

senior was a powerful advocate in the 1880s–1890s for electoral reform. He also established a large legal fi rm and appeared in several leading cases. In legal circles he was known as a “last ditcher”, possessing a caustic, witty tongue. See further, T Stannage, “Haynes, Richard Septimus (1857–1922)”, 9 ADB, 1981, 241–242.

differences”, Haynes negotiated directly with her on terms for a separation agreement. In November 1921 Haynes thought he had agreement and he drew up a deed. It outlined that the parties would live separately; Barlow would receive weekly payments of £3 for six months and thereafter £2.5s.0d; Thomas would meet reasonable educational expenses for 12-year-old son Marcus at the Marist Brothers College at New Norcia and make a one-off payment of £100 to allow Barlow to purchase furniture. In return, in words that provide some insight into events to that stage, Barlow was to covenant that:

she will not in any manner whatsoever molest annoy or interfere with her said husband and will not bring or cause to be brought any actions suits or demands against her said husband either for separation, maintenance or any other matter whatsoever.36

Three months later, in February 1921, Barlow intimated to Haynes that she could not sign the contractual agreement “on religious grounds”.37 _{Her strong}

Catholic faith precluded her from initiating State-based divorce or judicial separation proceedings, a necessary preliminary step in order to access the Supreme Court’s matrimonial power to determine ancillary matters such as alimony (maintenance).38 _{Thus the primary legal mechanism of the period for}

fi nding a solution to marital disputes was effectively closed off.39 _{This puts}

to one side the question of whether grounds for a divorce even existed. In that pre-Family Law Act period the system was “fault-based”. It was fi rst necessary to establish in open court one of a number of grounds known as “matrimonial crimes”, such as adultery, desertion for three years, habitual cruelty or drunkenness or imprisonment for a capital crime.40 _{This was not an}

easy task and one that carried the risk of a costs order if unsuccessful. Further, divorce in the period was uncommon and a sure way to attract public attention and opprobrium ― although from subsequent events that appears unlikely to have mattered to Ellen Barlow.41

36 _{Western Australia Supreme Court, Perth, In the Matter of the Vexatious Proceedings} Restriction Act 1930 and In the Matter of Barlow, File 31/A21, Affi davit of Arthur Goodwin Haynes, sworn 6 May 1931.

37 _Ibid.

38 _{Percy Joske, The Law of Marriage and Divorce, 1925, 291.}

39 _{Divorce Amendment Act 1911 (WA), section 2. In this period each State had its own laws}

in respect of divorce despite the federal Constitution also giving an exclusive power to the Commonwealth. See Commonwealth of Australia Constitution, section 51(xxi) and (xxii). The fi rst federal assumption of the power was the Matrimonial Causes Act 1959 (Cth) followed by the Marriage Act 1961 (Cth). This latter Act was repealed by the Family Law Act 1975 (Cth). The 1975 Act created an entirely new divorce and family law regime although Western Australia would be the only State to exercise that jurisdiction through its own state legislation. See Family Law Act 1997 (WA). See also, Henry Finlay, To Have But Not to Hold, 2005, 240–267.

40 _{Percy Joske, The Law of Marriage and Divorce, 1925, 23.}

41 _{In 1923 there were only 101 divorces granted in Western Australia. See Henry Finlay, To} Have But Not to Hold, 2005, Table 5, 263.

Religious grounds would also appear to be the explanation why Barlow did not seek to access, from the following year, the Married Women’s Protection Act 1922 (WA). This enabled the issue of maintenance proceedings in a summary court independent of divorce proceedings. That legislation also contained the “matrimonial fault” eligibility criteria of cruelty, adultery, desertion and wilful neglect.42

Although Barlow would not sign the formal agreement, negotiations continued and her persistent claims through Haynes led to further verbal agreements in March and December 1921. They saw Thomas advance £100 for the furniture and increase monthly payments to £16.43 _{Things then quietened down for a}

time. Barlow’s fi nancial position improved as her tenancies provided a further weekly income of £5;44 _{son Marcus went off to school (for a short time) at}

New Norcia45 _{and Thomas established a second store at the new eastern wheat-}

belt settlement of Narambeen. To do so he hauled a 45-year old building from Westonia to Narambeen. “Little did he realize that 70 years on, his store would mainly be remembered as the oldest building in Narambeen.”46

It would be another 18 months before money issues re-emerged. In the meantime Barlow was attending to other matters that would light a slow fuse for subsequent self-represented legal proceedings.