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Schumann v Schumann (No 2) [1961] HCA 89; (1961) 106 CLR 566 (18 December 1961)

CATCHWORDS

HEARING

DECISION

2. The action was tried by Reed J., who delivered judgment in June 1960. That learned judge found that the wife had deserted the husband as he alleged, and that the desertion was still continuing at the time of the hearing. Consequently his Honour dismissed the wife's claim for restitution. He was not satisfied on the evidence that the wife had committed adultery either with Robinson or with Findley, and as her desertion was not of sufficient duration for a divorce he dismissed the husband's counterclaim. From the dismissal of the claim for restitution the wife did not appeal, and she has never sought to dispute the finding of desertion upon which it was based. The husband, however, appealed to the Full Court of the Supreme Court against the dismissal of his claim for divorce, so far only as it was based on the allegation of adultery with Robinson. The latter had not defended the action, and he took no part in the appeal. The Full Court, upon a review of the evidence, held that a finding of adultery with Robinson in May 1952 should have been made, but went on to hold that the adultery had been condoned by the husband's resuming cohabitation with the wife in August 1952 with knowledge of the facts. The Court further held that the wife's desertion of the husband six years later, in September 1958, did not, in the circumstances, revive the adultery as a ground of divorce. The circumstances referred to were that there had been no more than an isolated instance of adultery, that the subsequent cohabitation had continued without interruption for six years before the wife's desertion brought it to an end, that during that period the wife had not been guilty of any conduct such as would revive condoned adultery, and that during the period a child, the third, had been born to the parties. The Court accordingly held that the condonation remained a bar to divorce, and dismissed the appeal. (at p571)

3. While the appeal to the Full Court was pending, the wife filed a notice of motion to that Court seeking leave to amend her pleadings in certain respects, and particularly so as to allege adultery by the husband with a woman named. The motion was heard together with the husband's appeal, and it was refused. The formal order refusing it was included in the same document as that which contained the order dismissing the appeal; and on the strength of that fact the wife, desiring to appeal to this Court, gave a notice of cross-appeal in apparent reliance upon O. 70, r. 13, of the High Court Rules. The orders, however, were orders made in separate proceedings, one on appeal from a judgment on a counterclaim and the other a motion for leave to amend pleadings. The case was therefore not one for a cross-appeal, although the orders happened to be embodied in a single document. The cross-appeal might perhaps have been treated as a separate appeal and the irregularity overlooked, had it not been that the order dismissing the motion was interlocutory only and therefore was not appealable as of right. The cross-appeal must be dismissed as incompetent. Anticipating this result, the wife filed a notice of motion for leave or special leave to appeal, and we have heard her application. We think that it should not be granted. We express no opinion as to whether there is any substance in the wife's allegations of adultery against the husband, but machinery exists under the Matrimonial Causes Act, 1929-1941 (S.A.) to enable the available evidence, if it is sufficient to call for judicial consideration, to be brought before the Supreme Court; and there is no occasion for the intervention of this Court for the purpose of enabling the wife to contend for a right to present the material herself. The motion for leave or special leave to appeal will therefore be refused. (at p571)

4. The question of general principle raised by the husband's appeal is whether adultery which has been condoned is necessarily revived as a ground of divorce by the adulterer's subsequent desertion of the other spouse, however long the intervening period may have been and whatever may have been the history of the marriage during that period. (at p571)

5. By s. 11 of the Matrimonial Causes Act, 1929-1941 (S.A.) condonation of all proved grounds is made a bar to a divorce. That is to say it is an absolute bar. But condonation itself is conditional. It is inherently subject to a condition subsequent, upon breach of which the situation of the spouses becomes as if there had been no condonation. What is spoken of as the revival of a condoned offence is the defeasance of the condonation by breach of the condition. When, therefore, s. 11 (a) speaks of the plaintiff having condoned the grounds proved, it refers to an existing condonation, and not one which at the time the matter comes before the court is to be regarded, because of reviver, as no condonation at all. This has been the received view in England, at least since the case of Dent v. Dent [1865] EngR 579; (1865) 4 Sw & Tr 105 (164 ER 1455) , and the decision in Henderson v. Henderson (1944) AC 49 puts it beyond question there. Observations in Collins v. Collins (1884) 9 App Cas 205 , which may appear to suggest otherwise are to be taken as relating only to Scottish law. Australian courts have taken the same view on this matter as the English courts: see e.g. Hood v. Hood (1934) SASR 283 ; Mollett v. Mollett (1936) 39 WALR 72 ; Davies v. Davies [1942] VicLawRp 5; (1942) VLR 19 ; Bridges v. Bridges (1944) 45 SR (NSW) 164 Thomas v. Thomas (1945) QSR 148 ; and we accept it as law. (at p572)

6. But what we have here to consider is whether the condition is such that after a period of time and in some circumstances it may become spent, so that the condonation becomes no longer defeasible. In Henderson v. Henderson (1944) AC 49 , Viscount Simon L.C. described the condition by saying simply that if the spouse who has been forgiven past matrimonial offences is proved to commit a further matrimonial offence in the future, then the past offences are revived and become available as further ground for a divorce. His Lordship said nothing to suggest that it was a condition which time or circumstances might dissolve. "A further matrimonial offence in the future" is all that he considered was necessary to destroy the condonation. This accords with every judicial pronouncement on the subject before 1950, so far as we are aware. As late as 1949, both Bucknill L.J. and Denning L.J., in Richardson v. Richardson (1950) P 16, at pp 20, 22 , had quoted, though for a different purpose, words of Sir John Nicholl in Durant v. Durant [1828] EngR 56; (1825) 1 Hag Ecc 733, at p 762 (162 ER 734, at p 744) which are typical of the statements to be found in the cases. Sir John Nicholl spoke of the plain reason and good sense of the condition as being that "you shall not only abstain from adultery, but shall in future treat me, in every respect treat me (to use the words of the law), 'with conjugal kindness' - on this condition I will overlook the past injuries you have done me". And only as recently as 1945 the Court of Appeal, in Beard v. Beard (1946) P 8 , had reviewed a long line of cases in several of which the condition had been stated in general terms, not seldom including such unqualified expressions as "in future", "hereafter", "again", and "afterwards". The absence in all these cases of limiting words in relation to the future is in the highest degree significant, for, as Lord Penzance said in Newsome v. Newsome (1871) LR 2 P & D 306 , after having observed that the condition of forgiveness implied by the law upon restoration of an erring husband to his original position is that he shall not "in future" be guilty of any marital offence, "The whole doctrine of condonation . . . is a structure of the Courts founded on the necessities of the case" (1871) LR 2 P & D, at p 311 ; and it would be strange indeed if the condition upon which the doctrine insists were subject to a limit which generation after generation of the judges who erected and maintained the structure, some of them very great judges indeed, always forgot to mention. Yet it seems that every judicial observation on the subject before 1950 refers to the condition as Sir James Hannan's statement referred to it in Blandford v. Blandford (1883) 8 PD 19 ; "But the letters show that she forgave him on condition that he 'sinned no more', and that is the legal definition of condonation. It is forgiveness upon condition that no matrimonial offences shall be committed for the future" (1883) 8 PD, at p 20 . (at p573)

7. There is, it is true, a passage we have come across in Dysart v. Dysart [1844] EngR 990; (1844) 1 Rob Ecc 106, at pp 141, 142 [1844] EngR 990; (163 ER 980, at p 992) in which Dr. Lushington expressed a doubt as to whether the doctrine of revival applied to a case of cruelty "condoned for thirteen years - condoned by acts without number, by a long series of conduct which denotes a total oblivion, an entire forgetfulness of it in every step taken, a conduct wholly inconsistent with a fear or even apprehension of repetition". But this was said in relation to the limited jurisdiction, to decree judicial separation or restitution of conjugal rights, which the Ecclesiastical Courts possessed at that time. It was as Vaisey J. pointed out in his dissenting judgment in Beard v. Beard (1946) P, at pp 25, 26 , a discretionary jurisdiction ; and Dr. Lushington's observations may well have meant no more than that condoned cruelty may be so remote in time and so buried by intervening events that conduct constituting a breach of the condition of the condonation may not form a sufficient basis for a sound exercise of the discretion. If it had had any wider meaning the passage could hardly have remained unnoticed, and the condition could hardly have been regularly stated without suggestion of limitation, by the judges of later times. (at p574)

8. In argument we were reminded that in Richardson v. Richardson (1950) P 16 , Bucknill L.J. said : "I cannot believe that if adultery has been condoned, say for seven years, that a wife is entitled to say it is revived because the husband has on one occasion slapped her face or has come home drunk, or has done something else which may amount to 'matrimonial misconduct' or 'a breach of conjugal kindness'" (1950) P, at p 21 . But all that his Lordship was there saying related to the character of conduct which, falling short of a ground of divorce, may suffice to revive an earlier ground which has been condoned. This he made clear by going on immediately to say that he thought the proper test to apply was that the conduct of the spouse must be such as to make decent married life together impossible ; and it is easy enough to see that the remoteness of the condoned offence may have a bearing upon the application of such a test as that. (at p574)

9. But in 1950, in the case of Beale v. Beale (1951) P 48 , Denning L.J. dealt with the subject in a brief judgment which, if correct, justifies the view which the Supreme Court adopted in the present case. Having described the condition of condonation as being that the guilty party should "henceforward" behave properly, his Lordship proceeded to introduce a conception which appears to be new in this branch of the law. He said that the guilty party "is, so to speak, taken back on probation". Developing the theme, he made this pronouncement : "The probationary period does not, however, necessarily last for life, and a point may be reached where the guilty party has, by his good behaviour, proved himself worthy of the trust and confidence of the other. The further that past offences recede into the distance, so much the more does it become difficult to revive them, until the time may come when the proper inference is that the forgiveness is no longer conditional, but has become absolute" (1951) P, at p 49 . No authority supporting the notion that condonation is the granting of a probationary period was cited by his Lordship. He said that it was in accordance with what Bucknill L.J. had said in Richardson v. Richardson (1950) P 16, at p 21 , but as we have already mentioned, Bucknill L.J. was there dealing with a different question. (at p574)

10. The new departure which Denning L.J. sought to make was described by its learned author as meeting the objections which had been forcibly expressed by Vaisey J. in his dissenting judgment in Beard v. Beard (1946) P 8 . So it did, because the objections of Vaisey J., though offered as objections to the view that a condoned ground of divorce may be revived by conduct insufficient of itself to found a decree, were really, as Scott L.J. pointed out, objections to the whole doctrine that condonation is conditional ; and they depended for their strength upon the assumption, which Vaisey J. clearly made, that if reviver of a condoned offence is to be accepted as part of the law of divorce it must be accepted as carrying the consequence that reviver may occur "however long ago" the condoned offence may have been committed. There would be, his Lordship thought, "something almost inhuman in a law which enables a wife or husband to obtain, as of right, a divorce from the other in their old age, upon the ground of one single act of adultery committed by the other in the time of their far-off youth and immediately condoned, but now raked up from the past upon some petty provocation insufficient in itself to be a ground for the relief so tardily sought" (1946) P, at p 30 . There is a practical answer to such objections as these in the fact that if husband and wife really wish to throw the hatchet into the sea (to use his Lordship's metaphor) they may do so by making, by express words or by conduct which carries a sufficient implication, their own unconditional agreement of the kind exemplified in Rose v. Rose (1883) 8 PD 98 - that is to say one operating as an absolute release : Rowley v. Rowley (1866) LR 1 Sc & Div 63, at p 68 - instead of relying upon what Lindley L.J. in Rose v. Rose (1883) 8 PD 98 distinguished as "mere condonation" : see Gale v. Gale [1952] HCA 59; (1952) 86 CLR 378, at p 384 , and a note in (1946) 62 L.Q.R., p. 121. But if the assumption upon which Vaisey J. based his objections is to be denied, more, surely, is required for the purpose than a mere desire to overcome those objections. Condonation, as Vaisey J. said himself, arises by operation of law ; and its effect is a matter of law : Hemsworth v. Hemsworth [1947] VicLawRp 42; (1947) VLR 292, at p 307 . The nature of the condition to which it is subject must therefore be ascertained by investigation of the law. Courts which in modern times have addressed themselves to the task, as in Hood v. Hood (1934) SASR 283 ; Beard v. Beard (1946) P 8 ; Spilstead v. Spilstead (1944) 44 SR (NSW) 242 ; 61 WN 150 ; Bridges v. Bridges (1944) 45 SR (NSW) 164 ; 62 WN 39 ; and Hemsworth v. Hemsworth [1947] VicLawRp 42; (1947) VLR 292 , have not brought to light, and neither counsel nor judge in the present case has found, any case in which condonation has been regarded as the giving of an opportunity to the guilty spouse to prove himself or herself worthy of the other's trust and confidence, or any case in which a view has been expressed or indicated that condonation ceases to be conditional if a stage is reached at which a court thinks that the proof has been provided by sufficient good behaviour. To place a qualification upon the condition of condonation which the courts have long been accustomed to state in unqualified terms is not, we think, a course upon which judicial inheritors of the law have authority to embark. (at p576)

11. The test to be applied in determining whether conduct which does not amount to a ground of divorce is in breach of the condition of condonation has been variously stated ; and where the conduct relied upon is not necessarily and obviously indicative of unwillingness to adhere further to the marriage a proper determination of its true character may well involve consideration of the nature and circumstances of the condoned offence, the circumstances of the condonation itself, and the length and history of the period that has elapsed before the occurrence of the conduct in question. But desertion without just cause or excuse for a significant period is a completely unequivocal repudiation of the obligations of the marriage, and no consideration of past or present circumstances can give it any other complexion. Whatever the circumstances, it is "a serious matrimonial offence even when it has not continued for the period necessary to give ground for divorce" : Beard v. Beard (1946) P, at p 25 ; and in our opinion it necessarily revives condoned adultery : ibid ; Thomas v. Thomas (1945) QSR 148 ; Kafton v. Kafton (1948) 1 All ER 435 ; Beigan v. Beigan (1956) P 313, at pp 317, 318 . (at p576)

12. In the present case the judgment of Denning L.J. in Beale v. Beale (1951) P 48 , was accepted as correct by the learned judges of the Supreme Court of South Australia, and they held in application of it that the wife's adultery which had been condoned had become in the circumstances of the case incapable of being revived as a ground of divorce, even by the substantial period of desertion that was proved. With great respect, we think that their Honours embraced erroneous doctrine, and that it led them to an erroneous conclusion. The correct course to adopt on the facts which the Full Court found proved was, in our opinion, to make an order nisi for divorce on the appellant's counterclaim. (at p576)

13. Accordingly, we allow the appeal, and grant the appellant an order nisi. He should pay the respondent's costs of the proceedings to the extent which will be indicated. He has asked for an order, for what it may be worth, that Robinson bear the ultimate liability for the costs ; but in our opinion the correct course to take in this respect is that which Fullagar J. took in Hemsworth v. Hemsworth [1948] VicLawRp 83; (1948) VLR 483, at p 486 , namely, to refuse costs against the adulterer on the ground that in the circumstances the discretion as to costs should not be exercised in a way that would treat him (as his Honour expressed it) as having been "after condonation a sort of guarantor of the wife's future good conduct during the joint lives of himself and the wife". (at p577)

ORDER

Order that the appellant pay the respondent's costs of the appeal to this Court, including the costs of the objection to the competence of the appeal, but not including any of the reserved costs of the application in chambers.

Cross-appeal dismissed as incompetent. Refuse leave to appeal from the order of the Supreme Court of South Australia dismissing the application made pursuant to the respondent's notice of motion dated 29th November 1960.