Priscilla Martha Kerr Weiler v Weiler [1918] HCA 41; (1918) 25 CLR 109 (15 August 1918)

HIGH COURT OF AUSTRALIA

Priscilla Martha Kerr Weiler Petitioner, Appellant; and Arthur Alex Weiler Respondent, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

15 August 1918

Barton, Isaacs and Rich JJ.

E. M. Noble, for the appellant.

The judgment of the Court, which was read by Isaacs J., was as follows:—

Barton, Isaacs and Rich JJ.

This is an appeal from Gordon J., who dismissed the wife's petition for divorce. The petition was presented under sec. 16 (d) of the Matrimonial Causes Act (No. 14 of 1899). Sec. 16 provides that "Any wife who at the time of the institution of the suit has been domiciled in New South Wales for three years and upwards (provided she did not resort to New South Wales for the purpose of such institution) may present a petition to the Court praying that her marriage may be dissolved on one or more of the grounds following ... (d) that her husband has within five years undergone frequent convictions for crime and been sentenced in the aggregate to imprisonment for three years or upwards and left the petitioner habitually without the means of support." The learned Judge was satisfied as to the marriage, which took place on 14th October 1908. He was not satisfied as to the petitioner's domicile, but stated that if that had been the only bar in the way of the petitioner, he would have allowed further evidence to be tendered on the question of domicile. His Honor also found that the respondent came within that part of the sub-section which says: "within five years undergone frequent convictions for crime and been sentenced in the aggregate to imprisonment for three years or upwards." His Honor, however, felt difficulty about the words "and left the petitioner habitually without the means of support." The conclusion he came to was that the Legislature did not mean to make two offences out of one, by intending that a man in gaol who in fact while he was in gaol left her without support would come within the provision. His Honor's opinion was rested largely on the word "habitually." And he thought that the latter part of the sub-section could not be satisfied except the man were free from imprisonment.

We agree with the learned Judge in thinking that the offence is composite, but we do not think its elements are mutually exclusive. The sub-section does not allow the wife to obtain a divorce merely because within the last five years her husband has been frequently convicted for such serious offences as have led to his imprisonment for three years or more, it may, indeed, be for the whole five years; nor does it allow her to get that relief merely because during that period she has been habitually left without means of support. But if within that period both things concur, she has the right to petition—other conditions existing. A man who has been convicted and imprisoned (say) for the whole five years may yet have left his wife well provided for out of his means. Or he may have left her for the whole period in utter poverty, and dependent on her own labour to obtain subsistence. Why has he not then satisfied both conditions? The sub-section certainly contemplates that "habitually" may be fulfilled during the five years, and it also contemplates that the imprisonment may last the whole five years, and yet during the same period the latter part of the sub-section may be satisfied. If, then, the enactment contemplates that both elements may exist during the whole period of the five years, it necessarily connotes that a man may habitually leave his wife without means of support within the meaning of the sub-section while he is imprisoned. There is nothing in the word "habitually" which militates against this view. It is opposed to casual or occasional. Where the wife is left without means of support "habitually," it denotes such a continuity, or recurrence or persistence in fact of the condition of being so left, which is recognized as specially hard upon her, and which being added to the other element in the enactment calls for remedy. Unless the special criminality denoted in the first half of the sub-section is to be regarded as an excuse for the special hardship of the latter part, there is no reason why they should not coexist. And further, the longer the period of imprisonment, the greater would be the excuse.

On the whole we think the sub-section, properly construed, was satisfied by the evidence. The wife was in fact left practically during the whole period without means except such as she could earn by her own labour of nursing. We think that the appeal should be allowed, and that in view of the statement of the learned Judge as to domicile the cause should be remitted to his Honor to be dealt with as to that point as in his discretion he thinks just.

Appeal allowed. Order dismissing petition discharged. Declaration that it has been proved that during the period of five years mentioned in sub-sec. (d) of sec. 16 the respondent left the petitioner habitually without means of support. Cause remitted to Supreme Court to be dealt with as it thinks just, subject to the above declaration.

Solicitor for the appellant, S. Bloomfield.