Smythe v Smythe [1922] HCA 6; (1922) 30 CLR 165; (1922) 28 ALR 242 (11 April 1922)

HIGH COURT OF AUSTRALIA

Smythe Petitioner, Appellant; and Smythe Respondent, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

11 April 1922

Knox C.J., Isaacs and Gavan Duffy JJ.

Alec Thomson K.C. (with him Tucker), for the appellant.

The judgment of the Court, which was delivered by Knox C.J., was as follows:—

Knox C.J.,

Isaacs and Gavan Duffy JJ.

This is an appeal from the decision of James J. dismissing a suit by the appellant against her husband for restitution of conjugal rights. His Honor decided in accordance with what he understood to be the decision of this Court in Wirth v. Wirth[1]. In that case, however, it appears that facts existed which do not exist in this case. Our brother Rich, in delivering the judgment of the Court, said[2]: "The evidence given by the petitioner showed that the payments stipulated by the deed had been regularly made by the respondent, and there was no evidence of any repudiation by him or that the deed was not then subsisting and operative." The real question in that appeal was whether the Court could treat the deed of separation as a bar to a decree for restitution in a case where the deed was not pleaded or set up before the Court by the respondent. In this case the facts are different. Here the deed may be taken to be substantially in the same form as that in Wirth v. Wirth. It provided that the parties should be at liberty to live separate and apart from each other; that neither of the parties should "molest or disturb the other of them in her or his manner of living or otherwise compel or endeavour to compel the other of them to cohabit or live with him or her by any legal proceeding or otherwise howsoever"; that the respondent should pay to the appellant £2 10s. a week during the continuance of the agreement; and that the appellant should have the custody of the children of the marriage, but the respondent should have full access to them at all reasonable times. Then, by clause 10, the appellant bound herself, so long as the respondent should duly observe and perform the covenants on his part, not to sue the respondent for maintenance or alimony.

Upon the evidence the facts appear to be these:—After the execution of the deed until 1919, the parties lived apart, the husband paid the weekly allowance stipulated by the deed and had access to the children in accordance with the deed by seeing them at the house where the appellant lived. On 18th July 1919 the respondent wrote to the appellant a letter in the following terms:—"Please note from now on I am discontinuing allowances as per agreement. You have completely upset your side of it by refusing me access to the children and further by antagonizing them against me. I therefore consider myself quite justified in taking such a course." From that date the respondent has made no payments and nothing has been done by either party in affirmation of the terms of the agreement or in reliance upon them. On 1st June 1921 the appellant wrote to the respondent asking him to return to her and the children, and on 8th June the appellant wrote refusing to return. The appellant then filed her petition for restitution of conjugal rights, alleging that she had written to her husband asking him to return and live with her and render to her conjugal rights, and that her husband, after reasonable time had elapsed and reasonable opportunity had been offered, had refused to cohabit with her and continued so to refuse without just cause or excuse.

When the matter came on for hearing in the Supreme Court the appellant admitted that this deed had been executed, and it was put in evidence. At that time it was proved that for twelve months the respondent had made no payments under the deed, but apart from this there was no evidence of repudiation of the deed by the respondent, and at that stage the learned Judge gave certain reasons for holding that the petition should be dismissed. But he gave the appellant an opportunity of calling further evidence. The letter of 18th July 1919 set out above was then put in evidence, and the learned Judge, in dismissing the petition, said:—"I think the deed of separation is a bar. I have read Looker v. Looker1(1918) P., 132., but I am following Mr. Justice Gordon's decision in Wirth v. Wirth, upheld by the High Court (2), and I dismiss the petition."

It is quite clear from that, that the dismissal of the petition cannot be regarded as an exercise by the Judge of his discretion. He evidently thought that the fact that the deed was in existence, whether repudiated or not, constituted a bar to the relief sought by the appellant. That conclusion is not warranted by the decision of this Court in Wirth v. Wirth[4]. As I have pointed out, in that case the respondent had complied in full with the terms of the deed of separation. That fact is emphasized in the judgment; and the decision is no authority for the proposition that, where a deed of separation has been repudiated by the parties to it, it should still be regarded as a bar to the success of the petitioner on a petition for restitution of conjugal rights.

The learned Judge having failed to consider the matter from the point of view of an exercise of his discretion, it becomes our duty to make the order he should have made. On the evidence which was given it appears clear that the husband, at any rate, had entirely repudiated the deed of separation by declining to be bound by it, and that the wife had also repudiated it by writing the letter of 1st June 1921 and by bringing this suit. Therefore we think that the proper thing to do is to say that the deed, having been repudiated by both parties, does not constitute a bar to a petition by the wife for restitution of conjugal rights.

For these reasons we think that the appeal should be allowed and a decree made for restitution of conjugal rights.

Appeal allowed. Decree for restitution of conjugal rights. Respondent to pay costs in Supreme Court and in High Court.

Solicitor for appellant, W. J. Creagh.

[1] [1918] HCA 77; (1918) 25 C.L.R., 402.

[2] (1918) 25 C.L.R., at p. 404.

[3] (1918) P., 132.

[4] [1918] HCA 77; (1918) 25 C.L.R., 402.