Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1 (28 April 1953)

HIGH COURT OF AUSTRALIA

BREWER v. BREWER [1953] HCA 19; (1953) 88 CLR 1

Matrimonial Causes (Vict.)

High Court of Australia
Dixon C.J.(1), Williams(2), Webb(2), Fullagar(3) and Taylor(2) JJ.

CATCHWORDS

Matrimonial Causes (Vict.) - Maintenance of wife - Decree for dissolution of marriage obtained by husband on ground of adultery - Discretionary bar not raised by wife at hearing of suit - Husband's adultery and wilful neglect or misconduct conducing to wife's adultery - Admissibility of evidence in subsequent maintenance application by wife - Issue-estoppel - Public policy - Relevance of certain matters - De facto custody of child by wife - Desirability of establishing common home for wife and child - Marriage (Divorce) Act 1933-1939 (Vict.), (No. 4210 - No. 4654), s. 5 (1).

HEARING

Melbourne, 1953, February 18-20.
Sydney, 1953, April 28. 28:4:1953
APPEAL from the Supreme Court of Victoria.

DECISION

April 28.
The following written judgments were delivered : -
DIXON C.J. I have had the advantage of reading the reasons for judgment

WILLIAMS, WEBB AND TAYLOR JJ. This is an appeal from an order of the Supreme Court of Victoria allowing an appeal from an order directing the present respondent to pay for the maintenance of the appellant, his former wife, the sum of 750 pounds per annum, or 62 pounds 10s. 0d. per month, from 1st December, 1951, during their joint lives or until further order. The wife's application was made, pursuant to s. 5 of the Marriage (Divorce) Act 1933-1939 (Vict.) some little time after the making of a decree for dissolution of the marriage on the ground of the wife's adultery. No answer was filed on her behalf in the suit for dissolution, nor did she appear to defend the suit upon the hearing, although she was called as a witness in the suit. (at p7)

2. In support of her application for maintenance, however, the appellant swore an affidavit containing a great many allegations which, if they had been established in the suit for dissolution, might have resulted in its dismissal for the allegations, if believed, would have gone some distance towards establishing that the husband had himself been guilty of adultery and, also, of such wilful neglect or misconduct as had conduced to the wife's adultery. In these circumstances the respondent in this appeal objected on the hearing of the application for maintenance to the admission of this evidence concerning his conduct during the latter years of his married life contending that the appellant was precluded by the findings and decree in the suit from presenting such evidence to the Court. In considering the rival contentions on this point, Dean J., who thought the evidence admissible and whom the Full Court thought was in error on this point, referred to the conflicting decisions in Duchesne v. Duchesne (1951) P 101 and Geyer v. Geyer (1949) 66 WN (NSW) 105 . In the former case, Pearce J., in circumstances not dissimilar to those of the present case, held that a husband who had allowed a suit for dissolution of his marriage on the ground of his desertion to proceed as an undefended suit was estopped in maintenance proceedings from "asserting matters inconsistent with the decree", and further that he was "for reasons of public policy, prohibited from asserting matters (of which he knew) which would reasonably have been expected, if proved either to provide an effective answer to the petition or to produce a different result at the trial" (1951) P, at p 113 . With the first proposition there can be no quarrel but it is not contended in this case that the assertion of those facts which the appellant desired to adduce in evidence were inconsistent with the decree in the suit. But the form of the decree is not the sole measure of what issues were then determined and we have no doubt that the decree was conclusive not only as to those issues expressly pronounced upon but also as to any other issue upon which it was necessary for the Court to adjudicate before making a decree in the form in which it did. Moreover, the decree constituted a judgment in rem and conclusively established the new status of the parties to the suit (Bater v. Bater (1906) P 209 ). But the proposition that the wife, by failing to attempt to show in the suit that her husband had been guilty of adultery or of neglect or conduct conducing to her own matrimonial offence, was thereby estopped from giving evidence of her husband's conduct during the relevant period for the purpose of endeavouring to secure an order for maintenance appears to us to be misconceived. In reaching his conclusion in the Full Court Gavan Duffy J. referred to Lockyer v. Ferryman (1877) 2 App Cas 519, at p 525 and quoted from the speech of Cairns L.C. the following passage: "No man who shews that at the time of his first proceedings he had the whole facts within his knowledge, and who had the power to raise them - who puts upon his record statements which prove that he had the whole of this knowledge in his possession - can be heard, because he does not attempt to prove one part of the case, to say after the lapse of thirty years that he is entitled to commence a new litigation, to raise again a portion of the case which, if it had any foundation, was perfectly well known to him at the time of his first proceedings". But it should be observed that the appellant in that case was held to be estopped because in the second suit he attempted to reopen the very issue previously decided. In that case the appellant sought a declaration that he and a person then deceased and of whom the respondents were the executors had inter-married in Scotland many years before. But in a previous suit instituted some thirty years before the appellant had sought a declaration in the same terms. In this suit he had been unsuccessful, and it is clear that what he sought to establish in the second suit was that the marriage alleged in the first suit had taken place. In dealing with the question on appeal in the second suit Lord Cairns made it clear (1877) 2 App Cas, at p525 that in stating the proposition, quoted above, he was not laying down any general rule "as to the extent to which a sentence in a declarator of marriage is binding as against any subsequent attempt that may be made to establish the marriage upon any new or different footing", and that he was content to dispose of the case in the manner indicated by him. But at no time was it suggested by his Lordship that if the issue in the second suit had been of a nature different from that in the first any question of estoppel would or could have arisen or that evidence relevant to the issues in the first suit would not have been admissible. Nor is the view which we have expressed inconsistent with the passage cited by Gavan Duffy J. from Hoysted v. Commissioner of Taxation (1926) AC 155; (1925) 37 CLR 290 . To hold that the appellant's affidavit was admissible in the maintenance proceedings does not permit her to reopen "the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest". (at p9)

3. The second proposition as stated by Pearce J., as we understand it, receives no support from these authorities. Nor did the argument advanced on behalf of the respondent in Duchesne v. Duchesne (1951) P 101 involve the conclusion, as stated by his Lordship, that a respondent might "allow his wife to secure an undefended decree on the ground of desertion because he wishes to be free, and then, when it has been made absolute, to reduce or extinguish his financial liability by proving that the parting was consensual or even that it was the wife who deserted him" (1951) P, at p 113 . To permit a husband to establish such issues might well, as his Lordship said, offend against the rule of estoppel, but no such issue arises for decision in maintenance proceedings. And we should add in passing that it adds nothing to his Lordship's statement to say, as he did, that it would also offend "against public policy since it is a fraud on the Court", for the rules relating to estoppel are themselves based upon considerations of public policy and must, in general, be taken to express the full measure of what public policy requires in cases where they are called into play. (at p9)

4. That the second proposition as stated by Pearce J. must be taken to rest upon considerations other than the conclusiveness of a judicial decree is emphasised by his disagreement with the views expressed in Robinson v. Robinson (1943) P, at p 45 . In that case Henn Collins J. said: "The view to which I have come is that, although proceedings under s. 190, sub-s. 1, are separate proceedings from those for dissolution, a party ought not to be allowed to refrain from using at the hearing of a suit for divorce information which he had, or which, but for his carelessness, he might have had, and then, when his pocket begins to be affected, propose to prove that information and put the petitioner to the expense of a separate issue". Pearce J. found himself unable to agree that the "prohibition extend to matters of which he (the husband) was ignorant at the time of the trial but which he might have known, 'but for his carelessness' " (1951) P, at p 114 . But in neither case was the rule thought to be absolute. Its application in one case was said to depend upon a failure to assert upon a former occasion matters of which the respondent was aware at the time and in the other upon the respondent's failure to assert matters of which he had actual or constructive knowledge at the relevant time. From these observations, it is clear that the "rule" as propounded, could not have been thought to arise from the conclusiveness of the decree but rather from the conduct of one of the parties in each case. In our view there is no foundation for any such general rule. It is true that Owen J. in Nettheim v. Nettheim (No. 2) (1930) 47 WN (NSW) 46 took a view somewhat similar to that entertained in Duchesne v. Duchesne (1951) P 101 , but it is equally true that Bonney J. in Geyer v. Geyer (1949) 66 WN (NSW) 105 considered this case and refused to follow it. Nor can any real support be found for the rule in any case other than those to which we have referred. Further it is impossible, as counsel for the appellant sought to do, to support the rule as a rule of practice. There is nothing in the authorities upon which such a view could be based whilst if some reliance for it could be placed on Robinson v. Robinson (1943) P 43 and Duchesne v. Duchesne (1951) P 101 insuperable difficulty would arise in formulating the rule itself and in applying it in any particular case. Some of the difficulties are readily apparent from the final observations of Pearce J. in the latter case. (at p10)

5. It may be said that to permit evidence of the nature referred to might cause considerable difficulty and indeed, in one sense, allow one party to give evidence inconsistent with a decree for dissolution. For example, where a husband, in an undefended divorce suit, has obtained a decree on the ground of his wife's desertion, it may be said that to allow the wife to give evidence in maintenance proceedings of her husband's conduct might leave it open to the former to establish that she was not, in fact, the deserting party. But the answer is that this is not an issue in the maintenance proceedings and no determination in those proceedings would, or could, contravert the issue upon which a final and conclusive pronouncement had already been made in the proceedings for dissolution. The question in maintenance proceedings must always be whether, in all the circumstances, an order for maintenance should be made and a finding one way or the other would not impugn any finding necessarily involved in the making of the earlier decree. We are of the opinion that in making its finding the Court, in proceedings such as the present, is entitled, and indeed bound, to have regard to the conduct of the parties in association with all other relevant circumstances. (See per Lindley L.J. in Wood v. Wood (1891) p. 272. .) This being so, the Full Court, in our opinion, erred on the question of the admissibility of the appellant's affidavit. (at p11)

6. A majority of the Full Court thought that Dean J. erred also in regarding as factors for consideration in determining whether any order for maintenance should be made the circumstance that the wife had the de facto custody of the daughter of the marriage, and the desirability, in the daughter's interest, of the wife being enabled to establish a common home for herself and her daughter. We have no doubt that upon the facts of this case this was a relevant circumstance for the consideration of the learned judge. Once it was established or conceded that the establishment of such a home was desirable this factor was, in our opinion, most material in determining whether an order should be made. For the question which then arose did not merely involve consideration of what additional amount should be made available by the husband to provide for his daughter, but whether the wife should be placed in a position which would enable her to provide and maintain such a home. (at p11)

7. Holding the view, as we do, that Dean J. was right on both of these points, we are of the opinion that his order should be restored. It would appear that if the Full Court had not thought that he had erred on these points they would not have interfered with his order but, in any event, we are of the opinion that the order which he made was rightly made and should be restored. (at p11)

FULLAGAR J. This is an appeal from an order of the Full Court of the Supreme Court of Victoria, which set aside an order made by Dean J. Dean J. had ordered that Mervyn MacPherson Brewer (the present respondent) pay to his divorced wife, Betty Melrose Brewer (the present appellant) maintenance at the rate of 750 pounds per annum. For the purposes of the two main points argued on the appeal the facts may be stated quite shortly. It will be convenient to refer to the parties as husband and wife, although their marriage has been dissolved. (at p11)

2. The parties were married on 27th November 1936. There is one child of the marriage, a daughter named Jillian MacPherson Brewer, who was born on 11th October 1937. On 2nd August 1948 the husband commenced proceedings in the Supreme Court for dissolution of marriage on the ground of his wife's adultery in Perth with a man named Blackman. The wife entered an appearance but did not file an answer, and the suit came on for hearing before Dean J. as an undefended suit. On 21st February 1949 a decree nisi was pronounced, and this decree was made absolute on 23rd May 1949. Before the husband's petition was filed the wife had made a confession in writing of adultery with Blackman. At the hearing she was called by the Judge as a witness and stated on oath that she had committed the adultery charged. She made no allegations of any kind against her husband. In the words of Dean J., "neither in the petitioner's evidence nor in that of the wife was any suggestion made that the petitioner's conduct had not been perfectly proper at all times". (at p12)

3. The wife's summons for maintenance was issued on 29th November 1951. The application was made under s. 5 of the Marriage (Divorce) Act 1933-1939 (Vict.) which provides that, on or after making any decree for dissolution of marriage, whether obtained by or against the husband, the Court may, if it thinks fit, make an order on the husband for payment to the wife during the joint lives of husband and wife of such monthly or weekly sum for her maintenance or support as the Court thinks reasonable. The section contains provisions enabling the Court to discharge, modify or suspend an order made thereunder, and in certain circumstances to increase the amount payable. The application was supported by an affidavit sworn by the wife on 28th November 1951. This affidavit merely deposed to the divorce and to certain events which had taken place, and certain communications which had passed between the parties and their solicitors, since the divorce. It said (par. 3) that "our married life was unhappy", but it did not particularise any cause of unhappiness. On 23rd January 1952, however, the wife made and filed another affidavit. In this affidavit she referred to the statement in par. 3 of the first affidavit, and made, for the first time, very serious allegations against the conduct of the husband during the marriage. These need not be set out in detail. They fall into two classes. She alleged, in the first place, from about 1939 onwards, and especially in and after 1943, a more or less continuous persistence by the husband in druken habits, and much offensive and disgusting behaviour under the influence of drink. She alleged, in the second place association by the husband at different times with three women in circumstances which strongly suggest adultery - in one case adultery in the conjugal residence. In the first two cases adultery, if it took place, was clearly condoned. In the case of the third woman the affidavit says that the husband admitted having "had sexual relations with her". This took place in 1948 after the husband had told the wife that he "wished he was in a position to marry again". It was in 1948 that the wife finally left the husband and committed the adultery on which the decree of divorce was founded, but it does not appear whether this was before or after the husband's confession. In his affidavit in support of the petition the husband had said that early in 1948 he had a number of quarrels with his wife "over various domestic matters and about her staying out very late at night with a golfing professional". (at p13)

4. When the wife's summons for maintenance came on before Dean J., her affidavit of 23rd January 1952 was tendered by her counsel. Counsel for the husband objected to its admission. Dean J. held that it was admissible, and stated his reasons in a reserved judgment on the wife's application. The admission of this evidence provided one of two grounds on which the order of Dean J. was set aside by the Full Court. Their Honours were of opinion that it was inadmissible. Its rejection was based not on the ground of irrelevance, but on grounds which were said to arise from the fact that the wife had not, on the hearing of her husband's petition for divorce, put before the Court the material in question. It was put before us that either the wife was estopped by the decree from raising that material in subsequent proceedings or was precluded from raising it by a rule of law based on public policy. (at p13)

5. That the material was relevant on the wife's application for maintenance cannot be doubted, although a reading of the reasons for judgment of Dean J. would lead one to think that he (probably rightly) attached no very great importance to it: see Wood v. Wood (1891) P 272, at p 276 . That the same material was relevant, and might have been very important, on the husband's petition for divorce is not less clear. The wife's affidavit makes no case of connivance or condonation, matters which the Court is bound by s. 81 of the Marriage Act 1928 (Vict.) to investigate as best it can. Nor does it make any case of collusion, which is the third of the so-called "absolute bars" according to the law of Victoria (ss. 82 and 83). But s. 84 of the Act provides (inter alia) that the Court shall not be bound to pronounce a decree of dissolution of marriage if it finds that the petitioner had during the marriage been guilty of adultery. It also provides that, in the case of a petition charging adultery, the Court shall not be bound to pronounce a decree on any ground involving adultery if it finds that the petitioner has been guilty of such wilful neglect or misconduct as has conduced to the adultery. These things are among the so-called "discretionary bars". It seems plain that, if the wife had, on the hearing of her husband's petition for divorce, raised and established the matters alleged in her affidavit of 23rd January 1952, the decree could have been made only as a matter of discretion and not as a matter of right. It is plain indeed that it might, as a matter of discretion, have been refused. There can, of course, be little doubt that the wife refrained from raising the matters in question for the simple reason that she was hardly, if at all, less desirous than her husband that the marriage should be dissolved. (at p14)

6. But it would be entirely contrary to principle to hold that she was estopped from raising on her application for maintenance matters which she had refrained from raising on her husband's petition for divorce. The question is not one of res judicata in the true sense but of what is properly called issue-estoppel. The two are often unfortunately confused. The principle of issue-estoppel was stated by Lord Ellenborough in Outram v. Morewood (1803) 3 East 346, at p 355(102 ER 630, at p 633) in these terms: - "It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel . . . the estoppel precludes parties . . . from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them . . . has been, on such issue joined, formally found against them". But there can be no estoppel unless what is put forward is inconsistent with a former finding or decision. In Howlett v. Tarte [1861] EngR 738; (1861) 10 CB (NS) 813, at p 826 [1861] EngR 738; (142 ER 673, at p 678) , Williams J. said: - "If the defendant attempted to put upon the record a plea which was inconsistent with any traversable allegation in the former declaration, there would be an estoppel. But the defence set up here is quite consistent with every allegation in the former action". In the same case Willes J. said: - "Nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action" (1861) 10 CB (NS), at p 827 (142 ER, at p 679) . This passage is quoted both by Lord Maugham L.C. and by Lord Wright in New Brunswick Railway Co. v. British & French Trust Corporation (1939) AC 1, at pp 21, 37 . The Lord Chancellor said that the estoppel extended only to "setting up in a subsequent action a defence which was necessarily and with complete precision decided by the previous judgment" (1939) AC, at p 21 . The whole position was carefully explained by Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at pp 531, 532 . His Honour said: - "A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". But he added: "Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded". (at p15)

7. It is possible that the decision of the Privy Council in Hoysted v. Federal Commissioner of Taxation (1926) AC 155; (1925) 37 CLR 290 , has not always been correctly understood, although the headnote to the report of that case states its effect quite accurately, although the point in controversy is made very clear in the dissenting judgment of Higgins J. in the High Court [1921] HCA 56; (1921) 29 CLR 537, at pp 559-562 , which received the approval of their Lordships (1926 A.C., at p. 172; (1925) 37 CLR, at p 305 , and although the whole position has been explained by Somervell L.J. in In re Koebigsberg; Public Trustee v. Koenigsberg (1949) Ch 348, at pp 359, 360 . In Hoysted's Case (1926) AC 155; (1925) 37 CLR 290 the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Commissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different. As Somervell L.J. said: - "He was therefore seeking to obtain an order which was on the face of it and in form in direct conflict with the order which had been made previously" (1949) Ch, at p 360 . The point in question had been "the groundwork of the decision itself, though not then directly the point at issue" (per Coleridge J. in Reg. v. Township of Hartington [1855] EngR 264; (1855) 4 El & Bl 780, at p 794 [1855] EngR 264; (119 ER 288, at p 293) ). (at p15)

8. There is another point to be noticed. Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue. In Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at p 532 , Dixon J. said: - "In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action. . . . Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion". (at p16)

9. Having regard to these established principles there could be no estoppel in the present case which would prevent the wife from giving the evidence in question on her summons for maintenance. She could not, of course, be heard to deny that she had committed adultery. She could not maintain that her adultery had been condoned, or that there had been connivance by her husband. To do any of these things would be inconsistent with the decree; inconsistent with "the groundwork of the decision itself". But she was not seeking to do any of these things. She came before the Court as a wife guilty of adultery and therefore under a heavy handicap in her application for maintenance. She sought to mitigate the effect of that handicap by proving conduct on the part of her husband which, while perfectly consistent with her having committed adultery and with the absence of connivance and condonation, might possibly induce the Court to take a more lenient view of her own misconduct in the exercise of its discretion as to granting or refusing maintenance. She was denying nothing which the decree established. She was controverting no issue decided when the decree was granted. She was adducing evidentiary facts which might conceivably have caused the decree to be refused in the exercise of discretion if she had chosen to raise them on the hearing of the petition for divorce and had succeeded in establishing them. But no estoppel arises in such circumstances. To put forward those facts is in no sense to contradict anything which can be regarded as decided on the petition. Cf. generally Hopkins v. Hopkins (1933) 150 LT 279 . (at p16)

10. It was argued that, even if there were no estoppel, there was a rule of law, founded on public policy, which precluded the wife from relying on the evidence in question. This argument was rested mainly, if not entirely, on the judgment of Pearce J. in Duchesne v. Duchesne (1951) P 101 , but it is desirable to begin by looking at one or two earlier decisions in England. (at p16)

11. In Restall v. Restall (1930) P 189 , a woman had obtained a decree of nullity on the ground of consanguinity, and subsequently applied for permanent maintenance. The man to whom she had been ostensibly married made very serious allegations with regard to her conduct both before and after the marriage. The Court of Appeal, reversing a decision of Bateson J., held that the conduct of the parties both before and after marriage was relevant on the wife's application and that the evidence should be admitted. Lord Hanworth M.R. said: - "I think it is most important that the Court should have before it the relevant evidence to enable it to investigate thoroughly the conduct of the parties" (1930) P, at p 195 . The statute under which the application was made in that case expressly required the Court to have regard to the conduct of the parties. Section 5 of the Victorian Act of 1933 does not, though s. 95 of the Marriage Act 1928 (Vict.) does, so require. But in such cases "conduct of the parties" is relevant whether expressly referred to or not in the statute which gives the jurisdiction invoked. In the frequently cited case of Wood v. Wood (1891) PD 272, at p 276 , Lindley L.J., dealing with a statute which contained no express reference to it, placed "conduct of the parties" first in the list of matters to be taken into consideration, and in this judgment Bowen L.J. and Kay L.J. concurred. (at p17)

12. In Mould v. Mould (1933) P 76 Bateson J. held that the rule laid down in Restall v. Restall (1930) P 189 extended to a case of dissolution of marriage. In this case a wife, who had obtained a divorce on the ground of her husband's adultery, applied for maintenance. The husband tendered evidence as to his wife's conduct, alleging cruelty and intimacy (short of adultery) with another man. This evidence had not been tendered on the petition for divorce, and objection was taken to its admission. Bateson J. thought it clear that there could be no estoppel. And, with reference to an argument that the evidence should be excluded in the exercise of discretion, he said that, while he thought it "most inconvenient and very unsatisfacory" (1933) P, at p 81 that such evidence should be admitted, he felt obliged to follow Restall v. Restall (1930) P 189 . In Lindsay v. Lindsay (1934) P 162, at pp 167, 168 , Sir Boyd Merriman P. observed obiter that, if it had been necessary, he would have "wished to consider further whether, as was held by Bateson J. in Mould v. Mould (1933) P 76 , there is anything in the decision in Restall v. Restall (1930) P 189 which obliges the Court to receive on a maintenance petition evidence of facts which would have afforded a defence to the petition for divorce, but which the respondent spouse deliberately refrained from raising in answer to that petition". (at p17)

13. In Robinson v. Robinson (1943) P 43, at p 45 , a wife, who had obtained a decree of divorce on the ground of her husband's adultery, claimed maintenance, and the husband thereupon sought to prove that she had committed adultery during the marriage. He had made no such charge in the divorce suit, which had been undefended. Henn Collins J. thought it clear enough that there was no estoppel, but he rejected the evidence, saying that "a party ought not to be allowed to refrain from using at the hearing of a suit for divorce information which he had, or which, but for his carelessness, he might have had, and then, when his pocket begins to be affected, propose to prove that information and put the petitioner to the expense of a separate issue". In Duchesne v. Duchesne (1951) P 101 , a wife had, in an undefended suit, obtained a divorce on the ground of desertion. On her subsequent application for maintenance allegations against her conduct during the marriage were made by the husband. Pearce J., being of opinion that the conduct alleged, though relevant to the application for maintenance, "would not reasonably have been expected either to provide an effective answer to the petition or to produce a different result" (1951) P, at p 115 , admitted the evidence. Having considered the earlier cases, he stated what he regarded as the correct principles in the following terms: (at p18)

14. "The respondent is estopped in maintenance proceedings from asserting matters inconsistent with the decree. Further he is, for reasons of public policy, prohibited from asserting matters (of which he knew) which would reasonably have been expected, if proved either to provide an effective answer to the petition or to produce a different result at the trial (e.g., mutual decrees instead of a decree to the petitioner alone, or a discretionary decree instead of a decree as of right). I am not satisfied that this further prohibition extends to matters of which he was ignorant at the time of the trial, but which he might have known 'but for his carelessness', to quote the words of Henn Collins, J." (1951) P, at pp 113, 114 . (at p18)

15. We were referred to two decisions in New South Wales. In Nettheim v. Nettheim (No. 2) (1930) 47 WN (NSW) 46 , a wife failed to comply with a decree for restitution of conjugal rights, and a decree of divorce was obtained by her husband on that ground. On an application by her for maintenance Owen J. refused to allow evidence of conduct on the part of the husband which "would or might" have led to a refusal of the decree for restitution. However, in Geyer v. Geyer (1949) 66 WN (NSW) 105 , Bonney J. took a different view. His Honour thought it "quite possible" that, if certain evidence, which the wife tendered on an application for maintenance, had been put before the Court on the hearing of her husband's petition for divorce, the decree might have been refused. He nevertheless admitted the evidence, pointing out that such provisions as s. 5 of the Marriage (Divorce) Act 1933 (Vict.) are based not merely on considerations applicable as between two parties but on considerations of public policy. See Hyman v. Hyman (1929) AC 601 , and cf. Davies v. Davies [1919] HCA 17; (1919) 26 CLR 348 , and Cook v. Cook (1923) 33 CLR 369 . Bonney J. appears indeed to have thought that even an issue-estoppel ought to give way to these considerations of public policy for he said: "It has long been clearly established, as for example, in Harriman v. Harriman (1909) P 123 , and Kara v. Kara (1948) P 287 , both in the Court of Appeal, that in matrimonial causes, the ordinary rules relating to res judicata and estoppel must yield to the provisions of the Matrimonial Causes Act, where their strict application would be inconsistent with express provisions of that Act. Section 39 contains such a provision, namely that the Court shall take into account the conduct of the parties. It seems to me that these considerations were not brought to the notice of the court in Nettheim v. Nettheim (1930) 47 WN (NSW) 46 " (1949) 66 WN (NSW), at pp 107, 108 . (at p19)

16. It is not, I think, correct to say that an issue-estoppel must yield to an express direction in a statute which does no more than say that it is necessary to take into account "conduct of the parties". But it can hardly be doubted that the decision of Bonney J. in Geyer v. Geyer (1949) 66 WN (NSW) 105 , where an estoppel could not have been successfully raised, was a sound decision. Where there is no estoppel it is difficult to see how "public policy" can be invoked to support the rejection of relevant evidence. Every consideration of public policy seems to tend in favour of its admission. In Hyman v. Hyman (1929) AC 601, at p 629 , Lord Atkin said: - "The wife's right to future maintenance is a matter of public concern, which she cannot barter away". If she cannot barter it away, it can hardly be maintained that she is precluded from supporting her claim by relevant evidence because she has refrained from tendering that evidence on an earlier occasion, when she was in no way bound to tender it. Moreover, although it is true that the question of public policy, which was discussed in Robinson v. Robinson (1943) P 43 , and Duchesne v. Duchesne (1951) P 101 , did not arise in Restall v. Restall (1930) P 189 , I think, with respect, that Bateson J. was right in Mould v. Mould (1933) P 76 , in thinking that the reasons given for the decision of the Court of Appeal in Restall v. Restall (1930) P 189 required, in the absence of an estoppel, the admission of the evidence in question in that case. And the "principle" laid down in Duchesne v. Duchesne (1951) P 101 is open to other objections. It would allow evidence of comparatively unimportant misconduct, such as was unlikely to have affected the granting of a divorce, while it would exclude evidence of serious misconduct which might have an important bearing on the question of maintenance. Dean J. thought that such a position savoured of absurdity. It would certainly be anomalous. The truth is that the rules of issue-estoppel have been carefully defined by the courts for the very purpose of determining as precisely as possible under what circumstances a party may put forward on a subsequent occasion material not put forward on a prior occasion. Such rules lose their value and their significance when attempts are made on vague grounds to give the effect of an estoppel to circumstances which admittedly create no estoppel. I would add that, in my opinion, it can make no difference whether the duty of the Court to have regard, on a wife's application for maintenance, to the conduct of the parties, arises from express statutory direction or from the general principle laid down in Wood v. Wood (1891) P 272, at p 276 . (at p20)

17. For these reasons I am of opinion that Dean J. was right in admitting the evidence in question, and that the Full Court was wrong in holding that it ought to have been rejected. (at p20)

18. If no other question than that of the admissibility of the evidence as to the conduct of the husband had been involved in the appeal from Dean J. to the Full Court, the Full Court must, taking the view which it did take, have remitted the case to Dean J. for further consideration. Dean J. though admitting that evidence, does not appear to have attached critical importance to it. The Full Court, however, did not remit the case to Dean J., but merely discharged his order, holding that no order for maintenance ought to have been made. This course was adopted because the Full Court also disagreed with Dean J. with regard to the main consideration which led him to make his order. This matter may be dealt with very shortly. The evidence was fully examined by counsel before us, but there is no need to refer to it in detail. (at p20)

19. What seemed to Dean J. the decisive consideration was connected with the daughter of the marriage, who, when the matter was before his Honour, was about fourteen years of age. No order has ever been made as to the custody of this child. The husband's petition for divorce did not ask that he should have the custody. Since the divorce, as before it, the child has been at boarding school, and it is difficult to say that she has been in the "custody" of either of her parents. Her father has provided, probably not ungenerously, for the expense of her maintenance and education. But he has been clearly willing that her mother should have the general care and management of her. He had remarried almost immediately after decree absolute, and there is a child of the remarriage. In all the circumstances, the child's mother might be reasonably regarded as her natural guardian. At his invitation she sought, and, after a good deal of difficulty, found, a flat in Kew in which she might live, and in which the child, when not residing at her school, might stay with her. The rent of the flat is 6 pounds 6s. 0d. per week. So far as the child can be said to have had a home, her home has undoubtedly been the place where her mother has resided. And this has been not only with the consent of her father but really at his express wish. (at p21)

20. The above brief statement omits much detail, much argument and counter-argument, the making of offers and the withdrawal of offers. But it represents what is essential to the case and is clearly established. Dean J., in effect, took the view that, because the wife was expected to assume the main parental responsibility for the care and management of the child, and to maintain something in the nature of a home for her, it was right and proper that the husband, who is a wealthy man, should pay to her such sum by way of maintenance as would help towards her own support in the appropriate "station of life" and enable her to provide for her daughter what she was expected to provide. The Full Court disagreed with this view. Their Honours thought that such considerations might be relevant as the the quantum of maintenance if it were found that the husband ought, apart from such considerations, to pay maintenance to the wife. But they were of opinion that such considerations were irrelevant to the primary question whether the payment of any maintenance ought to be ordered. (at p21)

21. I am, with great respect, unable to feel any doubt that the view of Dean J. was correct. I have difficulty indeed in understanding the distinction drawn. It cannot be right to say that one should first inquire whether the wife is such a good woman that she ought to be paid something or such a bad woman that she ought to be paid nothing - and then - but only if this question is answered in her favour - inquire how much ought to be paid in order that she may fulfil to some extent the duties of a mother to a daughter for whom she is expected to provide something in the nature of a home. All the circumstances of the case must be regarded in deciding whether the husband should be called upon to pay anything towards the maintenance of the wife. I do not find it easy to imagine a more relevant circumstance than the fact that the wife, although divorced for adultery, is expected by the husband to accept the main responsibility for the upbringing of the child of the marriage and to maintain some sort of "home" for the child. It is nothing to the point to say that the husband is prepared to accept full financial responsibility for the child's maintenance and education. If the wife is expected to continue to be a mother, there is a clear reason for saying that she should be placed in such a financial position as will enable her to do what is expected of her. This consideration could, of course, be displaced by various other considerations. She might, for example, be a rich woman and the husband a poor man. But there are no such considerations in this case. The case discloses no reason for saying that the discretion of Dean J. was in any respect wrongly exercised. (at p22)

22. In my opinion, this appeal should be allowed with costs. The judgment of the Full Court should be set aside and the order of Dean J. restored. In lieu of the judgment of the Full Court it should be ordered that the appeal from Dean J. be dismissed with costs. (at p22)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Victoria discharged and order of Dean J. of 11th March 1952 restored. In lieu of the order of the Full Court order that the appeal to the Full Court from the order of Dean J. be dismissed with costs.