Viant v Viant [1955] HCA 40; (1955) 94 CLR 347 (18 July 1955)

HIGH COURT OF AUSTRALIA

VIANT v. VIANT [1955] HCA 40; (1955) 94 CLR 347

Matrimonial causes

High Court of Australia
Dixon C.J.(1), Webb(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Matrimonial causes - Dissolution of marriage - Unreasonable delay - Delay of thirty-two years - Exercise of discretion - Matrimonial Causes Act 1929-1941 (S.A.) (No. 1946 of 1929 - No. 51 of 1941), s. 12 (1) (b).

HEARING

Adelaide, 1955, June 15;
Melbourne, 1955, July 18. 18:7:1955
APPEAL from the Supreme Court of South Australia.

DECISION

July 18.
THE COURT delivered the following written judgment: -
This is an appeal by a husband from an order of the Supreme Court of South from his wife, the first respondent, on the grounds of her adultery with the second respondent and her desertion of the appellant without just cause or excuse for the statutory period. The grounds relied upon were made out by the evidence, but the learned judge refused relief, being of opinion that the action was collusive, and that the plaintiff was not suing in good faith and had been guilty of unreasonable delay. (at p349)

2. The spouses were married in December 1918, the husband then being twenty-two years of age and the wife twenty. They lived together for only eighteen months. During this period the husband was an employee in smelting works at Port Pirie. In June 1920 an opportunity arose for him to obtain employment at similar works in Upper Burma and he left for that country under an arrangement with his wife that she would follow him when he should succeed in obtaining a house there. A house, however, could not be found. For a year they corresponded, but then the wife became friendly with the second respondent, Richardson, and after another three months the husband learned of the association. A further letter to his wife having remained unanswered, he wrote no more, and in June 1922 he returned to South Australia. He was given what he called "certain information" about his wife, but did not look for her. For ten years he lived at Port Pirie, and ever since 1932 he has lived in Adelaide except for a term of three years at the Woomera Rocket Range. He appears to have known all along, as the fact was, that his wife and Richardson were living together as man and wife and had children, but he made no attempt either to induce his wife to return to him or to obtain a divorce. So matters rested for thirty-two years. The learned judge summed up the situation by saying: "The opinion I have formed of the plaintiff is that he has from the first been convinced that his wife was committing adultery and would not return to him; his affection for her was not very strong; he has never had any wish to marry again, nor does he now desire to do so; he has been satisfied to live his own life, and has been completely indifferent to whatever life she might live; and he has never had any intention, nor the least desire, to divorce his wife." (at p349)

3. In November 1954, however, the husband commenced an action for divorce, being led to do so by a request made to him by his wife's brother. The wife and Richardson were about to go to reside at Kingoonya, where the brother had a gold mine. It was the brother who took the initiative towards a divorce, and he induced the husband to commence proceedings by interviewing a solicitor with him and accepting personal responsibility for the costs. This arrangement was fully and frankly disclosed to the trial judge, and in giving his evidence the husband said: "I would like to be divorced from my wife, but if my brother-in-law had not spoken to me about it I would not have taken this action." (at p350)

4. Abbott J. felt himself constrained by his interpretation of the case of Mericka v. Mericka (1954) SASR 74 , contrary to the view which he would otherwise have taken on the authority of Brine v. Brine (1924) SASR 433 , to hold that because of the arrangement as to costs the action was collusive. His Honour did not suspect any agreement or arrangement to pervert the course of justice in any way, but he was satisfied that the brother-in-law's acceptance of the liability to pay the costs was the consideration for the husband's initiation of the proceedings, and he regarded the brother-in-law as the wife's agent in his negotiations with the husband. Whether this was enough to justify a finding of collusion is open to serious argument; but we do not find it necessary to decide the question, for it is clear that his Honour's decision to dismiss the action on the ground of unreasonable delay must be upheld. (at p350)

5. Unreasonable delay on the part of a plaintiff seeking a divorce is made a discretionary bar to relief by s. 12 (1) (b) of the Matrimonial Causes Act 1929-1941 (S.A.). The unreasonableness of delay is not a mere matter of duration; the delay must be culpable, in the sense in which that expression is used in the authorities reviewed by Karminski J. in Lowe v. Lowe (1952) P 376 . It must suggest an acquiescence in the wrongful conduct of the guilty spouse, or a condonation of it, or an insensibility or indifference to the loss of the spouse, or an insincerity in the complaint, or something in the nature of connivance: Turnbull v. Turnbull (1945) 47 WALR 31; 19 ALJ 245 . In the present case the delay was quite plainly of this kind. It would be difficult to find a case in which the length and circumstances of the delay were more eloquent of a complete lack of concern on the part of the husband that his wife had left him and formed an adulterous association with another man. His docile acceptance of the situation fell little short of a consent to its indefinite continuance. (at p350)

6. The case was therefore one in which, if there were no other bar to relief, a discretion to dismiss the action clearly existed. It was a judicial discretion, to be exercised in accordance with established principle. It would not have been right for the learned judge to adopt, without considering other factors in this case, the concluding words of a quotation which he made from Binney v. Binney and Hill (1936) P 178 : ". . . as I am satisfied that there has been culpable delay and real acquiescence by the petitioner in the adultery of his wife the petition must be dismissed" (1936) P 178, at p 181 . Even though the delay was culpable, his Honour was bound to consider whether in all the circumstances that was a sufficient reason for declining to grant a divorce. There seemed not the remotest possibility of the spouses ever becoming reconciled, and much might no doubt be said for the desirability of enabling the long-standing relationship between the wife and Richardson to be given the status of legal marriage. But there was nothing in the evidence to show that any of the three persons most closely concerned felt, or had ever felt, much interest in the topic, and the children of the irregular union, who of course would not be legitimated by a subsequent marriage, were all grown up and were said not even to know that their parents were unmarried. The matter which called for the greatest consideration was the public interest. The remedy of divorce was being sought by a husband whose attitude the trial judge was able to describe, with entire justification, by saying: "Having had a discussion with his brother-in-law, he has no desire to play the part of the dog in the manger, and has consented, so long as he is to incur no expense nor any great trouble, to divorce his wife, if it will give her any satisfaction." He was nonchalantly seeking from the court, at the persuasion of a third party, the dissolution of a marriage which he had treated for thirty odd years as of no significance, in order that legal regularity might be obtained for an adulterous union to which he had shown for the same period a phlegmatic indifference. In these circumstances, the view was certainly open, to say the least, that a divorce ought to be refused in the interests of society, lest the courts should seem to view with equanimity a cynical unconcern for the mutual rights and obligations of the marriage tie and an easy tolerance of extra-marital relations. (at p351)

7. Abbott J. was led by his consideration of modern decisions to remark that any interest which the public might once have been thought to have in upholding the sanctity of marriage and in discouraging divorce proceedings by parties guilty of the so-called discretionary bars would, if looked at frankly, seem to have disappeared. "In view of the development of judicial opinion", he said, "it would seem at least doubtful how far any real discretion now remains to be exercised by the trial judge". It would have been a mistake to decide the case upon so extreme a view, and his Honour did not proceed to do so. It may be that the range of matters relevant to be considered has come to be more completely recognized than it once was, and no doubt there has been some change of emphasis; but the discretion has lost none of its reality or of its importance, and it must be exercised now, no less than in earlier times, with a profound concern for the vital interest which society has in maintaining high respect for the institution of marriage and in insisting upon the observance of established standards of conduct on the part of those who approach the courts for divorce. (at p352)

8. In the nature of things it is to be expected that from time to time courts of appeal will differ from primary judges as to the way in which a discretion to grant or withhold a divorce should be exercised in particular circumstances. It cannot be too clearly affirmed, however, that appellate courts do not override the views of primary judges on matters of discretion whenever they consider that they would themselves have exercised the discretion differently. They interfere only to give effect to a clear conclusion that an error has occurred which has resulted in a failure to exercise the discretion properly. That this has been the consistent doctrine of this Court may be seen from the cases referred to in Mace v. Murray [1955] HCA 2; (1955) 92 CLR 370 . The case of Zarnke v. Zarnke [1950] HCA 41; (1950) 81 CLR 572 illustrates the application of the principle in relation to delay as a discretionary bar to divorce. (at p352)

9. In the present case there is nothing to suggest that the decision of Abbott J. to refuse a divorce by reason of the appellant's delay was vitiated by any error. He did not proceed upon any misapprehension either of fact or of law and we see no reason to suppose that he omitted to give proper weight to any relevant matter, or took into account any extraneous consideration, or failed in any other respect in a due exercise of the discretion he possessed. It follows that his decision must be affirmed. (at p352)

10. In these circumstances there is no need to consider the third question to which his Honour adverted, namely whether want of bona fides in the plaintiff provided a separate ground on which the relief sought should be refused. (at p352)

11. The appeal must be dismissed with costs. (at p352)

ORDER

Appeal dismissed.