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High Court of Australia |
BOWDEN v. BOWDEN [1960] HCA 12; (1960) 103 CLR 610
Matrimonial Causes
High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Menzies(5) JJ.
CATCHWORDS
Matrimonial Causes - Dissolution of marriage - Desertion by reason of failure to comply with decree for restitution of conjugal rights - Decree for restitution obtained by collusion - Discretion of court to pronounce decree for dissolution - Matrimonial Causes Act, 1899-1954 (N.S.W.), ss. 11, 16 (a), 18 (c), 19 (2), 20 - Interpretation Act of 1897 (N.S.W.), s. 23.
HEARING
Sydney, 1959, November 13;DECISION
1960, March 1.2. It is not easy to avoid a prima facie impression that the correct course to adopt was to treat the decree for restitution as binding while it stood and as accordingly forming a foundation for a suit for dissolution on the ground of desertion but to take measures to set that decree aside or enable proceedings for that purpose to be instituted. (at p612)
3. Section 11 (1) of the Matrimonial Causes Act, 1899-1954 (N.S.W.) is in the following terms: "If the respondent fails to comply with a decree of the Court for restitution of conjugal rights such respondent shall thereupon be deemed to have been guilty of desertion without reasonable cause and a suit for dissolution of marriage or for judicial separation may be forthwith instituted and a decree nisi for the dissolution of the marriage or a decree of judicial separation may be pronounced on the ground of desertion although the period of three years may not have elapsed since the failure to comply with the decree for restitution of conjugal rights." It is of course under this provision that the wife sought a decree for dissolution. (at p613)
4. Now Sir Frederick Jordan C.J. adopted the view that the jurisdiction conferred by the words in this sub-section "a decree nisi . . . may be pronounced on the ground of desertion" is discretionary. He expressed this view in a judgment concurred in by Davidson J. and Bavin J. in Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 . Langer Owen J. in Parker v. Parker (No. 2) (1928) 45 WN (NSW) 151 had held that once the conditions described by the earlier words of s. 11 (1) were established the ensuing words left no discretion to the court and (apart from other answers and statutory discretions) it was necessary to pronounce a decree. As to this Jordan C.J. said: "I am of opinion, both upon the language of the section and upon authority, that the decision cannot be supported in this respect. As has been already pointed out, by s. 11 failure to comply with the restitution decree is deemed to constitute only desertion without reasonable cause; it is not deemed to constitute such desertion for a period of three years; and hence it does not, without more, bring into operation the provisions of s. 20 (2). Section 11 itself provides, however, that a suit for dissolution or separation may be forthwith instituted and a decree nisi may be pronounced on the ground of desertion although the period of three years may not have elapsed since the failure to comply. The language is quite clear. The use of the word 'may' shows that it is discretionary and not obligatory for the Court to pronounce the decree where the statutory desertion has not continued for three years" (1938) 38 SR (NSW), at p 413; 55 WN, at p 165 . The reference to s. 20 (2) perhaps needs a little explanation. Sub-section (1) of s. 20 provides that whenever a petition is presented under s. 13 or 16, the court may dismiss the petition if in its opinion the petitioner's own habits or conduct induced or contributed to the wrong complained of. The sub-s. (2) of s. 20 proceeds: "In all other cases under the said sections the Court shall if it is satisfied that the case of the petitioner is established pronounce the decree prayed for". It had long ago been decided by the Full Court that a suit under s. 11 based on the "statutory" desertion provided for by that section is necessarily a suit under either s. 13 or s. 16, according to the sex of the petitioner, the provisions of ss. 18, 19 and 20 applying, at all events sub modo. See Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 . Accordingly Jordan C.J. said that the earlier part of s. 11 does not give a ground for divorce so that without more, that is if you stop there, you have nothing upon which s. 20 (2) will operate. Then he goes on to say that you do have more but what you have is a discretionary power. He implies that until the discretion is exercised sub-s. (2) of s. 20 obtains nothing under s. 11 to operate upon. Perhaps it is unfortunate that he does not expound the reasons why he considers the word "may" imports a discretion. It is a word conferring power and as it is judicial power it would be in accordance with common law principle to treat it as giving a jurisdiction of which, the conditions being fulfilled, the party might demand the exercise: see per Owen J. in Re Calman and John Fairfax & Sons Pty. Ltd. (1953) 54 SR (NSW) 86, at pp 92, 93; 71 WN 79, at pp 83, 84 and the discussion in Ward v. Williams [1955] HCA 4; (1955) 92 CLR 496, at pp 505-507 Jordan C.J. however was, one may be sure, fully aware of s. 23 of the Interpretation Act of 1897 (N.S.W.) which declares that where the word "may" is used it shall mean that the power may be exercised or not at discretion. The provision is discussed to some extent in Ward v. Williams (1955) 92 CLR, p 506 Jordan C.J. likely enough regarded it as the basis of the view he expressed. Upon that view it would seem that Chambers J. possessed a discretion which enabled him to dismiss the petition for dissolution on the ground that the decree for restitution had been obtained by collusion and by misleading the court: cf. Wilson v. Wilson (1941) 58 WN (NSW) 85 (at p614)
5. Why I think there is a somewhat difficult ultimate question for this Court is that all the foregoing depends upon the decisions of the State Court which are not free from doubt but which have stood for a very long time. Should we reconsider them at this stage and in this case? For a number of reasons I think not. In the first place the life of the legislation is almost over; the interpretation is compatible with the law of interpretation in force in New South Wales and it gives a convenient or workable result. In the next place if we were to disturb the practice which has prevailed so long, it ought not to avail the appellant; for it ought only to mean that before a decree nisi for dissolution is pronounced, some opportunity should be given for impugning the decree for restitution. Further it would appear that in Thomas v. Thomas (noted (1930) 45 CLR 604) as explained in Bartlett v. Bartlett [1933] HCA 53; (1933) 50 CLR 3, at p 13 this Court restored an order by which the primary judge in the Supreme Court had set aside the decree for restitution as well as the decree nisi for dissolution for collusion and fraud where there had been an intervention. After all, this leaves the matter rather one of State practice or procedure than of substantive law. Another consideration which ought not to be overlooked is that, on the footing that s. 20 applies to s. 11, there is something to be said for the view that her own conduct in colluding with her husband to obtain a decree for restitution under an arrangement that he should disobey it "induced", within the meaning of s. 20 (1), the wrong of which the appellant complained in the suit for dissolution namely his failure to comply with the decree for restitution. All these considerations make it proper to refuse to treat this as an occasion for reconsidering the decisions of the Supreme Court justifying the course taken by Chambers J. (at p615)
6. The appeal should be dismissed. (at p615)
McTIERNAN J. I agree in the reasons of the Chief Justice. Accordingly, in my opinion the appeal should be dismissed. (at p615)
KITTO J. This appeal is from a decree made on the hearing of consolidated petitions by which a husband and wife each sought dissolution of their marriage. Consolidated issues for trial, five in number, were settled in the form of specific questions. The first was whether the marriage of the parties had taken place. The second, third and fourth related to charges made by the respondent against the wife. The fifth was whether the husband had deserted the wife without reasonable cause by reason of his "not having complied" with a decree for restitution of conjugal rights. A trial was had before Chambers J. who delivered a judgment at the end of which, after finding the requisite domicile, his Honour said that he answered the first question in the affirmative and the other four in the negative. Both petitions were dismissed. (at p615)
2. There is no appeal by the husband, but the wife appeals against the dismissal of her petition. She had proved both the making of the decree for restitution of conjugal rights and the fact that the husband had not in fact returned home to her as the decree had ordered him to do. The learned judge however refused her decree for dissolution because of certain further facts. These facts, not fully stated in the judgment but shown by its terms to have been proved to his Honour's satisfaction, are as follows. In May 1955 the husband withdrew from cohabitation with the wife, the immediate cause of the withdrawal being that she had hit him on the head with a biscuit tin. In the following January the wife filed her petition for restitution. While this petition was pending, namely in August 1956, the wife at the request of the husband signed a document prepared by him by which she agreed to accept certain property in full settlement of all claims for maintenance against the husband, and also agreed "notwithstanding any developments which may occur in the future to proceed with petition for divorce". She also agreed orally that on the making of a decree for restitution the amount of maintenance being paid to her should be reduced. On 25th September 1956 the hearing of the restitution suit took place. The husband did not defend the suit and the court was not informed of the reason for his withdrawal from cohabitation or of the agreements into which the parties had entered. In the language of Chambers J. "there was as a result a suppression, and falsification oof material facts . . . whereby the court was deceived". A decree for restitution was made requiring the husband to return home to the wife within twenty-one days after service on him of a copy of the decree and of written notice of the home to which he was to return. Service was effected on 23rd November 1956, so that the time for compliance expired on 14th December 1956. The husband did not comply. A day or two before the twenty-one days expired, the wife sent the husband a telegram demanding two weeks' maintenance money, and according to the husband it was in consequence of her attitude about maintenance, an attitude which he considered a departure from the agreement of August 1956, that he set about trying to find evidence upon which he might himself base a petition for dissolution. He filed his petition on 25th January 1957 and it was not until 17th February 1958 that the wife filed her petition based upon failure to comply with the decree for restitution. (at p616)
3. Quite obviously it was the meaning of the arrangements made in August 1956 that the wife should get her decree for restitution on the petition then pending, and that the husband should not comply with it. The facts which I have outlined being disclosed by the evidence before him, Chambers J. thought it right to dismiss the wife's petition for dissolution. He rightly held that there was no collusion in the presentation of that petition, for the husband had long before decided that the wife's conduct in regard to maintenance had destroyed the basis of the agreement of August 1956, and he had determined to defeat her by getting a divorce if he could on his own petition. But the learned judge considered, on the authority of Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 that on a petition for dissolution on the ground of failure to comply with a restitution decree the court had a discretion to refuse dissolution even though the failure were proved; and he concluded that in the exercise of that discretion he ought to dismiss the wife's petition because the restitution proceedings had been "tainted with mala fides". (at p616)
4. Whether the supposed discretion exists depends on the construction of s. 11 of the Matrimonial Causes Act, 1899-1954 (N.S.W.). We have had an interesting argument on this point, and if I had to decide it I should be inclined to hold, for reasons similar to those which my brother Menzies will express in his judgment, that notwithstanding s. 23 of the Interpretation Act of 1897 (N.S.W.) the word "may" in the section confers a power which is not, by force of the word, discretionary, and that accordingly where the petitioner's case is made out a decree nisi must be pronounced unless a ground exists for refusing it under a section other than s. 11. It is in point to recall, when considering those reasons, that s. 11 together with sub-s. (2) of s. 7 (repeating earlier legislation) make for New South Wales the provision which was first made in the United Kingdom by ss. 2 and 5 of the Act of 1884 (47 & 48 Vict. c. 68), substituting a "deemed" guilt of desertion without reasonable cause for a liability to attachment (see Harris v. Harris (1945) 46 SR (NSW) 139, at p142; 63 WN 74 ). Under the law in force before that reform the liability to attachment was not subject to any general discretion residing in the Court: Weldon v. Weldon (1883) 9 PD 52 . (at p617)
5. But it seems to me that on the facts of which Chambers J. was satisfied the wife's case was not made out, and that accordingly the fifth of the consolidated issues was rightly found by his Honour in the negative. That issue was not drawn up in accurate terms, but it must be understood as asking whether the husband had deserted the wife without reasonable cause by reason of his having failed to comply (not by reason of his not having complied) with the decree for restitution. "If the respondent fails to comply" is the expression in s. 11. The meaning of the word "fails" was considered by Jordan C.J. in Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 . His Honour pointed out that its meaning depends on the context in which it is found, and he said: "In the case of s. 11, I am of opinion that the mere fact that the directions of the restitution decree have not been performed, although supplying evidence of failure to comply with the decree, does not establish such failure conclusively" (1938) 38 SR (NSW), at p 410; 55 WN, at pp 163, 164 . With this I respectfully agree. His Honour went on to say that evidence that the non-performance has been occasioned by some supervening impossibility to which no carelessness or negligence on the part of the respondent in any way contributed would justify the inference that there had been no failure to comply with the decree. In the present case it seems to me that there is still stronger reason for saying that the husband's abstention from returning to the wife in accordance with the restitution decree did not constitute a failure to comply with that decree in the sense in which the section uses the word "fails". The parties had agreed, as plainly as if they had set it out fully in black and white, that the wife should induce the court to make the restitution decree, but that the husband should nevertheless not return, and that the wife should present a petition for dissolution representing his non-return as a failure to comply with the decree. Thus should a "clean" divorce be obtained. Now it is true that before the petition for divorce was filed the husband became unwilling that it should succeed. Perhaps, though I do not think that the evidence makes it clear, he became unwilling before the time for compliance with the restitution decree had expired. But what is abundantly clear is that throughout the twenty-one days allowed by that decree his wife, to his certain knowledge, wanted him not to return to her and expected him to perform his promise that he would not do so. It was exactly as if, throughout the twenty-one days, she were continuously requesting him not to comply. Is it right to say that his non-compliance in these circumstances was a failing to comply? Bearing in mind that a consequence which s. 11 provides for a failing to comply is that the spouse who fails is to be deemed guilty of desertion without reasonable cause, the conclusion seems to me inevitable that "fails" cannot be used in so wide a sense that even a non-compliance to which the other spouse gives antecedent consent will fall within its meaning. (at p618)
6. In my opinion the wife's petition was rightly rejected, and the appeal should be dismissed. (at p618)
TAYLOR J. This is an appeal from an order of the Supreme Court of New South Wales by which the appellant's petition for dissolution of her marriage to the respondent was dismissed. The ground upon which this relief was sought was the respondent's failure to comply with a decree for restitution of conjugal rights which the appellant had obtained on 25th September 1956. The decree, which specified a period of twenty-one days after service for compliance, was served on the respondent on 23rd November 1956 and, the respondent not having complied, the petitioner was in a position to institute proceedings for dissolution of her marriage on or about 15th December 1956. The proceedings which have led to this appeal were not, however, instituted until 17th February 1958. (at p618)
2. I have mentioned the dates upon which these various events occurred because of two matters which seem to be of importance in the case. The first is that the parties, having separated after an altercation on 25th May 1955, reached an agreement before the making of the decree for restitution which clearly evidenced that neither party had any intention of resuming cohabitation. The agreement, which his Honour found was made in August 1956, was in writing in the following terms: "I, Rita Myrl Bowden, wife of Alfred Richard Bowden hereby agree to accept the property at 2 Delhi Street, Lidcombe in full settlement of all claims for maintenance against the said Alfred Richard Bowden. I also agree notwithstanding any developments which may occur in the future to proceed with petition for divorce from the said Alfred Richard Bowden". As may be imagined the respondent did not appear in the first suit and this document did not then find its way into evidence. Clearly enough at that time the parties regarded the restitution proceedings as nothing more than a convenient step towards dissolution of their marriage and it was fundamentally implicit in their agreement that there should be no compliance with any future decree for restitution. But some little time after the decree had been made there was a change in the attitude of the respondent. It was not that he no longer wished to have his marriage dissolved but rather that he began to entertain hopes that he might achieve such a result by a petition based upon allegations of adultery on the part of his wife. Such a petition was in fact presented by him on 25th January 1957 and it alleged adultery on the part of the appellant with a named co-respondent on occasions between 1st and 8th December 1956 at Boat Harbour on the central coast of New South Wales. Further, adultery was alleged between the same parties between 8th December 1956 and 25th January 1957 at Umina Camping Ground near Woy Woy. No evidence was given at the hearing in support of the first of these allegations and the evidence concerning the second allegation was concerned with a period in January 1957. Its central feature dealt with a socalled raid upon a caravan at Umina on 19th January 1957. The evidence did not satisfy the learned trial judge that adultery had occurred and he dismissed the husband's petition. Likewise, he also dismissed the wife's petition because, upon examination of the authorities, he believed he had a discretion to refuse the relief sought and because, as he said, the petition for dissolution was "tainted with mala fides". (at p619)
3. Before us the contention advanced on behalf of the appellant was that his Honour was bound by the provisions of the Matrimonal Causes Act, 1899-1954 (N.S.W.) to pronounce a decree for dissolution and, accordingly, it is necessary to examine the material provisions of the Act and to refer to the relevant authorities. (at p620)
4. The jurisdiction of the Supreme Court to entertain suits for restitution of conjugal rights is conferred by Pt. III of the Act and, it should be observed, relief of this nature is available to a petitioner where both parties are bona fide resident, though not domiciled, in New South Wales. The concluding section (s. 11 (1)) of Pt. III provides as follows: "If the respondent fails to comply with a decree of the Court for restitution of conjugal rights such respondent shall thereupon be deemed to have been guilty of desertion without reasonable cause and a suit for dissolution of marriage or for judicial separation may be forthwith instituted and a decree nisi for the dissolution of the marriage or a decree of judicial separation may be pronounced on the ground of desertion although the period of three years may not have elapsed since the failure to comply with the decree for restitution of conjugal rights". Part IV deals with dissolution of marriage and in particular s. 16 (a) 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 - (a) that her husband has without just cause or excuse wilfully deserted the petitioner and without any such cause or excuse left her continuously so deserted during three years and upwards . . . ". Section 20 contains three distinct provisions which should be noticed. Sub-section (1) provides that: "Whenever a petition is presented under sections thirteen or sixteen the Court may dismiss the petition if in its opinion the petitioner's own habits or conduct induced or contributed to the wrong complained of". Thereupon sub-s. (2) provides that: "In all other cases under the said sections the Court shall if it is satisfied that the case of the petitioner is established pronounce the decree prayed for". In turn, this sub-section must be read subject to sub-s. (3) which provides that: "So far as they severally are applicable all the provisions of sections eighteen (b) and (c) and nineteen (2) shall apply to petitions and suits under sections thirteen and sixteen". Section 18 (c) provides that a finding "that the petition is presented or prosecuted in collusion with either of the respondents" shall be an absolute bar to relief and s. 19 (2) deals with matters which need not be further referred to. (at p620)
5. Contrary to the appellant's contention the respondent asserts that the word "may" in s. 11 vests a discretion in the court to refuse, in some or other unspecified circumstances, to pronounce a decree for restitution. Primarily the contest between the parties rests upon what they regard as a conflict between the decision in Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 on the one hand and, on the other, the decisions in Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 , Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 and Rose v. Rose (1939) 56 WN (NSW) 101 . In the first of these cases the petitioning wife had sought a decree for dissolution on the ground that the respondent had failed to comply with an earlier decree for restitution of conjugal rights. But at the time when the second suit was commenced the petitioner, though domiciled in New South Wales, had not been so domiciled for three years. That being so she contended that, although a petitioner proceeding under s. 16 was bound to establish the existence of a New South Wales domicile for "three years and upwards", this condition had no application to suits for dissolution pursuant to s. 11 which, as will be observed, has nothing to say as to domicile. However, the Full Court held that as far as a petitioning wife is concerned s. 11 should be regarded as a proviso to or as a provision ancillary to s. 16, and that, upon this view, it was proper to regard the suit as one instituted pursuant to s. 16. Accordingly, her suit could not succeed. On the strength of that decision the appellant in the present case now contends that pursuant to s. 20 (2) the learned trial judge was bound to pronounce a decree for dissolution unless the evidence disclosed the existence of any of the specified absolute or discretionary bars (cf. Parker v. Parker (No. 2) (1928) 45 WN (NSW) 151 ). On the other hand, the respondent relied upon the alternative groups of cases which, it was said, establish that in cases such as the present the court has a wider discretion to refuse relief. Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 was, however, concerned with an intervention by the Crown Solicitor but it is, I think, implicit in the decision that if the petitioning wife's lack of sincerity at the time of the decree for restitution had been established in the subsequent suit for dissolution based upon non-compliance the learned trial judge might properly in the exercise of a judicial discretion have refused the relief sought. At all events, this was thought by the Full Court in Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 to be the effect of that decision. This later case overruled Parker v. Parker (No. 2) (1928) 45 WN (NSW) 151 and held that a decree for dissolution might be refused notwithstanding proof of the respondent husband's failure to comply with a decree for restitution. The fact in that case was that a communication from the husband to the wife within the period of compliance had miscarried and after this was discovered the husband, some nine days after the time for compliance had expired, renewed his earlier offer to provide a home and resume cohabitation. The offer was refused by the wife and in the subsequent suit for dissolution the learned trial judge felt constrained by the decision in Parker v. Parker (No.2) (1928) 45 WN (NSW) 151 to pronounce a decree. Upon appeal the decree was set aside and in the reasons of the court for taking this course the following passage appears: "As has been already pointed out, by s. 11 failure to comply with the restitution decree is deemed to constitute only desertion without reasonable cause; it is not deemed to constitute such desertion for a period of three years; and hence it does not, without more, bring into operation the provisions of s. 20 (2). Section 11 itself provides, however, that a suit for dissolution or separation may be forthwith instituted and a decree nisi may be pronounced on the ground of desertion although the period of three years may not have elapsed since the failure to comply. The language is quite clear. The use of the word 'may' shows that it is discretionary and not obligatory for the Court to pronounce the decree where the statutory desertion has not continued for three years. Where, as in the present case, the Court is satisfied that the husband has made his wife a genuine offer of a home within five days of the expiry of the time allowed, so that the statutory desertion has existed for a period of only a few days; where an explanation is given of the failure to comply with the restitution decree, which is reasonable if insufficient; and where the Court has reason to doubt the sincerity of the wife in instituting the restitution proceedings, there is every reason why the discretion should be exercised against the petitioner and no reason why it should be exercised in her favour. The matter does not, however, rest upon a prima facie view of the proper construction of the section. It is the subject of authority. Apart from the case of Beauclerk v. Beauclerk (1895) P 220 where I think that it follows from the observations of Sir Francis Jeune (1895) P 220, at pp 223, 224 that his Lordship thought that the Court had a discretion where the statutory period of desertion had not run from the date of failure to comply, there is the decision of this Court in Thomas v. Thomas (1930) 31 SR 159; 48 WN 21; (1930) 45 CLR 604 . In that case, a wife, having obtained a restitution decree, filed a petition for dissolution of marriage immediately upon non-compliance, and obtained a decree nisi. The Crown Solicitor then intervened in the dissolution petition on the grounds that the wife had not been sincere in her restitution proceedings, and that the dissolution proceedings were therefore tainted with mala fides. The judge of first instance, upon the intervention, rescinded both the decree for restitution and the decree nisi for dissolution. On appeal, it was held by the Full Court that the learned judge had exceeded his jurisdiction in rescinding the decree for restitution; but that no exception could be taken to his action in rescinding the decree nisi for dissolution. I think that it necessarily follows from this that the judge would have had a discretion to refuse the decree nisi had he been placed in possession at the hearing of the facts brought to his notice on the intervention (1930) 31 SR, at p 167; 48 WN 21 . The decision of the Full Court was expressly put on the footing that a person who relies on constructive desertion short of three years is in no stronger position than a person who relies on actual desertion for three years, if the reality of the fact of desertion is challenged" (1938) 38 SR (NSW), at pp 413, 414; 55 WN, at p 165 . It remains to be said that an appeal to this Court in Thomas v. Thomas (1930) 45 CLR 604 was dismissed and that in the year following Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 Roper J., in Rose v. Rose (1939) 56 WN (NSW) 101 accepted the view that the court in suits to which the provisions of s. 11 apply has a discretion to refuse relief. Again, the decision of the Full Court in Harris v. Harris (1945) 46 SR 139; 63 WN 74 seems to proceed upon the same view. (at p623)
6. The argument for the appellant has proceeded upon the ground that whilst the later cases clearly decide that in suits for dissolution on the ground of failure to comply with a decree for restitution of conjugal rights the court has a discretion to refuse relief, the contrary view is implicit in the decision in Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 . If s. 11 iis to be read as a provision ancillary to s. 16 then, it is said, suits of this character plainly fall within the provisions of s. 20 (2) and, in the absence of any of the specified absolute or discretionary bars, the court, upon proof of the petitioner's case, is required to pronounce a decree. To my mind, however, no such consequence follows necessarily from acceptance of the decision in Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 . Whether s. 11 is read as an independent provision or as a provision ancillary to s. 16 the word "may" still appears and, upon the latter hypothesis, it still remains necessary to determine as a matter of construction whether the words of s. 20 (2), which is a general provision designed to regulate the function of the court in suits for dissolution on the ground of desertion, apply also to the special type of cases envisaged by s. 11 and in respect of which the words of that section may be thought to have already made particular provision. To my mind I see no reason why this question should be answered affirmatively. If the word "may" is to be regarded as initially conferring a discretion then both the language and the general framework of the relevant legislation is against such an answer. Furthermore, examination of the provisions of s. 18 (c) - which is referred to in s. 20 (3) - would have a curious application to suits for dissolution on the ground of failure to comply with a decree for restitution. In that provision the expression "the petition" must, of course, mean the petition for dissolution. But in cases of this character where collusion is established it is invariably established by proof of a collusive agreement antecedently to the making of the decree for restitution. That is to say, the restitution proceedings are undertaken merely as one step towards obtaining a decree for dissolution. That being so it would be strange if, although s. 18 (c) would require a decree to be refused if the parties should do no more than adhere to their agreement until the presentation of the petition for dissolution, s. 20 (2) should be understood as requiring the court to pronounce a decree for dissolution in those exceptional cases where the first decree is obtained in a collusive suit and thereafter, for some reason or other, the parties fall into disagreement. This, of course, is said to be the case here. Notwithstanding collusion in the restitution proceedings it is said that, in the circumstances, there was no collusion in the presentation or prosecution of the petition for dissolution. This may or may not be the right conclusion on the facts before us but the anomaly in the appellant's argument is obvious. For if the fact was, as the learned trial judge has said, "that the restitution suit . . . was a sham brought by arrangement and for the sole purpose of subsequently obtaining a 'clean' divorce" then the suit was in reality but one step in proceedings and undertaken in an attempt to obtain a decree dissolving the marriage. As Ferguson J., speaking of the provisions of s. 21 (4) (a) of the Act, said in Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 : "In one sense a suit for restitution and a suit for divorce are two entirely separate proceedings, but when one is made the foundation for the other, when the restitution decree is substituted for the ordinary evidence of desertion as part of the proof of the petitioner's case in a suit for divorce, then I think the Court should disregard the mere form, and treat the suit for restitution as being what in substance it is, an interlocutory step in the divorce suit" (1930) 31 SR (NSW), at p 169; 48 WN 21 . There can, in my view, be no question concerning the correctness of this final conclusion where it is shown that the restitution proceedings are collusive and that the parties have agreed that there shall be no resumption of cohabitation. (at p625)
7. In my view, the provisions of s. 11, whether considered as an independent provision or as a provision ancillary to s. 16, vested a discretion in the learned trial judge to refuse relief in the circumstance established before him. The discretion, of course, is not at large and must be regarded as circumscribed by the scope and objects of the Act and the requirements of the public interest. In cases where a statute confers authority to perform a judicial act by the use of the word "may" difficulties may well arise in treating the power as discretionary but the principles have been fully discussed by this Court in Ward v. Williams (1955) 92 CLR, at pp 505-508 and upon the principles there enunciated and having regard to s. 23 of the Interpretation Act of 1897 I feel no doubt that the word "may" was intended to invest the court with an appropriate discretion in suits of this character. This is a view, moreover, which has received long acceptance in the Supreme Court and, in my opinion, there is no reason why it should be displaced. (at p625)
8. The ground upon which the discretion was exercised adversely to the appellant was in reality that the parties collusively set out to obtain a dissolution of their marriage and that the decree for dissolution was but the initial step in obtaining the final relief which they desired. To my mind to refuse relief on this ground was within the ambit of the discretion conferred by s. 11. (at p625)
9. The same circumstance might, I think, well have been made a ground for refusing a decree for dissolution even if the precise terms of s. 20 (2) should be thought to control the discretion of the court in suits of this character. Sub-section (1) of that section provides that the court may dismiss the petition if, in its opinion, the petitioner's own habits or conduct induced or contributed to the wrong complained of. In form the appellant's petition alleged that the respondent had deserted her without reasonable cause by reason of his failure to comply with the earlier decree for restitution. In substance "the wrong complained of" was the failure of the respondent to comply with the decree for restitution. But if the fact be, as the evidence shows and the learned trial judge, in fact, found, that before the decree for restitution had been made the parties had agreed that there should be no resumption of cohabitation there is every ground for saying that the appellant's own conduct "induced or contributed" to the wrong complained of. (at p625)
10. In the circumstances the appeal should, in my opinion, be dismissed. (at p626)
MENZIES J. Cross petitions for divorce by the husband, the present respondent, on the ground of adultery, and by the wife, the present appellant, on the ground of desertion were dismissed by Chambers J. and this is an appeal against the dismissal of the latter petition. The learned trial judge refused the appellant a decree because he found that the decree for the restitution of conjugal rights which she had obtained and which formed the basis of the desertion alleged against the respondent had been obtained by the suppression and the falsification of material facts with consequent deception of the court. (at p626)
2. The point arose in an indirect way. The respondent in his answer to the appellant's petition denied desertion without reasonable cause but at the beginning of the hearing his Honour said to the respondent's counsel: "Mr. Pawley, you say in your answer to her petition that you propose to raise collusion?" and receiving an affirmative reply said in his judgment: "Mr. Pawley at the outset intimated that his real defence, though not pleaded, was an allegation that the wife was guilty of collusion with the husband in respect of the presentation or prosecution of this petition, and that I should therefore dismiss it." From this it seems that the unpleaded defence relied upon was collusion in presenting and prosecuting the petition for divorce, not the petition for the restitution of conjugal rights; but his Honour, who was prepared to find against the unpleaded defence, considering that the petition for the restitution of conjugal rights was obtained by deception, said: "But the question remains whether I have jurisdiction in such circumstances to dismiss the petition for dissolution as being tainted with mala fides. I think that I have such a discretion (see Thomas v. Thomas (1930) 31 SR (NSW) 159, at pp 166, 167; 48 WN 21 , Ingram v. Ingram (1938) 38 SR (NSW) 407, at p 414; 55 WN 163, at p 165 , Rose v. Rose (1939) 56 WN 101, at p 102 ) and that I am not compelled to pronounce a decree nisi and leave it to the Crown Solicitor to intervene". (at p626)
3. The case for the appellant is that the trial judge did not have the discretion that his Honour assumed he had and that in any event, because the decree for the resitution was not challenged, the evidence upon which his Honour acted was not admissible in the divorce proceedings which assumed the regular making of the decree and raised the issue: "5. Whether the petitioner has deserted the respondent without reasonable cause by reason of his not having complied with a decree of the court for restitution of conjugal rights". (at p627)
4. Section 11 of the Matrimonial Causes Act 1899-1954 (N.S.W.) provides that a spouse failing to comply with a decree for restitution of conjugal rights "shall thereupon be deemed to have been guilty of desertion without reasonable cause and a suit for dissolution of marriage . . . may be forthwith instituted and a decree nisi . . . may be pronounced on the ground of desertion although the period of three years may not have elapsed since the failure to comply with the decree for restitution of conjugal rights". Section 11 (2) provides for a decree absolute. (at p627)
5. A possible view of s. 11 is that it is exhaustive and that a decree may be pronounced and made absolute thereunder without the incorporation of ss. 16 (a), 17, 18 (b) and (c), 19 (2) and 20, leaving the matters dealt with by those sections to be treated merely as matters of discretion. This is not how the section was treated in Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 00 where it was held that a suit based upon s. 11 is instituted under s. 13 or s. 16, that it is subject to the conditions and limitations of suits so instituted and in particular that it cannot be instituted unless the petitioner has been domiciled in New South Wales for three years. A somewhat different view seems to have been taken in Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 in which Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 was not considered and Parker v. Parker (No. 2) (1928) 45 WN 151 was disapproved. In Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 it was decided that the use of the word "may" in s. 11 shows that it is discretionary and not obligatory for the court to pronounce a decree for dissolution where the statutory desertion has not continued for three years. It was said especially that s. 11. "does not, without more, bring into operation the provisions of s. 20 (2)" (1938) 38 SR (NSW), at p 413; 55 WN, at p 165 which provides with regard to petitions under s. 13 or s. 16 that except as specified "the Court shall if it is satisfied that the case of the petitioner is established pronounce the decree prayed for". It is not I think clear just what significance should be attached to the words "without more" in the passage just cited from the judgment. (at p627)
6. Despite Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 I think this Court should adhere to the reconciliation of the various provisions of the Act adopted in Heupt v. Heupt (1912) 12 SR (NSW) 745; 29 WN 201 with the consequence that notwithstanding the use of the word "may" in s. 11 and notwithstanding s. 23 of the Interpretation Act of 1897 (N.S.W.) the court has no general discretion to refuse a decree when the ground is desertion by reason of failure to comply with a decree for restitution, because unless the case is within the statutory discretions the court is under the duty imposed by s. 20 (2). This view moreover accords better with the general scope and purpose of the Matrimonial Causes Act which defines both grounds of divorce and bars to the making of decrees - sometimes absolute and sometimes discretionary - than would the opposite view which would leave the granting of a petition to an undefined discretion notwithstanding that a statutory ground of divorce had been established. (at p628)
7. My reading of the various provisions applicable is that if the ground of divorce afforded by s. 11 is established then a decree should be pronounced unless there has been collusion in presenting or prosecuting the petition (s. 18 (c)), unreasonable delay (s. 19 (2) (b) (i) ), cruelty (s. 19 (2) (b) (ii) ) or if in the opinion of the court "the petitioner's own habits or conduct induced or contributed to the wrong complained of" (s. 20 (1) ). The learned trial judge found none of these things; the course he took was to go behind a decree that he held he could not rescind for the purposes of discovering how it was obtained and, then, finding that it was obtained by deception, to use that as a ground for refusing, as a matter of discretion, the decree that he would otherwise have granted because it was established that the respondent had failed to comply with a decree for restitution of conjugal rights. (at p628)
8. To embark in the hearing of a later suit upon an investigation of proceedings in an earlier suit which resulted in a decree that is regarded as beyong challenge, seems to me to be irregular, and to refuse a decree on the ground of deception practised upon the court in the earlier suit is, for the reasons I have already given, to assume a discretion not given by the Act. Reference is however necessary to the cases which the learned trial judge relied upon to support his view that the Act gives such a discretion. (at p628)
9. I have already referred to Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 which although it did not decide the point here in issue did assert a general discretion to refuse decrees in suits based upon s. 11. From what I have written it appears that I prefer the decision of Langer Owen J. in Parker v. Parker (No. 2) (1928) 45 WN (NSW) 151 which was disapproved in Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 that when failure to comply with a restitution decree is established the judge has no discretion other than the statutory discretions (cf. W. K. S. Mackenzie Ingram v. Ingram - Statutory Desertion (1939) 13 ALJ 38) This is not to say that the actual decision in Ingram v. Ingram (1938) 38 SR (NSW) 407; 55 WN 163 was not justifiable on the ground that there was no failure to comply with the decree established. Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 was decided upon an intervention by the Crown Solicitor after decree nisi on the ground of desertion by failing to comply with a restitution decree. Owen J. finding that the petitioner had not been sincerely desirous of obtaining restitution of conjugal rights rescinded both decrees; the Full Court held that Owen J. had exceeded his authority in rescinding the decree for restitution of conjugal rights but that he was justified in rescinding the decree nisi for divorce; the High Court (see Bartlett v. Bartlett [1933] HCA 53; (1933) 50 CLR 3 per Dixon J. (1933) 50 CLR, at p 13 restored the order of Owen J. All it is necessary to say here about that case is that an intervention after a decree nisi where both decrees are called into question stands on a different footing from proceedings for divorce in which the validity of the restitution decree is accepted. The other case referred to was Rose v. Rose (1939) 56 WN (NSW) 101 which was a motion for the rescission of a decree nisi, which Roper J. dismissed. In the course of his judgment that learned judge said no more than that where there was lack of sincerity in presenting a petition for restitution of conjugal rights, the public interest "could be adequately protected either by intervention of the Crown Solicitor after decree nisi: see Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 or perhaps by the court at the hearing refusing such decree" (1939) 56 WN (NSW), at p 102 . In Wilson v. Wilson (1941) 58 WN (NSW) 85 Edwards J. took Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 a step further by rescinding a decree for restitution and dismissing the petition for restitution on the ground of insincerity, and dismissed the petition for divorce consequent upon the restitution decree in the proceedings for divorce in which the Crown Solicitor had been allowed to intervene. This extension of Thomas v. Thomas (1930) 31 SR (NSW) 159; 48 WN 21 might be justifiable by reason of the Crown Solicitor's intervention but that question does not arise here. In adopting the course that he did here, it seems to me that the learned trial judge went further than any decided case, in a matter which must have arisen many times since 1893. (at p629)
10. I have considered this case on the basis that the proceedings accepted the validity of the decree for restitution of conjugal rights. That this was so appears clearly from the issue already quoted. The question therefore does not arise here of disregarding altogether an order obtained by deception, such as arose in Harrison v. Mayor etc. of Southampton (1853) 4 De G M & G 137 (43 ER 459) . There, a sentence of the Consistory Court of the Bishop of Winchester obtained in the course of proceedings which Knight Bruce L.J. described as "a disgraceful and scandalous transaction" (1853) 4 De G M & G, at p 150 (43 ER, at p 464) and "the indecent farce sanctioned by the bishop's functionaries as a grave solemnity" (1853) 4 De G M & G, at p 150 (43 ER, at p 464) , was disregarded as fabula non judicium. (at p630)
11. Upon the hearing of the appeal it was further argued that the facts which were relied upon to show that the decree for restitution had been obtained by deception did show that "the petitioner's own . . . conduct induced or contributed to the wrong complained of", and under s. 20 (1) the petition could and should have been dismissed. To prove that the petitioner obtained a restitution decree as a step to obtaining a divorce and not as a means of repairing a broken marriage is not I think to prove that the desertion without reasonable cause constituted by failure to comply with the decree, was due to her conduct. Section 20 (1) assumes that "the wrong complained of" is proved but if that wrong is desertion to prove what is really separation by agreement would be to disprove desertion, not to explain it. (at p630)
12. Finally, although perhaps the learned trial judge's negative answer to the fifth issue did formally decide that in the circumstances of this case there was no failure on the part of the respondent to comply with the restitution order, I am satisfied, both from his Honour's reasons for judgment and from the terms of the decree, that he did not address his mind to the question of whether the appellant's agreement that the respondent should not return in compliance with the restitution order should lead to the conclusion that there was no failure on the part of the respondent to comply with that order, and that this question was not decided. It may be when spouses agree to separate and that one of them should obtain a decree for restitution of conjugal rights as a step to obtaining a divorce that both desire, that disregard by the other of a decree obtained in such circumstances ought not to be regarded as a failure to comply with the decree. This problem, if and when it arises, would I think require close consideration both of the pertinent facts and the language of the section; and because this was not undertaken at the trial, I do not consider that this appeal is the occasion for making such an enquiry on evidence that was not directed to the matter. (at p631)
13. In my judgment the appeal should be allowed. (at p631)
ORDER
Appeal dismissed. No order as to the costs of the appeal.
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