Bowden v Bowden

[1960] HCA 12

High Court of Australia|1960-07-01|Before: Menzies JJ, Chambers J, Davidson J, Bavin J, Langer Owen J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1960-07-01

Before

Menzies JJ, Chambers J, Davidson J, Bavin J, Langer Owen J

Source

Original judgment source is linked above.

Judgment (47 paragraphs)

[1]

High Court of Australia Dixon C.J McTiernan, Kitto, Taylor and Menzies JJ. Bowden v Bowden [1960] HCA 12

[2]

ORDER Appeal dismissed. No order as to the costs of the appeal.

[3]

This appeal from a refusal by Chambers J. of a decree nisi for dissolution of marriage occasions not a little difficulty. The facts, stated in the form of conclusions of fact, are simple enough; but they raise an ultimate question of what ought to be done by this Court which is by no means easy to decide. The decree dismissed cross petitions. The wife appeals from the dismissal of her petition which was based upon her husband's failure to comply with a decree obtained by her for the restitution of conjugal rights. He did fail to comply with the decree and in support of the wife's appeal it is said that, as she had done nothing since the decree to provide her husband with a justification for non-compliance, that should have been the end of the matter. That is to say a decree for dissolution on the ground of desertion should have been granted. But in the suit for dissolution there was raised by the husband respondent a plea (apparently ore tenus) that the proceedings were the result of collusion. The collusion began before the commencement of the suit for restitution and, one may be sure, was "spent" before the hearing of the suit for dissolution when the warfare between them was real enough. The suit for restitution was undefended and while it was pending a writing was signed by the wife agreeing to accept a property in full settlement of all claims and "notwithstanding any developments which may occur in the future" to proceed with a petition of divorce from her husband. Chambers J. said that the restitution suit was a sham brought by arrangement and for the sole purpose of subsequently obtaining a "clean" divorce. His Honour added that he had no doubt that there was as a result a suppression and falsification of material facts at the hearing of that suit whereby the court was deceived. His Honour dismissed the petition for dissolution.

[6]

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 [1] . Langer Owen J. in Parker v. Parker [No. 2] [2] 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" [3] . 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 [4] . 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. [1] and the discussion in Ward v. Williams [2] . 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 [3] . 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 [4] .

[12]

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 of 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.

[16]

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 [3] . 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" [4] . 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.

[20]

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 so-called 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 ".

[22]

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.

[23]

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 [1] on the one hand and, on the other, the decisions in Thomas v. Thomas [2] , Ingram v. Ingram [3] and Rose v. Rose [4] . 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] [5] ). 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 [2] 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 [3] to be the effect of that decision. This later case overruled Parker v. Parker [No. 2] [5] 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] [1] 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 [2] where I think that it follows from the observations of Sir Francis Jeune [3] 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 [4] . 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 [1] . 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" [2] . It remains to be said that an appeal to this Court in Thomas v. Thomas [3] was dismissed and that in the year following Ingram v. Ingram [4] Roper J., in Rose v. Rose [5] 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 [6] seems to proceed upon the same view.

[25]

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 [7] . If s. 11 is 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 [7] . 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 [1] : "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" [2] . 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.

[42]

I have already referred to Ingram v. Ingram [1] 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] [2] which was disapproved in Ingram v. Ingram [1] 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 A.L.J. 38). This is not to say that the actual decision in Ingram v. Ingram [1] was not justifiable on the ground that there was no failure to comply with the decree established. Thomas v. Thomas [2] 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 [3] per Dixon J. [4] ) 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 [5] 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 [2] or perhaps by the court at the hearing refusing such decree" [6] . In Wilson v. Wilson [7] Edwards J. took Thomas v. Thomas [2] 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 [2] 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.