Reginald Alfred Waghorn v Miriam Dorothy Waghorn [1942] HCA 1

Reginald Alfred Waghorn v Miriam Dorothy Waghorn [1942] HCA 1 - HCA 1942 case summary — Zoe

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" We are bound by decided cases, for the sake of securing as much certainty in the administration of the law as the subject is capable of " (Baker v. Baker (2)). " Great inconvenience and, therefore, impropriety " follow from " adopting a course which tends to make the law fluctuate according to the opinions of particular judges ; but much must depend upon the nature of the question" (Lozon vy. Pryse (3)). And in Trimble vy. Hill (4) the Privy Council stresses the importance "that in all parts of the Empire where English law prevails, the interpretation of that law by the courts should be as nearly as possible the same." In accordance with the opinion expressed in this case the Supreme Courts of the then colonies of Australia yielded to the decisions of the English Court of Appeal in order to secure this uniformity of decision. After Federation the High Court was established as one of the three organs of govern- ment by the Constitution of the Commonwealth of Australia. And no appeal lies from its decision "upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one © which ought to be determined by Her Majesty in Council " (Con- stitution, sec. 74). But with regard to appeals to the High Court from State courts an appeal by special leave hes from the High Court to the Privy Council (Constitution, sec. 74). Technically this court is bound by the judgments of the Privy Council, but, as heretofore, we shall pay the highest respect to decisions of the English Appeal Court and to those of the Supreme Courts of the other Dominions and to the judgments of the Supreme Court of the United States of America on points of law common to the respective countries. In quest of uniformity the court may reconsider previous decisions, but with great reluctance in the case of old authorities on the strength of which many transactions may have been adjusted and rights determined (Concrete Constructions Pty. Ltd. v. Barnes (5) ; Westminster Orty Council v. Southern Railway (6) ). The House of Lords alone does not depart from its rulings, and they remain, unless altered by legislation, the reason being that the House of

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innocent party is entitled to terminate any subsisting conjugal relationship and, if none subsists, is entitled to a continuance of the separation existing, and it does not matter whether the guilt of the other spouse is concealed or is discovered. This doctrine forms part of the common law. It is the foundation of the rule that a guilty wife is not entitled to her husband's support and cannot pledge his credit, his ignorance of her guilt being of no importance. The ecclesiastical rule was the same. Where the common law says that the obligation of consortium arising out of the marriage no longer exists, there can hardly be desertion. But in cases where the common law or the ecclesiastical law or both say that the conduct of a husband or wife gives the other spouse no right to abandon the former's conjugal society, that is to say, where the right to consortium exists, there may nevertheless be circumstances which afford a sufficient moral justifieation for or extenuation of the desertion to make it wrong to dissolve the marriage on that ground. There may then be desertion, but with just cause or excuse. It is not of much importance whether in such cases the termination of the matrimonial relationship is regarded as desertion but excusable, or as not amount- ing to desertion within the meaning of the divorce law. But it is of importance that when, for every purpose of the law of husband and wife, one of the parties is entitled to abandon the other, the abandonment which the law authorizes should not be called desertion. I am therefore unable to agree in the proposition that, when the uncondoned adultery of one spouse has discharged the other from his obligation to maintain or renew the matrimonial relationship, the latter's failure to do so can amount to desertion or the continu- ance of desertion, simply because the innocent party was unaware of the other's guilt, or, knowing it, had what to him or her was a stronger motive for relinquishing or refraining from the other's society. This reasoning, which will be found stated more fully in Crown Solicitor (S.A.) v. Gilbert (1), forms the ground of that decision.

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Tn addition to the New-South-Wales and South-Australian Acts, the divorce legislation of the other Australian States contains similar provisions to those discussed by this court in Crown Solicitor (S.A.) v. Gilbert (2), and by the English courts in the cases mentioned. Attempts have been made by the Supreme Courts of some of the States, other than South Australia, to distinguish Gilbert's Case (2) on the different language of the local Acts ; but, in my opinion, without any sound basis, as the substance of each is the same, so that at the present time there is a conflict between the English law and the Australian law on the question of what constitutes: desertion without cause. The view of the majority of this court appears to me logical. It postulates that a petitioner must practice continence for the requisite period so that, in order to be in a position to complain of the breach by the other spouse of the right of consortium, he or she may be able to show that he or she has not himself or herself committed a funda- mental breach of the contract on which that right is founded, and affords reasonable scope for the exercise by the court of its discretion in cases where the adultery was condoned, connived at or conduced. by the deserting spouse, or where the adultery occurred after the statutory period had elapsed but before the dissolution of marriage. On either view the petitioner must prove the initiation of the deser- tion and that it continued without just cause or excuse for the statutory period. When he confesses he has committed adultery he admits that a just cause or excuse does in fact exist, but on the English view he avoids his confession if he can show that the adultery was unknown to his wife and so could not have been the cause of her desertion, or alternatively that although the adultery was or may have been known to his wife it did not influence her conduct. The more clandestine the adultery, the stronger the petitioner's case would be, because he would then only have to prove his wife was umaware of it, whereas once she discovered the infidelity, he would have to prove she did not object. But however logically sound, the majority view in Gilbert's Case (2) is possibly somewhat dogmatic when applied to the intimate relations created by the marriage state, and may not sufficiently recognize that, as every marriage raises its

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come to this conclusion more readily because it is possible that if Symons v. Symons (1), Hunter v. Hunter (2), and Hale v. Hale (3), discussed in Herod's Case (4) (and King v. King (5) and Ostick vy. Ostick (6), where the relevant circumstances appear to have been similar) had been cited to this court in Gulbert's Case (7), the decision may have been different. At any rate they would have affected my mind if I had been a member of the court on that occasion. My mind is also influenced by the fact that in Lynch v. Lynch (8) it was held the respondent to a petition alleging desertion was not entitled to take advantage as a just cause of the fact of the existence on the file of a nullity petition of which he was wholly ignorant and which therefore did not affect his conduct, and that in Cohen v. Cohen (9), the House of Lords held the fact that a petition for divorce on the ground of desertion has been left on the file did not prevent the competency of a second petition on this ground and the granting of a decree where there was nothing to show that in the circum- stances " the petition while it was on the file deterred the respondent in the very least from taking steps to end his desertion." It is also to be noted that in Farmer vy. Farmer (10) and Garcia v. Garcia (11), where the husband had been living in adultery for a consider- able period, it was held that the wife could complain that she had been deserted constructively, not when he first contracted the adulterous association, but only when she first became aware of it and so entitled to withdraw from his society whilst the association continued. These cases all suggest that the question whether a spouse is justified in withdrawing from cohabitation involves an inquiry into his or her mental condition. If the question under appeal should ever go on appeal to the Privy Council or the House of Lords, and the view taken in Crown Solicitor (S.A.) v. Gilbert (7) should finally triumph, no great harm would be done by its temporary abandonment, as the upsetting of weighty transactions and important titles would not be involved, and this perplexing legal chameleon could change its hues again without irreparable damage being done. I therefore agree that the appeal should be allowed.

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Judgment (94 paragraphs)