Hearing of petitions-Oral evidence completed-Death of presiding judge- Evidence read by another judge in private chambers, not in court-Two witnesses recalled and questioned by that judge in court-Husband's petition granted- Wife's petition lismissed-Proceedings-Regularity-Decree absolute for April 20,21; divorce-Statutory provisions-Compliance-Decree-Ability to set aside- Matrimonial Causes Act 1899-1951 (N.S.W.) (No. 14 of 1899-No. 43 of 1951), SS. 28, 77.

Section 77 of the Matrimonial Causes Act 1899-1951 (N.S.W.) requires that, subject to certain immaterial exceptions, the witnesses in all proceedings before the court where their attendance can be had shall be sworn and examined orally in open court.

In a consolidated suit in which the wife petitioned for a dissolution of marriage on the ground of her husband's desertion, and the husband, denying the desertion, petitioned for a decree for restitution of conjugal rights, and, later, for a dissolution of the marriage on the ground of his wife's misconduct, the whole of the oral evidence had been taken when the trial judge died. At the further hearing of the suit the transcript of the evidence was, by consent of the parties, read by the second judge and he having read the transcript in his private chambers, recalled two of the witnesses and asked them a number of questions. After hearing counsels' addresses the judge granted the husband a decree nisi for dissolution of the marriage on the ground of his wife's adultery and dismissed the other petitions. On appeal by the wife to the High Court,

Held, that the fact that the evidence given before the deceased judge was read by the second judge in his private chambers instead of it being read in open court was not a breach of S. 77 of the Matrimonial Causes Act 1899- 1951 (N.S.W.).

89 CLR 130

Section 28 of the Matrimonial Causes Act 1899-1951 (N.S.W.) provides that the respective parties to a suit for dissolution of marriage may marry again as if the marriage had been dissolved by death when but not before- (a) the time limited for appealing against a decree absolute has expired and no appeal has been presented; or (b) any such appeal is dismissed or (c) in the result of any appeal the marriage is declared to be dissolved.

Held, that when the conditions of S. 28 have been fulfilled a decree absolute for divorce, however irregularly it may have been obtained, is valid and effective to dissolve the marriage and cannot be set aside.

APPEAL from the Supreme Court of New South Wales.

Nina Florence Brennan filed in the matrimonial causes juris- diction of the Supreme Court of New South Wales a petition, dated 27th October 1948, in which she sought a dissolution of her marriage with Raymond Lorraine Brennan on the ground of desertion for three years and upwards. Brennan denied the desertion on his part and, on 28th January 1949, petitioned for a decree…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brennan v Brennan

Details

AGLC: Brennan v Brennan [1953] HCA 28
Case: [1953] HCA 28
Decision Date: 18 May 1953

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning a decree nisi for divorce granted by the Supreme Court of New South Wales. The original proceedings were consolidated suits where the wife petitioned for divorce on the grounds of desertion, and the husband petitioned for restitution of conjugal rights and later for divorce on the grounds of his wife's adultery. The trial commenced before one judge, but he died after all oral evidence had been presented. A second judge, with the consent of both parties, read the transcript of the evidence in his chambers, recalled two witnesses for further questioning, heard counsel's addresses, and then granted the husband a decree nisi for divorce, dismissing the wife's petition and the husband's petition for restitution of conjugal rights.

The primary legal issues before the High Court were whether the proceedings before the second judge constituted a proper hearing, specifically in light of section 77 of the *Matrimonial Causes Act 1899-1951* (N.S.W.), which mandates oral examination of witnesses in open court. Additionally, the Court had to determine the effect of any procedural irregularities on the validity of the decree absolute, particularly in relation to section 28 of the same Act, which outlines when parties to a divorce may remarry.

The High Court held that the procedure followed by the second judge did not breach section 77 of the *Matrimonial Causes Act*. While the judge read the transcript in his private chambers, this was for familiarisation purposes and the subsequent proceedings, including the recall of witnesses, counsel's addresses, and the pronouncement of the decree, all occurred in open court. The Court also found that even if there had been a fundamental irregularity in the proceedings, a decree absolute for divorce, once the conditions of section 28 of the Act were met, becomes unassailable and cannot be set aside, regardless of how it was obtained. The Court noted that the parties' consent to the procedure before the second judge further precluded them from complaining of any irregularity.

Ultimately, the appeal was allowed. The High Court varied the decree nisi, setting aside the findings of adultery against the wife and instead granting the dissolution of marriage on the grounds of the husband's desertion. The order regarding costs concerning the adultery charge was also varied, and the decree nisi was to bear the date of the High Court's judgment.

Orders