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REPORTS OF CASES

D E TER M IN ED IN

THE

HIGH COUHT OF AHSTHALIA

[HIGH COURT OF AUSTRALIA.]

BREWER .

Ap p e l l a n t

;

R e s p o n d e n t ,

AND

BREWER AND ANOTHER . .

R e s p o n d e n t s .

P e t it io n e e a n d

Co -r e s p o n d e n t

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

Matrimonial Causes {Viet.)—Maintenance of wife—Decree for dissolution of marriage

H. C. OE A.

obtained by husband on ground of adultery—Discretionary bar not raised by

1953.

wife at hearing of suit—Husband's adultery and wilful neglect or misconduct

conducing to wife's adultery—Admissibility of evidence in subsequent main­

Melb o u r n e ,

tenance application by wife—Issue-estoppel—Public policy—Relevance of

Feb. 18-20.

certain matters—De facto custody of child by wife—Desirability of establishing

Sy d n e y ,

common home for wife and child—Marriage [Divorce) Act 1933-1939 ( FicL),

April 28.

[No. 4210—Ao. 4654), s. 5 (1).

Dixon C.J.,

A husband obtained a decree for dissolution of marriage on the ground

Williams,

Webb,

of his wife’s adultery. The suit was undefended, but at the hearing the wife

Fullagar and

was called by the judge as a witness. She admitted her adultery, and made

Taylor J.J.

no allegations against her husband. Some time after decree absolute the wife applied for maintenance pursuant to s. 5 (1) of the Marriage [Divorce) Act 1933-1939. In an affidavit in support of this application the wife swore that during the marriage her husband had been prone to over-indulgence in alcohol, both in public and in private, that he had on occasions treated her with violence, and that he had had “ affairs with various women, including one with whom he admitted that he had had sexual relations ”. The trial judge held that the facts contained in the affidavit were admissible in evidence on the application, and he made an order in favour of the wife.

Held that the facts contained in the affidavit were not rendered inadmissible in evidence by reason of either (1) estoppel, because the facts did not controvert

H IG H COURT

[1953.

H.C. OK A. any issue deeidod when the decree for dissolution of marriage was granted

1953.and, in addition, by Williams, Webb and Taylor JJ., because the issue in the maintenance proceedings was of a different nature from the issue in the

B r e w e e

V.  suit for dissolution of marriage ; or (2) any rule of law or practice based upon

B r e w e r .

public policy.

Duchesne v. Duchesne (1951) P. 101, not followed. Geyer v. Oeyer (1949)

60 W.N. (N.S.W.) 105, a])proved.

Held further that, on the facts of the case, the fact that the wife had de facto custody of the daughter of the marriage then fourteen years of age, and the desirability, in the daughter’s interest of the wife being enabled to estabhsh a commoil home for herself and her daughter, were relevant matters for consideration in determining whether an order should be made.

Decision of the Supreme Court of Victoria (Full Court) reversing the

judgment of Dean J., reversed.

A p p e a l from the Supreme Court of Victoria.

Mervyn MacPherson Brewer (hereinafter called the petitioner) presented a petition dated 13th July, 1948 to the Supreme Court of Victoria praying that his marriage with Betty Melrose Brewer (hereinafter called the respondent) be dissolved on the ground that on several days between the third and twenty-fifth days of April, 1948 at Perth, Western Australia, the said respondent committed adultery with Edward Volney Blackman. The respondent entered an appearance in the suit, but did not file an answer or defend. At the hearing of the suit on 21st February, 1949 the respondent’s solicitor gave evidence, with her consent, of her admission of adultery, and the respondent, being seated in Court, was called to the witness box by the trial Judge {Dean J.) and questioned as to condonation. While in the witness box the respondent freely admitted her adultery. Dean J. granted a decree nisi for dissolution of marriage, on the ground set forth in the petition, which decree was made absolute on 23rd May, 1949. The petitioner remarried

on 28th July, 1949.

-

On 29th November, 1951 the respondent issued a summons pursuant to s. 5 (1) of the Marriage {Divorce) Act 1933-1939 (Viet.), claiming maintenance from the petitioner. This summons was supported, inter alia, by an affidavit by the respondent sworn on 23rd January, 1952 which deposed that, from the early days of the marriage between the parties in 1936, the petitioner had been prone to over-indulgence in alcohol, both in public and in private, that he had, on occasions, treated the respondent with violence, and that he had had “ affairs ” with various women, including one with whom he admitted that he had had sexual relations.

88 C.L.R.] O F A U STRA LIA .

8

At the hearing of the application before Dean J. the respondent

was cross-examined upon her affidavits but the petitioner, although

represented, did not file any affidavit or give evidence, he having

B r e w e r

gone abroad since the issue of the summons. Objection was taken

V.

B r e w e r .

by counsel for the petitioner to the admission in evidence of the matters contained in the affidavit sworn 23rd January, 1952, and set forth above. Dean J. in a judgment delivered 11th March, 1952, held that the matters contained in the affidavit were admissible in evidence, and he ordered that the petitioner pay to the respondent the sum of £62 10s. per month during the joint lives of the petitioner and respondent. In reaching this conclusion Dean J. took into account the fact that the respondent, with the approval of the petitioner, had de facto custody of the daughter of the marriage, aged fourteen years.

The petitioner appealed to the Full Court of the Supreme Court of Victoria against the decision of Dean J. The Court consisted of Herring C.J., Lowe and Gavan Duffy JJ . Herring C.J. and Lowe J. held that the decree for dissolution of marriage was conclusive as to the existence of any defence which might have been raised, but was not raised in the divorce suit. Accordingly, since evidence was admissible in the divorce suit as to the matters contained in the affidavit sworn 23rd January, 1952, the existence of the decree prevented evidence being admissible as to those matters in the proceedings for maintenance. Gavan Duffy J. held that the evidence was not admissible on the ground of res judicata since it amounted to evidence, which was admissible in the divorce suit, and which, if it had been accepted in that suit, might reasonably have been expected to result in a finding that the petitioner had been guilty of “ such wilful neglect or misconduct as had conduced to the adultery ” of the respondent within the meaning of s. 84 (2) of the Marriage Act 1928 (Viet.). Herring C.J. and Lowe J. {Gavan Duffy J. contra) further held that the de facto custody of the daughter by the respondent was not relevant to the question whether the Court should exercise its discretion by granting maintenance to the respondent, although it would be relevant in determining the quantum of maintenance, if granted. In the result the Full Court of the Supreme Court of Victoria on 25th June, 1952, allowed the appeal.

On 18th September, 1952, the respondent applied for, and was granted, special leave to appeal to the High Court of Australia against the decision of the Full Court of the Supreme Court of Victoria.

4 H IG H COUKT

[1953.

H.C. or A.D. I. Menzies Q.C. (with him D. M. Little), for the appellant.

1953. There are two questions for decision : (1) Was the Full Court of

B rew bkthe Supreme Court of Victoria right in deciding that a decree for

V.dissolution of marriage given in an undefended suit, established,

Br e w e r .as between the parties, that the respondent had not been guilty

of tlrimkenness and misconduct, so as to prevent the appellant establishing tliese matters in later proceedings for maintenance ? (2) Was the fact that the appellant had custody of the daughter of the marriage relevant in deciding whether she was entitled to maintenance ? I t is established by New BrunsmcJc Railway Co. v. British and French Trust Corporation Ltd. (1), that the doctrines of res judicata and estoppel have a more limited application in undefended than in defended cases. Estoppel only arises when the point at issue is necessarily, and with complete precision, covered by the earlier j udgment. In Hoysted v. Commissioner of Taxation (2) the point not argued was fundamental to the decision and must have been taken to be decided. See also Blair v. Curran per Dixon J. (3). The decree here did not bear one way or another on the question whether the respondent committed misconduct or drank to excess. If he had, the grant of a decree was discretionary under s. 84 (2) of the Marriage Act 1928 (Viet.). Hopkins v. Hopkins (4) is authority for the proposition that so far as a discretionary bar is concerned, there can be no estoppel. [He referred to Restall v. Restall (5); Mould V . Mould (6) ; Lindsay v. Lindsay (7) ; .Robinson v. Robinson (8) ; Duchesne v. DuHiesne (9).] We do not disagree with the ratio decidendi of Duchesne v. Duchesne (9) but we say that the obiter dicta are wrong and should not be followed by this Court. Nettheim v. Netiheim {No. 2) (10) is distinguishable because there the matter relied upon constituted a defence to the suit. [He referred to Geyer v. Geyer (11).] The view that the fact that the appellant has custody of the child of the marriage is irrelevant in deciding whether maintenance ought to be granted is wrong. I t is opposed to Wood v. Wood, per Lindley L.J. (12).

Dr. E. G. Coppel Q.C. and R. M. Eggleston Q.C. (with them

E. H. E. Barber), for the respondent.

(1) (1939 A.C. 1, at pp. 20, 21.(6) (1933) P. 76.

(2) (1926) A.C. 155 ; (1925) 37 C.L.B.

(7) (19.34) P. 162.

290. (8) (1943) P. 43.

(3) (1939) 62 C.L.R. 464, at pp. 531­

(9) (1951) P. 101.

533. (10) (1930) 47 W.N. (N.S.W.) 46.

(4) (1933) 50 T.L.R. 99.(11) (1949) 66 W.N. (N.S.W.) 105.

(5) (1930 )P. 189.

(12) (1891) P.D. 272, at p. 276.

88 C .L.R .] O F

A U STR A LIA .

H. C. OF A.

Dr. E. G. Coppel Q.C. The appellant is prevented from establish­ ing, in later proceedings, matters which were relevant, and which she

1953.

had the opportunity of establishing in the earlier proceedings.

B r e w e r

This is because of the doctrine of issue-estoppel. See

V.

Howlett v.

B r e w e r .

Tarte, per Williams J. (1); per Byles J. (2); per Williams J. (3) ; per Willes J. (4); per Byles J. (5). The treatment of Howlett V. Tarte (6) in Hoysted v. Federal Commissioner of Taxation (7) is not accepted in Hew Brunswick Railway Co. v. British and French Trust Corporation Ltd. (8). The JVem Brunswick Railway Company Case (8) is direct authority as to judgments by default, but it has no bearing on issue-estoppel where a defendant elects not to take a defence. Where there are no pleadings the question is whether a prior opportunity of raising the point had in substance arisen and been passed by. See Hoysted’s Case (9). The Marriage Act 1928 (Viet.), s. 84 (2) creates a discretionary offence. Discre­ tionary offences were not known at common law, but are entirely the creation of statute. The Money Lenders Act 1928 (Viet.) gives a discretionary power to reopen transactions. If a lender sued for one instalment and the borrower pleaded payment, but did not rely on the Act, and judgment was given for the lender, it seems clear that in a subsequent action for a further instalment, the borrower would not be permitted to rely on the Act, because he has neglected to take his opportunity of obtaining relief on that issue. [He referred to Cohen v. Jonesco (10) and Cox v. Cox (11).] In the present case the appellant gave evidence in the divorce suit. By suppression of the evidence which she might have given as to the respondent’s drunkenness and conduct, she enabled the respondent to obtain a decree as of right. I t is immaterial that otherwise, discretion might have been exercised in favour of the respondent. When the appellant refrained from giving the evidence, she gave up her opportunity of defeating the respondent on that issue. Alternatively it is a rule of practice in the divorce jurisdiction that a party is not permitted to prove, on a summons for mainten­ ance, matters which he could have proved at the hearing of the suit, as a defence or in support of a discretionary bar, but which

(1) (1861) 10 C.B. (N.S.) 813, at p.

(6) (1861) 10 C.B. (N.S.) 813 [142

821 [142 E.R. 673, at p. 676.]

E.R. 673.]

(2) (1861) 10 C.B. (N.S.), at pp. 822,

(7) (1926) A.C. 155 ; (1925) 37 C.L.R.

823 [142 E.R., at p. 677.]

290.

.(3) (1861) 10 C.B. (N.S.), at pp. 825,

(8) (19.39) A.C. 1.

826[142E.R., atp. 678.] '

(9) (1926) A.C. at p. 171 ; (1925)

(4) (1861) 10 C.B. (N.S.), at p. 827

37 C.L.R., at p. 304.

[142 E.R., at p. 679.]

(10) (1926) 1 K.B. 119.

(5) (1861) 10 C.B. (N.S.), at pp. 827­

(11) (1894) 70 L.T. 200.-

828 [142 E.R., at p. 679.]

6

H IG H COUKT

[1953.

H.C. OF A. cliose to keep back. This rule differs from issue-estoppel in that

1953. it relates to the conduct of a single suit in its various stages. This

B k ew euis clearly what Pearce J. describes as public policy in Duchesne v.

V.          Duchesne (1), and it is the ground taken by Henn Collins J. in

B r e w e r .Robinson v. Robinson (2). In Restall v. Restall (3) no such question arose because the conduct sought to be proved in the maintenance proceedings would have been irrelevant in a suit for nullity of marriage, where these matters would have afforded neither defence nor discretionary bar. Bateson J. was, therefore, wrong in Mould V. Mo\ild (4) where he treated Restall v. Restall (3) as compelling him to find that there can be no estoppel of this kind in the divorce jurisdiction. The practice in New South Wales was laid down in Nettheim v. Nettheim {No. 2) (5) from which decision special leave to appeal to the High Court of Australia was refused (6). The decision of Bonney J. in Geyer v. Geyer (7) is wrong, but even if it is right it cannot be applied in Victoria. This rule of practice produces wholesome results. Any other practice means that the wife may withhold evidence at the trial, and then, after waiting until the decree is made absolute and thereby avoiding the possibility of intervention by the Attorney-General in the suit, she may apply for maintenance. The decision that the custody of the daughter of the marriage is irrelevant to the question whether maintenance should be granted is correct. I t is not inconsistent with Wood V. Wood (8) which was an application by a successful petitioner in a divorce suit and did not raise the question whether she was a fit person to obtain any order.

R. M. Eggleston Q.C. [He addressed the Court on the facts.]

D. I. Menzies Q.C., in reply. [He referred to Howlett v. Tarte, per Willes J. (9) ; Reg. v. Inhabitants of the Township of Hartington Middle Quarter, per Coleridge J. (10).]

Cur. adv. vult.

Apru 28.

The following written judgments were delivered ;—■

D ix o n C.J. I have had the advantage of reading the reasons for

judgment prepared by Fullagar J. and concur in them.

(1) (1951) P., at p. 113.(8) (1891) P.D. 272.

‘ ■

(2) (1943) P. 43.

(9) (1861) 10 C.B. (N.S.) -813, at p.

(3) (1930) P. 189.826 [142 E.R. 673, at'pp. 678­

(4) (1933) P. 76.

679.]

(5) (1930) 47 W.N. (N S.W.) 46.

(10) (1855) 4 El. & Bl. 780 [119 E.R.

(6) (1930) 30 S'.R. (N.S.W.) 484.288].

(7) (1949) 66 W.N. (N.S.W.) 105.

88 C .L .R .] O F

A U ST R A L IA .

W illia m s , W e b b a n d Taylor JJ .

This is an appeal from an

order of the Supreme Court of Victoria allowing an appeal from an

1953.

order directing the present respondent to pay for the maintenance

B b b w e e

of the appellant, his former wife, the sum of £750 per annum, or

V.

B b b w b r .

£62 10s. Od. per month, from 1st December, 1951, during their joint lives or until further order. The wife’s apphcation was made, pursuant to s. 5 of the Marriage {Divorce) Act 1933-1939 (Viet.) some little time after the making of a decree for dissolution of the marriage on the ground of the wife’s adultery. No answer was filed on her behalf in the suit for dissolution, nor did she appear to defend the suit upon the hearing, although she was called as a witness in the suit.

In support of her application for maintenance, however, the appellant swore an affidavit containing a great many allegations which, if they had been established in the suit for dissolution, might have resulted in its dismissal for the allegations, if believed, would have gone some distance towards establishing that the husband had himself been guilty of adultery and, also, of such wilful neglect or misconduct as had conduced to the wife’s adultery. In these circumstances the respondent in this appeal objected on the hearing of the application for maintenance to the admission of this evidence concerning his conduct during the latter years of his married life contending that the appellant was precluded by the findings and decree in the suit from presenting such evidence to the Court. In considering the rival contentions on this point. Dean J., who thought the evidence admissible and whom the Full Court thought was in error on this point, referred to the conflicting decisions in Duchesne v. Duchesne (1) and Geyer v. Geyer (2). In the former case, Pearce J., in circumstances not dissimilar to those of the present case, held that a husband who had allowed a suit for dissolution of his marriage on the ground of his desertion to proceed as an undefended suit was estopped in maintenance proceedings from “ asserting matters inconsistent with the decree ” , and further that he was “ for reasons of public policy, prohibited from asserting matters (of which he knew) which would reasonably have been expected, if proved either to provide an effective answer to the petition or to produce a different result at the trial ” (3). With the first proposition there can be no quarrel but it is not contended in this case that the assertion of those facts which the appellant desired to adduce in evidence were inconsistent with the decree in the suit. But the form of the decree is not the sole measure of what issues were then determined and we have no doubt that the

(1) (1951) P. 101.(3) (1951) P., at p. 113.

(2) (1949) 66 W.N. (N.S.W.) 105.

8H IG H COURT

[1953.

H.C. OF A.decree was conclusive not only as to those issues expressly pro­

1953. nounced upon but also as to any other issue upon which it was

B uew ebnecessary for the Court to adjudicate before making a decree in

.

V.

the form in which it did. Moreover, the decree constituted a

Bk e w e k .

judgment in rem and conclusively established the new status of

WilUams J.

Webb J. the parties to the suit {Bater v. Bater (1) ). But the proposition that

Taylor J.the wife, by failing to attempt to show in the suit that her husband

had been gialty of adultery or of neglect or conduct conducing to her own matrimonial offence, was thereby estopped from giving evidence of her husband’s conduct during the relevant period for the purpose of endeavouring to secure an order for maintenance appears to us to be misconceived. In reaching his conclusion in the Full Court Gavan Duffy J. referred to Lockyer v. Ferryman (2) and quoted from the speech of Cairns L.C. the following passage : “ No man who shews that at the time of his first proceedings he had the whole facts within his knowledge, and who had the power to raise them—who puts upon his record statements which prove that he had the whole of this knowledge in his possession—can be heard, because he does not attempt to prove one part of the case, to say after the lapse of thirty years that he is entitled to commence a new litigation, to raise again a portion of the case which, if it had any foundation, was perfectly well known to him at the time of his first proceedings ” . But it should be observed that the appellant in that case was held to be estopped because in the second suit he attempted to reopen the very issue previously decided. In that case the appellant sought a declaration that he and a person then deceased and of whom the respondents were the executors had inter-married in Scotland many years before. But in a previous suit instituted some thirty years before the appellant had sought a declaration in the same terms. In this suit he had been unsuccessful, and it is clear that what he sought to establish in the second suit was that the marriage alleged in the first suit had taken place. In dealing with the question on appeal in the second suit Lord Cairns made it clear (3) that in stating the proposition, quoted above, he was not laying down any general rule “ as to the extent to which a sentence in a declarator of marriage is binding as against any subsequent attempt that may be made to establish the marriage upon any new or different footing ” , and that he was content to dispose of the case in the manner indicated by him. But at no time was it suggested by his Lordship that if the issue in the second suit had been of a nature

(1) (1906) P. 209.(3) (1877) 2 App. Gas., at p. 525.

(2) (1877) 2 App. Gas. 519, at p. 525.

88 C .L.R .] O F A U STR A LIA .

9

different from that in the first any question of estoppel would or

C. o f A;

could have arisen or that evidence relevant to the issues in the

first suit would not have been admissible. Nor is the view which

B r e w e r

we have expressed inconsistent with the passage cited by Gavan V.

__

B r e w e r

Duffy J. from Hoysted v. Commissioner of Taxation (1).

To hold

that the appellant’s affidavit was admissible in the maintenance Williams J.

Webb J.

proceedings does not permit her to reopen “ the same subject of

Taylor J.

litigation in respect of matters which might have been brought

forward as part of the subject in contest

The second proposition as stated by Pearce J., as we understand it, receives no support from these authorities. Nor did the argument advanced on behalf of the respondent in Duchesne v. Duchesne (2) involve the conclusion, as stated by his Lordship, that a respondent might “ allow his wife to secure an undefended decree on the ground of desertion because he wishes to be free, and then, when it has been made absolute, to reduce or extinguish his financial liabihty by proving that the parting was consensual or even that it was the wife who deserted him ” (3). To permit a husband to establish such issues might well, as his Lordship said, offend against the rule of estoppel, but no such issue arises for decision in main­ tenance proceedings. And we should add in passing that it adds nothing to his Lordship’s statement to say, as he did, that it would also offend “ against pubhc policy since it is a fraud on the Court ” , for the rules relating to estoppel are themselves based upon con­ siderations of public policy and must, in general, be taken to express the full measure of what public policy requires in cases where they are called into play.

That the second proposition as stated by Pearce J. must be taken to rest upon considerations other than the conclusiveness of a judicial decree is emphasised by his disagreement with the views expressed in Robinson v. Robinson (4). In that case Henn Collins J . said : “ The view to which I have come is that, although proceedings under s. 190, sub-s. 1, are separate proceedings from those for dissolution, a party ought not to be allowed to refrain from using at the hearing of a suit for divorce information which he had, or which, but for his carelessness, he might have had, and then, when his pocket begins to be affected, propose to prove that information and put the petitioner to the expense of a separate issue Pearce J. found himseK unable to agree that the “ pro­ hibition extends to matters of which he (the husband) was ignorant at the time of the trial but which he might have known, ‘ but for-

(1) (1926) i^.c. 155; (1925) 37 C.L.R.

(3) (1951) P., at p. 113.

290. (4) (1943) P., at p. 45.

(2) (1951) P. 101.

H IG H COURT

[1953.

H; G. OF A.liis careleBsness ’ ” (1). But in. neither case was the rule thought to

1953.be absolute. Its application in one case was said to depend upon

B kkw eka failure to assert upon a former occasion matters of which the

V.respondent was aware at the time and in the other upon the respon­

B r e w e r .dent’s failure to assert matters of which he had actual or con­

WlUlama J.

Webb J. structive knowledge at the relevant time. From these observations,

Taylor J.it is clear that the “ rule ” as propounded, could not have been

thought to arise from the conclusiveness of the decree but rather from the conduct of one of the parties in each case. In our view there is no foundation for any such general rule. I t is true that Owen J. in Nettheim v. Nettheim {No. 2) (2) took a view somewhat similar to that entertained in Duchesne v. Duchesne (3), but it is ecpially true that Bonney J. in Geyer v. Geyer (4) considered this case and refused to follow it. Nor can any real support be found for the rule in any case other than those to which we have referred. Further it is impossible, as counsel for the appellant sought to do, to support the rule as a rule of practice. There is nothing in the authorities upon which such a view could be based whilst if some reliance for it could be placed on Robinson v. Robinson (5) and Duchesne v. Duchesne (3) insuperable difficulty would arise in formulating the rule itself and in applying it in any particular case. Some of the difficulties are readily apparent from the final observations of Pearce J. in the latter case.

I t may be said that to permit evidence of the nature referred to might cause considerable difficulty and indeed, in one sense, allow one party to give evidence inconsistent with a decree for dissolution. For example, where a husband, in an undefended divorce suit, has obtained a decree on the ground of his wife’s desertion, it may be said that to allow the wife to give evidence in maintenance proceedings of her husband’s conduct might leave it open to the former to establish that she was not, in fact, the deserting party. But the answer is that this is not an issue in the maintenance proceedings and no determination in those pro­ ceedings would, or could, contravert the issue upon which a final and conclusive pronouncement had already been made in the proceedings for dissolution. The question in maintenance pro­ ceedings must always be whether, in all the circumstances, an order for maintenance should be made and a finding one way or the other would not impugn any finding necessarily involved in the making of the earlier decree. We are of the opinion that in making its finding the Court, in proceedings such as the present.

(1) (1951) P., at p. 114.(4) (1949) 66 W.N. (N.S.W.) 105.

'(2) (1930) 47 W.N. (N.S.W.) 46.(5) (1943) P. 43.

(3) (1951) P. 101.

88 C .L.R .] O F A U STR A LIA .

11

is entitled, and indeed bound, to have regard to tbe conduct of

H. C. OF A.

the parties in association with all other relevant circumstances.

1953.

(See per Lindley L.J. in Wood v. Wood (1).) This being so, the Full

B e e w b e

Court, in our opinion, erred on the question of the admissibility

V.

B e e WEE.

of the appellant’s affidavit.

Williams J. Webb J.

A majority of the Full Court thought that Dean J. erred also in regarding as factors for consideration in determining whether

Taylor J.

any order for maintenance should be made the circumstance that the wife had the de facto custody of the daughter of the marriage, and the desirability, in the daughter’s interest, of the wife being enabled to establish a common home for herself and her daughter. We have no doubt that upon the facts of this case this was a relevant circumstance for the consideration of the learned judge. Once it was established or conceded that the establishment of such a home was desirable this factor was, in our opinion, most material in determining whether an order should be made. For the question which then arose did not merely involve consideration of what additional amount should be made available by the husband to provide for his daughter, but whether the wife should be placed in a position which would enable her to provide and maintain such a home.

Holding the view, as we do, that Dean J. was right on both of these points, we are of the opinion that his order should be restored. I t would appear that if the Full Court had not thought that he had erred on these points they would not have interfered with his order but, in any event, we are of the opinion that the order which he made was rightly made and should be restored.

F ullagar J. This is an appeal from an order of the Full Court of the Supreme Court of Victoria, which set aside an order made by Dean J. Dean J . had ordered that Mervyn MacPherson Brewer (the present respondent) pay to his divorced wife, Betty Melrose Brewer (the present appellant) maintenance at the rate of £750 per annum. For the purposes of the two main points argued on the appeal the facts may be stated quite shortly. I t will be con­ venient to refer to the parties as husband and wife, although their marriage has been dissolved.

The parties were married on 27th November 1936. There is one child of the marriage, a daughter named Jillian MacPherson Brewer, who was born on 11th October 1937. On 2nd August 1948 the husband commenced proceedings in the Supreme Court for dissolution of marriage on the ground of his wife’s adultery in Perth

(1) (1891) P. 272.

12

H IG H COURT

[1953.

H.C. OF A.with a man named Blackman. The wife entered an appearance

1953. but did not file an answer, and the suit came on for hearing before

B kbwf.rDean J. as an undefended suit. On 21st February 1949 a decree

V.nisi was pronounced, and this decree was made absolute on 23rd

B k ew ek .May 1949. Before the husband’s petition was filed the wife had Fullagar J .made a confession in writing of adultery with Blackman. At the

hearing she was called by the Judge as a witness and stated on oath that she had committed the adultery charged. She made no allegations of any kind against her husband. In the words of Dean J., “ neither in the petitioner’s evidence nor in that of the wife was any suggestion made that the petitioner’s conduct had not been perfectly proper at all times ” .

The wife’s summons for maintenance was issued on 29th November 1951. The application was made under s. 5 of the Marriage {Divorce) Act 1933-1939 (Viet.) which provides that, on or after making any decree for dissolution of marriage, whether obtained by or against the husband, the Court may, if it thinks fit, make an order on the husband for payment to the wife during the joint lives of husband and wife of such monthly or weekly sum for her maintenance or support as the Court thinks reasonable. The section contains provisions enabling the Court to discharge, modify or suspend an order made thereunder, and in certain circumstances to increase the amount payable. The application was supported by an affidavit sworn by the wife on 28th November 1951. This affidavit merely deposed to the divorce and to certain events which had taken place, and certain communications which had passed between the parties and their solicitors, since the divorce. I t said (par. 3) that “ our married life was unhappy ”, but it did not particularise any cause of unhappiness. On 23rd January 1952, however, the wife made and filed another aflhdavit. In this affidavit she referred to the statement in par. 3 of the first affidavit, and made, for the first time, very serious allegations against the conduct of the husband during the marriage. These need not be set out in detail. They fall into two classes. She alleged, in the first place, from about 1939 onwards, and especially in and after 1943, a more or less continuous persistence by the husband in drunken habits, and much offensive and disgusting behaviour under the influence of drink. She alleged, in the second place, association by the husband at different times with three women in circumstances which strongly suggest adultery—in one case adultery in the conjugal residence. In the first two cases adultery, if it took place, was clearly condoned. In the case of the third woman the affidavit says that the husband admitted having “ had sexual

88 C .L.R .] O F A U STR A LIA .

13

C. OF A.

relations with, her

This took place in 1948 after the husband

had told the wife that he “ wished he was in a position to marry

1953.

again ” . I t was in 1948 that the wife finally left the husband and

B r e w e r

committed the adultery on which the decree of divorce was

V.

founded, but it does not appear whether this was before or after

B r e w e r .

the husband’s confession. In his affidavit in support of the petition Fullagar

J .

the husband had said that early in 1948 he had a number of quarrels with his wife “ over various domestic matters and about her staying out very late at night with a golfing professional

When the wife’s summons for maintenance came on before Dean J., her affidavit of 23rd January 1952 was tendered by her counsel. Counsel for the husband objected to its admission. Dean J. held that it was admissible, and stated his reasons in a reserved judgment on the wife’s application. The admission of this evidence provided one of two grounds on which the order of Dean J. was set aside by the Full Court. Their Honours were of opinion that it was inadmis­ sible. Its rejection was based not on the ground of irrelevance, but on grounds which were said to arise from the fact that the wife had not, on the hearing of her husband’s petition for divorce, put before the Court the material in question. I t was put before us that either the wife was estopped by the decree from raising that material in subsequent proceedings or was precluded from raising it by a rule of law based on public policy.

That the material was relevant on the wife’s application for maintenance cannot be doubted, although a reading of the reasons for judgment of Dean J. would lead one to think that he (probably rightly) attached no very great importance to i t : see Wood v. Wood (1). That the same material was relevant, and might have been very important, on the husband’s petition for divorce is not less clear. The wife’s affidavit makes no case of connivance or condon­ ation, matters which the Court is bound by s. 81 of the Marriage Act 1928 (Viet.) to investigate as best it can. Nor does it make any case of collusion, which is the third of the so-called “ absolute bars ” according to the law of Victoria (ss. 82 and 83). But s. 84 of the Act provides {inter alia) that the Court shall not be bound to pronounce a decree of dissolution of marriage if it finds that the petitioner has during the marriage been guilty of adultery. I t also provides that, in the case of a petition charging adultery, the Court shall not be bound to pronounce a decree on any ground involving adultery if it finds that the petitioner has been guilty of such wilful neglect or misconduct as has conduced to the adultery.

(1) (1891) P. 272, at p. 276.

H IG H COURT

[1953.

H. C. OP A.

These things are among the so-called “ discretionary bars ” . I t

1953.seems plain that, if the wife had, on the hearing of her husband’s

B k ew erpetition for divorce, raised and established the matters alleged

V.in her affidavit of 23rd January 1952, the decree could have been

B r e w e r .

made only as a matter of discretion and not as a matter of right.

Fullagar J.I t is plain indeed that it might, as a matter of discretion, have been

refused. There can, of course, be little doubt that the wife refrained from raising the matters in question for the simple reason that she was hardly, if at all, less desirous than her husband that the marriage should be dissolved.

But it would be entirely contrary to principle to hold that she was estopped from raising on her application for maintenance matters which she had refrained from raising on her husband’s petition for divorce. The question is not one of res judicata in the true sense but of what is properly called issue-estoppel. The two are often unfortunately confused. The principle of issue-estoppel was stated by Lord Ellenborough in Outram v. Morewood (1) in these terms I t is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel . . . the estoppel precludes parties . . . from con­ tending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them . . . has been, on such issue joined, formally found against them ”. But there can be no estoppel unless what is put forward is inconsistent with a former finding or decision. In Howlett v. Tarte (2), Williams J. said :—“ If the defendant attempted to put upon the record a plea which was inconsistent with any traversable allegation in the former declaration, there would be an estoppel. But the defence set up here is quite consistent with every allegation in the former action ” . In the same case Willes J. said :—■“ Nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action ” (3). This passage is quoted both by Lord Maugham L.C. and by Lord Wright in New Brunsivick Railway Co. v. British & French Trust Corporation (4). The Lord Chancellor said that the estoppel extended only to “ setting up in a subsequent action a defence which was necessarily and with complete precision decided by the previous judgment ” (5). The whole position was carefully explained by Dixon J. in Blair

(1) (1803) 3 East 346, at p. 355 [102

(3) (1861) 10 C.B. (N.S.), at p. 827

E.R. 630, at p. 633.]

[142 E.R., at p. 679.]

(2) (1861) 10 C.B. (N.S.) 813, at p.

(4) (1939) A.C. 1, at pp. 21, 37.

826 [142 E.R. 673, at p. 678.]

(5) (1939) A.C., at p. 21.

88 C .L .R .] O F A U STR A LIA .

15

V. Curran (1). His Honour said :—“ A judicial determination

^

directly involving an issue of fact or law disposes once and for all

of the issue, so that it cannot afterwards he raised between the

B r e w e r

same parties or their privies ” . But he added : “ Nothing but

V.

what is legally indispensable to the conclusion is thus finally closed B r e w e r .

or precluded

Fuliigar J .

I t is possible that the decision of the Privy Council in Hoysted V. Federal Commissioner of Taxation (2), has not always been correctly understood, although the headnote to the report of that case states its effect quite accurately, although the point in controversy is made very clear in the dissenting judgment of Higgins J. in the High Court (3), which received the approval of their Lordships (4), and although the whole position has been explained by Somervell L.J. in In re Koenigsberg ; Public Trustee V. Koenigsberg (5). In Hoysted’s Case (2) the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his ■ favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Conunissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different. As Somervell L.J. said :—■“ He was therefore seeking to obtain an order which was on the face of it and in form in direct conflict with the order which had been made previously ” (6). The point in question had been “ the groundwork of the decision itself, though not then directly the point a t issue ” (per Coleridge J. in Reg. v. Township of Harting­ ton (7)).

There is another point to be noticed. Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue. In Blair v. Curran (8), Dixon J. said ;—“ In matters

(1) (1939) 62 C.L.R. 464, at pp. .531,

(4) (1926 A.C., at p. 172 ; (1925) 37

532 C.L.R., at p. 305.

(2) (1926) A.C. 15.5 ; (1925) 37 C.L.R.

(5) (1949) Ch. 348, at pp. ,359, 360.

290. (6) (1949) Ch., at p. 360.

(3) (1921) 29 C.L.R. 537, at pp. 559­

(7) (18.55) 4 EL & Bl. 780, at p. 794

562. [119 E.R. 288, at p. 293].

(8) (1939) 62 C.L.R. 464, at p. 532.

16 H IG H COURT

[1953.

H.C. OF A.of fact the issue-estoppel is confined to those ultimate facts which

1953. form the ingredients in the cause of action. . . . Findings, however

B k ew eudeliberate and formal, which concern only evidentiary facts and

V.not ultimate facts forming the very title to rights give rise to no

B r e w e e .

preclusion

F’ulluBiir J .Having regard to tliese established principles there could be no

estoppel in the present case which would prevent the wife from giving the evidence in question on her summons for maintenance. She could not, of course, be heard to deny that she had committed adultery. She could not maintain that her adultery had been condoned, 6r that there had been connivance by her husband. To do any of these things would be inconsistent with the decree ; inconsistent with “ the groundwork of the decision itself ” . But she was not seeking to do any of these things. She came before the Court as a wife guilty of adultery and therefore under a heavy handicap in her application for maintenance. She sought to mitigate the effect of that handicap by proving conduct on the part of her husband which, while perfectly consistent with her having committed adultery and with the absence of connivance and condonation, might possibly induce the Court to take a more lenient view of.her own misconduct in the exercise of its discretion as to granting or refusing maintenance. She was denying nothing which the decree established. She was controverting no issue decided when the decree was granted. She was adducing evidentiary facts which might conceivably have caused the decree to be refused in the exercise of discretion if she had chosen to raise them on the hearing of the petition for divorce and had succeeded in establishing them. But no estoppel arises in such circumstances. To put forward those facts is in no sense to contradict anything which can be regarded as decided on the petition. Cf. generally Hoplcins v. Hopkins (1).

I t was argued that, even if there were no estoppel, there was a rule of law, founded on public policy, which precluded the wife from relying on the evidence in question. This argument was rested mainly, if not entirely, on the judgment of Pearce J. in Duchesne v. Duchesne (2), but it is desirable to begin by looking at one or two earlier decisions in England.

In Restall v. Restall (3), a woman had obtained a decree of nullity on the ground of consanguinity, and subsequently applied for permanent maintenance. The man to whom she had been ostensibly married made very serious allegations with regard tr

(1) (1933) 150 L.T. 279.(3) (1930) P. 189.

(2 ) (1951) P. 101.

88 C .L .R .] O F A U STR A LIA .

17

her conduct both before and after the marriage. The Court of

Appeal, reversing a decision of Bateson J., held that the conduct

of the parties both before and after marriage was relevant on the

B r e w e r

wife’s application and that the evidence should be admitted.

V.

B r e w e r .

Lord Hanworth M.R. said :—“ I think it is most important that

____

the Court should have before it the relevant evidence to enable

Fuiiagarj.

it to investigate thoroughly the conduct of the parties ” (1). The statute under which the application was made in that case expressly required the Court to have regard to the conduct of the parties. Section 5 of the Victorian Act of 1933 does not, though s. 95 of the Marriage Act 1928 (Viet.) does, so require. But in such cases “ conduct of the parties ” is relevant whether expressly referred to or not in the statute which gives the jurisdiction invoked. In the frequently cited case of Wood v. Wood (2), Lindley L.J., dealing with a statute which contained no express reference to it, placed “ conduct of the parties ” first in the list of matters to be taken into consideration, and in this judgment Bowen L.J. and Kay L.J. concurred.

In Mould V. Mould (3) Bateson J. held that the rule laid down in Restall v. Restall (4) extended to a case of dissolution of marriage.

In this case a wfife, who had obtained a divorce on the ground of

'

her husband’s adultery, applied for maintenance. The husband tendered evidence as to his wife’s conduct, alleging cruelty and intimacy (short of adultery) with another man. This evidence had not been tendered on the petition for divorce, and objection was taken to its admission. Bateson J. thought it clear that there could be no estoppel. And, with reference to an argument that the evidence should be excluded in the exercise of discretion, he said that, while he thought it “ most inconvenient and very unsatis- facory ” (5) that such evidence should be admitted, he felt obliged to follow Restall v. Restall (4). In Lindsay v. Lindsay (6), Sir Boyd Merriman P. observed obiter that, if it had been necessary, he would have “ wished to consider further whether, as was held by Bateson J. in Mould v. Mould (3), there is anything in the decision in Restall v. Restall (4) which obliges the Court to receive on a maintenance petition evidence of facts which would have afforded a defence to the petition for divorce, but which the respon­ dent spouse deliberately refrained from raising in answer to that petition ” .

(1) (1930) P., at p. 195.(4) (1930) P. 189.

(2) (1891) P.D. 272, at p. 276.(5) (1933) P., at p. 81.

(3) (1933) P. 76.

(6) (1934) P. 162, at pp. 167, 168.

VOL.

L x x x v n i . — 2

H IG H COURT

[1953.

H.C. OF A.Til Robinson v. Robinson (1), a wife, who had obtained a decree

1953. of divorce on the ground of her husband’s adultery, claimed main-

B r e w k u tenaru^c, and the husband thereupon sought to prove that she had

coininitted adultery during the marriage. He had made no such B kicwmsh. charge in tlie divorce suit, which had been undefended. Henn

FullilHiir ,T.Collins .1. thought it clear enough that there was no estoppel, but he rejected the evidence, saying that “ a party ought not to be allowed to refrain from using at the hearing of a suit for divorce inforinafion which he had, or wliich, but for his carelessness, he might have had, and then, when his pocket begins to be affected, propose to prove that information and put the petitioner to the expense of a separate issue ” . In Duchesne v. Duchesne (2), a wife had, in an undefended suit, obtained a divorce on the ground of desertion. On her subsequent application for maintenance allegations against her conduct during the marriage were made by the husband. Pearce J., being of opinion that the conduct alleged, though relevant to the application for maintenance, “ would not reasonably have been expected either to provide an effective answer to the petition or to produce a different result ” (3), admitted the evidence. Having considered the earlier cases, he stated what he regarded as the correct principles in the following terms : “ The respondent is estopped in maintenance proceedings from asserting matters inconsistent with the decree. Further he is, for reasons of public policy, prohibited from asserting matters (of which he knew) which would reasonably have been expected, if proved either to provide an effective answer to the petition or to produce a different result at the trial (e.g., mutual decrees instead of a decree to the petitioner alone, or a discretionary decree instead of a decree as of right). I am not satisfied that this further prohibi­ tion extends to-matters of which he was ignorant at the time of the trial, but which he might have known ‘ but for his carelessness ’, to quote the words of Henn Collins, J .” (4).

We were referred to two decisions in New South Wales. In Nettheim V . Nettheim {No. 2) (5), a wife failed to comply with a decree for restitution of conjugal rights, and a decree of divorce was obtained by her husband on that ground. On an application by her for maintenance Owen J. refused to allow evidence of conduct on the part of the husband which “ would or might ” have led to a refusal of the decree for restitution. However, in Geyer v. Geyer (6), Bonney J. took a different view. His Honour thought it “ quite possible ”

(1) (1943) P. 43, at p. 45.(4) (1951) P., at pp. 113, 114.

(2) (1951) P. 101.(5) (1930) 47 W.N. (N.S.W.) 46.

(3) (1951) P., at p. 115.

(6) (1949) 66 W.N. (N.S.W.) 103.

88 C.L.R.] O F A U STR A LIA .

19

that, if certain evidence, which the wife tendered on an application C-

op A.

for maintenance, had been put before the Court on the hearing of

her husband’s petition for divorce, the decree might have been

B r e w e r

refused. He nevertheless admitted the evidence, pointing out that

V.

B r e w e r .

such provisions as s. 5 of the Marriage {Divorce) Act 1933 (Viet.)

are based not merely on considerations applicable as between two

Fuiiagar j .

parties but on considerations of public policy. See Hyman v. Hyman (1), and cf. Davies v. Davies (2), and Cook v. Cook (3). Bonney J. appears indeed to have thought that even an issue- estoppel ought to give way to these considerations of public policy for he said ; “ I t has long been clearly established, as for example, in Harriman v. Harriman (4), and Kara v. Kara (5), both in the Court of Appeal, that in matrimonial causes, the ordinary rules relating to res judicata and estoppel must yield to the pro­ visions of the Matrimonial Causes Act, where their strict application would be inconsistent with express provisions of that Act. Section 39 contains such a provision, namely that the Court shall take into account the conduct of the parties. I t seems to me that these considerations were not brought to the notice of the court in Nettheim v. Nettheim (6) ” (7).

I t is not, I think, correct to say that an issue-estoppel must yield to an express direction in a statute which does no more than

say that it is necessary to take into account “ conduct of the

parties ” . But it can hardly be doubted that the decision of Bonney

J. in Geyer v. Geyer (8), where an estoppel could not have been

successfully raised, was a sound decision. Where there is no estoppel

it is difficult to see how “ public policy ” can be invoked to support

the rejection of relevant evidence. Every consideration of public

policy seems to tend in favour of its admission. In Hyman v.

Hyman (9), Lord Atkin said :—“ The wife’s right to future

maintenance is a matter of public concern, which she cannot barter

away ” . If she cannot barter it away, it can hardly be maintained

that she is precluded from supporting her claim by relevant evidence

because she has refrained from tendering that evidence on an

.

earlier occasion, when she was in no way bound to tender it. Moreover, although it is true that the question of public policy, which was discussed in Robinson v. Robinson (10), and Duchesne V. Duchesne (11), did not arise in Restall v. Restall (12), I think, with

(1) (1929) A.C. 601.

(7) (1949) 66 W.N. (N.S.W.), at pp.

(2) (1919) 26 C.L.R. 348.

107, 108.

(3) (1923) 33 C.L.R. 369.(8) (1949) 66 W.N. (N.S.W.) lOo.

(4) (1909) P. 123.(9) (1929) A.C. 601, at p. 629.

(5) (1948) P. 287.(10) (1943) P. 43.

(11) (19.51) P. 101. (12) (1930) P. 189.

(6) (1930) 47 W.N. (N.S.W.) 46.

H IG H COURT

[1953.

H.C. 01.’ A.respect, that Bateson J. 'was right in Mould v. Mould (1), in thinking

1953. that the reasons given for the decision of the Court of Appeal in

B rew hiiRestall V. Restall (2) required, in the absence of an estoppel, the

V.admission of the evidence in question in that case. And the

B r e w e r .

“ princi})le ” laid down in Duchesne v. Duchesne (3) is open to other

l.'ullagur J .objections. I t woukl allow evidence of comparatively unimportant misconduct, such as was unlikely to have affected the granting of a divorce, 'while it would exclude evidence of serious misconduct whicli might liave an important bearing on the question of main­ tenance. Dean J. thought that such a position savoured of absurdity. I t would certainly be anomalous. The truth is that the rules of issue-estoppel have been carefully defined by the courts for the very purpose of determining as precisely as possible under what circumstances a party may put forward on a subsequent occasion material not put forward on a prior occasion. Such rules lose their value and their significance when attempts are made on vague grounds to give the effect of an estoppel to circumstances which admittedly create no estoppel. I would add that, in my opinion, it can make no difference whether the duty of the Court to have regard, on a wife’s application for maintenance, to the conduct of the parties, arises from express statutory direction or from the general principle laid down in Wood v. Wood (4).

For these reasons I am of opinion that Dean J. was right in admitting the evidence in question, and that the Full Court was wrong in holding that it ought to have been rejected.

If no other question than that of the admissibility of the evidence as to the conduct of the husband had been involved in the appeal from Dean J. to the Full Court, the Full Court must, taking the view which it did take, have remitted the case to Dean J. for further consideration. Dean J. though admitting that e’vidence, does not appear to have attached critical importance to it. The Full Court, however, did not remit the case to Dean J., but merely discharged his order, holding that no order for maintenance ought to have been made. This course was adopted because the Full Court also disagreed with Dean J. with regard to the main consider­ ation which led him to make his order. This matter may be dealt with very shortly. The evidence was fully examined by counsel before us, but there is no need to refer to it in detail.

What seemed to Dean J. the decisive consideration was connected with the daughter of the marriage, who, when the matter was before his Honour, was about fourteen years of age. No order has

(1) (1933) P. 76.(3) (1951) P. 101.

(2) (1930) P. 189.

(4) (1891) P. 272, at p. 276.

88 C .L.R .] O P

A U STR A LIA .

H. C. OF A.

ever been made as to the custody of this child.

The husband’s

petition for divorce did not ask that he should have the custody.

1953.

Since the divorce, as before it, the child has been at boarding school,

B r e w e r

and it is difficult to say that she has been in the “ custody ” of

V.

B r e w e r .

either of her parents.

Her father has provided, probably not

ungenerously, for the expense of her maintenance and education.

Fullagar J.

But he has been clearly willing that her mother should have the general care and management of her. He had remarried almost immediately after decree absolute, and there is a child of the remarriage. In all the circumstances, the child’s mother might be reasonably regarded as her natural guardian. At his invitation she sought, and, after a good deal of difficulty, found, a flat in Kew in which she might live, and in which the child, when not residing at her school, might stay with her. The rent of the flat is £6 6s. Od. per week. So far as the child can be said to have had a home, her home has undoubtedly been the place where her mother has resided. And this has been not only with the consent of her father but really at his express wish.

The above brief statement omits much detail, much argument and counter-argument, the making of offers and the withdrawal of offers. But it represents what is essential to the case and is clearly established. Dean J., in effect, took the view that, because the wife was expected to assume the main parental responsibility for the care and management of the child, and to maintain something in the nature of a home for her, it was right and proper that the husband, who is a wealthy man, should pay to her such sum by way of maintenance as would help towards her own support in the appropriate “ station of life ” and enable her to provide for her daughter what she was expected to provide. The Full Court disagreed with this view. Their Honours thought that such con­ siderations might be relevant as the the quantum of maintenance if it were found that the husband ought, apart from such consider­ ations, to pay maintenance to the wife. But they were of opinion that such considerations were irrelevant to the primary question whether the payment of any maintenance ought to be ordered.

I am, with great respect, unable to feel any doubt that the view of Dean J. was correct. I have difficulty indeed in understanding the distinction drawn. I t cannot be right to say that one should first inquire whether the wife is such a good woman that she ought to be paid something or such a bad woman that she ought to be paid nothing—and then—but only if this question is answered in her favour—inquire how much ought to be paid in order that she may fulfil to some extent the duties of a mother to a daughter for whom

22

H IG H CO URT

[1953.

H.V. OF A.she is expected to provide something in the nature of a Lome. All

1953. the circumstances of the case must be regarded in deciding whether

Erew erthe husl>and should be called upon to pay anything towards the

r.

maintenance of the wife. 1 do not find it easy to imagine a more

B r e w e r .relevant circumstance than the fact that the wife, although divorced Fulliisjur J.for adultery, is expected by the husband to accept the main

responsil)ility for the upbringing of the child of the marriage and to maintain some sort of “ home ” for the child. I t is nothing to the ]K)int to say that tlie husband is prepared to accept full hnancial res})onsibility for the child’s maintenance and education. If the wife is expected to coiAinue to be a mother, there is a clear reason for saying that she should be placed in such a financial position as will enable her to do what is expected of her. This consideration could, of course, be displaced by various other considerations. She might, for example, be a rich woman and the husband a poor man. But there are no such considerations in this case. The case discloses no reason for saying that the discretion of Bean J. was in any respect wrongly exercised.

In my opinion, this appeal should be allowed with costs. The judgment of the Full Court should be set aside and the order of Bean J. restored. In lieu of the judgment of the Full Court it should be ordered that the appeal from Bean J. be dismissed with costs.

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Victoria discharged and order of Bean J. of llth March 1952 restored. In lieu of the order of the Full Court order that the appeal to the Full Court from the order of Bean J . be dismissed with costs.

Solicitors for the appellant, Blake

Riggall.

Solicitors for the respondent, Coltman, Wyatt & Anderson.

R. D. B.