Brown v Walters - [1931] HCA 45

APPLICANT AND APPELLANT; INTERVENER, WALTERS

RESPONDENT,

IN RE WALTERS v. WALTERS.

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Husband and Wife-Dissolution of marriage-Motion for decree absolute-Adultery

by petitioner after decree nisi alleged-Material facts not having been brought before the Court-Leave to intervene-Application by father of respondent- SYDNEY,

After period limited in decree nisi-Period within which application may be Nov. 17;

made-Competency of applicant and application-Adultery "during marriage" -Discretionary bar-" During that period"--Evidence in support of allegation -Consideration by Court-Matrimonial Causes Jurisdiction Act 1864 (Q.) (28 Vict. No. 29), sec. 26-Matrimonial Causes Act 1875 (Q.) (39 Vict. No. 13), sec. 7*-Rules of the Supreme Court (Q.), Order XII., II. 18-20*; Order XLIII.,

Held, (1) that the expression "by reason of material facts not having been brought before the Court" in sec. 7 of the Matrimonial Causes Act 1875 (Q) includes facts, not otherwise brought to the Court's knowledge, which have occurred after decree nisi, and are material to be known upon the motion for decree absolute (Hulse v. Hulse, (1871) L.R. 2 P. &D. 259, and Howarth V. Howarth, (1884) 9 P.D. 218, referred to); * The Matrimonial Causes Act 1875

period any person shall be at liberty in (Q.) provides, by sec. 7, that Every

such manner as the Court shall by general or special order in that behalf from time to time direct to show cause absolute till after the expiration of such

why such decree should not be made time not being less than three months

absolute by reason of the same having from the pronouncing thereof as the

been obtained by collusion or by reason Court shall by general or special order

of material facts not having been from time to time direct and during that

brought before the Court. And on

46 CLR 291

(2) that the words " during that period in sec. 7 of the Matrimonial Causes Act 1875 mean the period between the making of the decree nisi and the making of it absolute, and that cause may be shown at any time until the decree absolute is made notwithstanding the expiration of the time limited by a special or general order of the Court (Bowen v. Bowen, (1864) 3 Sw. &Tr. 530; 164 E.R. 1381, followed);

(3) that any person not a party to the suit may show cause upon the ground that material facts have occurred since the decree nisi was pronounced, and he is not limited to giving information of such facts to the Attorney-General;

(4) that a person is not disqualified from intervening by reason only of close relationship to one of the parties, and because he is acting in the interests and forwarding the wishes of such party.

The proviso to sec. 26 of the Matrimonial Causes Jurisdiction Act 1864 provides that upon any petition for dissolution of marriage the Court shall not be bound to pronounce a decree declaring the marriage dissolved if it finds that the petitioner has "during the marriage…

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 Brown v Walters

Details

AGLC: Brown v Walters [1931] HCA 45
Case: [1931] HCA 45
Decision Date: 3 December 1931

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Queensland. The original proceedings involved a husband, Percival Leslie Walters, who sought to make absolute a decree nisi for the dissolution of his marriage to Eva Annie Walters. The wife's father, Charles Dale Brown, sought leave to intervene in the proceedings to show cause against the decree absolute, alleging adultery by the husband after the decree nisi had been pronounced.

The legal issues before the High Court included whether adultery committed by a petitioner after a decree nisi but before a decree absolute constituted adultery "during the marriage" for the purposes of a discretionary bar under the Matrimonial Causes Jurisdiction Act 1864 (Q.). The Court also had to determine the scope of section 7 of the Matrimonial Causes Act 1875 (Q.), specifically whether "material facts not having been brought before the Court" included facts arising after the decree nisi, and whether a person not a party to the suit could intervene on such grounds, or if they were limited to informing the Attorney-General. Furthermore, the Court considered the period within which cause could be shown against a decree absolute.

The High Court reasoned that adultery occurring after a decree nisi and before a decree absolute is indeed considered adultery "during the marriage" and thus presents a discretionary bar to the dissolution of marriage. The Court held that the phrase "material facts not having been brought before the Court" in section 7 of the 1875 Act encompasses facts that have occurred since the decree nisi and are relevant to the motion for a decree absolute. It was also determined that any person, not a party to the suit, may show cause on the ground of such material facts arising after the decree nisi, and is not restricted to informing the Attorney-General. The Court further clarified that cause may be shown at any time until the decree absolute is pronounced, irrespective of any time limits set by court orders. The Court also found that a close relationship to a party or acting in their interests does not disqualify a person from intervening.

The High Court allowed the appeal, reversing the decision of the Supreme Court of Queensland. This meant that Charles Dale Brown was granted leave to intervene in the proceedings to show cause against the decree absolute based on the alleged adultery of the respondent husband.

Orders