A decree dismissing a petition for judicial separation is not a judgment which affects the status of a person under the laws relating to marriage or divorce within the meaning of S. 35 (1) (a) (3) of the Judiciary Act 1903-1946; therefore an appeal as of right will not lie therefrom to the High Court.

So held by Latham C.J., Starke, Dixon and Williams JJ. (McTiernan J. dissenting).

APPEAL from the Supreme Court of New South Wales.

Agnes Irvine Ford appealed to the Full Court of the Supreme Court of New South Wales against a decree by Edwards J. dismissing à petition for judicial separation brought by her under the Matri- monial Causes Act 1899-1943 (N.S.W.) on the ground of the cruelty of her husband Morgan Ford.

The Full Court dismissed the appeal whereupon the petitioner appealed to the High Court as of right.

The facts of the case are not material to this report. The relevant statutory provisions are set forth in the judgments hereunder.

73 CLR 525

Twigg (Solicitor), for the respondent, took the preliminary objection that an appeal against a decree dismissing a petition for judicial separation did not lie to the High Court as of right.

Richards, for the appellant. A decree for a judicial separation affects the status of a wife within the meaning of S. 35 1 (a) 3 of the Judiciary Act 1903-1946 See Shanks v. Shanks (1) and the Matrimonial Causes Act 1899-1943 (N.S.W.), SS. 37, 38.

[STARKE J. referred to Armytage v. Armytage 2.

WILLIAMS J. referred to Anghinelli v. Anghinelli (3).] Upon the granting of a decree for a judicial separation SS. 37 and 38 of the Matrimonial Causes Act 1899-1943 come into operation and alter the general law SO far as the wife is concerned, and also affect her standing in the community generally. Under those sections, during the period of the separation, the judicially separated wife is, for the purposes of property, contracts and torts, considered as a feme sole. The authorities approved in Brown v. Holloway 4 were overruled by the decision in Edwards v. Porter 5. That decision will now be followed by this Court (Piro v. W. Foster &Co. Ltd. 6 ). Although a judicially separated wife remains a married woman the incidences of that status are altered or varied by the decree; therefore the decree is one which " affects the status of any person under the laws relating to

divorce' within the…

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 Ford v Ford

Details

AGLC: Ford v Ford [1947] HCA 7
Case: [1947] HCA 7
Decision Date: 5 May 1947

CaseChat Overview and Summary

Agnes Irvine Ford appealed to the High Court of Australia as of right from a decision of the Supreme Court of New South Wales, which had dismissed her appeal against a decree by Edwards J. that dismissed her petition for judicial separation from her husband, Morgan Ford. The preliminary objection raised was that an appeal as of right to the High Court did not lie from a decree dismissing a petition for judicial separation.

The central legal issue before the High Court was whether a decree dismissing a petition for judicial separation constituted a judgment that "affects the status of any person under the laws relating to marriage or divorce" within the meaning of s 35(1)(a)(3) of the Judiciary Act 1903-1946. This determination was crucial for establishing whether the appeal to the High Court was competent as of right, or if it required special leave.

The majority of the High Court, comprising Latham C.J., Starke, Dixon, and Williams JJ., held that a decree dismissing a petition for judicial separation did not affect the status of a person under the laws relating to marriage or divorce. Their reasoning focused on the distinction between a person's legal status and the incidents or consequences flowing from that status. While acknowledging that a decree of judicial separation altered certain rights and liabilities between spouses, and in some respects their relations with the community, the majority concluded that it did not create a new legal status or alter the fundamental status of being married. They drew upon English jurisprudence, particularly decisions like *Armytage v. Armytage* and *Anghinelli v. Anghinelli*, which suggested that judicial separation suspended obligations and altered legal consequences but left the legal status of the parties unchanged. Consequently, the Court found that the appeal was not competent as of right. McTiernan J. dissented.

The High Court ordered that the appeal be struck out. The Court also indicated that it would not grant special leave to appeal, noting that any such appeal would largely turn on questions of fact.

Orders