Moses v Moses

The appeal concerned a wife's petition for divorce from her husband, based on grounds of habitual drunkenness and cruelty. The Supreme Court of New South Wales had refused the divorce, finding insufficient evidence of habitual cruelty over the statutory period, although it granted a decree for judicial separation. The wife appealed this decision to the High Court of Australia.

The High Court was required to determine two principal legal issues. Firstly, the proper construction of section 16(b) of the Matrimonial Causes Act 1899 (N.S.W.), specifically whether the phrase "during three years and upwards" applied to both habitual drunkenness and habitual cruelty, or only to habitual drunkenness. Secondly, the Court considered whether the trial judge's finding of insufficient evidence of cruelty was contrary to the evidence presented.

The Court held that the words "during three years and upwards" in section 16(b) qualified both the husband's habitual drunkenness and his habitual cruelty. This interpretation meant that the wife had to prove both conditions persisted for the specified duration. Regarding the factual finding of cruelty, the Court deferred to the trial judge's assessment of the evidence and the demeanour of the witnesses, particularly in light of discussions with the trial judge concerning the appellant's uncorroborated evidence. The Court found no basis to overturn the trial judge's conclusion that the evidence did not establish habitual cruelty for the required period.

The appeal was dismissed. The Court also addressed the issue of costs, determining that in divorce proceedings, the costs of an unsuccessful appeal by a wife were within the discretion of the Court, and in this instance, no order would be made as to costs.