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Pearlow v Pearlow

Pearlow v Pearlow

Case [1953] HCA 77 20 November 1953

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90 CLR 70

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT Divorce-Action by husband-Separation for five years with no reasonable likelihood

of cohabitation being resumed-Absolute discretion of court-Refusal of decree because of doubts as to veracity of plaintiff-Review on appeal of exercise of PERTH,

discretion-Matrimonial Causes and Personal Status Code 1948 (W.A.) (No. 73 of 1948), SS. 15 (j), 25 (1), 28 (3). SYDNEY,

Section 15 (j) of the Matrimonial Causes and Personal Status Code 1948 (W.A.) provides " Subject to the absolute and discretionary bars herein- after set out the Court may grant any married person an order for dissolution of his or her marriage on any of the following grounds of the parties to the marriage for a continuous period of not less than five years immediately preceding the commencement of the action where there is no reasonable likelihood of cohabitation being resumed". Section 25 (1) provides that " In an action for dissolution of marriage on the ground that the parties have lived apart for a period of not less than five years immediately preceding the commencement of the action and are not likely to resume cohabitation the Court may in its absolute discretion grant or refuse relief except where the Court is precluded from granting relief by reason of any absolute bar: provided that in every case before granting an order nisi the Court is required to see that provision is made for such maintenance of the defendant and any children and the care and custody of any such children as in the circumstances the Court thinks proper ".

Held that if the constituent elements of the ground discussed in par. (j) of S. 15 are made out and no more appears an order or decree of dissolution should be pronounced. If additional facts appear, or in a defended suit are proved by or on behalf of the other spouse and they are relevant to the purpose and policy of the provision and form adequate materials for the exercise of the discretion, it then becomes a question of the judge's discretion to grant

90 CLR 71

or refuse relief. If the separation has been caused by wrongful conduct of the party seeking relief that may be taken into account and weighed with the other elements of the case and considered with the public interest.

Lodden v. Lodden (1921) N.Z.L.R. 876, and Mason v. Mason (1921) N.Z.L.R. 955, applied.

Held further, that the fact that the personal credibility of a man is low is not in itself a reason why his marriage should not be dissolved. Nor is it enough by itself that once before he was divorced. The general considerations upon which an exercise of the discretion should proceed remain the same. In ascertaining the facts to which these considerations apply the credibility of the party as a witness must of course be weighed, but it is only when the court concludes that an inquiry into the truth has failed because of his evasions or dissemblings…

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 Pearlow v Pearlow

Details

AGLC: Pearlow v Pearlow [1953] HCA 77
Case: [1953] HCA 77
Decision Date: 20 November 1953

CaseChat Overview and Summary

The case of *Pearlow v Pearlow* involved an appeal from a decision of the Supreme Court of Western Australia, where the appellant husband sought a decree of dissolution of his marriage. The grounds for dissolution were based on the parties having lived apart for a continuous period of not less than five years immediately preceding the action, with no reasonable likelihood of resuming cohabitation, as provided by section 15(j) of the *Matrimonial Causes and Personal Status Code 1948* (W.A.). The trial judge found that the statutory grounds for divorce were met but refused to grant the decree, exercising the absolute discretion vested in the court under section 25(1) of the Code.

The legal issues before the appellate court were whether the trial judge had properly exercised his discretion in refusing the decree and, if not, whether the appellate court should substitute its own discretion. The refusal was based on two grounds: the judge's doubts regarding the appellant's general veracity, stemming from his inability to recall the grounds of a previous divorce, and the circumstances of that prior divorce. The appellant contended that these grounds were insufficient and irrelevant to the exercise of discretion in the current proceedings.

The appellate court, comprising Dixon C.J., Webb J., and Taylor J., held that while the discretion conferred by section 25(1) is broad, it must be exercised judicially and based on relevant considerations. The court found that the trial judge's doubts about the appellant's veracity were based on inadequate material, particularly given the confusion surrounding the grounds of his previous divorce. The court emphasised that a low personal credibility or a prior divorce, in itself, is not a sufficient reason to refuse a dissolution. The court reasoned that the purpose of the discretion is to consider factors relevant to the policy and purpose of the divorce legislation, such as the reasons for the separation and the public interest, and that the inquiry into the truth must fail due to the party's evasions for credibility issues to become material to the exercise of discretion.

Ultimately, the Full Court allowed the appeal, discharged the order of the Supreme Court, and ordered a new trial. The court concluded that the discretion had been exercised on inadequate materials and that there was an appreciable risk of injustice to the appellant. The new trial was directed to allow for a further investigation into the facts relevant to the discretionary refusal of a dissolution.

Orders