Tilney v Tilney

[1968] HCA 32

HIGH COURT OF AUSTRALIA

Kitto, Taylor and Owen JJ.

TILNEY v. TILNEY

(1968) 118 CLR 526

4 June 1968

Matrimonial Causes

Matrimonial Causes—Cruelty—Habitual Cruelty for one year—"During" a period of not less than one year—Minimum period of duration of cruelty—Matrimonial Causes Act 1959-1966 (Cth), s. 28 (d).*

Decisions

June 4.
The following written judgments were delivered:-
KITTO J. This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Queensland, affirming a judgment of Mr. Justice Lucas in a divorce case. (at p527)

2. The applicant is the wife who was the petitioner for divorce. The ground of the petition was that provided by par. (d) of s. 28 of the Matrimonial Causes Act 1959-1966 (Cth), namely, that since the marriage the husband had during the period of not less than one year habitually been guilty of cruelty to the petitioner. (at p527)

3. Mr. Justice Lucas found on the evidence that the husband had been habitually guilty of cruelty to the applicant over a period of some seven months "at the most". He held on the construction of s. 28 (d) that what had to be proved was habitual cruelty persisting for not less than a whole year. Accordingly, he dismissed the petition. (at p527)

4. An appeal to the Full Court upon the ground that the word "during" in s. 28 (d) means "in the course of" and not "throughout" was dismissed, their Honours agreeing in the opinion of Mr. Justice Lucas as to the construction of the paragraph. (at p527)

5. The applicant now seeks special leave to appeal to this Court in order to renew her contention that Mr. Justice Lucas misinterpreted the word "during". (at p527)

6. Counsel for the applicant has referred us to the decision of this Court in Gough v. Gough (1956) 95 CLR 369 . But the case provides a contrast which tells strongly against his contention. It was a case upon the construction of par. (f) of s. 16 of the Matrimonial Causes Act, 1899 (N.S.W.), a paragraph which provided as a ground for a wife's petition for dissolution of marriage that during one year previously - that is previously to the date of the petition - her husband had repeatedly assaulted and cruelly beaten the petitioner. (at p528)

7. The purpose of the time element in that ground of dissolution obviously was to confine attention to the year immediately before the petition and so to make earlier assaults and beatings immaterial. (at p528)

8. Paragraph (d) of s. 28 of the federal Act, on the other hand, contains a time element the purpose of which is made clear by the terms in which it is expressed - "during a period of not less than one year". This expression, far from specifying the maximum length for the period which the Court is to consider, specifies a minimum period as the duration of the habitual cruelty which the petitioner has to prove. The requirement, quite plainly, is that habitual cruelty must have endured for not less than a year. In the face of the clear words of the provision, it is impossible to accede to the submission that some period of not less than one year is to be selected by the petitioner and that what the petitioner has then to prove is habitual cruelty within that period. We have been invited to compare the word "during" in par. (d) with the words "for" and "throughout" in other paragraphs of s. 28 and in corresponding provisions of former State legislation. But these comparisons provide no ground for departing from the plain meaning of par. (d). (at p528)

9. The interpretation which Mr. Justice Lucas and the Full Court placed upon s. 28 (d) appears always to have been assumed under s. 16 (b) of the Matrimonial Causes Act, 1899 (N.S.W.): see, for example, the cases which have been mentioned by my brethren, Moses v. Moses (1920) 27 CLR 490 , and White v. White (1931) 48 WN (NSW) 226 . It is so plainly right that special leave to challenge it should be refused. (at p528)

TAYLOR J. I agree. (at p528)

OWEN J. I agree. (at p528)

Orders

Application for special leave refused.