Tilney v Tilney [1968] HCA 32

High Court of Australia Kitto, Taylor and Owen JJ. Tilney v Tilney [1968] HCA 32

ORDER Application for special leave refused.

Cur. adv. vult.

The following written judgments were delivered:—

June 4 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.

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.

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.

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.

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".

Counsel for the applicant has referred us to the decision of this Court in Gough v. Gough [3] . 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.