Main v Main [1949] HCA 39

High Court of Australia Latham C.J. Rich, Dixon and McTiernan JJ. Main v Main [1949] HCA 39

ORDER Appeal allowed. Orders of the Full Court and of Wolff J. discharged. Decree nisi for dissolution of marriage—decree not to be made absolute until after the expiration of six months from the pronouncing of this judgment. Order that the petitioner do lodge an office copy of the order of this Court with the Registrar of the Supreme Court of Western Australia.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 15 Latham C.J., Rich and Dixon JJ.

This is an appeal from an order of the Full Court of the Supreme Court of Western Australia affirming an order of Wolff J. by which his Honour dismissed a wife's petition for dissolution of marriage. The ground of the petition was that the petitioner and the respondent had lived separately and apart for a period of five years immediately prior to the presentation of the petition and it was unlikely that cohabitation would be resumed. By the Supreme Court Act Amendment Act 1945 W.A. this has been made a ground on which it is competent for the Supreme Court to dissolve a marriage subject to a discretion to refuse the relief. The question for decision is whether upon the proper interpretation of the provision the facts of the case fall within it and if so whether as a matter of discretion relief should be refused.

The parties were married in Fremantle in 1935, the petitioner then being a spinster aged twenty-five years and the respondent a bachelor aged thirty-one years. The domicile of both was and still is in Western Australia. There is one child of the marriage, a son born on 20th October 1936. In June 1943 the respondent became completely paralysed. He was admitted to a public hospital. He recovered sufficiently to return home, but after a few days he collapsed. This took place several times. At length on 15th September 1943 he was admitted into a Home as an invalid or patient. There he remained until 9th January 1945 when he was transferred into another such home. He has lived there ever since and is unlikely ever to leave it. He is badly afflicted. He is paralysed. His speech is affected. His mental condition is not bright, but he is rational. He could not take a place in the community. The petitioner has earned her living and besides keeping herself and her boy has contributed a weekly sum, at first £1 and then 17s. 6d., for the support of her husband at the Home. This contribution, so it is said, represents maintenance fees prescribed by the rules of the Western Australian Government for patients at the Home, which is a government institution. As we read the judgment of Wolff J., his Honour was of opinion that upon the foregoing facts the case did not fall within the provision as a matter of law. In the Full Court, however, Walker J. treated the case as one in which the primary judge had exercised a discretion which ought not to be reviewed, while Dwyer C.J. considered that an exercise of the discretion in favour of the petitioner would mean an extension of the ground of divorce beyond the original purpose of the amendment, which, his Honour was convinced, was to cover cases in which it was definitely agreed by both parties to the marriage to separate or live apart or in which one had broken the matrimonial relationship.