Painter v. Painter1
| Author | A. Cirulis |
| DOI | 10.1177/0067205X6400100111 |
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| Subject Matter | Article |
JUNE
1964] Case Notes
PAINTER
v.
PAINTER
1
155
Matrimonial Causes-Separation for five
years-Refusal
to make decree
-Harsh
or
oppressive
to
the respondent-Matters
to
be considered-
Matrimonial Causes Act
1959,
sections
28
(m),
37
(1)
(Cth).
The Matrimonial Causes Act
1959
(Cth), by section
28
(m) introduced2
as aground for divorce separation for
five
years where there
is
no reason-
able likelihood
of
cohabitation being resumed. Sections
36
and
37
of
the Act deal with proceedings under section
28
(m). Section
37
(1)
provides:
37.
-(1.) Where
...
the court
is
satisfied that, by reason
of
the
conduct
of
the petitioner, whether before or after the separation
commenced, or for any other reason, it would, in the particular
circumstances
of
the case, be harsh and oppressive to the respondent,
or contrary to the public interest, to grant adecree on that ground
on the petition
of
the petitioner, the court shall refuse to make the
decree sought.
The purpose
of
section
28
(m)
is
to
give
legal effect to an existing factual
situation, namely, that the marriage has come to an end. The Attorney-
General in his second reading speech put the case in the following
manner:
Here, the public interest in family life comes down on the side
of
allowing each
of
these separated parties to regularize their relation-
ships or to assume regular relationships in the future. On this
view, no sense
is
seen, in the public interest, in denying the possi-
bility
of
family life to each when all
is
irretrievably lost between
them.
No
sense
is
seen in possibly condemning either or both
of
them to irregular relationships which, in honour, cannot result
in families.
Nor
is the existing capacity
of
an innocent party to
withold dissolution indefinitely seen as necessarily just
or
con-
formable to the public interest.3
It
is
against this legislative background that several judicial pro-
nouncements have been made as to the operation
of
the absolute
bar
to relief contained in section
37
(1).4
Although
not
the most recent,
1[1963] S.A.S.R. 24; (1963) 4F.L.R.
216.
Supreme Court
of
South Australia;
Napier C.J., Chamberlain and Hogarth JJ. The Court delivered awritten judgment.
2This ground
is
based upon the ground in
s.
15
(j)
of
the Matrimonial Causes
and
Personal Status Code 1948-1957 (W.A.). There was asomewhat similar ground in
s.
6(k)
of
the Matrimonial Causes Act
1929-1941
(S.A.).
3Vol. H.
of
R. 23,
2231.
4Grosser
v.
Grosser (1961) 2F.L.R.
152-Supreme
Court
of
Tasmania: Burbury C.J.;
Taylor
v.
Taylor
(No.2)
(1961) 2
F.L.R
371-Supreme
Court
of
New South Wales:
Nield J.; Judd vJudd (1962) 3F.L.R. 207; [1962] V.R.
112-Supreme
Court
of
Victoria: Monahan
J.;
Painter
v.
Painter (1962) 3F.L.R. 370; [1963] S.A.S.R.
12-
Supreme Court
of
South Australia: Mayo
J.;
Baily
v.
Baily (1962) 3F.L.R.
476-
Supreme Court
of
Tasmania: Gibson J.; Painter
v.
Painter [1963] S.A.S.R.
12-
Supreme Court
of
South Australia: Full Court; Kearns
v.
Kearns [1963] Qd.R.
102-
Queensland Supreme Court: Full Court; McDonald
v.
McDonald (1963) 4F.L.R.
76-Supreme
Court
of
New South Wales: Dovey J.; Lamrock
v.
Lamrock (1963)
4F.L.R.
81-Supreme
Court
of
New South Wales: Wallace J.
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