Australian Dictionary of Biography

Robert Molesworth (1806-1890), by unknown engraver

State Library of Victoria, A/S01/06/86/88

Sir Robert Molesworth (1806-1890), judge, was born on 3 November 1806 in Dublin, only son of Hickman Blayney Molesworth, solicitor, and his wife Wilhelmina Dorothea, née Hone. The family claimed descent from Sir Walter de Molesworth who accompanied Edward I to the Holy Land and was sheriff of Bedfordshire and Buckinghamshire in 1298-1308. Robert was descended from the first Viscount Molesworth, created in 1716, and in 1821 he won a scholarship to Trinity College, Dublin (B.A., 1826; M.A., 1833). Called to the Irish Bar in 1828, he joined the Munster Circuit and practised in Ireland until 1852. In 1838 he had published An Essay on the Registration of Deeds and Conveyances in Ireland, and Receivers in Chancery in Ireland. On 6 January 1840 he married Henrietta, daughter of Rev. Joseph England-Johnson.

In 1852 the Molesworths migrated to Adelaide and next year to Melbourne, where he was at once admitted to the Victorian Bar. He soon had a large practice and on 27 October 1853 was appointed acting chief justice for a term when Sir William à Beckett was ill. From 4 January 1854 he served as solicitor-general while James Croke was absent, and on 15 April was appointed a nominee in the Legislative Council. In succession to Croke he was solicitor-general under W. C. Haines from 25 November 1855 to 17 June 1856 when he became the fourth appointment to the Supreme Court bench. In March the Administration of Justice Act (19 Vic. no 13) had authorized the sittings of a single judge in the Equity, Insolvency and Ecclesiastical jurisdictions, and he discharged those duties for nearly thirty years.

Though Molesworth sometimes sat in the Criminal Court most of his work was on the Equity side. An admirable judge, he was noted for his industry, courtesy, learning and expedition; very few of his decisions were successfully challenged. His most remarkable achievement was as chief judge of the Court of Mines. In dealing with this new province he established a code of precedent which gave much satisfaction to the legal profession and the mining industry and became a guide in other Australian colonies and overseas. Apart from a short visit to New Zealand he never left the colony, and took no leave except the Court vacations. He had a strong constitution and his only sick leave was five weeks in 1881. The profession complained of his habit of sitting through the luncheon hour and of his later occasional irascibility, but appreciated his dispatch and dry humour. On 1 July 1885 he was appointed acting chief justice and sat as such until 1 May 1886 when he retired. He was given an ovation at a farewell ceremony in the Court and knighted by patent on 9 July.

Molesworth's judicial achievements were the more remarkable because of domestic unhappiness, which culminated in an extraordinary matrimonial suit in the Supreme Court from 1861 to 1864. His wife petitioned for judicial separation on the ground of cruelty, and he counter-petitioned for similar relief on the ground of her alleged adultery in 1855 with R. D. Ireland and in 1861 and 1862 with some person unknown, resulting in the birth of an illegitimate child in England. On an interlocutory application for alimony pendente lite in 1862, Mrs Molesworth was represented by G. Higinbotham.

The trial, which attracted much attention, took place before Chief Justice Stawell and a jury in November 1864. The jury absolved Molesworth (who had personally given evidence) of cruelty, and Mrs Molesworth of adultery with Ireland, but found against her on the charge of adultery with a person unknown. In December her appeal to the Full Court failed; her petition was dismissed and the judge's counter-petition succeeded. She died in 1879 aged 56. At his own request Molesworth never sat in a matrimonial case after the trial.

Molesworth had long been a prominent member of the Church of England Assembly. He lived quietly in Melbourne until he died on 18 October 1890 and was buried in the Kew cemetery. He was survived by a married daughter and two sons, Hickman who became a judge and Robert a pastoralist.