White v White [1908] HCA 80; (1908) 7 CLR 477 (2 December 1908)

HIGH COURT OF AUSTRALIA

White Petitioner, Appellant; and White Respondent, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

2 December 1908

Griffith C.J., Barton and Isaacs JJ.

P. K. White, for the appellant.

There was no appearance for the respondent.

Griffith C.J.

In this case the marriage took place on 8th March 1904. The parties lived together until 9th December 1904, when the petitioner left her husband under circumstances justifying her leaving the house in which they were living together. He was drunken and violent towards her and told her to go away, and she went.

The learned Judge who presided quoted the following passage from the judgment of Gorell Barnes J. in Sickert v. Sickert[1]:—"In order to constitute desertion there must be a cessation of cohabitation and an intention on the part of the accused party to desert the other. In most cases of desertion the guilty party actually leaves the other, but it is not always or necessarily the guilty party who leaves the matrimonial home. In my opinion, the party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion. There is no substantial difference between the case of a husband who intends to put an end to a state of cohabitation, and does so by leaving his wife, and that of a husband who with the like intent obliges his wife to separate from him."

The learned Judge, applying that statement of the law to the facts of the case, came to the conclusion that the husband, when he told his wife to go under circumstances which justified her in leaving the house, did not really intend to withdraw altogether from cohabitation, and that that disposed of the case. So far as the learned Judge went I entirely agree with him that upon that evidence it was not proper to find that the husband intended at that time to permanently withdraw from the society of his wife. It appears that that was the only view of the case presented to the learned Judge. But there were other facts in evidence which are very material. On the following day the wife, accompanied by a policeman, went back to the house where they had lived to get her clothes. She then took certain proceedings against her husband by summons in the Police Court, though it does not appear whether the summons was served. The husband, thereupon, disappeared, and since then he has never communicated with her, and she has never been able to discover his whereabouts. He has wholly disappeared from her life. That is sufficient evidence of actual desertion. When the separation begins by reason of such conduct of the husband that the wife is justified in withdrawing from the matrimonial home, it is in effect the act of the husband and not of the wife. Whether the conduct indicates an intention to withdraw himself permanently from her society is a question of fact. If the husband has not then formed an intention to bring the state of cohabitation to an end, he cannot be said to have then deserted his wife. Such an intention to desert may nevertheless be formed afterwards, and may be inferred from subsequent conduct. If he continues absent, holds no communication with his wife, and absconds, the inference of intention to bring the cohabitation to an end becomes almost irresistible, and that is this case.

Upon that ground, upon which I am quite certain the learned Judge would have acted if that aspect of the case had been presented to him, I think that the wife is entitled to a decree.

Barton and Isaacs JJ.

concurred.

Appeal allowed. Order appealed from discharged. Decree nisi for dissolution of marriage, returnable in six months.

Solicitor, for the appellant, J. W. Abigail.

[1] (1899) P., 278, at p. 282.