Bradford v Bradford [1908] HCA 82; (1908) 7 CLR 470 (10 December 1908)

HIGH COURT OF AUSTRALIA

Bradford Petitioner, Appellant; and Bradford Respondent. Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

10 December 1908

Griffith C.J., Barton, Isaacs and Higgins JJ.

Whitfield, for the appellant.

No appearance for the respondent.

Griffith C.J.

In this case the petition was brought by the wife for dissolution of marriage upon the ground of desertion for a period of three years and upwards, without just cause or excuse. The learned Judge was of opinion that under the circumstances the petitioner was really rather glad than otherwise that the respondent had left her, and he thought that under those circumstances she was not entitled to relief. In taking that view he followed a decision of his own in Bycroft v. Bycroft[1] which had been affirmed by the Full Court of New South Wales, but on a different ground, and we are told that the learned Judge has since that decision acted on the doctrine that it is sufficient answer to a wife's petition for dissolution on the ground of desertion that she was glad to be deserted. In the present case there is nothing at all in the nature of just cause or excuse, or at least there is no evidence of anything that amounts to just cause or excuse, for the respondent's leaving the petitioner, and there is no question about his having left her. The last communication she received from him was in November 1904, and she had not seen him for several months previously. In fact he left her about 48 hours after the marriage, intending no doubt at that time to return to her later, but owing to various circumstances he never returned. The question, therefore, is not one of just cause or excuse, but purely one of whether there was in fact desertion or not.

Desertion involves an actual and wilful bringing to an end of an existing state of cohabitation by one party without the consent of the other. If the cohabitation is brought to an end by mutual consent it is not desertion. A temporary separation by mutual consent may become desertion afterwards. Consent involves more than mere mutual acquiescence in an existing state of things or non-resistance to proposed action. It involves a communication of the acquiescence or non-resistance to the other party. This may be made by express words or acts or by behaviour. If a person with respect to whom another proposes to act in a particular way behaves in such a manner that a reasonable man would be induced to believe that he has no objection to the proposed action, he may be taken to consent to it. But some communication must be made. A mere subjective state of mind not disclosed by any act is not sufficient. For instance, if a man has sustained a number of annoyances from a neighbour none of which is actionable, he may mentally regard a further annoyance which transgresses the limits of the law with equanimity or even satisfaction because it entitles him to redress from his adversary, but the adversary cannot set up that state of mind as amounting to leave and licence.

In my opinion a consent which will prevent the total abandonment by a husband of his wife from being desertion must be consent by the wife communicated to the husband by her words or behaviour.

In the present case there is nothing more than a highly probable conjecture that the petitioner was on the whole not sorry that the respondent had deserted her. This was never communicated to him, and does not alter the quality of his act when done. Nor was anything done by the wife after the abandonment which could alter the quality of the act of the husband.

I have not referred to cases where there has been some matrimonial offence, or conduct of such a kind that the separation is at the time justifiable, that is to say, when the party leaving the other is justified by the conduct of the other in making a temporary separation. That question, I believe, will come before us in another appeal that is down on the list for hearing.

For these reasons I am of opinion that the petitioner is entitled to a decree and that a decree nisi should be granted.

Barton J.

I am of the same opinion. The learned Chief Justice of this State in the case of Smith v. Smith[2], quoted the following very concise definition of desertion given in Kay v. Kay[3]:—"Desertion really means a wilful separation by the respondent from the petitioner without reasonable cause and without the consent of the petitioner."

This case seems to me to come exactly within that definition as expanded by the judgment just delivered, in which I thoroughly concur.

Isaacs J.

I agree in the decision, and only say this, that desertion involves an active and wilful bringing to an end of an existing state of cohabitation. If that is done without consent and without reasonable excuse, it falls within the Act. It may be justified either by consent or reasonable excuse. If consent is relied upon, then, I think that the conditions stated by my learned brother the Chief Justice must exist. The question of reasonable excuse depends entirely upon the facts of the case, and I will say this, that, according to my view, it must be reasonable cause or excuse upon the part of the husband or the other party, and no such case can be suggested from the facts of this case. I, therefore, agree that this appeal should be allowed.

Higgins J.

I agree with the principle laid down by my learned brothers, but I would like to add this, that the telegram from the respondent dated 9th November is the only thing which has caused me to feel any doubt as to the facts. That telegram was in these words: "Very hard. Will write fully tomorrow. God bless you."

The last communication he had received from the wife was, so far as we can ascertain, a letter written in September, and in that she said that she would see him and make arrangements for the future. The last conversation with any of the Chanter family appears to have been on 12th November at the hotel in Moama, and we have no details of that conversation. By that time the Chanter family had learnt that the respondent had been appropriating moneys of the firm, and that circumstance led me to suspect that possibly and probably young Mr. Chanter had said to him "we will prosecute you unless you get out of the Colony and give my sister the opportunity of obtaining a divorce on the ground of desertion." This is after all mere conjecture, and there is no sufficient evidence to establish such a case. And in the next place, as Mr. Whitfield pointed out, even if these facts did exist, they have not been connected with the petitioner. Even if it is true that he was frightened away he was not frightened away by the petitioner, and in the words of the Act, he has deserted her clearly without just cause or excuse, inasmuch as she says that she did not induce him to go or consent to his going, and there is no evidence to rebut her statement. Upon the evidence as it appears before the Court I have come to the same conclusion as my learned brothers, that the appeal should be allowed.

Appeal allowed. Order appealed from discharged. Decree nisi for dissolution returnable in six months. Respondent to pay costs of suit and of the appeal.

Solicitor for the appellant: T. Rose.

[1] (1902) 2 S.R. (N.S.W.) Div., 16.

[2] (1908) 8 S.R. (N.S.W.), 602, at p. 606; 25 N.S.W. W.N., 155.

[3] (1904) P., 382, at p. 395.