Parker v Parker [1908] HCA 92; (1908) 5 CLR 691 (5 May 1908)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

5 May 1908

Griffith C.J., Barton and O'Connor JJ.

Bradburn, for the appellant.

No appearance for the respondent.

Griffith C.J.

For my part I share the regret expressed by one of the learned Judges of the Supreme Court that the petitioner in this case is unable to get the relief which she is certainly entitled to get from some Court or other. The question for determination is entirely one of fact. The learned Judge of first instance declined to draw the inference that the respondent had changed his domicil from Victoria to New South Wales, and the learned Judges of the Full Court were of the same opinion. Street[1] :?"The impression which it" ?that is the evidence?"leaves upon my mind and the conclusion which I draw from it is that, though the respondent intended to settle his wife and child in a home of their own in Sydney, and though he probably intended at that time to provide for their support, he did not intend to make his home with them, but intended to continue to live apart in the future as he had done in the past." That state of facts makes this case very different from those in which the question of domicil usually arises. In most cases the definition in the code quoted by this Court in Davies and Jones v. The State of Western Australia[2] is applicable:?"It is not in doubt that every man has his domicil in the place where he sets up his household shrine and his principal establishment, whence he has no intention of again departing, unless something should call him away, so that when he goes thence he regards himself as a wanderer, whereas when he returns his wandering is ended." There are no facts in the present case to indicate that any such home as that was formed by the respondent in New South Wales. Nothing remains except the domicil of origin in Victoria, and the fact that the respondent came to New South Wales with his wife and child in 1901 and lived here for some time afterwards. That is not sufficient, in my opinion, to warrant the conclusion that he had lost his domicil of origin and acquired a new one in New South Wales.

A circumstance that should be borne in mind in all cases of this kind, in which the Court is asked to exercise a most important jurisdiction, is that in an undefended suit it hears only one version of the facts, and, unless my experience misleads me, it generally only hears a very small part of the material facts. Under such circumstances it would be very dangerous for this Court to reverse the finding of two Courts on a pure question of fact.

Barton J.

I am of the same opinion. I think that it is totally unnecessary to add anything to the conclusive reasons given by Cohen J. in the Court below.

O'Connor J.

I am of the same opinion, and have nothing to add.

Appeal dismissed.

Proctor for the appellant, S. Bloomfield.

1. (1907) 7 S.R. (N.S.W.), 384, at p. 396.

2. [1904] HCA 46; 2 C.L.R., 29, at p. 41.