Baily v Baily [1952] HCA 41; (1952) 86 CLR 424 (1 August 1952)

HIGH COURT OF AUSTRALIA

BAILY v. BAILY [1952] HCA 41; (1952) 86 CLR 424

Matrimonial Causes

High Court of Australia
Dixon C.J.(1), Webb(1) and Fullagar(1) JJ.

CATCHWORDS

Matrimonial Causes - Dissolution of marriage - Constructive desertion - Intention - Matrimonial Causes Act 1860-1947 (24 Vict. No. 1 - 11 Geo. VI. No. 67)(Tas.), s. 8 (2) (1).

HEARING

Melbourne, 1952, March 17, 18.
Sydney, 1952, August 1. 1:8:1952
APPEAL from the Supreme Court of Tasmania.

DECISION

August 1.
THE COURT delivered the following written judgment:-
This is an appeal by a wife against a decree nisi for dissolution of husband's petition. The ground of the petition was desertion for the statutory period, which in Tasmania is three years, but the desertion alleged was what has come to be called, somewhat misleadingly, "constructive desertion". It is a case in which an existing matrimonial relation has been actually severed by the departure of the petitioning husband from the matrimonial residence, but it is claimed that the departure was occasioned by conduct on the part of the respondent wife such as to make a continuation of cohabitation impossible or intolerable. (at p425)

2. With regard to cases of this type Viscount Jowitt L.C. in Weatherley v. Weatherley (1947) AC 628, at pp 631, 632 observed:- "On some future occasion it may be necessary that this House should consider some of these decisions, and, in particular, should consider whether there is sufficient warrant for the doctrine of 'constructive desertion' which from time to time seems to have found favour." Since 1937, when the Matrimonial Causes Act (Imp.) (1 Edw. 8 & 1 Geo. 6, c. 57) of that year made desertion as such, for the first time in England, a ground for divorce e vinculo, a substantial number of cases have come before the courts in which the petitioner has relied upon a "constructive desertion", and it may well be that these cases will some day have to be exhaustively reviewed by the House of Lords or the Privy Council. But the general notion of "constructive desertion" began to be recognised very shortly after the enactment of the Matrimonial Causes Act 1857 (Imp.) (20 & 21 Vict. c. 85). It need only be mentioned that in Graves v. Graves [1864] EngR 232; (1864) 3 Sw & Tr 350 (164 ER 1310) we find the Judge Ordinary granting a decree nisi in favour of a wife, on the ground of adultery coupled with desertion, in a case in which (to use his own words) "the respondent, without any fault on her part, brought about a withdrawal of the wife from his society". In the Australian States, in which desertion as such has for very many years been a ground for divorce e vinculo, the reported cases on "constructive desertion" are very numerous, and, although a generally cautious attitude has been adopted, it is safe to say that many thousands of decrees have been granted in cases in which the petitioner is the actually "departing" spouse. (at p426)

3. It is not necessary in the present case, any more than it was in Weatherley v. Weatherley (1947) AC 628 to attempt an exhaustive analysis of what will constitute constructive desertion. It is necessary, however, to observe that, as Lord Greene M.R. pointed out in Buchler v. Buchler (1947) P 25, at p 29 , "It is as necessary in cases of constructive desertion as it is in cases of actual desertion to prove both the factum and the animus on the part of the spouse charged with the offence of desertion". For the fundamental idea is that desertion is essentially not a departure from a place but a departure from a state of affairs. And the departure of one spouse from a place, while it marks the commencing point of a period of desertion, may be an act for which the other spouse is really responsible, so that it is that other spouse who must be held to have departed from a state of affairs and therefore to be the deserting party. But that other spouse cannot be held so responsible in the absence of a state of mind which is, or must be presumed to be, directed to a rupture of the matrimonial relation. The cases seem to show that what must be proved is either an actual intention to bring about a rupture of the matrimonial relation, or an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring about such a rupture. There has been a tendency in Australia - possibly due to a misunderstanding of what was said by Isaacs and Rich JJ. in Bain v. Bain [1923] HCA 54; (1923) 33 CLR 317, at p 327 - to regard the ultimate question as being whether a particular course of conduct is such that no self-respecting man or woman could be expected to remain and endure it. And there have been somewhat unfortunate references to the highly dangerous maxim that every person must be taken to intend the natural and probable consequences of his actions. It is clear from a reading of the whole of their judgment that Isaacs and Rich JJ. did not mean to convey that the ultimate question in such cases related to the nature of the conduct of the respondent spouse. Their Honours were merely indicating the kind of conduct from which the necessary intention might often be inferred. The necessity of finding an intention is made as clear in other parts of the judgment as it is made by Lord Greene in Buchler v. Buchler (1947) P 25 . Where it is (as it must often be) a matter of inferring intention from conduct, the real position is also made clear by Irvine C.J. in Bain v. Bain (1923) VLR 421, at pp 428, 429 , where his Honour speaks of "behaviour which, if not proving an actual intention on the part of the offending spouse to put an end to the matrimonial relationship, would be in itself inconsistent with a continuance of that relationship in any real sense, and thus must be such as to evince an intention to put an end to it." (at p427)

4. It is in the light of these considerations that the present case must be approached. It will be sufficient to summarise the effect of the evidence briefly. So far as there was a conflict between the evidence of the husband and that of the wife, the learned Chief Justice of Tasmania preferred the evidence of the husband. (at p427)

5. The parties, who were first cousins, were married on 19th April 1938. There is one child of the marriage, a boy, who was born on the 17th September 1940. For the greater part of their married life the parties resided in a house at Sandy Bay, Hobart. The husband left this home on 23rd June 1947. The wife is still residing in the home. The husband's petition was presented on 20th September 1950. The wife defended the suit, but did not present a counter-petition. (at p427)

6. It is, in our opinion, a vitally important factor in this case that the wife suffered for long periods from a distressing skin disease, or diseases, affecting her face and particularly her lips, and at times her scalp. A good deal of the husband's evidence must be read in the light of this fact. The matters on which he relied as forcing his departure included general coldness and refusal of, or reluctance to have, sexual relations. She invited him at one stage to satisfy himself by committing adultery, but this appears to have been some years before the final break. He said that she would never come to bed at a reasonable hour, but would sit up for hours examining her face in a mirror. She would come into the bedroom in the small hours of the morning and start to dust and clean it. She became violent from time to time. On one occasion she threw a clock at him, and then stamped on the clock on the floor with her feet. On another occasion she hit him over the head with a frying pan, and on another threatened him with a bayonet and a dagger. She continually "nagged" at him. On one occasion when she was nagging, he struck her on the mouth. She several times spoke of divorce, and said that it was very easy to get a divorce. At one stage, when she was in a hospital in Melbourne, she said that she was not coming home, that the best thing they could do was to separate. Her general behaviour and attitude to him made it practically impossible for them to have any social life. It was alleged that she neglected her home and her child, but habitual neglect of either cannot be said to have been established. He went to Sydney on a business visit in 1947, and, while in Sydney, made up his mind that he could not endure life with his wife any longer. On his return to Hobart he found life with her no more tolerable, and he ultimately left the matrimonial home, as has been said, on 23rd June 1947. It should be mentioned that sexual intercourse took place, on the wife's initiative, on several occasions between his return from Sydney and his departure from the home - the last occasion being, he said, "perhaps in the last day or two". (at p428)

7. It may be conceded that the above bare outline does not do the husband's case complete justice. It is an extremely difficult thing to convey to any court an adequate picture of a matrimonial situation which has subsisted over a number of years. But the husband's evidence does convey a fairly clear impression of a very unhappy married life, for the unhappiness of which the wife is mainly, if not solely, responsible. No serious allegation against the husband's behaviour in any respect was made. The impression given is of a more or less constant course of conduct, on the part of the wife, of an eccentric and extremely irritating character, with more or less frequent lapses into hysteria or complete irrationality. This is, in substance, the view taken of the case by the learned trial judge. That the husband's health was affected cannot be doubted, and it is impossible not to feel a degree of sympathy with him. (at p429)

8. But, when the husband's case is put at its highest, it is impossible, in our opinion, to find on the evidence that animus, without proof of which a petitioner cannot, as the law stands, succeed in this type of case. It is clear that the wife had no actual intention or desire of driving him away or of bringing the matrimonial relation to an end. Such an intention might indeed be inferred from one or two irresponsible utterances on her part, but, on the evidence as a whole, such an inference appears to us to be quite impossible. The break took place against her actual wishes, and, after he had gone, she asked him verbally on three occasions to return. Later, on two occasions, she wrote to him asking him to return. In one of these letters, written on 18th March 1949, she says "I will do everything in my power to make your life happy, smooth running and successful". In the other, written on 14th May 1950, while telling him that he was "never justified in going", she says: "In such an event" (i.e. if he returns) "you could rely upon me to fulfil my part in straightening out our lives". It is possible, of course, that both of these letters were written under advice, but no reason is apparent for saying that they were not genuine and sincere. Late in 1945 she had gone from Hobart to Perth, taking the child, to stay with her parents who lived in that city. It was presumably hoped and intended that this holiday would give her pleasure and do her good in every way, but the probability is that it had a disastrous effect, since she suffered a severe attack of measles in Perth and her facial condition and her nervous condition seem to have become very much worse. But, be this as it may, she wrote to her husband from Perth a very long letter, which seems revealing. It is the letter of a woman who has become self-centred and is completely obsessed by her own physical and nervous condition and in an extremely irritable state, but it is not lacking in affection, it refers to domestic matters, and it is certainly not such a letter as would be written by a woman who contemplated the breaking up of her married life. In a post-script she says: "I wish we could get someone like Mrs. Keenan as a help: if I am no better by the time I get back, it is a sorry plight for us all". Somewhat similar letters were written by her a little later from a hospital in Melbourne. In one of these she discusses a number of plans for alterations to the home in Hobart. (at p429)

9. It seems indeed clear on the evidence that there was no actual intention to bring about a separation. And it is not, in our opinion, possible to say that the evidence establishes an intention to persist in a course of conduct calculated to bring about a separation. At this point the evidence of Dr. Beattie, a Hobart physician, is of great importance. It was accepted by Morris C.J. Dr. Beattie was treating the wife in the middle of 1946. After stating her condition in technical terms, he proceeded "It was a distressing condition of the skin, expressed in cracking of the lips and peeling of the face and dermatitis. It was a most distressing condition. The underlying factor appeared to be a seborrhoeic condition, which is very common. Her condition was an unusual and grave complication of it. Her condition was a severe vicious circle. The severe skin condition caused severe mental distress and nervous upset, and that in turn aggravated the skin condition, and so on. . . . She was very distressed mentally - felt hopeless - no one could do her any good. Her mental condition was a condition known as breakdown - pretty severe. This was aggravating the skin condition. . . . I had no doubt she was quite genuine in all her troubles. She was all the time in very great distress. I gave her all the treatment I could think of. She responded to me quite well, but relapsed. I decided I could not do any more for her. I prescribed a number of nervous sedatives, as well as skin treatment". (at p430)

10. Dr. Beattie was not cross-examined by counsel for the husband. His evidence, as it stands, explains the conduct of the wife of which the husband complains, and leaves no room for the inference against her which must be drawn if he is to establish his case. It really excludes the possibility of inferring the necessary animus on the part of the woman. It is not that it means that she was incapable of forming an intention to adopt a course of conduct calculated to bring about a rupture of the matrimonial relation. But every act and omission on her part must be viewed against the background so clearly painted by that evidence. When they are so viewed, what might have been the prima-facie significance of acts and omissions disappears. They are not perhaps involuntary acts and omissions. They may be acts and omissions to which blame attaches. But they cannot be regarded as evincing an intention to persist in a course of conduct calculated to bring the matrimonial relationship to an end. (at p430)

11. The view which the learned Chief Justice of Tasmania took of the facts of this case did not, we think, differ materially from that which we take. His Honour said that "this condition of hers created a life which was intolerable, and which a man could not be asked to endure indefinitely". He referred to "a perversity arising from her involuntary nervous condition". He thought that "the sex maladjustment was attributable to her concentration on herself". "I see", he said, "a case where a wife's habits, due to a large extent to illness and not to any malignant desire to hurt him, but nevertheless habits which she knows are hurting him, are persisted in over a long period, and the whole situation bears down upon the husband in a manner which he finds intolerable". We can find nothing that we would criticise in these observations. Sympathy may be felt for the husband. It may well be that he cannot be fairly blamed for leaving his wife. But neither incompatibility nor general unhappiness, nor even a long continuance of "habits which hurt", is yet a ground for divorce in Tasmania. Still less is the acute or chronic illness of one spouse. The ground alleged in this case is constructive desertion. Constructive desertion is not established unless such an intention as we have described is proved. It is not proved by the evidence in this case. (at p431)

12. The appeal should be allowed with costs, and the decree nisi set aside. In lieu thereof it should be ordered that the petition for dissolution of marriage be dismissed with costs. (at p431)

ORDER

Appeal allowed with costs. Decree of the Supreme Court discharged. In lieu thereof order that the suit be dismissed with costs.