Lang v Lang [1953] HCA 1; (1953) 86 CLR 432 (23 February 1953)

HIGH COURT OF AUSTRALIA

LANG v. LANG [1953] HCA 1; (1953) 86 CLR 432

Matrimonial Causes

High Court of Australia
Dixon C.J.(1), Fullagar(2) and Kitto(3) JJ.

CATCHWORDS

Matrimonial Causes - Dissolution of marriage - Constructive desertion - Intention - Termination of desertion - Marriage Act 1928 (Vict.) (No. 3726) s. 75 (a).

HEARING

Melbourne, 1953, February 20, 23. 23:2:1953
APPEAL from the Supreme Court of Victoria.

DECISION

February 23.
The following judgments were delivered:-
DIXON C.J. This is an appeal from a decision of the Acting Chief Justice of the wife's suit and the ground of the suit was desertion. The marriage took place on 8th November 1924, and there are two children of the marriage, a daughter born in 1925 and a son born in 1929. The desertion which the learned judge below has found against the respondent is of that kind which is commonly called, or miscalled, constructive desertion. The separation between the parties finally took place in August 1948, or possibly it might be said that it finally took place in September. The incident which brought it about was a culmination a long course of ill-treatment which the wife endured at the hands of the husband. When that course of conduct on his part began and how it took its origin is not perhaps easy to say, but there is evidence that as far back as 1937 he expressed some resolve to dominate her physically and from that period onwards there developed recurrent attempts upon his part by all physical means to subject her to his will and to intimidate her, insult her and express his resentment. The occasions calling forth exhibitions of this conduct cannot, of course, at this distance of time be ascertained with any clearness. But he seems to have found in her attitude from time to time some reason or other for saying that his own nature was so worked upon as to result in emotional upsets and in temperamental outbursts on his part in which he behaved in this very reprehensible manner. Indeed, a part of his case seems almost to amount to a claim that allowance should be made for a certain degree of temperamental irresponsibility on his own part. I shall not take the course of recounting these painful incidents, which have been sufficiently described in the course of a dispassionate, clear and painstaking argument by Mr. Barton. It will be enough for me to say that by the expression of his rather passionate nature, the exercise of physical force and the use of insulting methods of speech the appellant made his wife's life, as I should think, completely unendurable, and I speak from the point of view of one who has only read the evidence. She, however, continued to endure it over a long period of time, until finally she appears to have come to the conclusion, after a dreadful incident of a most extraordinary description on 13th August 1948, that she would be incapable of enduring such conduct any longer and to have determined finally, and I think conclusively, that the relationship between them had to end. The only thing that appears to be remarkable to me is that she did not come to that conclusion years before. (at p436)

2. However, in questions of constructive desertion it is necessary to remember that the desertion depends on a factum and an animus, to use the terms which are now more fashionable than English words. The factum means the physical separation and the animus the intention of the deserting party. The physical separation in this case must probably be regarded as her act in the end, although on 13th August, it was he who actually separated himself from her. (at p436)

3. The question then is his intention. Now this was a subject with which the Court dealt quite recently in the case of Baily v. Baily [1952] HCA 41; (1952) 86 CLR 424 . The Court consisted of Webb and Fullagar JJ. and myself. After a great deal of consideration we formulated what we thought was the conclusion which the cases in this Court, in common with the cases in the United Kingdom and those in the various States of Australia, established and it was formulated in very brief terms: "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" (1952) 86 CLR, at pp 426, 427 . Lowe J. found without any hesitation that there was in this case an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring about such a rupture. It is suggested, however, that such a formulation of the criterion is inconsistent with that which the Court of Appeal has recently expressed in the case of Bartholomew v: Bartholomew (1952) 2 All ER 1035 . I am by no means prepared to concede that there is such an inconsistency. The two ways of expressing the test are not likely to produce any difference in practical result. Here what the facts suggest is a very general intention to persist in a course of conduct completely inconsistent with the maintenance of any matrimonial relationship. And as pointed out in the course of argument, it is not easy to draw a line between an intention to destroy a thing and an intention to take a course completely inconsistent with its existence. Actually the argument advanced in the present case is that the appellant, the respondent in the suit, never desired that his wife should leave him, but that he was to a great extent the victim of his own nature and of his own temperament and that his actions were not accompanied by an intention that she should cease to remain on the footing of a wife with him and that the matrimonial relationship should be completely destroyed. That argument appears to me to overlook the fact that his own states of mind were constant, that, when he was exhibiting these temperamental states, which were all too frequent, and perhaps were less "temperamental" than was represented, he was full of animosity against his wife and full of an intention to cause her pain, do her harm and make her condition as a wife completely intolerable. It may be that, when they passed, or after there had been a reconciliation, the intention also passed. But it quickly arose again. It appears to me to be useless to present this case as one in which an intention of destroying the matrimonial relationship was always absent from his mind. The case to my mind is completely described by the language used by Isaacs and Rich JJ. in Bain v. Bain [1923] HCA 54; (1923) 33 CLR 317, at p 325 . Their Honours said:- "A man may intend to retain his wife's presence, but also at the same time to pursue a certain line of conduct. If at all hazards he deliberately pursues that line of conduct, his intention to retain his wife's presence is conditional on or subservient to the other intention. If his conduct is such that his wife, as a natural or necessary consequence, is morally coerced into withdrawing, it cannot be said with any truth that the husband intends her to remain. He knows in that case that the result of his deliberate act will be and is his wife's withdrawal, and, therefore, in every real sense he intends that withdrawal." (at p437)

4. To my mind the facts show that on countless occasions he must have been in the state of mind of knowing that what he was doing would necessitate her withdrawal if she acted as any reasonable creature would. However, he was able time after time to regain a certain amount of her womanly confidence and womanly sympathy. As a result there was no final separations until at last she felt it inevitable. (at p437)

5. The second answer made in this case by the appellant is that she has refused offers of reconciliation, that is offers to terminate the separation. To anybody experienced in cases of this description it should be plain that the history of this marriage shows that it would be practically hopeless to expect sustained and continual reformation on the part of the husband. Indeed his case is that he acted in accordance with the temperamental and uncontrollable factors of his nature. That he would resume his behaviour of the past is to my mind almost as clear as anything resting in prophecy can be. She acted on that view in refusing these offers. They were offers which one could hardly believe to be completely sincere. At all events she knew that the implications of the offers would never be fulfilled. It is important to observe that they did not contain any express statement of repentance, or contrition, or promise of reform. The most that can be said is that she refused to entertain overtures which no reasonable person could regard as in any degree likely to lead to a tolerable matrimonial life. In my opinion her refusals were entirely reasonable and proper and the desertion which commenced was not terminated by any offer made by her husband. I am therefore of opinion that the appeal should be dismissed with costs. (at p438)

FULLAGAR J.: I entirely agree. (at p438)

KITTO J.: I agree. (at p438)

ORDER

Appeal dismissed with costs.