Lang v Lang - [1953] HCA 1

86 CLR 432

with more or less frequent lapses into hysteria or complete irration- ality. 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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lang v Lang

Details

AGLC: Lang v Lang [1953] HCA 1
Case: [1953] HCA 1
Decision Date: 23 February 1953

CaseChat Overview and Summary

This case concerned an appeal from a decision of the Supreme Court of Victoria, where a wife had petitioned for divorce on the grounds of constructive desertion by her husband. The marriage had been marked by the husband's recurrent temperamental outbursts, physical intimidation, and insulting language, which the wife endured for a significant period. The final separation occurred in August or September 1948, following a culmination of this ill-treatment. The trial judge found that the husband's conduct amounted to constructive desertion, and that this desertion was not terminated by the wife's subsequent refusal to meet for reconciliation discussions or her statement that she would never live with him again.

The legal issues before the High Court of Australia were whether the husband's conduct constituted constructive desertion, and if so, whether the wife's subsequent actions had brought the desertion to an end. Specifically, the court had to determine the correct test for establishing the intention required for constructive desertion, and whether the wife's refusal to reconcile or her declaration of no future cohabitation negated the husband's desertion. The husband argued that an actual intention to end the marital consortium was necessary, and that the trial judge's test of an intention to persist in conduct calculated to rupture the marriage was too broad and inconsistent with established legal principles.

The High Court, in dismissing the appeal, affirmed the trial judge's findings. The court applied the principle that constructive desertion is established if a spouse's conduct, even without an express intention to end the marriage, is such that the other spouse is reasonably compelled to leave the matrimonial home. The court found that the husband's persistent ill-treatment, including physical force and insulting language, made the wife's life unendurable, thereby demonstrating the necessary intention for constructive desertion. The court also held that the wife's refusal to reconcile and her statement that she would never live with him again did not terminate the desertion, as these actions were a consequence of the husband's prior conduct.

The appeal was dismissed, and the decree nisi pronounced by the Supreme Court of Victoria was affirmed.

Orders