ON APPEAL FROM THE SUPREME COURT OF Husband and wife - Divorce-Domicil - of origin-Change of domicil-Jurisdiction.
The respondent, whose domicil of origin was in Victoria, where he resided and carried on business, was married in that State, but never lived there openly with his wife. He had a branch office in Sydney; and a few years after his marriage he brought his wife and child from Melbourne to Sydney, and there made a home for them at which he lived with them for a few months and then deserted them. From that time, though in the course of his business he was frequently in New South Wales for considerable periods, he never had any fixed residence there.
In a suit brought by the wife in the Supreme Court of New South Wales for dissolution of marriage on the ground of desertion;
Held, on the evidence, that the respondent had not acquired a domicil in New South Wales, and therefore the Supreme Court had no jurisdiction to entertain the suit.
In order to establish a change of domicil in such a case there must be clear evidence of an intention by the husband to abandon his domicil of origin and to make a new permanent home in the State to which he has removed.
Decision of the Supreme Court: Parker v. Parker, (1907) 7 S.R. (N.S.W.), 384, affirmed.
APPEAL from a decision of the Supreme Court of New South Wales affirming the judgment of Simpson J. in a suit for dissolution of marriage.
The appellant filed a petition in the Supreme Court for divorce on the ground of desertion. The issues of marriage and desertion were found in favour of the petitioner, but the learned Judge was of opinion, on the evidence, that the respondent was never domiciled in New South Wales, and, therefore, that the petitioner was not domiciled in that State, and the Supreme Court had no jurisdiction to entertain the suit.
The evidence upon which the petitioner relied to establish domicil was, shortly, as follows:-The respondent was born in Victoria and was domiciled there at the date of his marriage in 1899. At that time, and up to the date of the petition, he carried on business in Melbourne as proprietor of a newspaper called The Mining Standard, having a branch office in Sydney. The petitioner, at the desire of the respondent, did not take the name of Parker, and the marriage was kept secret from his relatives.
A child was born and the petitioner was sent to Sydney by the respondent. He visited her there but never lived with her. After about eighteen months she returned to Victoria where the respondent lived with her for some time. In August 1901 the respondent brought the petitioner with the child and household furniture to Sydney, where he took and furnished a house for her and lived openly with her as his wife for a time. In that and other houses…
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.
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AGLC
Parker v Parker [1908] HCA 92
Case
[1908] HCA 92
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales, which had affirmed a judgment dismissing a wife's petition for dissolution of marriage. The wife, the appellant, sought a divorce from her husband, the respondent, on the grounds of desertion. The central dispute revolved around whether the Supreme Court of New South Wales had jurisdiction to hear the matter, which in turn depended on the domicile of the respondent.
The legal issues before the court were whether the respondent had acquired a domicile in New South Wales, thereby conferring jurisdiction on the Supreme Court of New South Wales to entertain the divorce suit, and consequently, whether the wife, by virtue of her marriage to the respondent, had acquired a domicile in that State. The court was required to determine if the evidence established that the respondent had abandoned his domicile of origin in Victoria and acquired a domicile of choice in New South Wales.
The court reasoned that to establish a change of domicile, there must be clear evidence of an intention by the husband to abandon his domicile of origin and to make a new permanent home in the State to which he had removed. The evidence indicated that while the respondent had brought his wife and child to Sydney and established a home for them, he had not intended to make that home his own permanent residence. His subsequent movements and business activities, which involved frequent travel and no fixed residence in New South Wales, supported the conclusion that he had not acquired a domicile there. The court applied the principle that a domicile of origin is not lost unless a domicile of choice is clearly established by evidence of an intention to reside permanently or indefinitely in a new location.
The appeal was dismissed. The High Court affirmed the decision of the Supreme Court of New South Wales, holding that the respondent had not acquired a domicile in New South Wales and therefore the Supreme Court lacked jurisdiction to entertain the suit for dissolution of marriage.