Potter v Potter - [1954] HCA 52

90 CLR 391

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT Matrimonial Causes-Dissolution of marriage-Desertion-Parties living in same

house-Conduct of respondent--Whether terminating matrimonial relationship -Marriage Act 1928 (Vict.) (No. 3726), S. 75 (a).

In a suit by a husband for dissolution of marriage on the ground of desertion for the statutory period of three years it appeared that the parties had resided in the same house until about one month before presentation of the petition. The evidence showed that, due to the conduct of the wife, for at least three years prior to that time the parties had not occupied the same bedroom, or had sexual intercourse, or dined together, each party giving orders, separately, to the housekeeper for any meal required. The parties never went out socially together, nor, with one exception, did they ever enter- tain outsiders in common, although the wife entertained, and went out with, male friends without reference to, or consultation with, the husband. If they found themselves in the sitting-room of an evening, the wife would abuse the husband until he went elsewhere. The wife did not attend in any way to the husband's personal wants, although she had done SO at an earlier stage, nor did she ever directly inform her husband of her movements, even on an occasion on which she took a trip abroad. The husband maintained the household and supplied the wife with money. She, however, never approached him for money except through the agency of her bank manager or solicitors. At various times the wife told the housekeeper with reference to the husband that she couldn't bear him," " detested him " and "wouldn't be there if he couldn't give her SO much ".

Held by Fullagar and Kitto JJ. (Webb J. dissenting), that, in the circum- stances, the wife had deserted the husband for the requisite period.

Watkins v. Watkins (1952) 86 C.L.R. 161 and Walker v. Walker (1952) 2 All E.R. 138, referred to.

Decision of the Supreme Court of Victoria (Barry J.) reversed.

90 CLR 392

APPEAL from the Supreme Court of Victoria.

William Ian Potter presented a petition, dated 23rd November 1953, to the Supreme Court of Victoria, praying that his marriage with Gwenyth Winifred Potter be dissolved on the ground that POTTER.

she had without just cause or excuse wilfully deserted him and had without any such cause or excuse left him continuously SO deserted during three years and upwards.

The suit, which was not defended, was heard before Barry J. who, in a written judgment delivered on 30th March 1954, held that, although the parties had been estranged from August 1950, the relationship between them had, until the end of 1953, retained sufficient of the elements of marital association to preclude the application of the principle in Watkins v. Watkins 1. Consequently his Honour ordered that the petition be dismissed.

From this decision the petitioner appealed to the High Court of Australia.

P. E. Joske Q.C. (with him E. H. E. Barber),…

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 Potter v Potter

Details

AGLC: Potter v Potter [1954] HCA 52
Case: [1954] HCA 52
Decision Date: 13 October 1954

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appeal concerned a husband's petition for the dissolution of his marriage on the grounds of desertion by his wife for a period of three years. The parties had continued to reside in the same house until shortly before the petition was filed, leading to the central issue of whether desertion could be established in such circumstances.

The legal issues before the High Court were whether the wife's conduct constituted desertion for the statutory period, despite the parties living under the same roof, and if so, whether the matrimonial relationship had ceased to exist for the required three years prior to the commencement of the suit. The court had to determine if the wife's actions and attitudes amounted to an abandonment of the conjugal society and a wrongful termination of the state of cohabitation, even without physical separation.

A majority of the High Court, comprising Fullagar and Kitto JJ., found that the wife had indeed deserted the husband for the requisite period. Their reasoning focused on the complete repudiation of the matrimonial relation by the wife, evidenced by her sustained abusive conduct, separate living arrangements within the home, lack of shared social life, and her own admissions and statements indicating a desire to end the marriage. They applied the principle that desertion can occur even when parties live in the same dwelling if the conjugal relationship has been effectively terminated by one party against the will of the other, citing cases such as *Watkins v. Watkins* and *Walker v. Walker*. The court allowed the appeal, setting aside the Supreme Court's dismissal of the petition and granting a decree nisi for dissolution of marriage on the ground of desertion. Webb J. dissented, finding that the matrimonial relationship had not ceased for the statutory period.

Orders