Thomson v Thomson - [1953] HCA 45

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT Matrimonial Causes--Dissolution of marriage-Desertion-Continuance-Onre of

proof-Animus deserendi-Termination of desertion by resumption of cohabi- tation-Marriage Act 1928 (Vict.) (No. 3726), S. 75 (a).

In a suit by a husband on the ground of desertion for the statutory period May 28, 29

of three years and upwards, it was proved that the wife had deserted the husband but that after a period of fifteen months, at his request, she had returned to the matrimonial home, where, for the following three years, she Aug. 18.

performed in varying degree her normal domestic duties in a situation between her and the husband which became increasingly bitter. Sexual intercourse did not take place between the parties after the return of the wife. The trial judge found that at the time of her return the wife was prepared to, and intended to, resume her place as mistress of the house and to care for her husband and children as such, but he was unable to find either that the wife positively then intended to resume sexual intercourse or that she positively then intended never to do SO.

Held, that the onus of establishing the continuance of the elements of desertion for the statutory period was on the petitioner.

Pratt v. Pratt (1939) A.C. 417 and Crowther v. Crowther (1951) A.C. 723 Held, further, that, in the circumstances, desertion for the statutory period had not been established.

Mummery v. Mummery (1942) P. 107; Bartram v. Bartram (1950) P. 1, and Jackson v. Jackson (1951) V.L.R. 24 distinguished.

Decision of the Supreme Court of Victoria (Sholl J.) affirmed.

87 CLR 489

APPEAL from the Supreme Court of Victoria.

Donald Finlay Fergusson Thomson, D.Sc. (hereinafter called the petitioner) presented a petition, dated 8th January 1951, to the Supreme Court of Victoria, praying that his marriage with Gladys Winifred Thomson (hereinafter called the respondent) might be dissolved on the ground that she had without just cause or excuse wilfully deserted him and without any such cause or excuse had left him continuously SO deserted during three years and upwards.

On 18th February 1952, being the eighth day of the hearing of the petition, the respondent, by leave, presented a counter- petition to the Court praying that her marriage might be dissolved on the same ground as that relied on in the petition.

The suit was heard before Sholl J., when evidence was called on behalf of each of the parties. On 19th February 1952 and 24th March 1952 Sholl J. delivered judgment dismissing the petition and the counter-petition. The trial judge found the following facts relevant to the appeal, which should be read with the facts set out in the judgment hereunder (a) that the respondent deserted the petitioner at or very shortly after May 1946; (b) that early in August 1947 the respondent returned to the matrimonial home pursuant to agreement with the petitioner that she was to return to him without terms and without recrimination and on…

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 Thomson v Thomson

Details

AGLC: Thomson v Thomson [1953] HCA 45
Case: [1953] HCA 45
Decision Date: 18 August 1953

CaseChat Overview and Summary

The appellant, Donald Finlay Fergusson Thomson, appealed to the High Court of Australia from a decision of the Supreme Court of Victoria which dismissed his petition for the dissolution of his marriage to the respondent, Gladys Winifred Thomson. The petition was based on the ground of desertion for a continuous period of three years and upwards. The respondent had initially deserted the appellant in May 1946. However, approximately fifteen months later, in August 1947, she returned to the matrimonial home at the appellant's request. The parties continued to live together, performing domestic duties to varying degrees, until they separated again in November 1950.

The central legal issues before the High Court were whether the respondent's return to the matrimonial home in August 1947, and the subsequent cohabitation, terminated the initial desertion, and crucially, on whom the onus of proof lay to establish the continuance of desertion for the statutory period. The appellant contended that desertion, once established, was presumed to continue unless the respondent proved its termination, and that a mere resumption of cohabitation was insufficient to end desertion without a full reconciliation. The respondent argued that the onus was on the appellant to prove the continuous desertion for the entire three-year period.

The High Court affirmed the trial judge's finding that the onus of proving the continuance of desertion for the statutory period rested on the petitioner. The Court reasoned that while desertion, once proven, may give rise to an inference of its continuance, this inference can be displaced by other facts. In this case, the trial judge found that upon her return in August 1947, the respondent intended to resume her role as mistress of the house and care for her husband and children, although she did not positively intend to resume sexual intercourse or to never do so. The Court considered these findings inconsistent with a continuing animus deserendi (intention to desert) and indicative of a resumption of cohabitation, thereby terminating the desertion.

Consequently, the High Court dismissed the appeal, upholding the decision of the Supreme Court of Victoria. The Court found that the petitioner had failed to establish desertion for the statutory period of three years and upwards, and that the parties had resumed cohabitation.

Orders