Thomson v Thomson

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.