Federal Court of Australia
JUDGMENT No. (8S. 78R—
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. G.190 of 1987
GENERAL DIVISION
BETWEEN: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
Applicant
MAUREEN KERSHAW
Respondent EX-TEMPORE REASONS FOR JUDGMENT
BURCHETT J.
In this matter, the careful and thorough arguments of counsel assist me in being able to give a decision without delay. It is an appeal by the Secretary of the Department of Social Security from a decision of the Administrative Appeals Tribunal. The respondent's entitlement to a widow's pension, during the period in question in this proceeding, depended on her being, during that period, a "deserted wife" as that expression is used
in sections 59(1) and 74(5) of the Social Security Act, 1947.
At the time the provision referring to a deserted wife became part of the legislation, there is no doubt at all that the adjective "deserted", as applied to a spouse, whether wife or husband, was an adjective which was clearly understood in the law both, so far as a wife was concerned, in respect of maintenance
orders under Deserted Wives and Children Acts, and in relation to
0 ate ee
or:
2.
the law of divorce. When the Act provided that a widow included a deserted wife, and that a deserted wife meant a wife who has been deserted by her husband without just cause for a period of not less than six months - see s.59(1) - it must be taken to have
used the word "deserted" in its legal sense - see Ashfield
Municipal Council v. Joyce [1978] A.C. 122 at 134.
The respondent's evidence showed that, if she was not actually deserted, she was constructively deserted in the sense known to the law. To bring that state of affairs to an end would have required a reconciliation, or an offer of resumption of cohabitation which she was not entitled to refuse. On her evidence she was clearly regarded by the tribunal as entitled to refuse any offer which was made, as at the relevant period, until her husband proved himself capable of fulfilling his part without
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