NICHOLSON V. NICHOLSON

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HL 2, Gree, Gort. Print, Melb.

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IN THE HIGH COURT OF AUSTRALIA. | '

v.

REASONS FOR JUDGMENT.

The appeal is dismissed; the order of the Full Court is ' affirmed; and there is no order as to the costs of the appeal

to this Court.

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HICHOISON ve NICHOLSON REASONS. FOR JUDGuENT, . EATHA €aZ. This is an appeal from a judgment of the Supreme Court of Tasmania in a divoree proceeding by a husband against a wife. The petition was based upon the ground of desertion, Sec. 8(2) of the Matrimonial Causes Aet 1919 provides as a groumi of divoree in the ease of a husband domiciled in Tasmania for two years and upwards that his wife has, without just cause or excuse, left him contimously deserted during three years end upwards. Gec. 7 of the statute as it now stands contains this provisions "'Desertion' moans desertion without the consent or against the will of the other party to the marriage, and without reasonable cause; and wilful or non~justifiable refusal to permit marital intercourse shall be treated as equivalent to desertion," The effect of these provisions, in my opinion, is that when there 4s a wilful or non-justifiable refusal to perzit marital intercourse, then desertion within the meaning of the seetion begins. In order to be a ground of divorcee, that desertion must contime for three years, that is to say there mst be a continuous wilful or non-justifiable refusal to permit marital intereourse for that period. . " ' It is a question of fact whether a refusal to permit such intercourse is contimous during a particular period. If it 1s shown that frequent requests were made throughout the period and that they were always met with refusals, that would be a plain ease to which these provisions would apply. If it were shown that @ refusal to permit intercourse was of such a character as to indicate a permanent and fixed intention with reference to the future, such evidence, again, would be sufficient to establish what the section requires, unless that attitude were changed. That attitude might be changed by the refusing spouse consenting to intercourse, or by the other spouse stating that intercourse was not desired. It must depend, in my view, upon all the circumstances whether /