COOKE V. COOKE 40/1943

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'HL 4, Groom, Govt, Print, Melb.

IN THE HIGH COURT OF AUSTRALIA.

sn. COOKE

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REASONS FOR JUDGMENT.

Wish Court of Australis. Principal Registry:

QE OCT 1343

Oral Judgment delivered at... Melbourne... i on. Tuesday,26th Octaber,1 943

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COOKE ve ___ COOKE.

REASONS FOR JUDGMENT. LATHAM C.J

This is an appeal from a decision of Mr. Justice Lowe refusing to grant a decree for divorce in a case in which a wife petitions on the ground of desertion by her husband. If I consulted my personal inclinations, I should be very glad indeed to allow the appeal. But I am unable to satisfy myself that the facts proved amount to desertion by the husband. I need not recite all the facts. To my mind they bear the complexion which the learned judge considered them to bear and they support the inference which he drew. Here we have a case of a very unhappyY home with a husband persistently and : consistently ill-treating his wife, not with, except possibly on one occasion, any physical cruelty, but in such a way as to make her life \ nearly unbearable for her; treating her with indignity and affront when they were together, in the presence of the children, and in the | presence of strangers. There is sufficient ground for the wife having i strong objection to the conduct of her husband. But he remained in |

the matrimonial home. Sexual intercourse ceased in 1938, but he

remained in the home. He supported his wife and the children. He had

some of his meals with the family and, although he had said that he no longer regarded her as his wife, still, as Mr. Justice Lowe has held, there were the elements of the matrimonial relationship to which I have referred still existing. It was not until June 1943 that he

left his wife. He then did in fact desert her. In my opinion the

faets of this case do not establish desertion at an earlier date, though they do show that there was a very unhappy home and that the