ort WX Gree, Gort, Pk, Ma. IN THE HIGH COURT OF AUSTRALIA. HARE IS REASONS FOR JUDGMENT. Judgment delivered at. WELDOURRE BSAGONE_ YOR JUDGMENT ; STATHAM Coda This is an appeal from an order of the Supreme Court of Western Australia Giamissing a petition for divorce on the part of a wife. The petition as originally filed alleged adultery between the teepondent husband and Ruby Joyce Francis, the intervening responient, on 5th October 1943, and also on prior dates, An order was wade for particulars of the prior dates. It was not complied with, and the petition was heard and evidence given on the basis that the only allegation of adultery was with respect to Sth Getebar 1943. The proof of adultery on that day failed. The learned Judge, however, found that other evidence showed thet there had bean an adultercas asseeiation between the respondent and the intervening respondent "in October 1942 and ether dates subsequaat thereto and prior to 5th Ostoder 1943". after the evidence hed been heard His Honour allewed the petition %0 be auented ty including allegations ef adultery in the terns which I have stated. Anepportunity was given to the perties to adéuce. further evidense and to adress His Honour. No further evidence was sddueed. It ts now objected on the part of tha respondent te this appeal thet the amendment was wrongly made. The amendment was mado 4n order that the cause could be decided upon the real facts as found by the learned Jadge to be established. the making of an amenizent was in the diseretion of the learned Judge. It was in the interests of Justice to determine the dase, as I have said, upon the true fasts; and the complaint as to the making of the aneninent affonis no grows for granting special lesve to appeal. His Wosioar, however, dismissed the petition, I read from the forual erder of the Court... His Honour found "that adultery' had been comuitted as alleged in: the.eamendment to the seid Petition and after hearing'Counsel for the Respontent and Counsel for the 4 j Petitioner dismissed the Petition on the ground that the Petitioner ha@ been guilty of undue delay in the presentation of her said Petition". The petition was presented on 8th October 1943. There had been quarrels and disputes between the parties fron about October 1942 in relation to the asscofation of the respondent with Ruby Joyes Francis. There was a bad quarrel in January 1943 and no further maritel intercourse tock place between husband and wife after that time. In Merch 1943 she left the conjugal home. The husband paid her e sum of £3 per week until she obtained a position. When she obtained a position he ceased to pay her this amount. On 5th Oetober the wife, 2 private detective, and another witness uade a descent upon the home anf, they alleged, found Misa Francis in the bedroom of the respondent. The learned Judge did not accept their evidence ~ at least he did not find that adultery was proved on that evening. The evidence upon which adulterous association was ultimately based depended upon, first, a lettor which was written sfter the proceedings had started. It was a letter in warmly affectionate terms from the intervening respondent to the respondent. It came into the possession of the petitioner only in December 1943. The other evidence which was. eritical in the case vas the evidence of a daughter of the petitioner by « previous marriage, Lesley. She gave ovidence of assosiation between the respondent and Miss Francis which was, if believed, very plain evidence indeed of adultery. That evidence was asocepted by the learned Judge. The events to whieh she deposed took place seme months before October 1943. . The evidence is not clear as to whether the wife was really aware of the facts as to which Lesley deposed. It is rather confused. But it appears to me thet, either Lesley told the wife about everything, or Lesley did not. If Lesley did not tell her about these facts before the presentstion of the petition, then that evidence has no bearing on the question of the delay. If ahe did, it was by no means certain that Lesley's evidence of conversations and / 3. and of events would be accepted if not supported by other evidence. The important evidence of the letter wes only obtained after the petition was filed. It is not unreasonable for e woman to hope that things may improve and to abstain for a period from taking divoree proceedings + which are so finel and so fatel, hoping that matters moy be satisfactorily adjusted. In this case, in my opinion, there was no evidence of unreasonable delay. It was reasonable for the wife to endeavour to obtain better evidence of adultery before setually instituting proceedings. When she thought she had that evidence she immediately instituted proceedings ~ within three days thereafter. For these reasons there is, in my opinion, no evidence to support the finding of unreasonable delay. Reference has deen made to the evidence given by the wife to the effect that she took proceedings because she heard that her husband was proposing to take proceedings against her (uhen a suffieient period had expired) based on desertion, and that she desired to obtain maintenance from him. In wy opinion that evidence has no bearing whatever on the propriety of the wife's proceedinga or upon her sincerity in bringing proceedings. It is, I think, consistent with entirely proper behaviour on the part of the wife. For these reasons, in sy opinion, the appeel should be allowed. A decree nisi for dissolution of marriage should be pronounced as of this date, ani the case, including the question of the austody of the child, should be renitted to the Supreme Court of Western Australia. The order for costs in the Supreme Court, whieh provided for payment ef 50 guineas costs to the wife, should remain as it atands, and the wife should have the costs of the appeal to this Court. meer. STARE. I agree. The only date from which delay could begin in this case strikes me as March 1943, when the wife finsily left the matrimonial home. But the delay from March 1943 to October 1943, when the petition was lodged, is not so unreasonable in the / eligounstance: 4e of this case that the petition should be dismissed. I agree with the order proposed. MILLIAMBJt T agree.