Thomson v Thomson [1953] HCA 45

High Court of Australia Webb, Fullagar and Taylor JJ. Thomson v Thomson [1953] HCA 45

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 18 Webb, Fullagar and Taylor JJ.

This is an appeal from an order of the Supreme Court of Victoria dismissing a petition by the appellant for the dissolution of his marriage with the respondent on the ground of her desertion. The parties were married in 1925 and lived together in the course of a normal married life until 1940 when war service undertaken by the appellant necessitated long absences from home on his part. This state of affairs continued until the end of 1944 or the beginning of 1945. It is apparent that early in the latter year a great deal of unhappiness had developed in the home and the cause, or causes, of this was the subject of a great deal of evidence upon the hearing of the suit. It is, we think, unnecessary to refer to this evidence in detail for the learned trial judge found as a fact that the respondent deserted the appellant in May 1946 and there is not the slightest ground for doubting the validity of this finding.

The parties had separated some few months previously to May 1946, and following that separation they agreed upon a "reconciliation" from which, however, the respondent withdrew and she, being then absent from the home, determined without just cause or excuse to remain permanently away from the appellant. So much was expressly found by the learned trial judge, but some fifteen months later, in August 1947, the respondent returned home. This she did in response to the requests of the appellant who appears to have been anxious to make every attempt to resume a normal married life with his wife. But for reasons which appear from the evidence the attempt at re-establishing normal marital relations seems to have been foredoomed to failure. The respondent's frame of mind did not permit her to allow by-gones to be by-gones or to shape her conduct on any foundation of ready forgiveness. It may be that her attitude to the respondent was, in some measure, affected at this time by the appellant's conduct towards her which did not entirely escape criticism at the hands of the trial judge. But whatever was the initial cause for the subsequent complete failure of the marriage, it is clear that as time progressed the relations between the parties became more strained and bitter. Upon this aspect of the case the learned trial judge said: "It is not surprising I think that in the atmosphere of unhappy recollections, financial stringency, hard work, and impaired health on both sides, which existed in that household, initial constraint and reserve gave way to more and more frequent quarrels and recriminations. I think the respondent's bitter thoughts, offensive tongue, and attitude of injured saintliness were principally, though not entirely, to blame for the deterioration of relations, and the failure to restore the harmony of earlier years. She told me that "almost as soon as she got into the house", she felt that the marriage was unlikely ever to be successful".