Potter v Potter [1954] HCA 52

High Court of Australia Webb, Fullagar and Kitto JJ. Potter v Potter [1954] HCA 52

ORDER Appeal allowed. Discharge order of Supreme Court of Victoria. In lieu thereof decree nisi for dissolution of marriage on ground of desertion. Order that appellant do cause an office copy of order of this Court to be lodged with the Prothonotary of the Supreme Court of Victoria.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 13 Webb J.

This is an appeal from a judgment of the Supreme Court of Victoria (Barry J.) dismissing a petition for divorce by the appellant husband on the ground of desertion by the respondent wife. The desertion proved was constructive. The petition as originally presented included adultery as the first ground; but the petitioner obtained leave to strike out that ground before the hearing began, as he could not secure the necessary evidence to support it.

Barry J. found the necessary animus but not the factum. With respect I think his Honour properly found the animus, as the wife's intention to drive her husband from the matrimonial home was not negatived by considerations of her ill-health, which was "a vitally important factor" in Baily v. Baily [3] ; or by considerations of a naturally excitable temperament and a reasonable view of the other spouse's questionable behaviour, as in Deery v. Deery [1] . The evidence in this case does not indicate that Mrs. Potter's health or mental state or her husband's conduct was in any way responsible for her attitude towards him in the home. She appears to have been at all times in sound mental and physical condition and to have received no provocation from him. Both parties are highly intelligent and of superior education. Mr. Potter appears to have provided generously for his wife at all times and to have been faithful to her. He had been divorced by his first wife for desertion, but there is no evidence that suggests he displayed a partiality for women other than his wife. His Honour had no doubt that there were faults on both sides; but I see no evidence that suggests that Mr. Potter was at fault in any way.