Viant v Viant [1955] HCA 40

High Court of Australia Dixon C.J. Webb, Kitto and Taylor JJ. Viant v Viant [1955] HCA 40

ORDER Appeal dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

July 18 Dixon C.J., Webb, Kitto and Taylor JJ.

This is an appeal by a husband from an order of the Supreme Court of South Australia (Abbott J.) dismissing an action in which he had claimed a divorce from his wife, the first respondent, on the grounds of her adultery with the second respondent and her desertion of the appellant without just cause or excuse for the statutory period. The grounds relied upon were made out by the evidence, but the learned judge refused relief, being of opinion that the action was collusive, and that the plaintiff was not suing in good faith and had been guilty of unreasonable delay.

The spouses were married in December 1918, the husband then being twenty-two years of age and the wife twenty. They lived together for only eighteen months. During this period the husband was an employee in smelting works at Port Pirie. In June 1920 an opportunity arose for him to obtain employment at similar works in Upper Burma and he left for that country under an arrangement with his wife that she would follow him when he should succeed in obtaining a house there. A house, however, could not be found. For a year they corresponded, but then the wife became friendly with the second respondent, Richardson, and after another three months the husband learned of the association. A further letter to his wife having remained unanswered, he wrote no more, and in June 1922 he returned to South Australia. He was given what he called "certain information" about his wife, but did not look for her. For ten years he lived at Port Pirie, and ever since 1932 he has lived in Adelaide except for a term of three years at the Woomera Rocket Range. He appears to have known all along, as the fact was, that his wife and Richardson were living together as man and wife and had children, but he made no attempt either to induce his wife to return to him or to obtain a divorce. So matters rested for thirty-two years. The learned judge summed up the situation by saying: "The opinion I have formed of the plaintiff is that he has from the first been convinced that his wife was committing adultery and would not return to him; his affection for her was not very strong; he has never had any wish to marry again, nor does he now desire to do so; he has been satisfied to live his own life, and has been completely indifferent to whatever life she might live; and he has never had any intention, nor the least desire, to divorce his wife."