Box v Commissioner of Taxation [1952] HCA 61

H. C. or A. 1952. <9

GALE v GALE.

Dixon C.J. Webb J. Kitto J.

HIGH COURT (1952.

Churchman vy. Churchman (1) in another part of his judgment (2), I think that she would be guilty of connivance ; but in my opinion "corrupt intention' would mean in this case that the wife showed by her conduct that she willingly consented to the continuance of the adultery "'.

The present is a case where a husband did choose to acquiesce in and encourage the continuance of an adulterous connection which his wife had formed; he did so out of indifference coupled with considerations of advantage.

But the connivance of the appellant was directed to an existing situation. It could not, as connivance, be related back to the inception of the adultery so as retroactively to connive at that adultery. In this view we agree with the Full Court of the Supreme Court. But clearly enough the whole conduct of the appellant amounted to condonation of all past adultery of his wife with Osmond. He did not know when the adulterous character of the relationship began. But he knew that it had been going on for some time. He indicated quite plainly, both by his acquiescence im its continuance and by his cohabitation with his wife while it continued, that he waived it as a matrimonial offence.

The situation was indeed an unusual one. The appellant, so to speak, tacitly conferred upon his wife a licence of a general character to commit adultery with Osmond and at the same time maintained her in her full position as his wife. He condoned the past adultery, of which he had a sufficient knowledge although he may not have been completely aware of the duration of the adulterous relationship. He showed, however, that he was in- different altogether to the precise facts and was agreeable neverthe- less to continue to share his wife with Osmond. While in this way condoning her past adultery with him, the appellant connived at future adultery with Osmond.