High Court of Australia
HIGH COURT (1953.
[HIGH COURT OF AU
THOMSON" . 'i - i Z is 5 . APPELLANT ;
Perrrroner, AND
THOMSON . é é ' . ResponpgEnt.
RESPONDENT,
ON APPEAL FROM THE SUPREME COURT OF VICTORIA.
H. GC. ov A. Matrimonial Causes—Dissolution of marriage—Desertion—Continuance—Onus of
1953. ee
MELBOURNE,
May 28, 29; June 1.
Sypvey, Aug. 18.
Webb, Fullagar
and Taylor JJ.
proof—Animus deserendi—Lermination of desertion by resumption of cohabi- tation—Marriage Act 1928 (Vict.) (No. 3726), s. 75 (a).
Ina suit by a husband on the ground of desertion for the statutory period of three years and upwards, it was proved that the wife had deserted the husband but that after a period of fifteen months, at his request, she had returned to the matrimonial home, where, for the following three years, she
performed in varying degree her normal domestic duties in a situation between her and the husband which became increasingly bitter. Sexual intercourse did not take place between the parties after the return of the wife. The trial judge found that at the time of her return the wife was prepared to, and intended to, resume her place as mistress of the house and to care for her husband and children as such, but he was unable to find either that the wife positively then intended to resume sexual intercourse or that she
positively then intended never to do so. Held, that the onus of establishing the continuance of the elements of des Pralt v. Pratt (1939) A.C. 417 and Crowther v. Crowther (1951) A.C. 728
tion for the statutory period was on the petitioner.
discussed.
uumstances, desertion for the statutory period
Held, further, that, in the ci had not been established.
Mummery v. Mummery (1942) P. 107; Bartram v. Bartram (1950) P. 1, and Jackson v. Jackson (1951) V.L.R. 24 di
inguished.
Decision of the Supreme Court of Victoria (Sholl J.) affirmed.
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