White v White [1908] HCA 80

7 OLR] OF AUSTRALIA. 4v7

{HIGH COURT OF AUSTRALIA.]

WHITE . : _ A i : . i APPELLANT ; PETITIONER, AND ANAL 19 0 DRE - : i . - F . RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Husband and wife—Divorce—Desertion by husband—Wife leaving home by reason H.C, oF A. of husband's conduct—Temporary separation—Intention to desert formed by 1908. husband after separation begun.

A separation between husband and wife brought about by the act of the husband does not constitute desertion unless accompanied by an intention on

his part to permanently put an end to cohabitation. Griffith C.J., Barton and Whether the husband's conduct does indicate such an intention isa question "sacs J- of fact.

Where the separation is begun by the wife withdrawing from the matri- monial home, owing to conduct on the part of the husband which justifies her in leaving him, it is in effect the act of the husband and not of the wife.

A separation, begun by the husband under circumstances which show that at the time he intended it to be only temporary, may become desertion if continued by the husband with the intention of making it permanent.

Where a separation was begun by a wife leaving her home owing to conduct on the part of her husband which justified her in withdrawing herself temporarily from his society, and the husband afterwards, when the wife desired to return to him, absconded and held no further communication with her:

Held, that the husband was guilty of desertion.

Decision of Street J. (24th June 1908) reversed, but on a different ground.

H. C. oF A. 1908.

Wuirr

Wurre.

HIGH COURT

Appear from a decision of Street J. in the Supreme Court of New South Wales, Matrimonial Causes Jurisdiction.

This was a suit by the appellant Evelyn Veronica White for dissolution of marriage on the ground of desertion. The parties were married on Sth March 1904 and lived together until 9th December 1904, when the appellant left her husband. During — the period when they were living together the husband drank to excess very frequently and behaved with great cruelty towards — the appellant. On 9th December 1904 the respondent came home drunk, assaulted the appellant with great violence, threatened to kill both her and himself, and told her to "clear out." She there- upon left the house, fearing further violence. Next day she returned to the house for her clothing, when she saw her husband for the last time. She then instituted legal proceedings against him, but they came to nothing as he disappeared from the locality, and nothing was seen or heard of him afterwards.