OF AUSTRALIA. 577 [HIGH COURT OF AUSTRALIA.) ONNELLY . i s i 3 i . APPELLANT; PETITIONER, AND ONNELLY .. % 5 é R 5 . RESPONDENT. ResponDENT, ON APPEAL FROM THE SUPREME COURT OF VICTORIA. -Desertion—Constructive desertion—Intention to determine matrimonial }. C, or A. relationship—Marriage Act 1928 (Vict.) (No. 3726), sec. 75 (a). 1939. On a petition by a wife for dissolution of marriage on the ground of desertion MrLBourNe, the trial judge found that the husband had not supported his wifeand hadformed — May 16. 'n infatuation for his cousin, a girl aged sixteen years, which was resented | oa y_ by his wife, and had been gambling and drinking. On one occasion the wife Rich, Starke, found the husband under the influence of drink attempting to have intercourse McTiernan JJ. with this girl against her will in the bed-sitting-room occupied by the husband and wife, after which the husband suggested that his wife and the girl should live with him as if they were both married to him, which suggestion they both _ repudiated. On a later occasion he treated his wife with violence. His wife _ thereupon left him. The trial judge was not satisfied that an intention to _ determine the matrimonial relationship should be imputed to the husband ; accordingly, he dismissed the petition. Held, by Latham C.J., Rich and Evatt JJ. (Starke and McTiernan JJ. dis- senting), that, having regard to the trial judge's findings of fact, an intention to drive his wife away from him permanently should be imputed to the husband, and, therefore, that desertion by the husband was established. Moss v. Moss, (1912) 15 C.L.R. 538, applied. Decision of the Supreme Court of Victoria (O'Bryan A.J.) reversed. 578 HIGH COURT H.C. or A. Appgar from the Supreme Court of Victoria. es Violet Olive Donnelly sought a dissolution of her marri Doxxeuty William Donnelly on the ground of desertion for three y Dozen. upwards under the Marriage Act 1928 (Vict.), sec. 75 (a). petitioner relied upon constructive desertion by the responde that his conduct was such as obliged her to leave him. Th relating to the desertion are fully stated in the judgments hereu The petition, which was unopposed, was heard by 0°B who was not satisfied that an intention to determine the matrimo relationship should be imputed to the respondent ; he said thi was not prepared to hold that the respondent's conduct was of a marked character or was persisted in to such a degree that inevitable result was that there was no other course open wife, consistent with her self-respect and dignity, but to wit permanently from his society. He accordingly dismi petition. From that decision the petitioner appealed to the High Joan Rosanove, for the appellant. In considering the question constructive desertion the respondent's conduct should be looke as a whole. O'Bryan A.J. dealt with it piecemeal. If it is th natural result of the respondent's conduct that the petitioner him, it is sufficient to constitut> constructive desertion. It necessary to go the length of showing that the petitioner's Teavit him is the inevitable result of the respondent's conduct. [She stopped.] There was no appearance for the respondent. The following judgments were delivered :— Larsam C.J. This is an appeal from an order dismissing a petition for a dissolution of marriage. The ground of the p was desertion for three years and upwards (Marriage Act 1928 sec. 75 (a)). The petitioner relied upon constructive dese her husband. The learned trial judge found certain facts, findings upon the facts deposed to in evidence are not chall 'in this court. But it is said that, upon the basis of the facts ac found by the learned judge, he should have come to a 1 OLR.) OF AUSTRALIA. with respect to constructive desertion in favour of the petitioner. T he facts found are shortly these :—The parties were married in 1924 ; the wife was aged nineteen years and the husband thirty-nine. 'They lived together for some time at a guest house. The wife was earn ng her own living and receiving a wage of £4 10s. per week. e husband at no time contributed to her support. After some ime the husband, a civil servant, was transferred to Geelong. 'The wife remained behind in Melbourne. With the consent and apparently at the request of her husband, she brought to live with her a girl cousin of the husband, aged sixteen years. The husband corresponded with the wife and with the girl. Some of his letters, Pitch were not produced, were described by the girl as love- letters. The learned judge accepted this description as accurate. The girl showed the letters to the wife, who objected to their tone and character. When the respondent visited Melbourne, as he had done from time to time at week-ends, he exhibited, according to the wife and according to the evidence of the girl, undue affection _ towards the girl. His Honour accepted this evidence and found that the girl had not encouraged him and was frightened by his advances. So the position, therefore, was that the husband was not _ supporting the wife, had formed what his Honour described as an illicit infatuation for this girl, which was resented by his wife, and, further, it was found that he was gambling and drinking. In October 1929 the wife went into the bed-sitting-room occupied by her husband and herself and found him (to some extent under the influence of drink) attempting to have intercourse with this girl _ who was living in the home with the wife. Both husband and wife _ were under a special obligation to protect the girl in relation to her morals. The wife was very angry at what she saw, and a quarrel took place. The husband urged the wife and the girl to live with him as if both were married to him. They repudiated and resented _ this proposal. Her husband went away to Geelong, but in about a fortnight he returned and another quarrel took place, in the course of which the husband treated his wife with violence. Letters were ritten asking that prior letters (not produced) should be destroyed 80 that other persons at least should not become aware of what he H.C. of A. Donneiiy v Donne.Liy. Latham 0.5. H.C. or A. 1939. ah DowNELLy v Donnetty. Latham ©.J. HIGH COURT Upon these facts the learned judge asked what I think is the question. To use the words of the learned judge, " Was the h conduct such that any self-respecting spouse would have fe pelled if she were to preserve her decency or safety to de matrimonial relations? Was the conduct such that the inn spouse was morally coerced into withdrawing?" His Honour! quoted Moss v. Moss (1) to the following effect :—" What ¥ self-respecting woman do in the circumstances ? Would she it intolerable to remain? Would she regard herself as moral compelled unless willing to surrender her honour or womanly se of decency to withdraw ?" Upon this appeal no challenge is made of any of the findi fact in relation to the facts upon which evidence was given, only question which arises is that of the application to the this particular case of the principles involved in these question His Honour has answered these questions in the negative. I myself, applying my own mind to the same facts as the le: judge, I answer them in the affirmative. I say that a self-res woman in those circumstances, that is to say, the attempt to intercourse with a girl living in the home, and the proposal fo husband to live with both of them, added to the other facts I mentioned, would make it intolerable to remain. She would herself as morally bound to withdraw unless willing to surrent honour or womanly sense of decency. Answering these questions in the affirmative as I do, in opinion the appeal should be allowed, the order of the Supreme set aside, and a decree nisi granted. Ricu J. I agree. We are not interfering in any way with the findings of the learned judge. We are, however, at liberty to draw our ow inferences from the facts proved or admitted and to decide a ingly (Mersey Docks and Harbour Board v. Procter (2) ). Ta the facts into consideration I draw the conclusion that the hush conduct was such as to compel his wife to leave him (Moss v. (1) ). Any self-respecting woman would have been compel determine the matrimonial relationship. I agree with the order proposed by the Chief Justice. (1) (1912) 15 CLR. 538. (2) (1923) A.C, 253, at p. 2 1 C.L.R.] OF AUSTRALIA. | SrarKE J. Ido not agree with the decision of the court. _ I think the practice of substituting its own opinion for the findings of fact of the trial judge is entirely wrong. It is quite unnecessary for me to consider what finding I should myself have reached in this particular case, but, sitting here, I consider that I should accept findings or conclusions of fact of the trial judge unless they are 'clearly wrong, and that is the proposition which has now the authority 'of the House of Lords in Powell v. Streatham Manor Nursing Home Tam far from thinking in this case that the learned judge was learly wrong. Eyarr J. I agree with the Chief Justice and my brother Rich hat the appeal should be allowed. Tn my opinion the Chief Justice has correctly stated the precise juestion in issue and has correctly answered that question. I think it important to state the facts as to the husband's behaviour they were found by O'Bryan A.J.; in doing so I quote his fonour's own words, wherever possible :— $ (1) "I am satisfied that during a period of two or three months rior to the assault the husband was showing a marked affection for this young girl, that he did supply her during that period with money for clothes and that he was showing a marked preference for her company and society over that of his wife. I am satisfied that this did arouse alarm in the mind of the cousin and caused issatisfaction to his wife." (2) "I am satisfied that the husband was overborne during this period by an illicit infatuation for his cousin." He was "unduly attentive to her and displayed undue affection for her in the presence of his wife. These displays I think probably aroused alarm in the mind of his cousin and also disturbed his wife's peace of mind." (3) "I accept the petitioner and her cousin's version of the fact that the husband did attempt to have sexual relations with his ousin on the night referred to in the petitioner's affidavit." (As his jour negatived consent on the cousin's part, this is a finding that, his wife's home, the husband attempted to commit the felony of (1) (1935) A.C, 243. H. C. or A. 1939. Ww Donnetiy v Donneiiy. H.C. or A. 1939. at DonNeLty v Donnety. Evatt J. " must review such finding if it is called upon to do so. In HIGH COURT (4) With regard to the suggestion that his cousin she incorporated into their married life as a second wife to him, "TI, the cousin's evidence that the husband did make a sugges this sort after the assault." To these facts the learned judge sought to apply the co of law for determining the issue of constructive desertion, being, in substance, that "an intention to bring the existing of cohabitation to an end is to be imputed to the husband irresp of his actual intention, if by his conduct he shows that conti cohabitation is only possible for the wife upon conditions whic self-respecting woman cannot be expected to accept" (Mos Moss (1), per Griffith C.J.), i.e., whether the husband's condi "was such as to be intolerable" (Moss v. Moss (2), per I: In my opinion the learned judge erred in finding (or holdi the conduct which he described would not be " intolerable " t " self-respecting woman." In a proper case this court, like every court of appeal, will rey a finding of a judge who is sitting without a jury. In every ¢ however, it is not required to do so. We are applying th standard of the law to admitted facts, and in the circumstances occupy a position of equal advantage to that occupied by the prim judge. Nothing whatever turns upon credibility of witness conflict of testimony. Therefore it is quite impossible to s behind the established rule that we should not interfere un conclusion of the court below is clearly wrong. Here the jud ruling is either right or wrong, and, in my opinion, it is w is a clear case of constructive desertion by the husband. T agree with the order proposed. McTiernan J. In my opinion the appeal should be dismis I am not satisfied that the trial judge arrived at an infer which in the circumstances of this case appears to be unrea The question is whether the finding upon which he di the petition is erroneous. The onus rested upon the make out her case. A passage from the judgment of Gri (1) (1912) 15 C.LR., at p. 541. (2) (1912) 15 G.LR., at p. 544. OF AUSTRALIA. Dearman v. Dearman (1) is in point :—" But if the tribunal of first instance, having seen and heard the witnesses, comes o a conclusion in favour of the party upon whom the burden proof does not lie, it is almost hopeless to try to induce a court of al to interfere with that finding unless it has clearly proceeded n a wrong principle. That is the general rule of law which vails in courts of appeal." In this case it is not suggested that learned trial judge did proceed upon a wrong principle. The estion is whether the trial judge was in error in not making the erence from the facts found by him that the husband had con- ively deserted the appellant. In the circumstances of the Tam unable to say that the trial judge was in error in not drawing that inference. His Honour said :—" On these findings, having regard to the age of the girl in question and the age of the respondent, her relationship to the respondent and her relationship to the 'petitioner, I am not prepared to hold that the respondent's miscon- t was of such a marked character or was persisted in to such a e that the inevitable result was that there was no other course to his wife consistent with her self-respect and dignity but to thdraw permanently from his society. I bear in mind that on night of the assault he was in drink and that his suggestion after of a tripartite matrimonial relationship was made while was in drink and under the stress of the discovery of his vile . In my opinion, a self-respecting woman who really desired to fulfil her duties as a wife would not have felt coerced into with- rawing permanently from matrimonial relations with him or into anently refusing thereafter to have anything more to do with ma? Tam not satisfied that in finding that the husband was not guilty of desertion the trial judge came to a wrong conclusion. Appeal allowed. Order of the Supreme Court of Victoria set aside and decree nisi granted. icitor for the appellant, Joan Rosanove. (1) (1908) 7 CLR. 549, at p. 553. H. C. or A. 1939, ~~ DONNELLY v. DONNELLY, McTiernan J.