Lang v Lang [1953] HCA 1

High Court of Australia Dixon C.J. Fullagar and Kitto JJ. Lang v Lang [1953] HCA 1

ORDER Appeal dismissed with costs.

The following judgments were delivered:—

Feb. 23 Dixon C.J.

This is an appeal from a decision of the Acting Chief Justice of Victoria by which he pronounced a decree nisi in a suit for divorce. It was the wife's suit and the ground of the suit was desertion. The marriage took place on 8th November 1924, and there are two children of the marriage, a daughter born in 1925 and a son born in 1929. The desertion which the learned judge below has found against the respondent is of that kind which is commonly called, or miscalled, constructive desertion. The separation between the parties finally took place in August 1948, or possibly it might be said that it finally took place in September. The incident which brought it about was a culmination of a long course of ill-treatment which the wife endured at the hands of the husband. When that course of conduct on his part began and how it took its origin is not perhaps easy to say, but there is evidence that as far back as 1937 he expressed some resolve to dominate her physically and from that period onwards there developed recurrent attempts upon his part by all physical means to subject her to his will and to intimidate her, insult her and express his resentment. The occasions calling forth exhibitions of this conduct cannot, of course, at this distance of time be ascertained with any clearness. But he seems to have found in her attitude from time to time some reason or other for saying that his own nature was so worked upon as to result in emotional upsets and in temperamental outbursts on his part in which he behaved in this very reprehensible manner. Indeed, a part of his case seems almost to amount to a claim that allowance should be made for a certain degree of temperamental irresponsibility on his own part. I shall not take the course of recounting these painful incidents, which have been sufficiently described in the course of a dispassionate, clear and painstaking argument by Mr. Barton. It will be enough for me to say that by the expression of his rather passionate nature, the exercise of physical force and the use of insulting methods of speech the appellant made his wife's life, as I should think, completely unendurable, and I speak from the point of view of one who has only read the evidence. She, however, continued to endure it over a long period of time, until finally she appears to have come to the conclusion, after a dreadful incident of a most extraordinary description on 13th August 1948, that she would be incapable of enduring such conduct any longer and to have determined finally, and I think conclusively, that the relationship between them had to end. The only thing that appears to be remarkable to me is that she did not come to that conclusion years before.