Schumann v Schumann [No 2] [1961] HCA 89

High Court of Australia Kitto, Taylor and Menzies JJ. Schumann v Schumann [No 2] [1961] HCA 89

ORDER Appeal allowed. Order of the Supreme Court of South Australia on the appeal from the judgment of Reed J. discharged except as to costs. In lieu of so much of the order as is discharged, order that the appeal from the judgment of Reed J. be allowed, that the order of Reed J. in so far only as it dismissed the counterclaim be discharged, and that there be substituted for the order dismissing the counterclaim an order nisi for divorce. Cause remitted to the Supreme Court as to the custody of the children of the marriage, and generally. Order that the appellant pay the respondent's costs of the appeal to this Court, including the costs of the objection to the competence of the appeal, but not including any of the reserved costs of the application in chambers. Cross-appeal dismissed as incompetent. Refuse leave to appeal from the order of the Supreme Court of South Australia dismissing the application made pursuant to the respondent's notice of motion dated 29th November 1960.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 18 Kitto, Taylor and Menzies JJ.

The appellant and the first named respondent are husband and wife. The wife sued the husband in the Supreme Court of South Australia for restitution of conjugal rights and custody of the three children of the marriage. The husband resisted the suit and counter-claimed for divorce and custody of the children, alleging that the wife had committed adultery with the second-named respondent, Robinson, on certain occasions in May 1952, and with one Findley in 1960, and that on or about 20th September 1958 she deserted him and had since that time left him continuously deserted. The wife, in addition to denying these allegations, set up that if she committed adultery with Robinson as alleged the husband condoned it, and that if she deserted the husband as alleged he was guilty of habits or conduct inducing or contributing to the desertion and wilful neglect or misconduct conducing thereto. The husband put these allegations in issue.