IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

No. M.C. 3 of 1948
No M.C. 5 of 1949

WILLIAM JOHN HUGHES v. DAPHNE MYRTLE HUGHES
(Original Action

DAPHNE BYRTLE HUGHES v. WILLIAM JOHN HUGHES
(Cross Action)

JUDGMENT Announced - 14th July, 1950.

William John Hughes has petitioned against his wife Daphne Myrtle Hughes for divorce on the grounds of desertion, alleging desertion by her on the 20th September, 1945.

The wife has cross petitioned against her husband for a divorce on the grounds of desertion, alleging that he deserted her on the same date, 20th September, 1945. During hearing of the case her allegation of desertion was amended to read "during the month of June, 1946."

By consent both actions were joined and heard together. O.22, rr.3 and 35.

The parties themselves were the only witnesses in both cases; no other oral evidence being called in support by either.

At the date of the marriage the husband was a Warrant Officer, Class II, in the Australian Military Forces on leave at Sydney. He had been through the Crete and Greece Campaigns. In September 1942 he came with his unit to New Guinea, after which he went through the Nadzab and Ram campaigns. In December 1943 he transferred to the Royal Papuan Constabulary. He was discharged from the Army on 10th February 1946 after which he entered the New Guinea Civil Police Force and subsequently transferred to the Department of Agriculture wherein he is still employed.

For some years prior to the marriage the wife had worked and supported herself. After the marriage she continued in several occupations towards her support and at present she is an Obstetric Nurse.

The couple had known each other before the World War. Because of the exigencies of war the parties had little opportunity of spending any great time together.

On the undisputed evidence I find:-

(1)	That the parties were lawfully married on the 16th May, 1942 at the District Registrar's office, Randwick, New South Wales, by the Registrar - Ernest Henry Strachan.

(2)	That the parties lived and cohabitated together at Sydney, Brisbane, Toowoomba, Caloundra and again at Sydney.

(3)	That there is no issue of the marriage.

(4)	That the husband's domicile is in the Territory of New Guinea.

On the evidence of both parties it appears that the marriage was happy until what was referred to as the "Cronulla Leave" - which I fix at February 1945 - excepting for two episodes. The first episode was a difference which arose after the parties had attended at a Photographic Studio in Brisbane for the purpose of having their photographs taken. The husband states that he paid some attention to a small child in the waiting room at the Studio and after the parties left the studio his wife told him, in effect, that he need not expect her to bear any children to him as she preferred a "companionable marriage". The wife denied ever having refused to bear children, but she admitted referred to a "companionable marriage" - one which she described as a marriage based on deep affection and understanding rather than on a sudden infatuation. However I am dealing with a "lawful marriage". The second episode was the husband's dislike at his wife's decision to take employment in the Munitions Factory at St. Mary's, near Sydney. He contended it would affect her health. She did eventually take employment in the Munitions Factory and would not be dissuaded therefrom by her husband - because she liked the work and also the company in the dormitories.

The wife's employment at St. Mary's apparently resolved itself later when she took employment elsewhere; the "companionable marriage" came into the parties' discussions again after the domestic breach had opened.

After the husband came to New Guinea he paid a number of visits to Sydney on leave. According to the husband these leave periods were early 1943, early 1944, September 1945, middle 1946 and early 1948. The wife fixes the leave periods according to months of the respective year; but she has given evidence of an additional leave period in August 1947. However, this additional leave, if actually taken by the husband, is not very material - as I shall mention later.

I do not consider that the husband was misleading on his evidence regarding his leaves. He admitted frankly in evidence in chief, and again on cross examination, that he was not quite sure of the periods of leave taken by him. He had extensive accumulated Army leave which he took from time to time as opportunity offered or demanded. However, do find that he is wrong as to the year of the leave referred to in evidence as the "Cronulla leave". He fixed that as being early 1944. But it is common ground between the parties that on that leave the wife transferred an amount of money to the husband. Her relative Bank Cass Book was produced in evidence, Exhibit 2, showing the transfer of the money in question as on 16th February 1945.

To my mind the "Cronulla leave" is important in arriving at a decision in these actions - as is also the leave in September 1945, which later was referred to in the evidence as the "Compassionate Leave".

Before dealing with those two leave periods I refer to the period from the middle of 1946 to 21st October, 1948, on which latter date the husband's petition was filed. The hearing of these actions covered 6 days, a great deal of which time was occupied on the evidence covering the period in question. However, I do not propose dealing at length with the evidence covering that particular period - this on the admissions by the husband on Cross Examination from which I quote ‑

Q. I put it to you that each time you went on leave in those years (1946 to 1948) you went either to have a good time or to get your wife to divorce you? A. I will admit that on each leave we did discuss divorce.

Q. How many times was that? A. Two, I think.

Q. Which were they? A. Three I think - middle of 1946, also the leave when I went down on medical reasons and on the leave in 1948.

Q. On none of those leaves did you go down to spend any time with your wife? A. I thought it right and proper to ring her and tell her I was there.

Q. But you didn't go with the intention of taking her out? A. No. I merely got in touch with her.

Q. You didn't intend taking her out on those leaves? A. No. 

Q. That is from 1946 on? A. Yes.

Q. Because in effect you had lost interest in her? A. Yes.

Q. So in the middle of 1946 when you said to her at Crown Street 'Are you coming to New Guinea or are you not' did you want her to come to New Guinea? A. No.

The husband visited Sydney on 2 months' leave in 1946. He says in middle of 1946, but the wife fixes that leave as October 1946. Early in 1946 there was correspondence between the parties regarding a home in New Guinea and an allowance to the wife and a permit for the wife to enter New Guinea - to which I shall refer later. The husband did not advise his wife that he was arriving on that leave. He contacted her at the Crown Street Hospital, where she was then doing her Nursing course, and took her for a meal in a cafe in Oxford Street. There, according to him, he asked her "Well, what are you going to do? Are you coming to New Guinea or are you not?" to which she replied, according to him, "I'm perfectly happy with things the way they are." She, however, advised him that she had not taken any steps on the correspondence from the Department of External Territories regarding the proposed permit for her to enter New Guinea. The wife's evidence regarding that brief interview is "I spoke to him about the letter asking me to go to Lae. I said 'I thought you had an ulterior motive in writing'. He said he was sincere at the time he wrote it but he had since been pleased that I had not gone up because he thought there would only be some lack of understanding and bickering. I said I thought we could perhaps get along all right and I offered to come back with him. He said 'No' he didn't want me to go back with him and that he no longer had the home.

Then I suggested that I go up when I finished my training in 9 months' time. He said he was not interested in that either." The parties met again a few days later when, according to the wife, she made a further suggestion that she would join him in New Guinea which he countered with proposals for divorce, to which she refused. The parties did not see each other again on that leave.

The wife gave evidence that the parties met again in Sydney in August 1947 when, briefly, she made a further offer to return to New Guinea, which he again countered by divorce proposals, and again refused by her. The husband did not give evidence as to this leave – but, as I have intimated, I don’t feel disposed to hold that he was intentionally misleading.

The next, and final meeting between the parties before proceedings, was in 1948. This is fixed by the wife as March 1948 when she was about to cease employment at the Rachael Forster Hospital. Again the husband did not advise his wife that he was coming to Sydney, but he contacted her and they had a meal at the Palace Café, Pitt Street. According to both parties the main conversation was regarding divorce. The husband states that after general enquiry about his friends the conversation "drifted round" to their domestic affairs when he asked his wife to return to New Guinea and on her refusal he informed her that he had taken legal advice and he would have to institute divorce proceedings – which, according to him, she said she would consider if he would make her a cash payment to divorce him. This the wife denies. She states that he went right to the point by opening his conversation with "I want a divorce" – after which he informed her he had divorce papers drawn ready for her to sign and have served on him. The husband states there was only one interview on this leave. The wife states there were two interviews – the second, again at the Palace Café, Pitt Street, on the following day and that she also had taken legal advice during the interim and on which she told her husband that she would have nothing to do with his proposed divorce proceedings.

According to both parties they did not correspond with each other after the meeting, or meetings, at the Palace Café, excepting a letter from the wife to the husband offering to return to him – which letter is dated 14th June 1948 and tendered in evidence, Exhibit "E". The wife stated the letter was written on legal advice. It is never too late under the unfortunate circumstances as existing between the parties, for one or other of them to seek legal advice. On the contrary, it frequently transpires, happily, that legal advice at times, coupled with the necessary friendly guidance, diverts the matrimonial barque from its course on to the impending rocks back to calm waters. However, on the wife's brief evidence regarding this particular letter, I feel bound to construe it as one having been drafted by a  legal mind and despatched by the wife, not for the purpose of requesting the husband to take her back and establish a matrimonial home, but mainly to afford, if necessary, a reply to any possible subsequent allegation that she refused the husband's final proffered offer of reconciliation.

Reverting now to the period not yet covered, namely from February, 1945 to middle 1946:‑

Firstly - the "Cronulla Leave" in February 1945. The husband had advised his wife that he was arriving on leave, but because of transport difficulties he could not fix the exact date of his arrival at Sydney. In anticipation of his arrival, the wife had taken a cottage at Cronulla. When the husband arrived they met in Sydney and the following day proceeded to Cronulla. The husband was not satisfied with the arrangements made by the wife, nor was he happy on that leave. The wife on her part also was not entirely happy about matters.

I quote from the husband's evidence. In chief - "We both went out to Cronulla together. During the journey she said to me 'I have had some difficulty in obtaining this cottage, as yet I have not the key nor do I know the location of it.' Eventually we found the Estate Agents at Cronulla. Got the keys from them and took a taxi to find the cottage. It took us some time to locate the place. I was most annoyed with my wife not having made definite arrangements on taking the cottage over. When we did eventually find the cottage it was standing well back off the road in the bush. The cottage itself was such a ramshackle building I didn't like it. Because of that I had an argument with my wife. I told her I didn't like the cottage. She said that as housing was so hard to get we had to take more or less what we could get. I decided to make the most of it. We took the house and lived on there for some days during which time my wife and I had some trips to Sydney. (Then evidence of banking transfer). After the allotment savings money was transferred to my name I had arranged to meet some friends in town for a day. My wife was not well and she raised no objection to my meeting them. I did meet them. On my return home the same day after meeting them my wife was ill and next morning I took her to a local Doctor. His advice was as I could not look after her properly to take her home to her mother's place. I hired a hire service car and took my wife home to Camden to her mother. I stayed on at her mother's place. My wife was looked after mainly by her mother. I had no outright disagreement with my wife at this time. I was rather fed up by being at Camden and went back to my Unit some few days before my actual leave was up. We parted, not as happy as I had been earlier. Nothing that I can actually put my finger on but I was not in the best of health myself and I didn't wish to participate in the kind of leave my wife had planned which consisted of dancing, parties and walking.

While we were at Cronulla my wife had told me that was the sort of leave she wanted us to spend. I told her that was what I didn't want. I discussed it further with my wife and explained what I wanted to do was to attend symphony concerts and such like. My wife didn't appreciate these things and would not accompany me on any of these trips to Sydney for going to concerts. So it meant in effect when we went to Cronulla neither of us was spending the type of leave we wished. I told my wife of this but she didn't appreciate the type of leave I wanted to spend. I became very unsettled and returned to the Leave Transport Depot a few days before my leave expired." 

On cross-examination –

"On that leave I was rather fed up and not very happy.

Q. What was the reason for that? A. Quite a lot of that was due to my own health at the time and lack of appreciation by my wife of this fact and quite a lot was also due to my inability to understand why this should be so.

Q. What was there that showed this lack of appreciation? A. Not knowing where the cottage was nor its condition. In short not having looked at it first.

Q. and A. I know that cottages of any kind were difficult to get in those days and that she would have had to go from Camden to Cronulla to see it.

Q. In what other ways did she show lack of appreciation? A. my wife had planned the type of leave I didn't like. Dancing and parties and walking. I didn't adopt this plan. But I was not pleased that she had planned such a leave. It showed a lack of appreciation.

Q. Was there anything else to show this lack of appreciation on her part? A. No.

Q. Quite sure? A. Only that she didn't seem to be willing to adopt what I wanted to do.

Q. And what was that? A. Practically nothing except perhaps to go to the concerts that were on at the time and take things easy.

Q. Did you have in mind any better place in Sydney, a quieter place, than Cronulla for doing nothing? A. I had none in mind but I could imagine plenty better.

Q. Any other evidence of lack of appreciation? A. Only the fact that when I had made arrangements to meet some of my Battalion mates my wife made it very plain that whilst she agreed to it she didn't like it.

Q. and A. I didn't think she would consider that would conflict with my declared aim of having a quiet time.

Q. Any other instances? A. No. I couldn't recall any others. "

And later "I cut my leave short at Cronulla, I didn't see my wife during the final days of that leave. Before I left I said I was sorry I was leaving. I explained that I had to leave.

Q. You didn't have to leave did you? A. I felt I had to leave.

Q. You felt you wanted to leave? A. Yes."

I quote from the wife's evidence.

In chief - "Next day we went to the cottage at Cronulla. We had a bit of a job to find the cottage, which was very comfortable inside. It had an electric stove, a wireless and a new bath room. Cutlery was provided but I took my own linen. We visited some of my relations at Sutherland and some of my husband's relations at Como and Campsie. My husband seemed to be rather disgruntled and unsettled as soon as we got into the cottage. He would not speak to me much. He wouldn't go down on the beach, about a mile away. He didn't want to go on the bay or around the place at all. He mentioned if we had not married when we did on his Army leave we would never have got married at all. I said 'Why do you say that?' He made an evasive reply and gave me no satisfactory explanation. I thought he was a bit tired of me. (Then evidence of banking transfer). A few days later I became sick. I went to the doctor in Cronulla. He told me to go to bed for a couple of days and to come back and see him. I went to bed and got worse. I don't think my husband made a very great effort to look after me. But he did take me in a taxi to the doctor. The doctor told him I was very sick and to keep me in bed and look after me and that he, the doctor, would call and see me next day. I think the doctor called about twice. My husband left me several times, once from about 8 o'clock in the morning until about 8 o'clock that night and made no provision for my comfort during the day. I didn't get any better so my husband arranged to take me home to Bringelly, Camden. I was sick at Cronulla for about a week. At Bringelly my husband stayed about 10 days. He was very miserable and constantly complained about being there. I asked him what his trouble was. He said the place got on his nerves. Sometimes when I spoke to him he would answer and sometimes he would walk out of the room without speaking. He spent very little time in my room with me. Finally he said he could not stay any longer. He went to Sydney and spent the remainder of his leave with Delofskis. He told me he was going to Delofskis." 

On cross-examination:-

Q. Did you at the time or about the time of transferring the money ever speak with him with a view to amending any difference between you? A. I did ask him several times if anything was wrong. I asked him if there was anything worrying him. He made evasive replies and sometimes he didn't answer me at all."

During that leave the wife transferred, by way of a gift, to the husband the sum of £369/11/9 being the whole of the money standing to her credit in a Savings Bank Account at Sydney. Her relative Bank Passbook was produced in evidence, Exhibit 2. This transfer left her with only £17 in another account. It was not suggested that the husband in any way manoeuvred the wife into making this gift. On the contrary, when he enquired the reason, she refused to explain but merely "insisted" that he accept the money. In a letter to her husband dated 2nd July, 1945, and tendered in evidence, Exhibit "B", she wrote, inter alia, "I put my money into your name because I knew long ago, long before your leave, that we would never settle in together. At least I had that feeling at the back of my mind and felt as if I was holding it under false pretences somehow." During her evidence before this Court she stated that she thought if she put some money into his Bank it might help him to get interested in making a home when possible but she did not tell him why she was transferring the money as she didn't want him to know that she thought he was disgruntled. If her real reason was as given in oral evidence, I think she would have served her purpose better had she disclosed that reason to her husband. However, she didn't.

Secondly - the period after the "Cronulla Leave" until the "Compassionate Leave". Enroute back to his Unit at New Guinea after the "Cronulla Leave" the husband found himself at Red Lynch Camp near Cairns where he learned he would be waiting transport for at least two months. He wrote his wife suggesting that she come to Cairns to which, he says, he received a telegram from his wife that she would not go to Cairns. The wife states that she first telegraphed him advising that she would go to Cairns but on the following day she wrote that she had changed her mind until such time as he could explain to her a request which she says she had previously received from him for £10 to pay a fine for being absent without leave. The husband denies having made such a request. The wife states that her husband's reply to her letter was to the effect that it was then too late for her to come to Cairns. None of the correspondence on this particular point is in evidence.

The husband rejoined his Unit in New Guinea about May or June 1945. Shortly afterwards he wrote his wife. The letter is not in evidence but he gave its contents to the best of his memory - "I pointed out quite a lot of things in both our attitudes which might well be eliminated. The 'Cronulla Leave' so far as I was concerned was very miserable and unhappy and I didn't appreciate your lack of understanding so far as I, as a Service man, was concerned. We should be able to get on quite well together if we tried to appreciate each other's points of view." He could not remember the remaining wording of the letter but he explained "I pointed out some of the stress that I was under myself at the time of the 'Cronulla Leave'. I tried to convey to her that after I had done two campaigns in the Middle East and two in New Guinea I could not be regarded as the same person she had known before the War. I went on to explain that it was only a transitory thing and that we would quickly get over it." To that letter he received a reply from his wife dated 2nd July, 1945, Exhibit "B", a long letter of 5 pages embodying criticism and abuse and unburdening her mind on the matrimonial venture from the outset. In the opening paragraph she suggests, "It will be a good thing to get the whole business over and done with and the sooner the better. There is no future happiness for us together, apart one never knows. "

She concludes - "I wish you the very best of luck and I would like to be friends with you. I bear no ill will at all. Goodbye Jack." with a P.S. "I don't think the circumstances of our marriage are to blame for its failure, it would have failed any way, it was bound to, we being what we are."

The wife stated in evidence that during the actual time that she was writing that letter she expressed her actual thoughts and that "I felt better for it". But she further stated in evidence that on the following morning after she had posted the letter she felt sorry for the nasty things she had written in that letter and that she promptly followed it with a letter of apology. The letter of apology is not in evidence but she gave oral evidence at to its contents. I don't propose quoting same; suffice to say that, in my opinion, her letter of apology would not have been sufficiently strong to blot out of her husband's mind the imprint already made by the criticism and abuse of its forerunner. That forerunner was, on the wife's admission on cross-examination, "written in extreme anger and was deliberately hurtful." Nevertheless, I believe her when she says she regretted having written the letter and that she endeavoured to convey her regret to her husband. And on the authority of Tickler v. Tickler (1943) 1 All E.R. p.57 at p.60 I overlook that letter - this apart from the subsequent actions of both parties.

Thirdly - the Compassionate Leave in September, 1945. The wife's letter to the husband dated 2nd July 1945, Exhibit "B", had a dual effect on the husband. He applied to the Colonel of his Unit for Compassionate Leave, as on his own words, "When I received that letter it looked as though everything would blow up unless I did something quickly." At the same time he took steps to reduce his wife's fortnightly allotment from £9/9/0 to the minimum £5/12/0. This latter, to my mind, is not without significance when considering the bonafides of his endeavours to bring about a reconciliation after he arrived at Sydney.

I do not propose quoting at length from the evidence of the parties on this compassionate leave. No good purpose could be served thereby, as they contradicted each other to the extent that in respect of this phase of their married life it devolves to the simple issue – which of them would be believed by a jury?

The husband advised his wife that he was arriving in Sydney and during that leave he stayed with friends of his, Mr. and Mrs. Delofski at Woolahra. At that time the wife was staying at friends of hers, Mr. and Mrs. Ivey at North Bridge where she was renting a room with the use of the house. She was then employed at the Taxation Department. 

By arrangement the parties met at Ivey's place on the Saturday evening following the husband's arrival. Neither kissed each other. The husband was not asked why but in reply to the question the wife answered, "I didn't kiss him because he didn't kiss me." Later on that evening they kissed each other goodnight after they had discussed their differences and the wife had accepted the husband's offer to take her for a holiday to South Australia. It transpired that the husband could not secure tickets to South Australia and the parties compromised on a holiday at Jenolan Caves to commence from the following Saturday.

The wife states she invited the husband to stay with her at Ivey's place but he refused. The husband explained his refusal that he didn't feel disposed to stay in the house of strangers. On the other hand he did not invite his wife to join him at the house of his friends.

During the ensuing week the parties met each other daily - in the afternoons. The husband stated that the meetings were in the afternoons because the wife was working during the day time. The wife stated that she had obtained leave from her employment as from the Tuesday after their first meeting and the afternoon appointments were made by arrangement because she was sewing and otherwise preparing for the proposed holiday.

In evidence the husband stated that from day to day the wife approbated and reprobated regarding the proposed holiday as a result of which, on the following Friday, he became exasperated and informed his wife that he would have to cancel the proposed holiday as the tickets which he had purchased were current only up to the following days and he therefore proposed returning the tickets rather than lose his deposit paid thereon.

The wife's story is contradictory. She gave evidence to the effect that during the week she fell in with her husband's suggestions from day to day, that on one evening he took her to visit the Delofskis and that she didn't know until the following Saturday evening that her husband had cancelled the proposed holiday trip to Jenolan Caves.

The parties are at one on an episode fixed by the wife on Friday and fixed by her husband on the following day, Saturday. The exact day is immaterial but the parties met in Pitt Street when, according to the husband, he was chastised by his wife for not wasting any time about cashing the holiday tickets. The wife denies such chastisement. The couple went into a cafe where the husband ordered a cup of tea for his wife, left her there and went to an hotel in the vicinity to have a drink of beer. The wife explained in evidence that she refused to accompany her husband to an hotel to have a drink with him but she endeavoured to induce him to join her in having tea at the cafe, as she judged that he had had a few drinks too many. After partaking of tea the wife waited outside the café for her husband for about ½ an hour and as he did not arrive she went for a stroll round the town and returned in about another ½ hour later. By this time the husband had returned and was waiting outside the cafe. According to the husband the wife did not remain to talk with him on her return to the cafe but said to him, "You go your way and I'll go mine" after which she continued to walk up the street. According to the wife, when she returned to the cafe her husband said, "Well what are we going to do now" to which she replied "Well I don't know what you're going to do but I'm going home" and again explaining that she considered her husband had been drinking too much, and adding that he had not returned to meet her outside the cafe after she had partaken of tea.

As mentioned above, the wife fixes the "tea and beer" episode as on Friday afternoon. She stated that on the following morning she went to Delofskis to see her husband but he was not home, whereupon she left a message advising him that she would call out again that evening. She did in fact go to Delofskis on that Saturday evening but her husband was at the pictures. She waited until his return and the parties subsequently discussed their matrimonial position. The wife stayed the night at Delofskis and left on the following day; according to the husband, in the morning and according to the wife, in the afternoon. However, the time of her departure is not material.

As to the events on this Saturday evening and Sunday morning.

I quote from the husband's evidence.

In chief — 

"I had been to the pictures with my hostess and on our return home my wife came in shortly afterwards. When my wife came in nothing was said about our domestic affairs. All four of us, the Delofskis, my wife and myself sat down to supper. After supper, at the invitation of either Mr. or Mrs. Delofskis (I forget which) my wife stayed the night. My wife agreed to stay and Mr. and Mrs. Delofski retired for the night. After they had gone to bed I said to my wife 'Have you any explanations?' She replied 'No I haven't. But I came out to talk the whole thing over with you and to tell you what I want to do.' I said to my wife 'Well what do you want to do?' My wife then replied that she wanted to do a nursing course and saw no reason why that should interfere with a companionable marriage. I asked my wife 'What do you mean by that?' She replied by saying 'I thought it would be a good idea if I went on with my nursing and you go back to New Guinea and we can spend our leaves together down here.' To this I was not agreeable. I then said to my wife 'I have the required number of points to make me eligible for discharge from the Army right now and early in the New Year I hope to be able to transfer from the Royal Papuan Constabulary under the Army to the Civilian Police Force. Why don't you come to New Guinea and give it a trial? My wife replied 'No. I have had my heart set on doing this training course for some time and I can see no reason why you can't agree to what I want. I think you are unreasonable and selfish for not appreciating my side of it.' By that time it was getting late. I can't remember anything further of the conversation but it was on that note that we went to bed. We didn't occupy separate rooms. We were offered separate beds. We occupied one single bed. We had intercourse. Next morning after breakfast I took my wife out to the tram stop and I said to her while waiting for the tram 'Are you still of the same mind as you were last night that you will not come to New Guinea, do you still persist in completing the nursing course?' She replied 'Yes I am. I will not go to New Guinea.' At that time the tram came along. I put her on board and I said 'Well that's that. Cheerio.' "

On cross-examination –

Q. Why didn't you get together with her after the night at Delofskis?
A. During the conversation at Delofskis my wife made it plain to me that she wanted to do her nursing course and would not came to New Guinea and wanted marriage on a companionable basis.

Q. and A. I had no fault to find with the warmth of her affection during the intercourse on the night at Delofskis.

Q. and A. I did not invite her to come to Delofskis.

I quote from the wife's evidence.

In chief - "Mr. Delofski and I went for a walk down to the beach then back to the house when we thought the pictures would be out. My husband and Mrs. Delofski were home then. They had been to the pictures. That was about 11 o'clock or 11.30 p.m., after the pictures. I asked my husband about our plans for the morning as we were supposed to leave by train for the Caves. He said it was all off. He said he had cashed the tickets that morning. He complained about the way I walked away and left him. He said he wanted nothing further to do with me. Mr. and Mrs. Delofski were present during the conversation. They invited me to stay for the night. Mrs. Delofski said she thought it was rather a delicate situation and therefore did not know what to suggest regarding sleeping arrangements. She offered us one room into which we went but my husband said to me that he was not going to spend the night with me. I was very upset. He took a few blankets and slept on the lounge in the lounge room. The Delofskis had retired to bed. My husband and I did not at any time sleep together that night. It is not true that we slept together and had sexual intercourse. Sexual intercourse last took place at the cottage in Cronulla. Next morning we got up and had breakfast in a normal way. I suggested to my husband that he was taking too much offence at the small thing I had done on the Friday; that I did not think it should affect our plans in any way. He told me in very definite terms that he was not interested in me. He persisted in this attitude and he also said he was not going to go for a holiday with me and perhaps risk having a family which would tie him down to me. Mrs. Delofski was present at that conversation. My husband said a lot of similar things and after dinner about 3 o'clock, I didn't feel like staying and being insulted any more. So I went home to North Bridge. 

On cross-examination - "I did go out that evening and I met my husband that evening. I asked Mrs. Delofski if she had delivered the message to my husband. She said she had but he had made no comment. We all had supper together; my husband, I and the Delofskis. Then Mrs. Delofski suggested I stay the night. She said that it was very late (as in fact it was) and that she had a room which I could use or both of us could use if we liked and also a lounge which could be used if we didn't want to share the room. I accepted her offer. The Delofskis then retired to bed. My husband and I went into the room which Mrs. Delofski had offered. My opening words were probably 'Now what about our plans for tomorrow.' He said 'The plans are all off. I cashed the tickets this morning. I went down to cash them yesterday evening but the office was closed. Fancy having the audacity to walk away from me like that with your nose in the air. I suppose you thought I would run after you.' He then gathered up a few blankets and retired to the lounge. When I met him on that Saturday evening I did not say I was sorry for having walked away from him on the Firday. I thought I had been justified. When he referred to it as the reason for cancelling our plans I said I thought he was taking it too seriously. He didn't say anything to that. When he gathered the blankets I did make an effort to induce him to stay. I cried. Next morning we got up and had breakfast together with Delofskis. We didn't have a discussion about ourselves at the breakfast table but we did have a discussion about ourselves during the morning. That was in the lounge room. Mrs. Delofski was there. I didn't object to discussing our domestic relationships in front of a stranger. She was very sympathetic. I broached the subject about what our plans would be. We talked about it off and on most of the morning. About 3 o'clock that afternoon I decided to go home to North Bridge. I kissed my husband in the house. He walked up to the tram stop with me. There he just said 'Goodbye' and he mentioned he was going straight back to New Guinea. I don't think I said anything about meeting him again. While at Delofskis I had mentioned to him the proposal about nursing, after he had made it very clear to me that he wanted nothing further to do with me. I told him I would take the course of obstetric training at Crown Street if I could get in. He said 'What you do is your business.' I did not tell him 'Well I am going to do it anyhow.' I made no further comment on it.

The wife stated she met her husband again, by accident, in Hunter Street about a fortnight after the parting at Delofskis and whilst on her way to keep a dental appointment; and that she invited her husband to accompany her but he refused as he had an appointment at the Metropole Hotel. The husband denies this meeting. His evidence is that a few days after the parting at Delofskis he reported back to the Leave Transport Depot for return to New Guinea.

Fourthly - the period ensuing the Compassionate Leave to the middle of 1946. The husband returned to New Guinea in December, 1945. He was discharged from the Army in February, 1946.

During February 1946 the wife commenced her training course at Crown Street Hospital.

After the husband's discharge from the Army an interchange of correspondence took place between the parties. The only letters in evidence are from the wife to the husband; one dated 6th March 1946, Exhibit "C", and the other dated 21st April 1946, Exhibit "D".

In his evidence the husband didn't appear to be quite sure of the sequence or contents of his letters to his wife. Here again I do not think he was evasive or misleading as he covered the whole field of his correspondence to the best of his recollection. On the wife's evidence I divide that correspondence into two sections.

The first section of the correspondence covered Army Allotment and Administration allowance. Immediately after his discharge the husband wrote his wife advising her of his discharge as from which date her allotment would cease; but he also advised her that he was making arrangements regarding an Administration allowance of £120 per annum paid to a husband towards the support of his wife not resident in New Guinea. According to him he enquired of his wife how and where she required this allowance paid. But on cross-examination he admitted that he knew his wife's address and could have forwarded the moneys direct to her. According to the wife her husband made "such a fuss" of this allowance that it rather irritated her and after receipt of a letter from him requesting "a direct answer to a direct question" she wrote him on 6th March 1946, Exhibit "C", requesting the allowance be paid monthly or quarterly, or, if possible, yearly in advance. To this letter the husband replied pointing out that it was impossible to pay the allowance yearly in advance as the allowance was paid by the Administration. On this, the wife's evidence is that her husband wrote her a further letter which she deemed insulting, and to which she replied advising him so, dated 21st April, 1946, Exhibit "D"; and in reply she received a further letter from her husband advising her to that effect and requesting her to come to New Guinea and "Give it a trial." The wife admitted receiving the correspondence but according to her evidence she wrote him advising that she doubted his intentions and wanted to know more about the project. She stated she did not receive a reply to her request for further information but on his next visit to Sydney, fixed by her as October 1946, he informed her that it was better that she did not come to New Guinea as requested by him, as the house was no longer available.

The above concludes a summary of the evidence adduced by both parties, the notes of which evidence cover some 212 pages.

Coming now to the law on the subject. Desertion, which covers such a wide field of the marriage contract, and yet impossible to define "by rule of thumb", is dealt with in many authorities, all of which lay down, either expressly or impliedly that no one case can be taken as a guide in another case, but each case must be decided upon its own circumstances and facts. Mentioning some of the comparatively recent English authorities - Pulford v. Pulford (1923) P., p. 18 at p. 21; Pratt v. Pratt, (1939) 3 All E.R., p. 437 at pp.438, 439; Cohen v. Cohen, (1940) "All E.R., p. 331 at p. 339; Tickler v. Tickler (1943) 1 All E.R. p. 57 at pp. 59, 60; Beekin v. Beekin, (1948) P., p. 302 at p. 312. Some of the English authorities and Australian authorities have been referred to, and the law discussed at length in a decision of the High Court of Australia, Powell v. Powell (1948) 22 A.L.J., p. 526, wherein at p. 530 "Starke, J., said the course had repeatedly declined to attempt any exhaustive definition of desertion. 'In its essence desertion is the forsaking or abandonment by one of the spouses of the other' (Rayner on Divorce, 4th Edn, p. 101). Whether one spouse deserted another or not depended on the circumstances of the particular case and was a question of fact."

Having considered all the evidence adduced by both parties, with the cited authorities to guide me I find that during the Cronulla Leave the husband formulated the intention not to be bound further by the matrimonial bonds and he conveyed that intention to his wife when he left her ill at Camden before his leave expired and that his alleged subsequent attempts to bring about a reconciliation were not genuine - that the husband deserted the wife during the month of February 1945. On that finding there is still for consideration the question of the alleged intercourse at the home of Delofskis on the Saturday night in September 1945. As I understand the law, and on my finding of the husband's desertion above, even if sexual intercourse did take place, which is denied by the wife, that cannot be held against the wife as condonation of her husband's desertion some seven months previously. As is laid down in Angle v. Angle (1848) E. &. E. Digest vol. 27, p.341 "the doctrine of condonation being totally different when applied to a wife from that applied to a husband; it being meritorious in a wife to continue cohabitation as long as there is a possible chance of reclaiming her husband."

I therefore dismiss the husband's petition and I find in favour of the wife on her cross petition. Order nisi to be made absolute after 6 months from this date. The wife to recover against the husband costs of her defence on his petition, and the costs of her action on her petition, the latter costs to be paid to the wife's solicitor when the decree shall have been made absolute.

(Signed) A. Kelly, J.