E v E, In re [2020] TOSC 104; AM 18 of 2020 (12 November 2020)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

AM 18 of 2020

In the matter of E v E, and an appeal against the order of the Magistrates Court pursuant to the Maintenance of Deserted Wives Act

REASONS FOR JUDGMENT

Before: Lord Chief Justice Whitten QC

Counsel: Mr S. ‘Etika for the Appellant

Mrs F. Fa'anunu for the Respondent

Date of hearing: 16 September 2020, 29 October 2020 and 12 November 2020

Date of judgment: 12 November 2020

Introduction

1. This is an appeal from the decision of Senior Magistrate Pahulu Kuli on 10 July this year in which she made an order under the Maintenance of Deserted Wives Act (“the Act”) requiring the Appellant to pay maintenance of $80 per week for the child of his marriage to the Respondent.
2. The appeal was ultimately decided on the issue of constructive desertion. It is a novel issue in the Kingdom, with only one previous published decision having briefly considered it.^[1]
3. At the conclusion of the last hearing in the matter, I delivered an ex tempore judgment. This is the transcript of those reasons for decision, edited only as to form, not substance.
4. In this judgment, and at their request, the parties have been anonymised.
5. The material filed, and the various procedural steps that have been taken, provide the following chronology.

Background

6. The parties were married in May 2018. In September 2018, they separated. They had one child of the marriage, born in March 2020. The circumstances leading to and causing the separation will be discussed later in this ruling.
7. The Respondent brought an application for maintenance before the Magistrates Court. On 10 July 2020, the order was made for maintenance of $80 a week. On 22 July this year, the notice of appeal was filed. The main ground can be summarized as that the Magistrate failed to take into account any evidence of living expenses or to ascertain the “true means of the parties”. The Appellant sought a hearing de novo rather than remitting the matter back to the Magistrates Court. The notice of appeal was also accompanied by an application for leave to appeal out of time. It was based on the former Magistrates Court Act providing ten days for an appeal. That has since been amended to 28 days. That application was therefore unnecessary. A third application filed was for a stay of execution for the Magistrate’s order. The Appellant filed an affidavit sworn 22 July 2020 in support which canvassed the events of the proceedings below. There was nothing in that affidavit concerning the circumstances surrounding the separation between the parties.
8. On 4 August 2020, orders were made in respect of the application by the Appellant for a stay of execution for the Magistrate’s court order. The application was granted albeit on terms in the form of an interim order that the Appellant pay maintenance of $100 per fortnight commencing 12 August 2020, pending the hearing and determination of this appeal. Directions for the further conduct of the appeal were also given including the filing of affidavits. The appeal was then to be heard on the 16 September 2020.
9. On 28 August 2020, the Respondent filed an application for ‘permanent maintenance’ of $200 per fortnight which was the amount claimed in the Magistrates Court. That was supported by an affidavit of the Respondent which set out in far greater detail than appears to have been presented to the Magistrates Court her income and living expenses. Mrs. Fa’anunu also filed submissions in support of that application. The application was not made in the form of a cross appeal in which the Respondent would effectively be saying that the Magistrate erred below by only ordering $160 a fortnight. It was not pressed in the balance of this proceeding.
10. On 28 August 2020, the Respondent filed her list of documents. They mainly related to her income and expenses. On 10 September 2020, the Appellant filed his list of documents. Again, those documents related to the proceedings below but they also include seven authorities which were relevant to the then grounds of appeal concerning the inadequate way in which the learned Magistrate conducted the hearing below and the lack of any evidence or consideration of factors such as living expenses. Importantly, for reasons which will become clear further on, the Appellant did not discover any text messages between himself and any of his ‘friends’ which have become in this proceeding, and were from the outset, central to the Respondent’s complaint about his conduct leading to her evicting him from the household.
11. On 11 September 2020, the Respondent filed a supplementary affidavit which went to the original grounds of appeal.
12. Also that day, the Appellant filed submissions. Relevantly, at paragraph 6, it was submitted that the parties ‘had their differences’ and that the Respondent ‘kicked’ the Appellant out of the home. The rest of the submissions were directed to the original grounds of appeal.
13. However, at paragraph 32, for the first time, the Appellant raised an issue as to the court below, and this court, having no jurisdiction to make any orders for maintenance pursuant to the Act.
14. The preamble to the Act provides that it is in Act “to provide for the maintenance of married women who have been deserted by their husbands”. The Act commenced in 1916. Section 2 was substituted in 1966 and was amended in 1989 in its current terms. Under the heading “Jurisdiction”, the chapeau to s.2 provides:

It shall be lawful for any married woman who shall have been deserted by her husband, to summon her husband before a Magistrate’s Court and thereupon the Court if satisfied that the husband has wilfully refused or neglected to maintain his wife or his wife and children and has deserted his wife may —

[emphasis added]

15. Counsel for the Appellant submitted that, in this case, the Appellant did not desert the Respondent because she ‘threw him out of the house’. On that basis, s.2 had not been engaged and accordingly no relief is available to the Respondent under that Act.
16. On the 16 September 2020, the appeal was initially heard. The Appellant’s submission included what I will refer to as the “jurisdictional issue” based on s.2 of the Act and outlined above. It was identified during that hearing that that ground was not included in the Notice of Appeal. Counsel for the Appellant sought leave to amend the Notice. In doing so, he expressly abandoned all other grounds of appeal.
17. Mrs. Fa’anunu opposed the application to amend. However, she had come equipped and provided to the court submissions on the doctrine of constructive desertion and a Fijian Supreme Court decision in Ludeoa v Uluibarotu in which that court referred to passages from the then edition of Halsbury Laws of England on the said doctrine. I will turn to the current version of those principles in due course.
18. Due to the significance of the jurisdictional issue on the interpretation and application of the Act, leave to amend was granted.
19. At that point, with the conversion of the appeal from one being based on the sufficiency of evidence below to now one of jurisdiction, it may have been open to this court to simply remit the matter back to the Magistrates Court. But in my view, it was more appropriate, given the novelty of the issue raised by the Appellant, to have it dealt with here and in full. To do that required additional evidence from both parties as to the circumstances leading to the separation and their conduct since.
20. Section 79 of the Magistrate Court Act provides:

Evidence on appeal

The decision of the Supreme Court on the hearing of appeals shall be given on the written evidence forwarded by the clerk, but the Supreme Court may in its discretion examine all or any of the witnesses produced before the Magistrate and, on good cause shown by either party, may in its discretion admit fresh evidence and if necessary may adjourn the hearing for that purpose.

21. Accordingly, directions were also made for further affidavit evidence to be filed directed at the issues which arise on the constructive desertion argument. The matter was then adjourned part-heard to 21 October 2020 and the interim maintenance order was continued.
22. On 16 September 2020, the Respondent filed an affidavit in response to a supplementary affidavit of the Appellant sworn 11 September 2020. Both related to the previous grounds of appeal.
23. On 23 September 2020, the Appellant filed an Amended Notice of Appeal. It referred tangentially to the jurisdictional issue but did not include the grounds for it. As a result, the Appellant was directed to replace the Amended Notice of Appeal.
24. Also that day, the Appellant filed an affidavit. Relevantly, the Appellant deposed:
    • (a) "We had an unsettling marriage since cohabitation as the Respondent was an accuser and has habitually put me on the blame for being a useless pauper and a dishonest husband who’s continuing contacting girlfriends.” [3]
    • (b) the Respondent accused him of “flirting out with girlfriends” [4]; and
    • (c) that they argued because the Respondent “jealously confronted him with false accusations about girls ... she raised her voice at him and told him to get out of the house” [5].
25. The affidavit goes on to confirm that she did just that on 25 September 2018. The Appellant deposed that he did not argue back that morning as he was embarrassed because neighbours were watching and listening to their argument. After collecting his belongings, he went to his mother’s house where he has been living since. Further:
    • (a) he accused the Respondent of being a drunk [14];
    • (b) that what the Respondent had done to him was “unbearable and hurtful and that she had been inconsiderate and dominantly selfish” [17];
    • (c) he “never fought with his wife although he was more dominant physically that he had to give up authority and stayed under suppression to her to maintain peace in the household” [20];
    • (d) he was “hurt most by the unfounded accusations against him in relation to his other work mates and friends and alleged to be in contact for sexual reasons which were extremely erroneous and speculative” [21];
    • (e) his wife had “kicked him out because she did not have place in her heart and mind to any explanation he gave in answer to her suspicions”. As a result, he was the victim and “not a loved husband” [22]; and
    • (f) that the Respondent placed him in “such a reputation during their marriage” and “put blame as often as she wish in order to kick him out of the marriage relationship which she did” [23].
26. On 1 October 2020, a substituted Amended Notice of Appeal was filed. Consistent with the Appellant’s election to abandon all former grounds of appeal, the substituted Amended Notice of Appeal raised the single jurisdictional issue.
27. On 20 October 2020, counsel for the Appellant filed submissions in support of the Amended Notice of Appeal. A number of cases were cited which I will touch on shortly. Relevantly, for present purposes, at paragraph 2 of the submissions it was submitted that:

There was insufficient evidence or no evidence before the court to demonstrate that the conduct of the Appellant was in any way wilful or intentional to make the Respondent act in such a way to end their cohabitation. But it was the Respondent who personally in her own free will cause the Appellant to leave and end their marital cohabitation against his will.”

28. Thus it was submitted that the Appellant had not breached the Act so as to be available to the Respondent as an avenue for relief, and that the Respondent “is the deserter”.
29. At paragraph 4, it was submitted that:

“The court cannot use its unfettered discretion to interpret the Act in favour of the Respondent by departing from the principles set and observed by the High Court of Australia [in the decisions referred to in the submissions] and should be followed as a binding precedent in this jurisdiction.”

30. I pause to note that s.166 of the Evidence Act actually provides that judgments of superior courts of Commonwealth territories will be regarded as having persuasive authority. Persuasive does not mean binding.
31. In any event, on 23 October 2020, the Respondent filed a further affidavit, in which deposed, in summary, as follows:
    • (a) The parties separated in September 2018 when she was still pregnant.
    • (b) They fought because the Appellant was constantly contacting other girls through texting and she suspected he was involved with another woman.
    • (c) The Appellant had been doing that for some time. She tolerated it because she loved him.
    • (d) On 22 September 2018,^[2] there was a call to the Appellant’s phone. The Respondent answered it. The caller refused to speak. The number was 915 which the Respondent identified as a TCC number.
    • (e) On 23 September 2018,^[3] another call came from the same number to the Appellant’s phone. Again, the caller, who did not identify him or herself, hung up without saying a word.
    • (f) On 25 September 2018, the day of separation, the Appellant told her that he was going to return a laptop to a woman called “‘Amelia” who worked at TCC. The Respondent asked to go with him but the Appellant refused. The Respondent became angry as she was then convinced the Appellant was involved with ‘Amelia. She then told him in her anger that it would be better for him to return to his family because he did not respect her as his wife. She deposed that she became so angry that she threw his clothes outside and demanded that he leave. As he left, she said she ran after him asking him to come back so that they could talk, but he refused. When she got into his car, he became angry and pushed her out. The Appellant then left.
    • (g) The Respondent deposed that she did not think the Appellant would leave for good. She texted him repeatedly asking him to return to her and their unborn child. She said that the Appellant refused to reconcile.
32. The Respondent’s affidavit was also accompanied by further submissions by Mr. Fa’anunu. She submitted, in summary, that:
    • (a) it was a natural reaction in the circumstances for the pregnant wife to feel angry and suspicious;
    • (b) it was not the Respondent’s intention to end the marriage and she referred to the text messages to which I will refer below;
    • (c) the Appellant was unwilling to save the marriage and thus he severed the marital ties for good;
    • (d) by reference to two of the decisions previously cited by counsel for the Appellant in his submissions, namely, The Crown Solicitor for South Australia v Gilbert [1937] HCA 79 and Powell v Powell [1948] HCA 48, a spouse who leaves and refuses to recognize some or all of the obligations arising from the matrimonial relationship commits the act of desertion; and
    • (e) from the text messages between the parties in the approximately two months following separation, it could be discerned that the Appellant had committed the act of desertion by failing to observe his obligations to the marriage.
33. This is a convenient point in the chronology to pause and refer to the text messages. The transcript of them was provided by the Respondent both in the original form on her phone in Tongan and also English. There was no issue about the accuracy of that transcript. The Appellant received a copy and accepted it. Although, when he was asked to clarify his acceptance in evidence during the final hearing, the Appellant only went as far as saying that he accepted the Respondent’s apologies in the text messages. Be that as it may, no issue has been taken with the accuracy of the transcript of the text messages. They are quite voluminous but for the purposes of this ruling I will recite certain excerpts which, in my view, best evidence the intentions of both parties in a consistent way throughout the period mentioned and their attitude to their marriage at that time:
    • (a) On 25 September 2018, the day of separation, at 5:50pm:

Respondent: I did not know that it would be important for you to go to ‘Amelia. She was almost fired from her job. Her boss called your number this morning to trace the numerous calls out from the number 915 to your number because it is strictly forbidden for anyone to use that number to make phone calls. Her boss apologized and asked not to file a complaint and ‘Amelia spoke to me, she explained everything that you guys drank alcohol at Ngele’ia and continued to Sopu etc.

Appellant: Thank you investigation officer bye.

Respondent: That is what happens when you try to hide things from me but it is okay because I am waiting for you to come back you know what? I miss you, come back we can work this out my love I’m asking for the last time, I am sorry can you forgive me?

Appellant: I never said I have a thing with the people that you are referring to I just told you to mind your own business because you do not know the reason why we are exchanging about. Too bad you waste your time investigating them to compare lol but it is good information aye your own jealousy ruins your mind and then you get angry at me which is right for you. Anyways I will think twice of coming back but I’m not sure when you said not to come back to your house again that is clear to me. I am free now so we have different paths.

Respondent: Can you listen to me please I still love you. Is it that quick? We are both having hard times now but I still love you and I want you back. I want you to come back and I want us to talk now please. I take back all my words that I said out of anger I am sorry is that enough she continued I am not jealous I want things to be right I do not want messy relationship I want us to be happy like it was before can you forgive me now I promise that if you come back I will do my very best I want you now baby.

(b) Later that evening, the Respondent again texted the Appellant that she wanted him back to which he told her to stop calling him because it was “annoying”. Later in those exchanges:

Respondent: I want you to come back I said I am sorry.

Appellant: I do not feel like I want to come now I will stay here at least until things settle. I will think about coming back. You’re already chasing me away telling me never stand there again.

Respondent: I want to settle things with you tonight please do not push me away.

Appellant: Yeah? Wow but where can we talk?

Respondent: Come and let us talk here please.

Appellant: Nah.

Respondent: Please or come ask my mum for us to go talk at your house and then come back to my home and sleep etc if you do not feel comfortable talking here.

Appellant: I will not sleep there I will come back and sleep here. It seems like your mum is the boss now? Hmm so I guess you have filled their heads with your stories already.

...

Appellant: I am no longer part of you because you’ve already pushed me away so I am useless you pressure her [Barbara’s mother] too much that is why she is sick. She is sick because of you go stay by her side and help her and stop annoying me.

Respondent: Are you going to come back for us to get back together I need a straight answer please do you still love me or not. Are you coming back for us to get back together?

Appellant: No!

Respondent: Do you still love me?

Appellant: I do not know.

[The Respondent repeated her requests for the Appellant to ‘come home’]

Appellant: I do not want to come home my time is done already do you understand or not okay then bye.

Respondent: What do you not get I’m apologizing as well I’m asking for you to come so we can talk man.

Appellant: No more talk, you want me out that is final.

Respondent: I never want you out. I was testing you but I was just hard because you did not want to talk with me you were not serious when I am talking seriously. Do you want me back or you already move on and love someone else?

Appellant: I do not know, yes you test me thank you detective.

Respondent: The answer is yes or no, simple as that?

Appellant: Go take care of your mother that is more useful.

Respondent: Yes, I am a detective and do not try to hide things from me because I will find out myself because you do not know how smart I am.

Appellant: It is none of your business if I move on mind your own business.

...

Respondent: Do you love me?

Appellant: Nope.

Respondent: Thank you very much for telling me the truth and for setting me free.

(c) On 26 September 2018:

Respondent: Raymond, thanks for everything I’ve learnt a lot from you during our time together even though we were only together as a married couple for four months. I think these are arrangements from above. I will not try to chase after what I vowed to marry until death. Our baby and I will wait for anytime that you would choose to come to us. I will not take another partner to replace you as it is my vow to be your wife. I will keep our vows to you till death do us part. There have been many problems and I apologize. I love you and I hope that our family gets together again because it is not too late I am a fighter and I do not want to lose my marriage. Take care and message me anytime if you need anything from me I will always make time for you.

There was no response that day.

(d) On 27 September 2018:

Appellant: You are not welcome here have a happy life.

...

Appellant: Go do something useful and stop calling me it is annoying.

Respondent: Please just answer me I am sorry. The useful work that I’m doing is to call and talk to you. Please unblock me so that I can call and apologize for everything I was wrong and I am the one that is now chasing after you because you still have my heart and that will never change.

Appellant: Stop calling other people’s phones, you are bothering me go do something useful.

Later in that exchange, the Respondent asked whether they could have dinner that night because she wanted to make things right that night. She begged him for a final chance.

Respondent: I beg you I will change, all the bad words I say to you I take them all back. I promise in the presence of God there will be no more fights because I want to move to your house so that we can live together as we are one since the day we took our vows. I know that I am fucked up but I ask for your forgiveness for the last time. I know you have given up because of what I did but like your mum said this is a small problem and we just need to talk about it and we move on as a family I am humbly asking you, I am the one with nothing and I did not mean to say anything about your family. I did not know what I was saying please forgive me.

The Respondent repeated similar overtures over a couple more messages. Later that evening:

...

Appellant: Enough is enough, go back to the men that you loved hard and they play you.

Respondent: Just one last chance I am asking so I can move over so we can live happily I only have you.

Appellant: I only make time for myself to clear my thoughts and mind to focus on what is a priority to me. ... Worry about yourself do not worry about me and butt out of my life because I do not care about what you did. I do now know the time that I would want to forgive you. It is better that we separated so that you learn something and I learn something about the things that we have been through. ... Send me credit so that I can go on the internet and post the car to be sold. ... Really not a good time to talk with you from now on, you just chased me yesterday do you think I am a toy for you to try and ask for me to come back no way you can be on your own. You chased me away and you swore at me hypocrite! You do not want to return my clothes you are cunning and that is okay because the things that I read from the text you sent me on the day I came back to my home and the things I read from the text you sent to Lika are enough for me to stay with while you go do what you think. ... I am free to do what I want and free to make my own will. You are old enough to do what you do. It is true I am younger and you are older so do what elders do because you swore at me saying that I still act like a child so do not try and hang on to me and chase after me, go and do what you want and what you think.

Respondent: I am sorry Moni, I did not mean or intend to chase you for good. I love you. I will go crazy thinking about you leaving me. Please just talk to me because I am stressed out and I cannot go on without you in my life.

Appellant: You are right to get angry at me and chase me. You are right to be suspicious of me going with other people but that is okay because that is me, however you I did not know who you went before etc. so you say I judge etc. but what about you. If I said anything to you, you will get angry but that is okay mind your own business.

Respondent: During our marriage I did not have any relationship with other people because I put our marriage and vows first even though there were many times that I was in pain because you told me you went with other people. I personally told your mother that you had told me that you went with other people but she did not believe me. You told me you went with other people, is that a husband who is right or wrong? However no more talking about the past. You do whatever it is you are thinking about now. I am sorry for bothering you but I am doing this because I love you Moni. I’ve learned a lot from you and even though you pushed me around in the room I did not say anything because I love you. I only say the things I say because it’s not easy to swallow the things you’ve said especially when you told me about the people you went with and yet we took a vow to be married and to stay faithful to each other regardless of the extend of our problems. I will wait for the time you decide you’ll come back to me.

(e) On 30 September 2018:

Respondent: I will not get tired from asking you for forgiveness. I will stay faithful to you until death ....

Appellant: Forgiveness will sometime come when I die but living with you again killing me, suit yourself I do not care pick you and drop you, you have shown you’re a good wife by that. Go do whatever it is you want and I don’t want to see you write paragraphs to me this is rubbish to me.

(f) On 2 October 2018:

Respondent: How was your day?

Appellant: Good evening friend. I am okay. What do you want?

Respondent: Why do you call me friend?

Appellant: No friend, you are not wanted. ...Do not ever reply to this number ever again. [with an emoji gesture of a hand with the middle finger up]

(g) On 17 October 2018:

Appellant: Your mind is in the wrong place. I was going to remind you but your chicken brain does not get it. However you have your own path and so do I, never will be a time I will choose you again. Our child I will find some day but you are such a loser to me. Call yourself a wife and begging for a second chance but your reaction lately is that you’re looking down at me and my work.

(h) On 30 October 2018:

Respondent: Glad to hear that you have someone else who always comes and picks you up and that you move on easily, sad but I am happy it is your choice.

Appellant: Well least I can do was forgive anyways so long [Respondent’s name].

Respondent: Are you seeing someone else? Please answer me so that I could at least try to free my mind

Appellant: I thought I had made it clear. You are so funny. I bet you still have our previous conversation so get over it. I’ve already made it clear, never will be a chance with you. I’m happy on my own with my family. Already moved on. Stop being a hypocrite. What you told me I will follow. Never will I set foot in your house etc. but I forgive you for everything you have done for me. It will be my stepping stone for my next move in life. Forgive me for everything you accused I have done, yes everything you say is true. So good luck with the truth will set you free like you always say anyways take good care mommy ....

Notwithstanding that, the Respondent continued to ask the Appellant for his forgiveness and continued to profess her love for him.

...

Appellant: Please do not text my number again. I do not want your random rubbish, rambling and request. So hypocritical that you scolded at me and ranted at me and then ask for forgiveness. Anyways funny that you are sending bible verses. Thanks, bye.

Respondent: Okay everything is now clear I want to make it clear for you that you are the hypocrite. Why did you get married? That is hypocritical. Go and do whatever you desire. I do not know how long I will go with this pain. That is okay. I’m holding on to everything that you’ve said. Thank you.

(i) On 7 November 2018:

Respondent: Do you want to come visit today like old times? I am still hoping one day you will surrender and come back I am still waiting.

(j) On 10 November 2018:

Appellant: Nup.

(k) On 13 November 2018:

Respondent: Do you still love me? I need to know please

Appellant: I do not know.

Respondent: Okay I’m sorry to bother you.

Appellant: Cut the crap. I am so done with you. Been drinking a lot to get my mind together so I have managed to focus again on what is important for my career. Thanks for stopping by but if you’re trying to convince me or something, nah, I am not that easy to fall for that again. Sorry for everything though. Take good care. No more love life for me anymore. Get a life for yours.

(l) On 20 November 2018:

Respondent: I know you’re going out with that bitch from Lapaha. Amazing that you take her out in our family vehicle and now it smells. Amazing that you upload photos with glasses on her face but I am your wife. I do not care but I want you to think about how do you feel if I were to do the same. This is a strange type of love. It is okay at least you are happy but do not get mad and then go get girls and stuff like that because I will not be able to do that to you because I love you. Your kind of attitude is not good. Anyways please try to stop and care about me and the child that I am carrying that is important. Bae, when it is December I will come back to you for us to stay together I am on leave I love you.

Appellant: Please stop trying to be over-confident. There are a lot of good people out there that are good enough for me. What is it that you are investigating at Lapaha? Are you reminiscing about the time you used to stay at Lapaha? Your brain is damaged so early in the morning, go to church and pray hard. It is my single page. Please do not interfere with my new page, it is my new life for a new start. Thank you a lot for stopping by yesterday that is all. Please go back and just stay where you are. Take care and good luck.

The Respondent repeated her requests for the Appellant to return.

Appellant: No. ... Stop making things for you to be stupid. I am over things. When would you understand you are already old enough. How many times do I have to tell you.

...

Respondent: Can you wait to get baby registered tomorrow before you go and pick up your birth certificate please.

Appellant: What I want to make clear is that I no longer want to be together with you since what happened and I learned from it and I’ve moved on. Having that child meant a lot but you have already told me that you do not want me to see him etc. Anyways I already forgive you, I will leave baby to stay with you if you want but I will wait for the day when he wants to come visit me, I just hide my feelings for him. I am trying now to get a future so that when he grows up and needs it. If he needs something in the future I will be there for him. I only have my life to live with my family. So please do not bother to think this will change my mind. I am really sorry for all my wrongdoings. Anyways no long paragraphs it is better for us this way. Let the little boy have his freedom until he decides to come visit if he wants.

34. Returning to the chronology. On 26 October 2020, the Appellant filed submissions in reply to the Respondent’s submissions. Importantly, those submissions did not refer to any evidence about the circumstances of the separation nor any denial of the wife’s account about those circumstances and the reason for her evicting him from the house. The Appellant did submit that:
    • (a) the Respondent’s reasons based on text messages and calls from other women were “speculative and footed in pure jealousy”;
    • (b) it was she who had driven the relationship to “extreme bitterness and hatred and resulted in eruption of anger and Respondent kicking Appellant out with clear expressed intention of severing their relationship”;
    • (c) the wife’s action was not justified at law and was heavily actuated by jealousy;
    • (d) the Appellant had rightful cause to leave as he could no longer tolerate her jealous conduct;
    • (e) the Respondent deserted the Appellant because “she chased him out with every intention for him not to return to their home and to end their matrimonial relationship”.
35. On 29 October 2020, the hearing resumed. Again, there was no evidence from the Appellant in relation to the circumstances leading to the separation and since. His counsel sought to call evidence from the Appellant by video link as he is employment in efforts concerning the Coronavirus pandemic and was therefore in lockdown work at quarantine facilities. A further adjournment was granted for that purpose.

Evidence at the final hearing

36. On 12 November 2020, the final day of hearing, the Appellant, who was still in lock down with his employment, gave evidence by telephone. Apart from recounting what both parties had deposed in their affidavits about the circumstances of the separation, the Appellant gave the following further evidence:
    • (a) he understood his wife’s position in relation to the marriage from the transcript of the text messages between them at the end of 2018;
    • (b) he accepted that he told her that he would not be coming back at that time because he wanted to “settle down his state of mind”;
    • (c) there had never been a time yet that he thought to end the marriage but he wanted to think about his family’s future before making a final decision;
    • (d) when asked about how he now felt in 2020 and why it has taken him so long to make a final decision about the marriage, the Applicant said “the truth is I’m just tired of being looked down at since I was married for four months”, and that he still needed more time to think about the marriage;
    • (e) he denied any basis for his wife to be jealous or suspicious about him;
    • (f) he was never been jealous or suspicious about her being unfaithful in the marriage;
    • (g) his other complaints about the marriage included:
      • (i) when they were living together, the wife was a strong jealous woman;
      • (ii) she was very difficult in all their discussions and “he felt he had no voice”;
      • (iii) she constantly accused him of lying; and
      • (iv) she always brought up that he had come from a poor family because he could not provide a house for them to live in.
37. Then, for the first time, the Appellant gave evidence about an occasion when they were separated but the wife was still pregnant and she had gone to the hospital for certain tests. He said the pregnancy ward at the Vaiola Hospital contacted him in relation to his wife and asked him to come to the hospital to talk about her test results. At lunch time that day, he went to the hospital. The Respondent was there. He said the nurse informed them both that the tests results showed that the wife had tested positive for gonorrhoea. The Appellant said that when he heard that, he was mad, upset, confused and deeply upset. He immediately thought that the disease was caused by adultery or transmission by sexual intercourse. He said he was prescribed antibiotics. There was no evidence whether he was tested for gonorrhoea himself. He said that one of the reasons he stayed away from his wife was to calm down before addressing how she contracted the disease. He then said that from his experience (which I infer to mean as a nurse), it was likely to have been caused since separation and that the Respondent had ‘gone with’ another man who must have tested positive for the disease.
38. In cross-examination, the Appellant was asked about the text messages and whether he accepted the truth of their contents. He repeated that he accepted the wife’s apology to him as expressed in those text messages. It was not clear whether he accepted the truth of what was said in the balance of the messages. Conversely, there was no evidence or suggestion by the Appellant that his statements in the messages, particularly those I have recited in this ruling, were not meant to be interpreted as the natural consequences of his intentions at the time. He went on to say in relation to other woman calling him, that he had many women calling him but that they were colleagues and friends. He said his wife was never entitled to be jealous. He was never suspicious of her and he would never had minded if other men called his wife. He said he had always tried to keep the peace.
39. He was further asked about the gonorrhoea matter. Again, he said he assumed that the Respondent had contracted it from another man. But, as Mrs. Fa’anunu pointed out to him, that did not seem consistent with his earlier evidence that he had never been suspicious or jealous of the wife during their marriage. I note however that the Appellant did say he believed that the Respondent must have contracted the disease from another man, post-separation. The Appellant recalled that his attendance at the hospital was on 19 October 2018 which was less than four weeks after separation. He denied any possibility of him having passed the gonorrhoea to his wife.
40. He was asked about the fact that his wife continued to text him for those two months or so after separation telling him that she wanted him back, that she was still connected to him and that she would not want another man. The Appellant had no answer for that.
41. Finally in cross-examination, the Appellant was asked about whether he intended to resume the marriage now that has been two years or more since separation. He said he was still in doubt and that he had no certain answer to that question.
42. The Respondent was then cross-examined. Counsel for the Appellant asked her about other problems in their marriage which caused arguments. The Respondent detailed a number, namely:
    • (a) The Appellant did not approve of the fact that the Respondent had a child from a previous relationship. He did not like the Respondent spending money on her daughter. She had not made any claim for maintenance from the father of her daughter because the daughter was illegitimate.
    • (b) When the Appellant went out drinking, he would tell her that he was going to his family’s house, but when she went there, his brother would tell her that the Appellant was not there. That led her to believe the Appellant was not trustworthy.
    • (c) When the Appellant used to pick the Respondent up from her work, he did not like having to wait any more than ten minutes, and if he did, he would get angry and leave, resulting in her having to walk home or catch a ride with colleagues.
    • (d) She agreed to counsel’s suggestion that she considered the Appellant to be a “prideful man who does not want to surrender to her”.
    • (e) The Appellant was “not an open person” who kept to himself. She believed that married people should be open with each other. She gave an example. The Appellant would not always give her access to his phone, and if they argued, he would change the password and not tell her.
    • (f) As he was a nurse, she trusted him and relied on him to support her when she was pregnant with their child. When she asked for assistance with problems like morning sickness and aches, he would tell her to “stop acting like a child because this was not her first pregnancy” or to “stop being childish and overreacting”.
    • (g) She also accepted that she accused the Appellant of being a pauper.
43. The gonorrhoea issue was again raised as being an issue or a problem between the two which may or may not have led to the separation. Somewhat quizzically, the Respondent gave evidence there were in fact two occasions on which this issue raised its head so to speak. It first came to the parties’ attention when they were still together in early September 2018. The Respondent said that she got a call from the hospital about a test result and was asked to come in to get antibiotics because the hospital had found a “germ” in her tests and that was all they said. The Appellant was at work that day. The Respondent said she went to the hospital and spoke with the nurse there who told her the ‘virus was gonorrhoea’. That was the first she knew of it. She was given a pill she assumed was an antibiotic to take on that occasion. To questioning from the Bench, the Respondent said that when she got home on the first occasion, she told the Appellant what had happened. He told her that he already knew because a friend of his from the laboratory had informed him. The Respondent said that the Appellant was not upset and that he just acted normally during their discussion. She told him that the hospital told her she may have contracted the disease from him. She said he did not respond and again was not upset. She asked him about the causes of it and he said she could have got it from “being dehydrated or not taking proper baths”. To that, the Respondent said she was surprised. She said at that point she did not want to sleep with him but only to make sure that the disease did not transmit.
44. Notably, that evidence was not matched by the Appellant’s account of the gonorrhoea issue. But also, in neither account was there any allegation or suggestion that the Appellant considered that his wife had been unfaithful. I asked the Respondent directly whether there was any basis for believing she could have contracted it from being unfaithful during her marriage. She said no. I then asked her whether there was any basis for believing the Appellant could have been unfaithful and thereby contracted it and passed it to her. The Respondent, perhaps not surprisingly, said there was. She referred specifically to the Appellant going out drinking and the times, during calls with him, that she could hear background noises including female companions with the Appellant. She said she put that to him when they discussed this issue. He denied it and told her that she ‘got it’, meaning she was the one who contracted the gonorrhoea. She said the Appellant told her to “drink lots of water and take baths”.
45. And that it would seem was about as far as this issue went at least on the first occasion. The second occasion, which was the one referred to by the Appellant, occurred after separation. As mentioned earlier, it was not a ground upon which the Appellant had ever previously asserted for the initial separation or to justify the continued separation.
46. The Respondent also gave further evidence about her discovering that the caller on the evening of the 23^rd and 24^th of September 2018 to her husband’s phone turned out to be ‘Amelia. She knew because she said her husband told her that it was ‘Amelia. And, so on 25 September 2018, when the Appellant told his wife that he was going to see ‘Amelia to return a laptop, the Respondent became upset and jealous about the possibility of her husband having a relationship with ‘Amelia. That suspicion was heightened by the fact that the two calls that weekend were not responded to by the caller who the Respondent later knew was ‘Amelia and that she hung up each time. It really all turned on the fact that the Respondent asked the Appellant to take her with him to see ‘Amelia and he refused to do so.
47. Finally, the Respondent was asked whether she still loved the Appellant. She said that she did. She was asked whether the fact that there had been no further texts since about January 2019, when apparently she wished the Appellant a happy new year, was evidence that she no longer had any intention of reconciliation. She said she was “still thinking about it”. That evidence must also be viewed in light of the multitude of rejections by the Appellant during the two months of text messages in which she pleaded for him to return.
48. In re-examination, the Respondent said that when she “threw the Appellant out”, she did not mean what she said to him and she certainly did not mean that she wanted to end the marriage permanently.

Closing submissions

49. Mrs. Fa’anunu repeated her previous written submission that this was a case involving the doctrine of constructive desertion. She posited two questions. The first was whether there was a good reason for the Appellant to leave the home. She submitted that there was but that the argument which led to that was normal, particularly for a young couple who’d only been married for some four months and that they were still getting to know each other. The second question raised by Mrs. Fa’anunu was whether there is there a good reason to leave the marriage for this long. Her answer in submission was ‘no’. She said that the Appellant no longer places any importance on the marriage and that he has deserted his wife and child. She also drew attention to the fact that the Appellant only started providing forms of maintenance (such as shopping) for his child once court proceedings had been commenced.
50. Mr. ‘Etika’s supplementary submissions to those who previously filed on this issue confirmed that the single issue for determination was whether the Appellant deserted the Respondent. He submitted that the initial desertion was in fact by the Respondent in her actions of throwing the Appellant out of the house. Mr. ‘Etika accepted, however, that after considering the text messages which passed between the two, there was a clear intention by the wife not to end the marriage. That meant, he submitted, that “the Appellant now had the burden to justify the desertion and the continued separation”. In support of that, he submitted that the fact that the Respondent was a jealous wife, that she had not given her husband any voice in their relationship and the gonorrhoea issue were justifications for the continuing separation. He also pointed out that now that there had been more than two years of separation, the wife could seek relief under the Divorce Act or some other avenue. He said that if the appeal succeeds, his client would not be claiming repayment of any maintenance paid and that he would voluntarily continue to maintain the child, which I assume to mean, at his own measure.

Consideration

51. Looking at the volume of documents filed in the proceeding and how hard fought the case has been, it is possible to lose sight of the fact that this and the proceeding below is in fact about the legal and moral obligations of the parties as married parents to support and maintain their child.
52. I have indicated briefly that both counsel included in previous written submissions reference to authorities, which I have considered, setting out the principles of the doctrine of constructive desertion. However, this is an unusual case which is not squarely addressed by those decisions. Nonetheless, those statements of principle provide some guidance.
53. The following principles are derived from the current online edition of Halsbury’s Laws of England.^[4]
54. Desertion is not to be tested by merely ascertaining which party left first.^[5] If one party is forced by the conduct^[6] of the other to leave it may be that the party responsible for the driving out is guilty of desertion.^[7] So for example if a husband without just cause or excuse persists in doing things which he knows his wife will probably not tolerate and which no ordinary woman would tolerate and then she leaves the husband would have deserted her whatever his desire or intention may have been.^[8] There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife and the case of a man who with the same intention compel his wife by his conduct to leave him.^[9] This is the doctrine of constructive desertion.^[10]
55. On the issue of proof of constructive desertion and presumption, it is as necessary in cases of constructive desertion to prove both the fact of separation and the intention to desert of the party charged with the desertion as it is in cases of actual desertion. The practical difference between the two cases lies in the circumstances which will constitute such proof for while the intention to bring the consortium to an end exist^[11] in both cases, in actual desertion there is an abandonment, whereas in constructive desertion there is expulsion by words or by other conduct. In a case of constructive desertion, the onus of proving that the intention to desert continues may be much lighter than in a case of mere withdrawal from cohabitation.^[12] A mere wish or intention that the other party should leave is insufficient by itself to constitute constructive desertion.^[13] The wish or intention must be accompanied by conduct which is of such grave and weighty character as to make cohabitation virtually impossible and which the court can properly regard as equivalent to expulsion in fact.^[14]
56. It is also said however that when the fact of separation is proved the intent to bring the home to an end can be inferred amongst other things from words so plain that the party using them may be taken to mean what he says.^[15] If there is no background of ill treatment it may well be more difficult to prove that mere words of expulsion were intended to be final, conclusive and effective then if there is such a background.^[16]
57. Conduct short of a fact in itself constituting irretrievable breakdown might be sufficient to justify the other party in leaving;^[17] but it is essential to examine the actual facts in order to see whether the conduct of a party who is to blame can fairly and clearly be said to have crossed the borderline which divides blameworthy conduct causing unhappiness to the other party from conduct equivalent to expulsion.^[18] The ordinary wear and tear or mere inconsiderate conduct which is one of the risks of conjugal life does not in itself suffice.^[19]
58. Of particular significance to the instant case is that where a husband induces by his conduct, not by mere hearsay, a belief in his wife that he was conducting an improper affair with another woman and the wife acting on that belief left the husband or turned him out, she is not in desertion.^[20] Likewise, in a marriage there may be conduct in relation to a third person which is neither adulterous nor giving rise to a reasonable belief in adultery but which nevertheless is so inconsistent with the married relationship as to amount to expulsive conduct.^[21]
59. Where conduct of the required nature is established, the necessary intention is readily inferred,^[22] for prima facie, a person is presumed to intend the natural and probable consequences of his or her acts,^[23] and it is not necessary to show in a case of constructive desertion some definite evidence of a clear intention on the part of one party to drive the other away. The maxim does not express an irrebuttable presumption of law and it is only to be applied in connection with conduct which can fairly be described as expulsive.^[24]
60. Similar principles have been adopted in early decisions of the New Zealand courts when constructive desertion was also once a ground for divorce. Whilst we are here concerned with a different context, the same principles apply. In the decision of Bolton v Bolton [1952] NZLR 238, Adams J held that in order to establish constructive desertion there must be proof of conduct equivalent to driving the other spouse away. That is conduct equivalent to expulsion and there must also be the intention of bringing the consortium to an end. Such intention may be inferred from the circumstances, but the acts relied upon equivalent to expulsion must be of a serious and convincing nature. Otherwise, there is not only no expulsion in fact but there is also no ground for inferring an intention to desert.^[25] His Honour.
61. In one of the last decisions in Australia on the doctrine, Chief Justice Dixon in Deery v Deery [1954] HCA 4; (1954) 90 CLR 211 surveyed many of the English decisions referred to above, and others, in largely following the principles therein.^[26] He observed, within the facts of the case before the court, that it is one thing for a husband to regard his matrimonial lot as hard because of the unfortunate nature and disposition of the wife, but it is another to say that his wife constructively deserted him when he departed from the matrimonial house. Temperamental, unstable, or other irregular behaviour by one party to a marriage must cause the other party distress and often misery. But the concept of constructive desertion cannot be stretched to cover cases of that sort. The concept is not an artificial one. Nor need the offending spouse be the one who has left the common home. There is a real desertion if by his or her conduct he or she intentionally drives the other away, and if there is no such real intention, there is no such desertion by him or her at all. The essential element of desertion must be an intention to bring the cohabitation to an end. It may be that the husband has behaved so badly that his wife leaves him, and it may be that his conduct amounts to cruelty when the wife can get a divorce on that ground but, before there can be a case of constructive desertion, the court must be satisfied that the conduct of the husband was such as to show a clear intention on his part to drive the wife away. There must be an intention on the part of the person charged with desertion to bring the cohabitation to an end.
62. His Honour observed that were then two schools of thought about constructive desertion. One school says that, in constructive desertion, as in actual desertion, a husband is not to be found guilty, however bad his conduct, unless he had in fact an intention to bring the married life to an end. This school admits that there are many cases where he may be presumed to have that intention. For instance when a man deliberately makes his wife's life unbearable, he may be presumed to intend to drive her out, because he may be presumed to intend the natural consequences of his acts. But this school says that if in truth the facts negative any intention to bring the married life to an end, the courts should not attribute it to him. For instance, the conduct of an habitual criminal or an habitual drunkard may be so bad that his wife is forced to leave him; but he may be devoted to her, and the last thing he may intend is that she should leave. In such a case this school of thought would hold that there is no desertion. The other school of thought does lip-service to the necessity for such an intention, but says that, even if the husband had no intention in fact to bring the married life to an end, yet he is conclusively presumed to intend the natural consequences of his acts, and if his conduct is so bad or so unreasonable that his wife is forced to leave him, he must be presumed to intend her to leave and he is guilty of constructive desertion, however much he may in fact desire her to remain.
63. Dixon CJ considered the views of the first school to be logically unanswerable. He opined that when people say that a man must be taken to intend the natural consequences of his acts, they fall into error: there is no 'must' about it; it is only 'may'. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn.
64. From those principles, the task in this case, broadly speaking, is to consider the conduct of each of the parties. I commence with a consideration of the Respondent for it is the Appellant who asserts that his wife deserted him.
65. Looking at the wife’s conduct, there is no doubt that she turned the husband out of the house. On the authorities, that may be considered as the act of desertion. However, in my view, there is no evidence that she intended at that time or since to end the marriage. The text messages passing between the parties for the two months following their separation are the most cogent evidence of their expressed attitude towards each other and their intentions for the future of their marriage. They are replete with pleas by the wife for her husband to return and for them to resolve their differences and continue the marriage. I am therefore satisfied that the Respondent here did not evince the requisite intention to permanently end the marriage at the time of separation or since. She therefore cannot be the deserter.
66. That leaves the question then of whether the husband/Appellant has deserted the wife and their child. That calls for analysis of the evidence as to why the wife turned him out on 25 September 2018. Much of the evidence was directed to the wife’s suspicions that her husband was engaging in improper relationships with other women. She referred to text messages. No text messages between the husband and any other women have been presented in evidence in this case. The husband simply went as far as denying any improper relationships and referring to the other people with whom he had text conversations as friends and colleagues and that all they talked about were work matters. In circumstances where the wife has gone to the trouble, correctly in my view, of exhibiting the text messages between her and her husband following their separation, it was reasonable to expect that the husband would adduce evidence in the form of the text messages between he and those he referred to as friends but whom the wife suspected were women with whom the husband was having improper relationships. The failure to do so, without any reasonable explanation, gives rise to an inference that had the husband presented those text messages, they may not have assisted his assertions that that those persons were only platonic friends.^[27]
67. There is also the ‘Amelia chapter in the evidence. It seems common ground, and the Appellant has not sought to refute, that it was ‘Amelia who rang the Appellant’s phone at about 11pm on the Saturday night before separation and again on the Sunday morning when he was at church. The Respondent answered the phone on both occasions and the caller did not respond but hung up. I accept that the Appellant told the Respondent that the caller was ‘Amelia. Then, on the morning of the separation, the Appellant said he was going to take a laptop back to ‘Amelia at TCC but he refused to take his wife with him. That instigated their last fight which saw the wife put the husband out.
68. The third component of the evidence on this enquiry was the gonorrhoea issue. In my view, the attenuated evidence by the Appellant about this compared to the more detailed and comprehensive account by the Respondent was telling.
69. This issue was never been raised before in any affidavit filed on behalf of the Appellant, and as the history of this matter shows, there have been a number. No documentary evidence has been adduced about the test results. There was no medical evidence called by either party. The Appellant’s evidence did not extend to any discussion or medical evidence as to how or from whom the Respondent contracted gonorrhoea. He was silent as to whether there was any possibility that he had first contracted it and passed it to her. The issue was never raised by the Appellant as a separate ground for the initial separation or the continued separation until his evidence during the final hearing. During closing submissions, Mr. ‘Etika said that he only found about the gonorrhoea issue from his client very recently. It was self-evident from the examination in chief of the Appellant that Mr. ‘Etika had little if any in the way of detailed instructions about such a significant matter.
70. That the Appellant did not refer to the fact that the gonorrhoea first arose when they were still living together reflected poorly on his reliability as a witness. So too did the fact that he never raised it all until the final hearing. But what is more striking about the account by the Respondent, which was not contradicted, was how when she spoke to her husband about it after coming back from the hospital, he was described as being quite calm. Further, in my view, what he did say to her suggested a desire to seek to deflect the issue by saying that she should drink plenty of water and take proper baths.
71. The obvious issue between them at the time was whether one or possibly even both of them had been unfaithful and contracted it from a third party and brought it into the marriage. It is not clear whether the husband actually had it on the occasion it was first discussed. It is clear from his own evidence that he was called to the hospital for the second lot of pills as the wife described it after they separated. But one would have thought that if the husband believed that his wife had contracted gonorrhoea, by having an extra marital affair, he would have accused her of it. There is no evidence that he did so. On the other hand, the wife gave evidence that she did put that to him, and she explained her basis for believing that it was possible her husband could have contracted it from somebody else by referring to him going out and drinking at places where, during calls, she would hear in the background the sound of female companions with him. His response to that, by her account, was less than convincing.
72. It is unnecessary for me to decide ultimately whether one party or the other was being unfaithful in the marriage and whether that was a material factor in the separation or the continuation of it. It is sufficient for me to be satisfied as to whether the wife had a reasonable basis for suspecting that her husband may have been unfaithful and, if short of unfaithful in the sexual sense, that he was carrying on relationships with other women which were inconsistent with his obligations to the marriage. Having regard to the evidence outlined above and the analysis provided, I am satisfied that the wife did have a sufficient basis for at least suspecting that her husband was not being faithful or no longer honouring his obligations of fidelity to her. Viewed in that light, the husband was the factual deserter.
73. On the second requirement for a finding of constructive desertion, I consider that the best evidence available of the husband’s intention not to continue this marriage is in the text messages which have been painstakingly recorded above. On numerous occasions, he made it absolutely clear to the wife that he had no interest in returning to or continuing the marriage. In fact, there were even tones of gloating about the fact that he was happier on his own, that he was free, and he was doing what he wanted to do.

Result

74. For those reasons, I find that the Appellant here did desert the Respondent. It follows that s.2 of the Act is engaged. The Magistrates Court (and this Court on appeal) therefore had jurisdiction to grant relief under the Act.
75. Because of the forensic decision taken by counsel for the Appellant to confine this appeal to the single jurisdictional issue, it must follow that the appeal be dismissed.
76. Secondly, the order of this court for interim maintenance during the proceeding is vacated or discharged.
77. Thirdly, the original order of Magistrate Pahulu-Kuli requiring the Appellant to pay maintenance of $160 a fortnight or $80 per week is affirmed. I will vary it however to require that the payments be made directly by the Appellant’s employer by electronic transfer to the Respondent’s bank account. The details of that can be agreed by Counsel.
78. Fourthly, the Appellant is to pay the Respondent the difference between the amount the subject of the Magistrates Court original order, since the date of that order, and that which the Appellant has paid pursuant to the interim orders of this Court. I will allow 28 days for those arrears to be paid.
79. As the Respondent was legally aided, no issue of costs arises.

NUKU’ALOFA
12 November 2020	LORD CHIEF JUSTICE

---

^[1] Tonga v Tonga [2002] Tonga LR 1.

^[2] The Respondent gave evidence at the final hearing that the time of the call was about 11pm that Saturday night.

^[3] The Respondent gave evidence that the call that Sunday was in the morning while the Appellant was at church.

^[4] Volume 72, matrimonial and civil partnership law, [4-32].

^[5] Lang v Lang [1954] 3 All ER 571 at 573.

^[6] Sullivan v Sullivan [1970] 2 All ER 168.

^[7] Pratt v Pratt (1962) 106 Sol Jo 876, CA.

^[8] Gollins v Gollins [1963] UKHL 5; [1963] 2 All ER 966 at 974, HL per Lord Reid.

^[9] Pike v Pike [1953] 1 All ER 232 at 233, CA.

^[10] Weatherley v Weatherley [1947] 1 All ER 563 at 564, 565, HL per Lord Jowitt LC.

^[11] Gollins v Gollins, ibid.

^[12] Herod v Herod [1938] 3 All ER 722 at 730.

^[13] Buchler v Buchler [1947] 1 All ER 319 at 325, CA per Lord Greene MR.

^[14] Young v Young [1962] 3 All ER 120, DC.

^[15] Lane v Lane [1952] 1 All ER 223, CA.

^[16] Young v Young, ibid.

^[17] Buchler v Buchler, ibid.

^[18] Spence v Spence [1939] 1 All ER 52 at 58.

^[19] Marjoram v Marjoram [1955] 2 All ER 1 at 8.

^[20] Baker v Baker [1953] 2 All ER 1199 at 1200, DC.

^[21] Hind v Hind [1969] 1 All ER 1083 at 1086.

^[22] Buchler v Buchler, ibid.

^[23] Lane v Lane, ibid.

^[24] Waters v Waters [1956] 1 All ER 432 at 440, DC.

^[25] Referring to Buchler v Buchler, ibid. Bain v Bain [1923] Victorian Law Reports 421 followed.

^[26] Commencing at paragraph 10 and following.

^[27] Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298.