Hi Barbara, I thought you may be interested in this Newspaper article I found at http://newspapers.nla.gov.au/ndp/del/home
this is online at the National Australian Library
The Argus. Saturday 5th May 1866
DIVORCE AND MATRIMONIAL JURISDICTION.
OLD COURT-HOUSE.-FRIDAY, MAY 4.
(Before their Honours Chief Justice Stawell,
Mr. Justice Barry, and Mr, Justice Williams.)
TREACY (WIFE) V TREACY (HUSBAND).
A suit by Catherine Treacy (born M'Rae) for divorce from her husband, George Seward Treacy, on the grounds of cruelty, desertion and adultery.
Mr. Wood and Mr. Dobson for the petitioner.
No counsel appeared for the respondent, but he was present in court.
The petition alleged that the petitioner was born at South Yarra, near Melbourne, and is twenty-three years old. The respondent was born In King's County, Ireland, and is twenty nine years old, and has been a livery-stable keeper. They were married at the Independent Church, Collins-street, near Melbourne.
After marriage the respondent deserted her many times, and finally in February, 1860.
There has been no issue of the marriage. Since her desertion she has maintained herself, formerly as a governess, at the schools of Mrs.Damm, Miss Glenn, Mrs. Simpson, and Mrs. Parson by, and now as a schoolmistress on her own account. Mr. Sturt, the police magistrate, on the 23rd September, 1864, made
A protection order" as to the property acquired by her since the desertion. The respondent was guilty of cruelty by abuse of her, by charges of conduct improper in a virtuous wife, by attempts to deprive her of her character and situations as a governess,
and by threats of personal violence. A petition had been filed by the husband against the wife in July, 1663, praying a divorce on the ground of adultery with the co-respondent, Adalbert Krugo, now the Prussian consul. The wife and the co-respondent
Forth with answered that petition, denying on oath the charges made in it. The petition was not further prosecuted, and it was lately dismissed by his Honour Mr. Justice Barry in chambers, for want of prosecution.
The facts of this petition having been presented by the husband, and been dismissed as against him, after denial on oath of the charges made by it, were now brought under the notice of the Court by counsel for the petitioner, and the Court expressed its approbation of the course taken by counsel in not leaving the Court in ignorance of those facts. The co-respondent in the former petition also now attended, and offered himself for examination by the Court as to the statements made in it.
Catherine Treacy was examined by her counsel, and questioned by the Court.
Adalbert Krugo was also examined by the Court.
The CHIEF JUSTICE delivered the judgment of the Court:-The circumstances or the case were peculiar, but on the whole the petitioner seemed to have established her right to a divorce. There was no doubt of the adultery of the husband, The only doubt was, whether the other charges of desertion or cruelty, or the counter charges against tho petitioner herself, were made out. Those other charges, coupled with that of adultery made against the husband, were charges of cruelty and desertion. As to the charge of cruelty, the Court thought it not sustained. Tho husband was addicted to drunkenness, and had used coarse and filthy abuse, but the circumstances did not amount to cruelty. It was plain from the wife's own conduct that the alleged menaces did not cause her any real alarm.
His conduct, too, in accusing her in a way which nearly caused her to lose her situations, was not, under all the circumstances, that of a person deliberately seeking to cause that injury to her. It would on the whole, be stretching the evidence to deem it proof of the charge of cruelty. But this view of the evidence as to that charge rather increased
the difficulty of dealing with the other charge, that of desertion for it increased tho doubtfulness of the question-whether the desertion were not, in fact, rather a voluntary separation by mutual consent than a desertion by the respondent. It did not at first appear whether she would not have been ready to go back to her husband if there had not been a want of means to support her.
The evidence of desertion was not so satisfactory as might be desired, but, on the whole, the Court thought it was sufficient. The loath some conduct of the husband was in this aspect of the case an incentive to the wife to desire that he should leave her; and a mere voluntary separation was not desertion. But looking to the whole history of the case to the very proper struggle on the part of the wife to bear with and remain with her husband at first, to the circumstances under which he left her repeatedly without any, means of support, to the charges made against her and the manner in which they had been met by her and abandoned by her husband, to the circumstances under which she had entirely maintained herself-the Court thought that the charge of desertion was sustained. There remained only the counter-charges and the question of collusion. The co-respondent in the former case had been very properly called as a witness for the satisfaction of the Court.
He and the petitioner had denied on oath the imputations against them. The facts on which suspicion bud been based had been explained.
One of those very facts was originally stated by the petitioner herself, the borrowing of money from the co-respondent, and would not have been known had she herself not mentioned it. Tho volunteering of those facts by tho petitioner was in her favour. The Court with satisfied with the denials and explanations on oath of the present petitioner and tho co-respondent in the former suit. As to the collusion, the case was also peculiar. The former petition was apparently resisted in the most effective way possible it was contested, and ultimately defeated. It may possibly be that the husband may now be ready to permit the success of this petition without being guilty of collusion, by misleading the Court, or in any way keeping from the Court the real nature of the case, or any facts which the Court ought to possess. Tho mere fact that the respondent is not adverse is not sufficient to constitute collusion with the petition.
On the whole, we think that the petitioner is entitled to a decree for a divorce. Having regard to the respondent's conduct, we think that if he has the means he should pay the costs.
Decree for divorce, with costs.