WOODS V. WOODS AND ANOTHER 18/1950

Pig Yr 9S C v4

IN THE HIGH COURT OF AUSTRALIA

H. Daw, Go Pr, Met, on Tuesday, 31st October, 1950. cease8n/a5

WOODS ve __ WOODS_ & ANOR.

ORDER.

Appeal dismissed with costs.

WOODS ve WOODS & ANOR.

JUDGMENT, MOTIERNAN J.

WOODS Ve WOODS & ANOR.

JUDGMENT (ORAL) MCTIERNAN J.

This is an appeal from a judgment of Mr, Justice O'Bryan refusing a decree for dissolution of marriage. The husband brought a suit for divorce on the ground of his wife's adultery.

His Honour was not satisfied that the adultery alleged was proved.

His Honour also said that if he had to make a positive finding, it would be that adultery was not committed by the wife with the co-respondent.

The husband challenges these findings and asks the Court to reverse them and find instead that the wife and co- respondent were guilty of adultery.

The appeal is therefore against a finding on a question of fact. The rules which the Court must apply to decide the appeal are well settled. I do not re-state them. I shall endeavour to apply them.

The onus was on the husband to prove that his wife and the co-respondent committed adultery. This is not a light onuse Adultery is a serious matrimonial offence. The situation is therefore that the appellant who had the onus of proof at the trial, asks this Court, on appeal, to find that the trial judge ought to have found that adultery was conmitted. The appellant has the onus of satisfying the Court that the trial judge's finding was wrong.

The evidence has been reads The reasons which

Mr. Justice O'Bryan gave for his judgment set out accurately and

adequately all the important facts. I adopt His Honour's

statement of the facts.

The husband alleges that adultery was committed by the wife with the co-respondent on a number of occasions between September 1948 and July 1949. The wife and co-respondent met in September 1948. The evidence upon which the husband relies consisted of the numerous telephone conversations between the wife and co-respondent: the precautions which they took against being observed when they met: the suppression by the wife from her husband and her relations of the existence of her association with the co-respondent: frequent drives together in the co-respondent's car: the evidence about the session in the co-respondent's car at North Balwyn in November 1948: the interviews between the inguiry agent Scott and the wife and co-respondent.