SERGEANT V. SERGEANT AND ANOTHER 29/1958

Me. 9 of 458 WU

iN THE HIGH COURT OF AUSTRALIA i

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{ SERGEANT AND ANOTHER r owt 4 REASONS FOR JUDGMENT

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Judgment delivered at__MELBOURNE.

on_.MONDAY 5. ¢

WM Houston, Gort, Priat., Melb,

SERGEANT v.

SERGEANT AND ANOTHER

\GMENT. DIXON C.J. (CORAL KITTO J.

SERGEANT

RANT OTHER

DIKON C.J.: This is an appeal from a decree of Mr. Justice Barry dismissing a petition in divorce. The petition was that of the husband and was based upon a charge of adultery with the co-respondent. The appeal involves nothing but a question of fact but the case has some unusual and curious aspects. It is not the first proceeding between the parties in the matrimonial jurisdiction. There was a prior petition which was that of the husband based on a charge of adultery with another co-respondent,. In that suit, the wife counter- petitioned on the ground of adultery. <The petition came before Mr, Justice Barry who after a hearing, dismissed both the petition and the counter-petition. The facts out of which this petition grows seem to have occurred before that petition was completely disposed of, or at least the incidents relied on began at that date.

The learned judge's finding was expressed with hesitation and doubt and he, in the course of his judgment, made it quite clear that he depended in no degree on the personal veracity of either the respondent or the co-respondent. As far as the co-respondent is concerned, he condemned his testimony, so far as its reliability went, in no uncertain terms. But his Honour, in the end, was left without that degree of satisfaction which is required in a case of a serious allegation such as that of adultery and he dismissed the petition.

The parties are not what is commonly called young, although thet is an epithet which depends upon the age of the person who uses it. They had two children, one of whom is sixteen years of age and the other a little younger. They