MONAHAN V. MONAHAN

IN THE HIGH COURT OF AUSTRALIA

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REASONS FOR JUDGMENT

Judgment delivered at_M.

on. FRIDAY, 11TH OCTOBER. 1963

'A.C. Brooks, Government Pinter, Melbourne o.7639/00 i

MONAHAN Ve

MONAHAN

ORDER

Appeal dismissed with costs.

MONAHAN ve

MONAHAN

TUDGMENT TAYLOR J. MENZIES J.

MONAHAN ve

MONAHAN

The appellant was the petitioner in a suit for dissolution of marriage on the ground that his wife, the respondent, had committed adultery with a man named Schmidt between 11 p.m. on 8th July 1961 and 1.30 a.m. on 9th July 1961 in a room occupied by Schmidt at a hostel in Canberra. Schmidt was joined as co-respondent in the proceedings but died before the case was heard. The suit was tried by Eggleston J. in the Supreme Court of the Australian Capital Territory and, on the issue of adultery, the petitioner failed to satisfy his Honour that the charge made was established, The only matter argued on the appeal was that, on this issue of fact, the learned judge was in error and that the evidence did establish that adultery had taken place on this occasion. In his careful judgment his Honour dealt with the facts in detail and, for the purposes of this appeal, they may be briefly stated.

Over a considerable period of time there had been a close and friendly association between the respondent and Schmidt, to which both the petitioner and Schmidt's wife had ob jected. Nevertheless the association continued and some time in March 1961 Schmidt left his wife and apparently went to live at the hostel, It is clear too that the relationship between the petitioner and his wife was an wmhappy one. On the night in question the respondent and Schmidt were being followed and watched by a private detective named Jones and Mrs. Schmidt. They were seen to visit a hotel in Canberra where they had a number of drinks and danced until about