Paterson v Paterson [1953] HCA 74

High Court of Australia Dixon C.J. Webb and Kitto JJ. Paterson v Paterson [1953] HCA 74

ORDER Appeal dismissed. The appellant Thomas O'Halloran to pay to the respondent Ian Bell Paterson his costs of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Dixon C.J. and Kitto J.

This is an appeal from a decree nisi for dissolution of marriage pronounced by Barry J. The petition was the husband's and the ground was adultery. The respondent wife and co-respondent appeal. The finding that she and he committed adultery is attacked on the ground that the evidence is circumstantial and the inference is not sufficiently sure, particularly having regard to the evidence in denial of the now appellants. It is said also that the learned judge set too indefinite or loose a standard of proof or persuasion. Then an objection to evidence is relied upon by the appellants. The evidence objected to consists in some cross-examination of the wife, which was allowed, upon the contents of a letter addressed to her which she had not received and which she had not before read.

The general circumstances of the case may be briefly stated. At the time of their marriage, which took place on April 2nd 1947, the husband and wife were respectively aged twenty-three and twenty years. He was an estate agent, an occupation he still follows, and she a factory worker. Two children were born of the marriage. The birth of the second was in February 1950. Difficulties arose between them some six months later. He seems to have complained that she went out and manifested too much interest in other men. She was not satisfied with his conduct. A young man wrote her a long letter dated 14th March 1951. Her husband seized it in the post before it reached her and retained it in spite of an ineffectual struggle on her part to wrest it from him. It was upon the contents of this letter that she was cross-examined. Some time in April after an evening out she returned late during his temporary absence from the house and went to bed. On his return he roused her, questioned her and slapped her face. On 3rd May 1951 she left him. Her husband's mother looked after the two children who have been in his custody since that time. All this took place at Geelong, where they lived. Not long after leaving her husband she went to live in Melbourne. In June 1951 he had her watched by a private inquiry agent for a short time. Nothing was discovered to implicate her. In January 1952 the wife came to live with her mother in Melbourne. She says that it was about this time that she first met the co-respondent, a man of forty-seven years of age, who, she says, had known her father many years ago and also knew her mother and sister. In July 1952, she went to live by herself in a flat in Chapel Street, St. Kilda. The flat was on the first floor of the building and included two bedrooms and a sitting room. The windows of the bedrooms gave on the street but those of the sitting room did not. In August 1952 the husband engaged another inquiry agent. His surveillance of the wife began on 24th August. On that day the inquiry agent followed her from Geelong, where she had visited the children, back to Melbourne. She travelled by bus and at the terminal in Melbourne the co-respondent met her. He drove her to St. Kilda where, after sitting for about three-quarters of an hour drinking and kissing, so the agent deposed, they went to a cafe. After spending half to three-quarters of an hour in the cafe they drove to the flat in Chapel Street. The inquiry agent watched the flat from about a quarter to ten that night, the time they entered, until about 11 p.m. At that hour the co-respondent was still there. Next, on 27th August the flat was watched from 9.30 p.m. until 11 p.m., when the respondent wife and the co-respondent emerged together. They drove to the same cafe and returned to the flat three-quarters of an hour later. They both appeared before the windows of a front room, a room which was described as a spare bedroom. According to the inquiry agent and his wife, who appears to have been his coadjutrix in the investigation, the flat went into darkness. They walked up the path at the side of the building but could see no lights. At twenty minutes past midnight the co-respondent came out of the flats, the respondent wife waved to him from a window and he drove away. On the evening of 31st August the co-respondent was seen at about a quarter to nine to enter the flat carrying what was described as a Gladstone bag. At about 10 p.m. he came out and drove away. Of the interval there was half an hour or so during which the flat was not under direct observation. It was because the respondent wife came across from the door of the building towards the inquiry agents' car and the agents thought it better to drive away. But the co-respondent's truck was parked there all the time and when he departed the respondent wife came to the window. The agents returned half an hour before the co-respondent's departure and during that half hour the lights were out. On 2nd September the inquiry agent and one of his assistants again watched the flat. They saw the forms of a man and a woman walking about the rooms and identified the co-respondent's car parked in a side street about 100 yards away where it remained. They watched from 8.30 p.m. to 10.30 p.m. and then left. For the last hour of that period the flat was in darkness. On the following night (3rd September) they watched again. The co-respondent's car drove up to the flat at about five minutes to eleven. He and the respondent wife alighted from the car and went inside. The lights of the flat went on and remained on until twenty minutes past eleven, when the co-respondent left by himself. On 7th September he and she and two others were seen to dine at the cafe about 8 p.m. Eventually about 10 p.m. his car drove up to the flats and stopped in front of them. The respondent wife was seated in the front seat beside the co-respondent. They sat there for twenty-five minutes, kissing each other on a number of occasions, if the evidence of the inquiry agents is correct. Then he drove away and she entered the flat. On 10th September it was decided to surprise the pair. After dining at the cafe the respondent and co-respondent returned about 8 p.m. to the flat, which they both entered. At about 9 p.m. the petitioner with three agents ascended the stairs and knocked at the flat door. It was opened by the respondent. They found the co-respondent standing by the fire. A conversation or altercation ensued which it is unnecessary to recount because, though it is relied upon by the petitioner, it really throws no further light on the question of guilt.