Lockhart v Lockhart [1961] HCA 27

High Court of Australia Kitto, Taylor and Menzies JJ. Lockhart v Lockhart [1961] HCA 27

ORDER Appeal allowed; so much of the decree of Monahan J. as dismisses the appellant's petition vacated; cause remitted to the Supreme Court to be further dealt with on the basis of the findings made by the jury; the appellant to pay the first-named respondent's costs of this appeal.

The judgment of the Court was delivered by Kitto J.

May 22 Kitto, Taylor and Menzies JJ.

This is an appeal from a decree nisi made by the Supreme Court of Victoria, Monahan J., on a petition presented by the present appellant seeking the dissolution of his marriage with his wife, the first-named respondent, on the ground of her adultery with the second-named respondent, and a counter-petition by the wife seeking the dissolution of the marriage on the ground of the petitioner's repeated adultery with a Mrs. Watts.

In his affidavit verifying the petition, the appellant admitted that in October 1958 he had left the matrimonial home and gone to live at another home, and that Mrs. Watts was living with him there.

The case was tried by Monahan J. with a jury, and after a hearing lasting, I think, three days the jury returned a verdict finding that both the husband and the wife had been guilty of the adultery charged, and that the co-respondent, the present second-named respondent, had been guilty of the adultery charged with the wife. On that verdict, it was for Monahan J. to decide, in the exercise of the discretion which he had under s. 81 of the Marriage Act 1958 Vict., whether to pronounce a decree nisi for dissolution of the marriage on the petition or on the counter-petition, or to dismiss both the petition and the counter-petition.

During the hearing, counsel for the appellant intimated an intention of calling Mrs. Watts as a witness, but added that it need not concern the jury. After the jury had returned its verdict, the learned judge recalled counsel's intimation and counsel said that it was only on the question of discretion that he had intended to call Mrs. Watts. His Honour said at once that he proposed to exercise his discretion against the petitioner because of his adultery, and to grant the respondent wife a decree on her counter-petition.