Mann v Mann [1957] HCA 68

97 C.L.R.] OF AUSTRALIA.

{HIGH COURT OF AUSTRALIA.]

MANN z 5 ' 5 . : é : APPELLANT 3 PLAINTIFF, AND

MANN AND ANOTHER . 3 5 F . RESPONDENTS. DrrENDANTS,

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY.

Matrimonial Causes (N.T.)—Dissolution of marriage—Adultery—Evidence—Stand- ard of proof—Inferences—Matrimonial Causes Ordinance 1932-1949 (N.T'), 8s. 8, 15, 17.

Held following Watts v. Watts (1953) 89 C.L.R. 200 that the standard required to prove a charge of adultery is that laid down in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 and that-this standard will be applied unless and until that decision is clearly overruled by the House of Lords or Privy Council. Galler v. Galler (1954) P. 252, where it was held that a charge of adultery has to be proved beyond reasonable doubt, not followed.

Where the question is not what are the facts but what is the proper inference to be drawn from the facts proved, the appellate tribunal is no less competent to decide what these inferences should be than the judge who actually hears the case.

Paterson v. Paterson (1953) 89 C.L.R. 212, at p. 222, and Benmar v. Austin Motor Co. Ltd. (1955) A.C. 370, referred to.

In an action brought under s. 8 of the Matrimonial Causes Ordinance 1932- 1949 (N.T.) by a wife, B. against her husband, J., and a married woman, L., for an order for the dissolution of her marriage on the ground of J.'s habitual adultery with L. between August 1955 and May 1956, the judge accepted evidence which established: (1) habitual neglect by J. of B.'s company for that of L.; (2) frequent kissing and embracing between J. and L. in her bedroom in the daytime and at night; (3) the frequent presence of J. and L. in her bedroom during the daytime and at night; and (4) frequent absences from home by L.'s husband during the daytime and at night, thus providing opportunities to J. and L. for acts of affection and visits to the bedroom to