Daniel v Daniel [1906] HCA 74

4 CLR.) OF AUSTRALIA. 563

{HIGH COURT OF AUSTRALIA.)

DANIEL. F g c a' : . APPELLANT;

AND

DANIEL. : cs A é 3 . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Husband and wife—Divorce—Custody of child of marriage—Discretion of Judge— Hi. C. oF A.

Matrimonial Causes Act (N.S. W.), (No. 14 of 1899), sec. 4. 1906. Appeal to High Court—Question of status under laws relating to divorce—Judiciary Rania Act 1903 (No. 6 of 1903), sec. 35, sub-sec. (a) (3)—Special leave—Practice. No

An order of the Judge in Divorce under sec. 4 of the Matrimonial Causes Grisith 0.3., Act 1899, awarding the husband, the successful petitioner in a suit for dis- Marton and solution of marriage, the custody of a child of the marriage is not a judgment which "affects the status of any person . . . under the laws relating to divorce" within the meaning of sec, 35, sub-sec, (a) (3), of the Judiciary Act 1903.

In the exercise of the powers conferred upon the Divorce Court by the Matrimonial Causes Act 1899, with regard to the custody of children, the Court has a wide discretion, which will not be reviewed by a Court of Appeal unless it is exercised capriciously or upon a wrong principle.

Principles to be observed by the Court in the exercise of its discretion, considered.

On the hearing of an appeal from a judgment of the Supreme Court, which had been set down to be heard without special leave, the High Court held that the judgment appealed from was not one from which an appeal lay as of right under sec. 39 of the Judiciary Act 1903, but allowed the appellant to move forthwith for special leave to appeal, and proceed at once.

Special leave to appeal from the decision of Simpson J., 6th March 1906, refused,

AppEAL from an order of Simpson J. in the Supreme Court of New South Wales in its Matrimonial Causes Jurisdiction.