Brennan v Brennan

This case involved an appeal to the High Court of Australia concerning a decree nisi for divorce granted by the Supreme Court of New South Wales. The original proceedings were consolidated suits where the wife petitioned for divorce on the grounds of desertion, and the husband petitioned for restitution of conjugal rights and later for divorce on the grounds of his wife's adultery. The trial commenced before one judge, but he died after all oral evidence had been presented. A second judge, with the consent of both parties, read the transcript of the evidence in his chambers, recalled two witnesses for further questioning, heard counsel's addresses, and then granted the husband a decree nisi for divorce, dismissing the wife's petition and the husband's petition for restitution of conjugal rights.

The primary legal issues before the High Court were whether the proceedings before the second judge constituted a proper hearing, specifically in light of section 77 of the *Matrimonial Causes Act 1899-1951* (N.S.W.), which mandates oral examination of witnesses in open court. Additionally, the Court had to determine the effect of any procedural irregularities on the validity of the decree absolute, particularly in relation to section 28 of the same Act, which outlines when parties to a divorce may remarry.

The High Court held that the procedure followed by the second judge did not breach section 77 of the *Matrimonial Causes Act*. While the judge read the transcript in his private chambers, this was for familiarisation purposes and the subsequent proceedings, including the recall of witnesses, counsel's addresses, and the pronouncement of the decree, all occurred in open court. The Court also found that even if there had been a fundamental irregularity in the proceedings, a decree absolute for divorce, once the conditions of section 28 of the Act were met, becomes unassailable and cannot be set aside, regardless of how it was obtained. The Court noted that the parties' consent to the procedure before the second judge further precluded them from complaining of any irregularity.

Ultimately, the appeal was allowed. The High Court varied the decree nisi, setting aside the findings of adultery against the wife and instead granting the dissolution of marriage on the grounds of the husband's desertion. The order regarding costs concerning the adultery charge was also varied, and the decree nisi was to bear the date of the High Court's judgment.