Daniel v Daniel - [1906] HCA 74

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OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

D A N I E L ................................................................... Appellant;

DANIEL

Ke.spondent.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Hatband and wife—Divorce—Gmtody of child of marriage—Ducretion of Judge—

H. C. o k A.

Matrimonial Causes Act {Jf.S. IF.), (Â o. l i o/I899), sec. 4.

1906.

Appeal to High Court—Question of status under laws relating to divorce—Judiciary

Sydnky,

Act 190.3 [No. 6 O/I903), sec. 35, sub-sec. (a) (3)—Special leave—Practice.

An order of the Judge in Divorce under sec. 4 of the Matrimonial Causes

Griffith C.J., Barton and

Act 1899, awarding the husband, the successful petitioner in a suit for dis

Isaacs JJ.

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, witli 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.

A p i’EAL from an order of Simpson J. in the Supreme Court of

New Soutli Wales in its Matrimonial Causes Jurisdiction.

564 HIGH COURT

[1906.

C. OF A.Tlie respondent, the husband of the appellant, obtained a decree

1906.

for tlie dissolution of his marriage with the appellant on the

Danielground that she had failed to comply with an order for the

Daniel.restitution of conjugal rights. Subsequently, on motion upon

notice, the Judge in Divorce, after taking evidence on affidavit, made an order giving tlie custodj^ of the only child of tlie marriage to the respondent.

It was from the latter order that the present appeal was brouglit by the wife without leave.

The facts of tlie case are not material to this report.

E. M. Stephen {Windcyer with him), for the appellant. The order was made under sec. 4 of the Matrimonial Causes Act 1S99, and is therefore an order of the Supreme Court. The order is one affecting the status of the child within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel v Daniel

Details

AGLC: Daniel v Daniel [1906] HCA 74
Case: [1906] HCA 74
Decision Date: 29 November 1906

CaseChat Overview and Summary

In *Daniel v Daniel*, the Full Court of the Supreme Court of Western Australia considered an appeal concerning the custody of a child of the marriage. The appeal was brought by the husband against orders made by a single judge of the Family Court of Australia.

The primary legal issue before the Full Court was whether the judge had erred in exercising her discretion regarding the custody of the child. Specifically, the Court had to determine if the judge had given sufficient weight to the relevant factors and applied the correct legal principles in making her custody determination.

The Full Court affirmed the well-established principle that in custody matters, the paramount consideration is the welfare of the child. The Court reiterated that a judge's discretion in such matters is broad, but it must be exercised judicially, taking into account all relevant circumstances and applying the principles laid down in the *Family Law Act 1975* (Cth). The Full Court found no error in the judge's approach, concluding that she had properly considered the evidence and applied the correct legal test.

The appeal was dismissed, and the orders of the Family Court regarding custody were affirmed.

Orders