Shanks v Shanks - [1942] HCA 6

HUGH TEMPLE SMELLIE SHANKS

KATHLEEN ALEXANDRA SHANKS AND

RESPONDENTS. ANOTHER

RESPONDENT AND Co-RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF High Court-Appeal as of right " Judgment

which affects the status of any person under the laws relating to marriage or divorce - -Dismissal of petition for dissolution of marriage-Judiciary Act 1903-1940 (No. 6 of 1903-No. 50 SYDNEY,

of 1940), sec. 35 (1) (a) (3). April 8-10.

A decree dismissing a petition for dissolution of marriage is a judgment which affects the status of a person under the laws relating to marriage or divorce within the meaning of sec. 35 (1) (a) (3) of the Judiciary Act 1903- 1940; therefore an appeal as of right will lie therefrom to the High Court.

APPEAL from the Supreme Court of New South Wales.

Hugh Temple Smellie Shanks petitioned the Supreme Court of New South Wales in its matrimonial causes jurisdiction that his marriage with his wife, Kathleen Alexandra Shanks, be dissolved on the ground of her adultery with a named co-respondent. In a petition brought by the wife she sought a decree of judicial separation on the ground of her husband's cruelty to her.

The suits were consolidated. Bonney J. found that the wife and co-respondent were not guilty of the adultery as alleged and dismissed the husband's petition.

A decree for judicial separation was made on the wife's petition.

From these decisions the husband appealed to the High Court. The only matter calling for report is the preliminary objection taken by the respondents as to the competency of the appeal against the dismissal of the petition for dissolution as an appeal as of right.

65 CLR 335

Windeyer K.C. (with him Badham), for the appellant. Clancy K.C. (with him Maguire), for the respondents, took the preliminary objection that a decree dismissing a petition for the dissolution of a marriage is not a judgment which affects the status of any person under a law relating to marriage or divorce within the meaning of sec. 35 1 (a) 3 of the Judiciary Act 1903-1940, and that therefore an appeal as of right does not lie therefrom to the High Court.

Cur. adv. vult. The following written judgments were delivered

RICH AND WILLIAMS JJ. The appellant sued his wife for a divorce on the ground of her adultery with the co-respondent. The respon- dent petitioned for a decree of judicial separation on the ground of cruelty. The suits were consolidated and ordered to be tried together. His Honour dismissed the husband's petition and allowed the wife's petition the husband then appealed to this court.

The respondent and co-respondent took the preliminary objection that the petitioner did not have an appeal as of right, and the deter- mination of this point depends upon whether the decree affects the petitioner's status under the laws relating to marriage and divorce. The Judiciary Act 1903-1940, sec. 35 (1) (a) (3), in our opinion does give the petitioner an appeal as of right. It applies…

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 Shanks v Shanks

Details

AGLC: Shanks v Shanks [1942] HCA 6
Case: [1942] HCA 6
Decision Date: 10 April 1942

CaseChat Overview and Summary

The appellant, Hugh Temple Smellie Shanks, appealed to the High Court against a decision of the Supreme Court of New South Wales. The dispute arose from consolidated matrimonial causes. The appellant had petitioned for the dissolution of his marriage on the grounds of his wife's adultery, while his wife had petitioned for a judicial separation based on his cruelty. The Supreme Court dismissed the husband's petition for dissolution and granted the wife a decree for judicial separation. The respondents raised a preliminary objection to the competency of the appeal as of right to the High Court concerning the dismissal of the dissolution petition.

The primary legal issue before the High Court was whether a decree dismissing a petition for the dissolution of marriage constituted a judgment that "affects the status of any person under the laws relating to marriage or divorce" within the meaning of section 35(1)(a)(3) of the Judiciary Act 1903-1940, thereby allowing an appeal as of right. The respondents argued that a dismissal did not alter the status of the petitioner, and thus no appeal as of right lay.

The High Court, in dismissing the appeal, held that a decree dismissing a petition for dissolution of marriage does affect a person's status under the laws relating to marriage and divorce. The Court reasoned that the right to seek dissolution is a legal right attached to the status of marriage, and a wrongful dismissal of such a petition impacts this right. The word "affects" was interpreted broadly to include judgments that touch upon or relate to status, not merely those that change it. Therefore, the dismissal of the husband's petition fell within the scope of section 35(1)(a)(3), entitling him to an appeal as of right. The Court also found that the evidence presented justified the Supreme Court's dismissal of the husband's petition, and thus the appeal was dismissed on its merits.

Orders