Locke v Locke [1956] HCA 18

Locke v Locke [1956] HCA 18

The decree nisi could not stand because the trial judge erred by first treating the incriminating circumstances as raising a presumption of adultery and then considering the medical evidence of the intervener's virginity only as rebuttal. The correct approach required weighing all the evidence together on the single issue of whether adultery, requiring some penetration, was proved to the requisite degree of reasonable or comfortable satisfaction. On the whole evidence, especially the unquestioned medical evidence that the intervener's hymen was unruptured and she presented all the indicia of a virgo intacta, it was unsafe to infer that partial penetration occurred.

Jurisdiction
Australia
Procedural Posture
Divorce Petition for Dissolution on the Ground of Adultery / Appeal to the High Court of Australia From a Decree or Order of the Supreme Court of New South Wales
Outcome
Appeal allowed.
Legal Topics
['adultery as a Ground of Divorce' 'burden of Proof' 'standard of Proof' 'medical Evidence' 'appellate Review of Factual Findings']
['family Law' 'evidence'] ['adultery as a Ground of Divorce' 'burden of Proof' 'standard of Proof' 'medical Evidence' 'appellate Review of Factual Findings']

Case Brief

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Procedural Posture

Divorce Petition for Dissolution on the Ground of Adultery / Appeal to the High Court of Australia From a Decree or Order of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether the decree nisi for dissolution on the ground of adultery could be supported.' 'Whether proof of adultery required a finding that some degree of penetration occurred.' "Whether the trial judge's approach of treating incriminating circumstances as raising a presumption of adultery, then considering medical evidence of virginity as rebuttal, was correct in law." 'Whether, on the whole evidence, an affirmative finding of partial penetration could safely be made to the requisite degree of judicial satisfaction.']

Ratio Decidendi

The decree nisi could not stand because the trial judge erred by first treating the incriminating circumstances as raising a presumption of adultery and then considering the medical evidence of the intervener's virginity only as rebuttal. The correct approach required weighing all the evidence together on the single issue of whether adultery, requiring some penetration, was proved to the requisite degree of reasonable or comfortable satisfaction. On the whole evidence, especially the unquestioned medical evidence that the intervener's hymen was unruptured and she presented all the indicia of a virgo intacta, it was unsafe to infer that partial penetration occurred.

Court Disposition

Appeal allowed.

Orders

  • ['Discharge so much of the decree or order of the Supreme Court of New South Wales dated 29th December 1955 as relates to the petition of Thelma Phyllis Lorraine Locke, No. 2142 of 1953.' 'In lieu thereof order and decree that the said petition be dismissed.' 'Order that the costs of the petitioner of the suit be...