Lockhart v Lockhart [1961] HCA 27

Lockhart v Lockhart [1961] HCA 27

Although the primary judge did not err on the material before him in choosing to grant the wife a decree nisi and dismiss the husband's petition, the wife's subsequent use of s. 86 to prevent the decree nisi being made absolute created a different discretionary problem. The proper course was to vacate the dismissal of the husband's petition and remit the cause to the Supreme Court to be further dealt with on the jury's findings.

Jurisdiction
Australia
Procedural Posture
Appeal in Matrimonial Proceedings for Dissolution of Marriage / Appeal From a Decree Nisi Made by the Supreme Court of Victoria
Outcome
Appeal allowed
Legal Topics
['dissolution of Marriage' 'adultery' 'decree Nisi' 'judicial Discretion' 'remitter' 'costs']
['family Law' 'appellate Procedure'] ['dissolution of Marriage' 'adultery' 'decree Nisi' 'judicial Discretion' 'remitter' 'costs']

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Procedural Posture

Appeal in Matrimonial Proceedings for Dissolution of Marriage / Appeal From a Decree Nisi Made by the Supreme Court of Victoria

Legal Issues

  1. 1 ['Whether the primary judge erred by deciding to exercise discretion against the husband without hearing evidence from Mrs. Watts after the jury found adultery by both spouses.' 'How the appeal should be dealt with after the wife filed a writing under s. 86 of the Marriage Act directing that her decree nisi not be made absolute and the decree nisi was discharged.']

Ratio Decidendi

Although the primary judge did not err on the material before him in choosing to grant the wife a decree nisi and dismiss the husband's petition, the wife's subsequent use of s. 86 to prevent the decree nisi being made absolute created a different discretionary problem. The proper course was to vacate the dismissal of the husband's petition and remit the cause to the Supreme Court to be further dealt with on the jury's findings.

Court Disposition

Appeal allowed

Orders

  • ["So much of the decree of Monahan J. as dismisses the appellant's petition vacated." 'Cause remitted to the Supreme Court to be further dealt with on the basis of the findings made by the jury.' "The appellant to pay the first-named respondent's costs of this appeal." 'No order as to the costs of the second-named...