Daniel v Daniel [1906] HCA 74

Daniel v Daniel [1906] HCA 74

An order awarding custody of a child in divorce does not affect 'status' within sec. 35(3)(a) of the Judiciary Act 1903; thus, appeal does not lie as of right. The Divorce Court's discretion regarding custody is broad and will not be interfered with on appeal unless exercised capriciously or on a wrong principle, which was not shown here.

Parties
Appellant: Daniel; Respondent: Daniel
Jurisdiction
Australia
Judgment Date
29 November 1906
Procedural Posture
Appeal / Special Leave to Appeal (custody Order)
Outcome
special leave to appeal refused; appeal dismissed with costs
Legal Topics
Divorce, Custody of Child, Judicial Discretion, Appeals, Status Under Matrimonial Law
Family Law Divorce Custody of Child Judicial Discretion Appeals Status Under Matrimonial Law

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Daniel

Appellant

Daniel

Respondent

Procedural Posture

Appeal / Special Leave to Appeal (custody Order)

Legal Issues

  1. 1 Whether an order giving custody of a child in divorce proceedings is a judgment affecting 'status' under sec. 35, sub-sec. (a)(3) of the Judiciary Act 1903, permitting appeal as of right
  2. 2 Criteria and principles governing the exercise of judicial discretion in custody orders on divorce

Ratio Decidendi

An order awarding custody of a child in divorce does not affect 'status' within sec. 35(3)(a) of the Judiciary Act 1903; thus, appeal does not lie as of right. The Divorce Court's discretion regarding custody is broad and will not be interfered with on appeal unless exercised capriciously or on a wrong principle, which was not shown here.

Court Disposition

special leave to appeal refused; appeal dismissed with costs

Orders

  • special leave to appeal from Simpson J.'s decision refused
  • appeal struck out