AV Winslow J:

This is an appeal against the decision of a Judge who, having, in open Court, granted a decree nisi in September 1973 to the appellant/wife on the ground of her husband's cruelty on an uncontested divorce petition, made an order in February 1974 in chambers for the custody of their only child, a boy aged six, at the time, to be given to the guilty respondent/husband. A prior order for access to the wife during weekends had already been made in May 1973 before the hearing of the petition as the child was then under the respondent's physical control.

Whilst no complaint was made of the correctness of the principles enunciated by the Judge in considering whether or not he should make an order for custody in favour of the father, it is the actual application of these principles to the facts of the case which Counsel for the appellant contended was wrong - in that the welfare of the child which was the first and paramount though not the only consideration did not merit an order for such custody to be vested in the guilty respondent.

The Judge took into account the fact that the appellant was not working and had no income, that the boy had for most of the time be