Cocks v Juncken
[1947] HCA 16
•9 June 1947
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JAP, In the Kenm
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Manias of HomBert
(1966n0̂ n%3i iTO FamLR877
CLR174
| 74 C.L.R.]OF AUSTRALIA. |
[HIGH COURT OF AUSTRALIA.]
COCKS . .
Appellant
;
Complainant,
JUXCKEN .
Respondent.
Defendant,
ON APPEAL FROM THE SUPREME COURT OF
SOUTH AUSTRALIA.
Legitimacy—Evidence—Presumption—Bcbuttal—Child conceived before, and born H. C. of A.
after, marriage—Paternity—Pregnancy known to husband at time of marriage— 1947.
Child acknowledged by him—Evidence that another man was father of child—
Admissibility.
Melbourne,
Feb. 27, 28 ;
High Court—Appeal from Suprreme Court of State—Competency—Judgment involving
June 9.
civil right—Value of £300—Affiliation proceedings in court of summary jurisdic
Latham C.J.,
tion—Order against defendant for maintenance of child—Order quashed on appeal
Rich, Starke,
Williams JJ.Di.xon and
to Supreme Court—Complainant’s right of appeal to High Court—Judiciary
Act 1903-1940 (No. 6 of 1903—No. 50 of 1940), s. 35 (1) (a) (2)—Mainterumce
Act 1926-1941 (S.A.) (No. 1780 of 1926—No. 44 of 1941).
There is a presumption that a child born in wedlock is legitimate. It apphes to a child conceived before the marriage, but it is a presumption of fact only and may be rebutted in any case by clear and satisfactory evidence that the child was not procreated by the husband. In the case of a child conceived before marriage the presumption does not become irrebuttable by reason of the fact that the husband knew the wife was pregnant when he married her or that he acknowledged the child as his own.
Poulett Peerage Case, (1903) A.O. 395, applied.
R. V. Luffe, (1807) 8 East 193 [103 E.R. 316], explained and distinguished: Dictum of Lord Ellenborough C..1., therein, not followed.
Decision of the Supreme Court of South Australia (Full Court), (1946) In affiliation proceedings under the Maintenance Act 1926-1941 (S.A.) a court of summary jurisdiction adjudged the defendant to be the father of the
S.A.S.R. 84, reversed.
| VOL. LXXIV. | 18 |
278HIGH COURT
[1947,
H. C..OF A.
child in question and ordered him to pay 12s tid. a week for maintenance until
the child attained eighteen years or until further order. The present value of the weekly payments, calculated actuarially (on the assumption that the order Cocksremained unaltered), exceeded £300. On appeal by the defendant to the
1947.
V.
JUNCKEN.
Supreme Court of the State, the order was qua.shed.
Held that, under s. 35 (1) (a) (2) of the Judiciury Act I903-1940, an appeal lay by the complainant from the decision of the Supreme Court to the High Court, because a civil right of the value of £300 was involved.
Appeal from the Supreme Court of South Australia.
The complaint, under the Maintenance Act 1926-1941 (S.A.), of Arthur Wellesley Cocks, an officer of the Children’s Welfare and Public Relief Board of South Australia, stated that Raelene Patricia Simper, a female child of the age of eight months, was an illegitimate child born of the body of Brunhilde Irene Simper and that the defendant, Douglas Juncken, ''‘ is the father thereof, and is able to pay for the , . . maintenance of the said child.”
The complaint came on for hearing before a special magistrate, sitting as a court of summary jurisdiction, at Adelaide on 30th August 1945. The evidence of the mother, Mrs. Simper, was tendered to prove the allegation of paternity and was admitted by the magis trate, who overruled the defendant’s objection to its admissibility. She gave evidence that she was the wife of Keith Eugene Simper, whom she had married on 1st May 1944. She was now living apart from him and was taking proceedings against him for divorce. He was not maintaining her or the child. Prior to the marriage she was a widow, her first husband, one Tiver, having died in March 1940. In February 1944 she had intercourse with the defendant, as a result of which she became pregnant, but the defendant denied responsibility. In April 1944 she went to a matrimonial agency in Adelaide and explained her circumstances to the proprietor. Sub sequently she was introduced there to Simper, who was informed of her pregnancy and agreed to marry her. The marriage took place a few days later. The child was born on 29th October 1944. She registered the child as Raelene Patricia, giving the father’s name as Keith Eugene Simper. She had done this because “ Simper had asked me to register him as the father of the child, he said he would be a father to the child. Simper told me he would be as a father to the child before we were married and would look after the child. He said he would do all he could to be a father to the child. That was his intention up to the time the child was born. That is what he told me.” Mrs. Simper’s evidence of what took place at the matrimonial agency was corroborated by Mrs. Smith, the proprietor. The doctor who attended at the birth of the child gave evidence that
74 C.L.R.]OF AUSTRALIA.
279
H. C. OF A.
“ it was developed to the stage of at least thirty-seven weeks. . .
.
If it is taken that Mrs. Simper \vas married on 1st May 1944, this
1947.
child could not have been conceived after 1st May 1944—definitely
Cocks
V.
not. . . . At delivery this child would be thirty-seven to thirty- eight weeks at the most. That would take conception back to about
Jdncken.
1st February. Thirty-seven to thirty-eight weeks is an estimate within a week. It couldn’t be anything beyond a week out. . . . The earliest date at w’hich a child can be viable is twenty-eight weeks.
. . . It would be possible for me to say that this child could not have been conceived twenty-eight weeks before it was born.” The defendant admitted that he had had intercourse with the mother at the relevant time but said he had used contraceptives.
The magistrate adjudged that the child was illegitimate and that the defendant was the father, and ordered him to pay 12s. 6d. a week for the maintenance of the child until she attained the age of eighteen years or until further order.
From this decision the defendant appealed to the Supreme Court of South Australia. The appeal was referred to the Full Court, which quashed the order of the magistrate, being of the opinion that in the particular circumstances of this case the presumption that the child, having been born in wedlock, was legitimate, was irrebuttable.
The complainant purported to appeal as of right from this decision to the High Court. He filed an affidavit in which he deposed that he was advised, and was of opinion, that the judgment appealed from was “ one from which an appeal lies to the High Court without leave or special leave to appeal, on the following grounds : (a) It involves directly or indirectly a question respecting a civil right amounting to or to the value of £300.” “ {b) It affects the status of a person, namely, the said Raelene Patricia Simper, under a law relating to marriage.” He also filed affidavits of an actuary, who deposed that the present value of an annuity of 12s. 6d. per week, ceasing on the first death of two persons—(a) a female at birth ; (b) a male of the age of the defendant—or at the expiration of a period of eighteen years, whichever first happened, exceeded £300. It was, however, objected on behalf of the respondent that the
appeal did not lie of right.
R. M. Napier, for the respondent, in support of the objection. The appeal does not lie under s. 35 (1) (a) (2) of the Judiciary Act. The order of the magistrate did not confer or involve a civil right; the right given by the Maintenance Act (S.A.) is one which is enforce able criminally. Further, the order may be varied from time to
280HIGH COURT
[1947.
H. C. OF A.
time under s. 63 of the Act. In substance it is not an order for the
1947.payment of 12s. 6d. a week for a given number of years; it merely
Cocks
orders that the payments be made until further order. Accordingly,
V.
JUNCKEN.actuarial calculations of the present value of an annuity are irrelevant;
it is not possible to attribute a present capital value to the order, and it cannot be said that the judgment of the Supreme Court involves any civil right of the value of £300. The case is not within
s. 35 (1) (a) (3) of the Judiciary Act.
The status of the child under
a law relating to marriage is not affected. There is no question of a law relating to marriage at all; the validity of the mother’s marriage is not questioned. Status is not involved. The judgment of the Supreme Court merely declares that the child is not illegitimate.
Hannan K.C. (with him K. J. Healy), for the appellant. The affidavits stating that £300 is involved, being uncontradicted, are conclusive as to value {Ashton & Parsons Ltd. v. Gould (1) ).
[Latham C.J.
What if the order shows on its face that £300 is
not involved ?]
That is not the case here.
It is the present value of the right in
question that must be regarded. The power to vary the order of
the magistrate is irrelevant.
[Dixon J.
The order of the Supreme Court relieving the respon
dent of the maintenance order is the subject of the appeal.]
Nevertheless, regard must be had to the magistrate’s order to ascertain the value of the matter in dispute. A civil right is involved ; the maintenance order could be enforced hiy execution [Maintenance Act (S.A.), s. 83). Moreover, the matter is within s. 35 (1) [a] (3) of the Judiciury Act; the status of the child is in question.
[Latham C.J. But is it under any law relating to marriage?] The common law relating to the consequences of marriage is
within the description of a law relating to marriage.
R. M. Napier, in reply.
Per Curiam. The Court will reserve its decision on the prelim
inary objection and, without prejudice to the objection, will hear
the appeal on the merits.
Hannan K.C. The effect of the decision of the Supreme Court is that there are two different presumptions of legitimacy, one of which is reserved for “ special ” cases such as the present case. This view is not supported by the authorities, nor is there any obvious reason
(1) (1909) 7 C.L.R. 598.
74 C.L.R.]OF AUSTRALIA.
281
H. C. OF A.
for such a distinction.
It would produce curious results, and should
1947.
not be adopted unless for some compelling reason.
The true rule is
(as stated in Halsburi/s Laics of England, 2nd ed., vol. 2, pp. 559, 560)
Cocks
V.
that the presumption of legitimacy can always be rebutted if sufficient
JUNCKBN.
evidence is available. That rule is stated without qualification in the Poulett Peerage Case (1), which is in point here. The rule may work out differently according to the different circumstances of various cases ; the rebuttal of the presumption may be easy or difficult according to the nature and quality of the evidence available. The view of the Supreme Court was based on a misconception of dicta in Gardner v. Gardner (2) (which was a decision on Scottish law, so that what was said as to English law was clearly obiter) and R. V. Lujfe (3). The latter case was not a case of pre-marital con ception, and what was said by Lord Ellenborough in relation to such cases was merely obiter ; it was said only in the course of a general explanation of the law ; no such view was expressed by the other three
members of the court.
The case has not been treated as authority
for Lord Ellenborough’’s proposition : Cf. Re Parsons’’ Trust (4). The rule in Russell v. Russell (5) does not affect the admissibility of the mother’s evidence in this case ; it applies only to evidence of non access after marriage {In the Estate of L. (6)). As to the evidence (assuming that the presumption was rebuttable), the magistrate felt no difficulty in accepting the testimony upon which his finding was based and there was ample evidence to support the finding.
R. M. Napier.
The Poulett Peerage Case (7), properly understood,
is not an authority on the point here. It has been given a wider operation than is justified on its facts ; it is the antithesis of the present case. That being so, there is no authority to the contrary of the proposition adopted by the Supreme Court; what authority there is supports it. Lord Ellenborough’s statement of the law in R. v. Luffe (8) has been accepted in the United States {State v. Shoemaker (9) ; Miller V. Anderson (10) ) : See also Nicolas on Adulterine Bastardy, p. 24. The proposition is not dependent on, or in any way affected
by, the “ four-seas ” rule;
accordingly, it is not to the point that that
rule has been “ exploded.” [He referred to Quinn v. Leathern (11) ; Blackstone’s Commentaries, vol. 1, p. 454; Swinburne on Wills, 7th ed. (1803), vol. II., p. 539 ; Pollock and Maitland, History of English
(1) (190.3) A.C. .39.5. (6) (1919) V.L.R. 17.
(2) (1877) 2 App. Gas. 723.
(7) (1903) A.C. 395 ; See particularly
(3) (1807) East 193 : See pp. 202,
p. .398.
200, 210, 212 [103 E.K. 316, at (8) (l807) 8 East 193 [103 E.R. ,316].
p,, 319, 321, 322, 323].
(9) (1883) 49 Am. Rep. 146.
(4) (1868) 18 L.T. 704. (10) (1885) 54 Am. Rep. 823.
(5) (1924) A.C. 687.
(11) (1901) A.C. 495, at p. .506.
282HIGH COURT
[1947.
H.C. OF A.Law, vol. 2, pp. 395, 396 ; Smyth v. Chamberlayne, reported in
| 1947. | Nicolas on Adulterine Bastardy, p. 154.] If the presumption was |
| Cocks | rebuttable, the evidence in this case was inadequate. There was no |
V.positive evidence of where the husband. Simper, was or what he was
JUNCKEN.doing at any relevant time. This was a serious deficiency in the
evidence. Either Simper should have been called or some other evidence should have been adduced on this point. In the absence of such evidence, the magistrate should not have found as he did.
Cur. adv. vult.
June 9.
The following written judgments were delivered ;—
Latham C.J. A preliminary objection has been raised to the competency of this appeal. It is an appeal from a judgment of the Full Court of the Supreme Court of South Australia setting aside an order of a special magistrate directing that Douglas Robert Juncken pay 12s. 6d. a week for the maintenance of a child adjudged by the magistrate to be his illegitimate daughter {Maintenance Act 1926 1941, (S.A.), s. 46). The appellant is an officer of the Children’s Welfare and Public Relief Board of South Australia and he asks that ,the order of the magistrate be restored. It is contended for the appellant that the order appealed from is a judgment which involves directly a civil right of the value of £300 so that an appeal lies under the Judiciary Act 1903-1940, s. 35 (1) (a) (2). It is also contended for the appellant that, as the order of the magistrate is based upon a decision that the child in question is illegitimate, the order of the Supreme Court is a judgment affecting the status of the child under the laws relating to marriage, and that an appeal therefore lies also under the Judiciary Act, s. 35 (1) (a) (3).
The appellant has sworn that in his opinion the order involves directly or indirectly a question respecting a civil right amounting to or of the value of £300. The appellant has also filed affidavits of an actuary in which calculations are made of the present value of an annuity of 12s. 6d. a week ceasing on the first death of (a) a female at birth (the child in question is under one year old) or {b) a male aged thirty-two or thirty-three years (the age of the respondent). The values calculated vary, according to the rates of interest assumed for the purpose of the calculation, from £385 to £418. This actuarial evidence has not been challenged.
It is, however, contended for the respondent that no civil right is involved. In my opinion this argument fails. The order of the magistrate imposed a liability upon the respondent and that liability can be enforced against him by execution levied against his land or
74 C.L.R.]OF AUSTRALIA.
283
goods [Maintenance Act 1926-194], s. 83). It would be the duty
and the right of the Child Welfare Department, which is responsible
for instituting the present proceedings, or of any guardian of the
Cocks
child, to enforce the order on behalf of the child. The order created
V.
JUNCKEK.
a civil right in the child which can be enforced against the respondent.
It is, however, further contended that the actuarial calculation of the value of the right created by the order of the magistrate should not be accepted because s. 63 of the Maintenance Act provides that the court may, from time to time, vary the order by increasing, reducing or entirely remitting the periodical sum ordered to be paid. If, owing to some change in the circumstances of the parties, the order were entirely remitted or the amount payable under the order were reduced, then the value of the civil right might fall below £300. In my opinion this argument is not relevant to the application of the provisions of the Judiciary Act which are under consideration. If the question were whether a house and land were worth £300 or more and it was shown that the house was worth £500, that would conclude the matter, although everybody would be aware that the house might be burnt down at any time or damaged or destroyed in some other manner. The value of the right established by the order of the magistrate, which has been set aside by the order appealed from, should be estimated in accordance with the actual terms of the magistrate’s order and not by reference to the terms of an order for a reduced amount of maintenance which might possibly be substituted for it. This view is in accordance with the opinion of Isaacs and Rich JJ. in Coal Cliff Collieries Ltd. v. Austin (1).
Latham c.J.
In my opinion the appeal is competent under the Judiciary Act, s. 35 (1) [a) (2), and it is therefore not necessary to consider the further question whether the order of the Supreme Court setting aside the order of the magistrate is an order which affects the status of the child under the laws relating to marriage. I proceed, therefore, to consider the appeal itself.
On the evidence accepted by the magistrate one K. E. Simper married a widow, Mrs. B. I. Tiver, knowing her to be pregnant by another man and for the purpose of having the child born in wedlock. The marriage took place on 1st May 1944 and the child was born on 29th October 1944. With the knowledge and consent of Simper the child was registered as his child. After a few months Simper left his wife and she sued him for divorce. She alleged that the respondent Juncken was the actual father of the child. A. W. Cocks, an officer of the Children’s Welfare and Public Relief Board, took proceedings for maintenance of the child against Juncken. The
(1) (1919) 27 C.L.R. 355.
284HIGH COURT
[1947.
| H. | C. OF A.Maintenance Act 1926-1941, ss. 46-48, provided that an order for | |
|
CocksThe magistrate held that Jimcken was the father of the child, that
V.the child was illegitunate and an order was made against him. An
.Juncken. appeal was referred to the Full Court of the Supreme Court of South
L.itham C.J.Australia, and it was held that the child was legitimate.
The court was of opinion that when a man marries a woman whom he knows to be pregnant, the child when born is considered to be legitimate by an irrebuttable presumption of law, so that evidence to prove procreation by another person is inadmissible. The marriage of the husband and wife in such circumstances was held to amount to a conclusive acknowledgment that the child was the child of the husband. If the question of legitimacy were to be decided upon evidence as a question of fact, marriage in such circum stances would be very strong pruna-facie evidence that the husband admitted that he was the father of the child, and further evidence that he allowed the mother to declare, upon the registration of the birth of the child, that he was the father, would be a further admission which it would, in most cases, be almost impossible to displace by evidence. In the present case, however, the magistrate, who was by no means unaware of the unportant questions of credibility which arose, has been satisfied by evidence that Juncken was, and Simper was not, the actual father of the child. The Supreme Court has held that the rule of law is that the fact that the husband married the wife with knowledge of her pregnancy conclusively shows that the child is legitimate, no evidence as to the actual procreation of the child being admissible. A subsequent acknowledgment of the child by the husband as his child (in this case by allowing himself to be recorded officially as the father of the child) is, according to the reasoning of the Supreme Court, an irrelevant circumstance, because the fact of marriage, with knowledge of pregnancy of the woman, in itself and at once and finally, irrespective of what had in fact happened or of what might thereafter happen, produced the result that the child must be considered to be legitimate.
The rule was held to apply vis-a-vis “ the parents ” of a child (that is, I understand, the husband and mother) and all who claimed through or under them, though in proceedings in which the rights of other parties were concerned it would (it was considered) be permis sible to examine the facts and to hold that such a child was illegitimate. It may be observed that neither the husband nor the mother was a party to the proceedings in the present case and that the result of the view of the Supreme Court is that a child may be legitimate for some purposes but illegitimate for other purposes—a result which
74 C.L.R.]OF AUSTRALIA.
285
elicited some strong expressions of opinion from Lord Findlay in
H. C. OF A.
Russell V. Russell (1).
1947.
In the present case no question of the admissibility of evidence under the rule in Russell v. Russell (2) arises.
Cocks
The decision in that
V.
case was that neither husband nor wife could give evidence of nonJuncken.
access after marriage for the purpose of showing that a child of the
Latham C.J.
wife born during the marriage was illegitimate. The rule relates only to evidence of non-access after marriage {In the Estate of L. (3) ). In this case the wufe gave evidence of non-access before marriage, and the husband did not give evidence.
There is a presumption that a child born in wedlock is legitimate. The decision of the Full Court that the presumption was irrebuttable in the present case was based in part upon statements of the law contained in 1 Rolle’s Abridgment (1688) 358 : Viner's Abridgment (sub tit. Bastard (B) 3) ; Comyn's Digest (sub tit. Bastard (B) ) and Bacon’s Abridgment (sub tit. Bastardy (A) ). All these authorities contain statements to the effect that a child born in wedlock is not a bastard, even though the wife was pregnant by a person other than the husband. These statements are very brief and do not provide any clear material to assist in the consideration of the question whether and in what circumstances (if at all) evidence is admissible to rebut the presumption. There is no doubt that it may be shown by evidence that a child born in wedlock was the result of adultery by the wife. But the Supreme Court has held that cases of pre nuptial generation have a special character and do not fall within the general rule, applied in cases of adulterine bastardy, that the presump tion of the legitimacy of children born in wedlock may be displaced by evidence. The judgment of the Full Court is nlainly founded upon a dictum of Lord Ellenborough, in R. v. Lujfe (4), in the following words :—
“ With respect to the case where the parents have married so recently before the birth of the child that it could not have been begotten in wedlock, it stands upon its own peculiar ground. The marriage of the parties is the criterion adopted by the law, in cases of ante-nuptial generation, for ascertaining the actual parentage of the child. For this purpose it will not examine when the gestation began, looking only to the recognition of it by the husband in the subsequent act of marriage ” (5).
This was a dictum, because in the case before the court the husband and wife had been married for some years before the child was born.
(1) (1924) A.C. 687, at p.719.(4) (1807) 8 East 193 [103 E.R. 316].
(2) (1924) A.C. 687.
(5) (1807) 8 East, at pp. 207, 208 [103
(3) (1919) V.L.R. 17.
E.R., at p. 321].
286HIGH COURT
[1!)47.
H.C. OF A.The statement of Lord Ellenborough was treated by Sir J. P. \Vilde ’m
| 1947. | Turnock v. Tnrnock (1) as stating a presumption which was not |
| Cocks | open to rebuttal. In that case, however, there was no appearance |
V.for the defendants and the learned judge, after quoting the dictum
Juncken.
mentioned, referred to it simply as a legal principle which he must
Latham C.J.take as he found it. There was no examination of the question.
On the other hand, in Be Parsons' Trust (2) Stuart V.C. said : “ Lord Ellenborough, in R. v. Luffe (3), has laid down the rule that, notwith standing the birth of a child shortly after marriage, the presumption of legitimacy clearly exists until rebutted by satisfactory evidence to the contrary.” Thus very diverse views have been taken of the effect of the decision in R. v. Luffe (3).
Reference to the report of R. v. Luffe (3) shows that in the course of argument Lord Ellenborough expressed opinions in terms which do not treat the case of ante-nuptial generation as an exception to the general rule. His Lordship said : “ If the fact be once ascer tained, that it is naturally impossible, (I do not say improbable merely) that the husband should be the father of the child, the conclusion follows, that the child is a bastard. . . . The prmciple to be deduced from the cases is, that if the husband could not by possibility be the father, that is sufficient to repel the legal presump tion of the child’s legitimacy ” (4). His Lordship also said : “ Where it may certainly be known from the invariable course of nature, as in this case it may, that no birth could be occasioned and produced within those limits of time, we may venture to lay down the rule plainly and broadly, without any danger arising from the precedent ” (5). In his judgment, however, the Chief Justice did state a limitation upon the “ plain and broad rule ” which limitation has been adopted as the ground of the decision in the Supreme Court.
As I have already said, the statement made was an obiter dictum of the Chief Justice. The other three members of the Court did not, in my opinion, support the view that the presumption of legitimacy which undoubtedly arises from the birth of a child in wedlock was irrebuttable where the child was the result of pre-nuptial intercourse. Grose J. said :—“ In every case we will take care, before we bastardize the issue of a married woman, that it shall be proved that there was no such access as could enable the husband to be the father of the child. If by reason of imbecility or on any personal account or from absence from the place where the wife was, the husband could
(1) (1867) 16 L.T. 611.
(4) (1807) 8 East, at pp. 2(XJ, 201
(2) (1868) 18 L.T. 704.
[103 E.R., at pp. 318, 319].
(3) (1807) 8 East 193 [103 E.R. 316].
(5) (1807) 8 East, at p. 202 [103 E.R.,
at p. 319].
74 C.L.R.]OP AUSTRALIA.
287
not be the father of the child, there is no reason why it should not
be so declared. Here it is apparent that the husband, who had no
access to the wife till two weeks before her delivery, could not be
cocks
the father. And in saying so we go upon the sure ground of natural
V,
J
uncken.
impossibility and good sense ; rejecting a rule foimded in nonsense ”
(1). Laurence J., after referring to authorities which show that
Latham C.J.
imbecility from age and natural infirmity might be proved in order to bastardize the issue, asked : “ Why not give effect to any other matter which proves the same natural impossibility ? ” (2). He added that if a man marry a woman who is with child it raises a presumption that it is his own. This is obviously the case. It is a most natural presumption to make and could be rebutted only by very strong and convincing evidence. Le Blanc J. said :—“ Where it can be demonstrated to be absolutely impossible, in the course of nature, that the husband could be the father of the child, it does not break in upon the reason of the current of authorities, to say that the issue is illegitimate. If it do not appear but what he might have been the father, the presumption of law still holds in favour of the legitimacy. But if, as in this case, it be proved to be impossible that he should have been the father, then, within the principle of the modern cases, there is nothing to prevent us from coming to that conclusion ” (3). Thus three members of the court state in general terms that evidence is admissible upon the question of the legitimacy of a child born in wedlock. Lujfe’s case (4) cannot be regarded as a decision of a court in accordance with the dictum of Ellenborough C.J.
In the Poulett Peerage Case (5) a man married a woman who was in fact pregnant by another man. The question was whether a child which was born within six months after the marriage was legitimate. Halsbury L.C. said :—“ There was at one time authority for saying that if the husband and wife were within the four seas you must presume that there was intercourse, and that you could not possibly contradict it. I think that idea is completely exploded. The question is to be treated as a question of fact, and, like every other question of fact, when you are answering a presmnption it may be answered by any evidence that is appropriate to the issue ” (6). In that case the husband did not know that the wife was pregnant when he married her, but the rule as above stated by the House of Lords is not said to be limited by reference to that circumstance.
(1) (1807) 8 Ea.st, at p. 208 [103 E.R.,
(3) (1807) 8 East, at p. 212 [103 E.R.,
at p. 322].
at p. 323].
(2) (1807) 8 East, at p. 210 [103 E.R.,
(4) (1807) 8 East 193 [103 E.R. 316].
at p. 322].
(5) (1903) A.C. 39.').
(6) (1903) A.C., at p. 398.
288HIGH COURT
[194-7.
| H. | C. OF A.In my opinion the dictum of Lord Ellenborough is not a sure found | |
|
Cocksgradually established that the fact of non-access by a husband may
| V. | always be proved by evidence. This proposition was supjtorted in |
J
uncken.
argument by reference to many text-writers, e.g., Halsbury’s Laws Latham C.J.of Etigland, 2nd ed., vol. 2, pp. 560-561 ; Taylor, the Law of Evidence,
12th ed., p. 102.
The Supreme Court has held that evidence of non-access of the husband before marriage cannot be given to rebut a presuni|)tion of legitimacy in the case of pre-nuptial generation wdiere the question arises in relation to the husband or the wife or to other persons claiming through the husband or wife but that such evidence may be admitted where the rights of other persons are concerned. It is on this basis that the conflict between Turnock v. Turnock (I) and Re Parsons’ Trust (2) is explained. But no reference to such a distinction was made in either of these cases. They simply exhibit contrary views of the meaning of what was said in Luffe’s Case (3). The distinction suggested has been taken in American cases to which reference is made in the judgment of the Supreme Court but it has, as far as I have been able to ascertain, never been introduced into English law. The adoption of such a rule would, I think, create grave difficulties in some cases. I mention as an illustration the case of a posthumous child born to a widow who marries again before the child is born. Can it be the case that, for purposes of succession to the deceased father the child is to be regarded as his legitimate child, but that it is also the legitimate child of the second husband ? The rule approved by the Supreme Court does not deal satisfactorily with such a case.
Thus I am of opinion that the presumption that a child born in wedlock is legitimate is a presumption of fact which is rebuttable, though the circumstances of a particular case may make it almost impossible actually to rebut the presumption—as in the very strong case of Gardner v. Gardner (4).
In the judgment of the Full Court it was further said that the evidence that the husband was not the father of the child was neither clear nor convincing. The magistrate, however, heard the evidence of the mother of the child and it is plain also that he accepted the evidence of Mrs. Emma Smith, who gave evidence that she controlled a friendship club to which the mother came for the purpose of finding a husband. Mrs. Smith gave evidence that the mother explained the difficulty that she was in—that she was pregnant and that she
(1) (1867) 16 L.T. 611(.1) (1807) 8 East 19.8 [i0;j E.R 316].
(2) (1868) 18 L.T. 704.
(4) (1877) 2 App. Cas. 723.
74 C.L.R.]OF AUSTRALIA.
289
■wanted her child to have a father. Mrs. Smith then made inquiries,
H. C. OF A.
got into touch with Smiper and introduced the parties to each other,
1947.
and they were married within a few days. Further, Jimcken gave
Cocks
evidence of actually having intercourse with Mrs. Simper before her
V.
marriage, though he said that he took precautions which, if they
.Juncken.
had been successful, would have prevented conception. It was for
Latham C.J.
the magistrate to determine whether the evidence of Mrs. Simper that she had had intercourse with Juncken at the relevant time and with nobody else should be believed or not, and also whether her evidence, supported by that of Mrs. Smith, that she had had nothing to do with Simper for some years before the marriage, though she had known him when he was a boy, should be accepted. In my opinion there was no satisfactory ground for setting aside the decision of the magistrate on the facts.
The appeal, in my opinion, should be allowed, the order of the Full Court set aside and the order of the magistrate restored.
Rich J. This matter originated in affiliation proceedings before a special magistrate under the Maintenance Act 1926-1941 (S.A.). He heard the evidence of a number of witnesses, found that the allega tions in the complaint concerning the illegitimacy were proved, adjudged the respondent to be the father of the child and ordered him to pay 12s. 6d. per week for the future maintenance of the child. On appeal to the Supreme Court of South Australia this adjudication and order were reversed. Hence this appeal to us. The evidence which the magistrate found was duly proved was that the respondent Juncken had between November 19.33 and March 1944 had inter course with the child’s mother who was then Mrs. Tiver, a widow. Indeed the man admitted intercourse on three occasions about the relevant time. The result was that the child was conceived. And Ligertu'ood X said that “ there was ample evidence to support the magistrate’s finding.” Towards the end of April 1944 Mrs. Tiver being pregnant and Juncken having repudiated his responsibihty went to an agency with a view to matrimony so that the child might be born in wedlock. The agent introduced her to one Simper who was informed of her condition and agreed to marry her and to father the child. The introduction of the parties occurred on the 29th April and they were married on 1st May 1944. The child was born on 29th October 1944. The doctor who attended Mrs. Simper on her confinement deposed that if Mrs. Simper was married on 1st May 1944 the child could definitely not have been conceived after
1st May but w’as conceived in February.
.
290HIGH COURT
[1947.
| H. | C. or A.On behalf of the respondent it was contended by way of preliminary | |
|
Cocksof the Judiciary Aci 1903-1940. In my opinion the order of the
V.magistrate involves a civil right enforceable against the respondent in
J
uncken.
favour of the child and imposes a present liability which according Eich J.to undisputed actuarial calculations exceeds the sum of £300. I pass
now to consider the appeal.
The evidence to which I have referred very strongly supports the findings of the magistrate who expressed his opinion in no uncertain terms. The decision appealed against is based on a rule or principle that where a man marries a woman knowing that she is pregnant by another man and a child is born the husband is conclusively presumed to be the father and the child is considered to be legitimate by an irrebuttable presumption of law. This principle or rule is founded on an alleged dictum of Lord Ellenborough in K. v. Lujfe (1). The facts in that case are different from those in the present case and the other judges who formed the court did not adopt that dictum. Grose J. said that where “ the husband could not be the father of the child, there is no reason why it should not be so declared.” He went “ upon the sure ground of natural impossibility and good sense ; rejecting a rule founded in nonsense ” (2). Lawrence J. and Le Blanc J. were also of opinion that where it is proved to be impossible that the husband should have been the father “ there is nothing to prevent us from coming to that conclu.sion ” (3). There is no question of the admissibility of evidence and Russell v. Russell (4) has no applica tion to this case. “ The question is to be treated as a question of fact, and, like every other question of fact, when you are answering a presumption it may be answered by any evidence that is appro priate to the issue ” {Poulett Peerage Case (5) ). The facts in this case prove the impossibility of the husband being the father of the child and the presumption of the legitimacy has been conclusively rebutted.
In my opinion the appeal should be allowed.
Starke J. This is an appeal from a judgment of the Supreme Court of South Australia which quashed an affiliation and mainten ance order made by a special magistrate pursuant to the Maintenance Act 1926-1941 of South Australia.
In July 1945, the appellant, an officer of the Children’s Welfare and Public Relief Board, complained pursuant to the provisions of
(1) (1807) 8 East 193 [103 E.R. 316].
(1807) 8 East, at p. 2J3 [103 E.R.,
(3)
(2) (1807) 8 East, at p. 208 [103 E.R.,
at p. 323].
(4) (1924) A.C. 687.
at p. 322].
(5) (1903) A.C. 395, at p. 398.
74 C.L.R.]OF AUSTRALIA.
291
the Act mentioned that Raelene Patricia Simper, a female child of
H. C. OP A.
the age of 8 months, was an illegitimate child born of the body of
1947.
Brunhilde Irene Simper and that the respondent was the father
Cocks
thereof and able to imv for the past and future maintenance of the
V.
J
uncken.
child.
‘
Starke J.
The special magistrate before whom the complaint was heard adjudged that the respondent was the father of the child and ordered that he pay the sum of 12s. 6d. per week for the future maintenance of the child until she attained the age of eighteen years or until further order.
It was this order that the Supreme Court quashed. appears to have been a woman of somewhat easy virtue. She admitted sexual intercourse with a man other than the respondent and also alleged sexual intercourse with the respondent on various occasions at or about the time when the child was conceived. The respondent did not deny intercourse with the mother of the child at relevant times but he asserted that he had used a contraceptive sheath. The mother approached the respondent and informed him that she was pregnant but he denied responsibility.
The next step was that she went to a matrimonial agency in Adelaide to arrange a marriage so that the child might be born during wedlock. The matrimonial agency found a man. Simper, who was informed of the pregnancy and agreed to marry her. The mother and Simper each paid the matrimonial agency £5 for intro ducing them. They were mp-rried on 1st May 1944 and the child was born on 29th October 1944.
The medical evidence was that the child was “ developed to a stage of not less than thirty-seven weeks ” and could not have been conceived after the marriage on 1st May 1944. Simper said he would be a father to the child and he was, with his consent, registered as the father of the child. But he was not called as a witness and gave no evidence in the case.
The mother and her child have left Simper and he no longer sup ports them.
Notwithstanding the presumption that a child born during lawful wedlock is legitimate {Morris v. Davies (1) ; Bosvile v. Attorney- General (2) ), the special magistrate was satisfied that the presumption had been repelled in the present case and that the respondent, Juncken, was the father of the child Raelene Patricia Simper.
The learned judge's of the Supreme Court accepted this finding though I am not surprised that they were by no means satisfied that
(1) (]8.37).5C1. &F. 163[7E.R. .-{eo].
(2) (1887) 12 P.D. 177.
292HIGH COURT
[1947.
| H. | 0. OF A. evidence was “either clear or convincing” : Cf. Bosvile v. Attorney- | |
|
Cockswhom he knows to be pregnant, must, in point of law, become the
| V. | ‘ legal father ’ of her child i.e., be ascertained and fixed upon as |
Juncken.
‘ the person to whom the care, the protection, the maintenance, and Starke J.the education of the child shall belong.’ The corollary would be that the child has the status of legitimacy, and vis-a-vis its parents, and all who claim through or under them, ‘ such a son will be the heir.’ In a suit between these parties, the law will not admit of an averment that the child was not begotten by the husband of its mother.”
The question is whether the conclusion of the learned judges is now the law. They have cited considerable authority in support of their view which I shall not traverse.
But it must be remembered that rules touching presumptions relating to legitimacy have been gradually relaxed: See Bosvile v. Attorney-General (2) ; In the Estate of L. (3). And it must also be remembered that though neither a husband nor a wife is permitted to prove their access or non-access during marriage with the object or result of bastardizing a child born during wedlock (Russell v. Russell (4) ; Ettenfield v. Ettenfield (5) ), still the access or non-access of husband and wife before marriage is provable by their own testimony or, if dead, by their declarations (Poulett Peerage Case (6) ; Jackson v. Jackson (7) ).
And it is now, I think, settled law that the presumption of the legitimacy of a child born during marriage is a presumption of fact which may be repelled by evidence which shows that it is impossible or unlikely (Banbury Peerage Case (8) ; Morris v. Davies (9) ; Aylesford Peerage Case (10) ; Poulett Peerage Case (6) ; Bosvile v. Attorney-General (11) ; Jackson v. Jackson (12) ; In the Estate of L.
(3) ).
Gardner v. Gardner (13), a case governed by Scots law, is to the same effect and despite the careful reservation in that case (14) of the Lord Chancellor the case has been cited as of authority in cases governed by English law. Thus, in Jones v. Davies (l.’i), where it was said in argument that “ a man who marries a woman with child
(1) (1887) 12 P.D., at p. 183.(9) (1837) 5 Cl. & F. 163 [7 E.R. .365].
(2) (1887) 12 P.D., at p. 179.MO) (1885) 11 App. Ca.s. 1.
(3) (1919) V.L.R. 17.(11) (1887) 12 P. D. 177.
(4) (1924) A.C. 687.(12) (1939) P. 172.
(.5) (1940) P. 96.(13) (1877) 2 App. Ca.s. 72.3.
(6) (1903) A.C. 395.(14) (1877) 2 App. Cas., at p. 728.
(7) (19.39) P. 172.
(15) (1900) 70 L.J. Q.B. 38,‘at pp. 39,
(8) (1811) 1 Sim. & St. 153 [57 E.R.
40.
62].
74 G.L.R.]OF AUSTRALIA.
293
must be presumed to be the father of the child, and is liable to main tain it,” Kennedy J. observed : “ Although the presumption is very
strong, yet it is rebuttable ” Gardner v. Gardner (1)) ; and see Lord
Cocks
Atkinson in Lloyd v. Powell Dujfryn Steam Coal'Co. Ltd. (2).
V.
Juncken.
The learned judges of the Supreme Court treat the present case as an exception to the general rule of law based upon the fact that
Starve J.
Simper knew that his wife was pregnant at the time of his marriage and recognized the child as his own. But I do not think that the law of England now recognizes any such exception despite the authorities cited by the learned judges. The legitimacy of a child born during marriage is not in any case a presumptio juris et de jure but a presumption of fact. Evidence to repel the presumption must vary with the circumstances of the case but it should be such as to produce judicial conviction that the child was not procreated by the husband : it must be clear, distinct and satisfactory {Bosvile v. Attorney-General (3) ; In the Estate of L. (4) ).
Objection was taken to the competence of this appeal. It was contended that it did not involve directly or indirectly any claim to any civil right amounting to or of the value of £300 {Judiciary Act, s. 35 ; Coal Cliff Collieries Ltd. v. Austin (5) ).
The Maintenance Act 1926-1941, ss. 46-47, impose a duty or hability upon the near relatives of a legitimate or illegitimate child to pay for or contribute towards its past or future maintenance and enables that duty or liability to be enforced by officers of the Children’s Welfare and Public Relief Board (See ss. 61, 65, 83, 88 and 89) for the maintenance of the child. In my opinion, those sections create and vest in the complainant in these proceedings a civil right and I do not think it has been shown that the present value of an obligation to pay 12s. 6d. per week for the maintenance of the child until she attains the age of eighteen years or until further order is not of the value of £300.
This appeal should therefore be allowed, the judgment of the Supreme Court set aside and order of the special magistrate restored.
Dixon J. To dispose of this appeal we must, I think, decide upon the soundness of the rule laid down by the Supreme Court of South Australia concerning the presumption of legitimacy when a child is conceived by an unmarried woman who marries before the birth of the child. In a judgment read by Napier C.J. on behalf of himself, Reed J. and Ligertwood J., their Honours pronounced the rule to be,
(1) (J877) 2 App. Cas. 723.(4) (1919) V.L.R. 17.
(2) (1914) A.C. 7,33, at p. 740.(5) (1919) 27 C.L.R. 35.5.
(3) (1887) 12 P.D. 177.
VOL.
LXXIV.
294HIGH COURT
[1947.
| H. | C. OF A.as I understand them, that a child so born in wedlock but conceived | |
|
Cockshusband knew of her pregnancy when he married his wife and after
V.wards acknowledges the child, then the presumption cannot be
Juncken.rebutted, subject, however, to an exception in favour of strangers Dixon J.and claimants under strangers to proprietary rights. Perhaps the
learned judges would prefer that the rule which they accepted should be expressed so as to give conclusiveness to the presumption if the husband either knew of the woman’s pregnancy at the time he married her or acknowledged the child after its birth and should not be expressed so as to make both these conditions necessary to its operation. But, upon the facts, this point did not arise, though some of the authorities which their Honours cite from the Abridg ments appear to make the husband’s knowledge enough. But this difference is not material to the question whether the presumption is in such a case irrebuttable. My examination of the matter has led me to the conclusion that the rule proposed should not be adopted and that it does not represent the modern law.
The law of to-day appears to me to provide a simple presumption of legitimacy which applies to children born during a marriage, whether conceived before or after the marriage took place, and to children conceived during the marriage, whether born before or after the marriage is dissolved by the husband’s death or otherwise. The presumption is rebuttable in all these cases by proof that sexual intercourse between the husband and the mother could not have taken place or did not take place at a time which would account for the pregnancy, having regard to the date of the child’s birth. Although I think that for all these cases the presumption should be regarded as a single one, that is of the same character, proceeding from the same principle and to be repelled only by proofs attaining the same high standard of persuasion, yet it is evident that, in the practical operation or application of the presumption, its effect may vary because of the different considerations to which the cases give rise. In this way the knowledge of the husband when he married his wife that she was with child and his acknowledgement of her child are facts each of which must have importance. But they are
important as evidentiary facts supporting the presumption.
Though
they tend against proof to the contrary, they do not exclude it.
The law relating to the determination of a question of bastardy has gone through a long course of change and, although from the reign of Henry VI. to perhaps the end of Anne’s reign the rule laid down by the Supreme Court obtained and in judicial dicta in quite late cases there is to be found language in which its influence may
74 C.L.R.]OF AUSTRALIA.
295
be traced, I think that it has not survived the general abandonment *-'•
OF A.
of the doctrine of which it was but a part.
1947.
The development has not been consistent and continuous. In Glanville’s time there seems to have been no room for adulterine
COCK.S
V.
Juncken.
bastardy.
The common saying that fornication does not take away
an inheritance must, he says, be understood of the mother’s fault,
Dixon J.
"'quia films heres leqitimus est quern nwptiae demonstrant ” (Lib. VII. c. 12) : the language of Paulus, “ Pater vero est quern nuptiae demon strant ” (Dig. II. 4. 5).
But, at the same tune, the refusal of the common law to follow the canon law concerning legitunation by subsequent marriage - extended to children engendered before but born after espousals. “ Si quis antequam pater tnatrem suam desponsaverit fuerit genitus vel natus . . . secundum ius regni et consuetudinem nullo mode tanquMm heres in hereditate sustinetur vel hereditatem de iure regni petere potest,” (Lib. VII. c. 15), (Woodbine’s Glanvill (1932), p. 111). But in Bracton’s account of the great contention at Merton we read only of those qui nati and not those qui geniti, fuerunt ante sponsalia vel matrimomiun, (fol. 416 : 417) and we learn elsewhere from him (fol. 63) that it mattered not for legitimacy whether the child was begotten and born after the marriage or begotten before but born into the marriage or begotten in the marriage and born after the marriage had been dissolved and whether dissolved by death or by divorce and that it did not matter whether the union was by matri- monium or (subject to certain exceptions) by sponsalia. But we find that he recognizes adulterine bastardy. The child is to be presumed a bastard, it appears, if feebleness, frigidity or impotence of the husband is proved per multum tempus or absence for two years from the kingdom or from the county or shire is shown. If he returns and finds his wife pregnant or that she has a child of a. year or less, whether he avows it and nurtures it or not, the child may rightly be excluded from succession because it could not be heir. But, if it was possible to presume that he could have engendered the child, it seems that decisive importance was given to avowal and nurture by the husband (fol. 63) : Cp. fol. 70 and 706 and fol. 278 and 278 b. Woodbine’s Bracton, vol. 2, pp. 185, 186 and 204 ; vol. 3,
what matter might be set up to show bastardy notwithstanding birth within the espousals. For Bracton it was enough that the husband was extra regnum vel provinciam per biennium (fol. 63 b) or that propter temporis intervallum et distarUiam locorum the child could not be his. But these less definite tests of separation hardened into
p.
311, and vol. 4, p. 295.
296HIGH COURT
[1947.
| H. | C. OF A. requirement that at the time of conception and up to the birth | |
|
Cocksfour seas; Scotland, as a separate kingdom, being reckoned for this
V.purpose as extra quattvor maria, but Ireland as intra quattuor maria.
Juncken.
Le Marchant in his preface to his Report of the Proceedings in the Dixon J.House of Lords on the claim to the Barony of Gardner (p. li.) speaks of the change thus—“ The doctrine on this subject to be collected from the Year Books is entirely at variance with the earlier writers. Rules of pleading were laid down which reduced the discussion of the question of legitimacy within very narrow lunits. The presumption in favour of legitimacy was treated as conclusive, unless it could be opposed by proof of what was termed special matter, viz. the hus band’s impotency, or his being out of the four seas during the period of the wife’s gestation. There is no case in the Year Books illustrative of the position laid down by Bracton respecting the effects of the non-recognition of a child by the husband, and this omission may be an argument that the presumption, when unaccompanied by such recognition, was inadmissible. On the other hand, the rules of pleading seem to be directed against all encroachments upon the special matter.”
Before the end of the fifteenth century it had become the settled rule that a married woman’s child born during the marriage could not be bastardized except upon proof of special matter, namely the husband’s impotency, separation by divorce a mensa et thoro or absence from the realm at the time of the conception and thereafter {Nicolas, Adulterine Bastardy, p. 56). So much was settled with respect to a child begotten as well as born during the period of the marriage. The same rule applied to a child begotten during the marriage but born after the husband’s death, subject, however, to a particular difficulty felt about the affiliation of a child if the widow remarried before its birth. For a time there was a question about the position of a child born during, but begotten before, the marriage. According to Y.B. 44 Edw. III. c. 12, pi. 21, which is discussed by Nicolas, p. 46, and by Le Marchant, p. liv., Finchden J. considered that, if the child was not that of the husband, it was bastard and that the fact was to be ascertained by a jury. Perhaps some support for Finchden’s view can be found in Y.B. 5 Edw. II. 14 {Lydfcrrd v. Gifford, printed and translated by the Selden Society, Publications, vol. .3.3 ; Year Boole Series, vol. 12 ; See particularly p. 187). But in Y.B. 1 Hy. VI. {Mich.) 3 and 18 ed. IV. 30, the contrary rule was laid down, namely the child was to be presumed legitimate. Sir Harris Nicolas {op. cit., p. 51) quotes the utterance of Serjeant Rolfe for the demand ant in the former case, “ But the defendants offered an issue which
74 C.L.R.]OF AUSTRALIA.
u
could never be tried, viz. that the mother, was large with child by
H. C. OF A.
one C.P., for God alone knew by whom she was pregnant; for which
1947.
reason, if a woman before marriage be wdth child, and it be bom
Cocks
V.
wdthin espousals, the law adjudges it to be the child of the husband,
JCNCKEX.
because it is known to no one.”
See, too, Le Marchant, op. cit., p. Iv.
The case in 1 Hy. VI. 3 is printed and translated by the Selden
Dixon J
Society, vol. 50, pp. 24-27.
It appears probable that Rolfe conceded
that “ special matter ” might be set up.
The substance of the law of the Year Books as to the bastardy of a married woman’s child does not seem to have undergone any change before the beginning of the eighteenth century. The effect of the Year Books and of one or two cases in the Star Chamber was summed up . in 1705 by D'Anvers in his Abridgment {s.v. Bastardy B. 1-6). “ By the law of the land a man cannot be a bastard who is born after espousals unless it be by special matter. If a woman be grossly enseint by A and after A marries her and the issue is born during the marriage this is a mulier ” (scil., legitimate) “ and not a bastard. So if a woman be grossly enseint by one man and after another marries her and after the issue is born, this is a muher because it is born during the marriage and no issue can be taken ” (as to) “ by whom she was enseint because that cannot be known : so, although the issue be born within 3 days after the marriage. If a feme covert hath issue in adultery yet if her husband be able to beget children and is within the 4 seas this is no bastard. If a wife elopes and lives in adultery with another, and during this, issue is born in adultery, yet this is a mulier by our law but the baron ought to be within the 4 seas, so that by intendment he may come to his wife, otherwise the issue is a bastard.”
The word “ mulier ” has now dropped out of use. Coke explains it thus : “ ‘ Mulier ’ seu filius muliertatus . . . filius natus vel filia nata ex iusta uxore appellatur in legibus Angliae filius mulieratus seu filia mulierata, a sonne mulier or a daughter mulier.” (Co. Lit. 243 a).
In the foregoing I find nothing to suggest that a husband whose wife gave birth to a child necessarily conceived before marriage could not set up the same special matter to bastardize it, viz. his own impotence or absence from the kingdom. On the contrary, reliance is placed upon Rolle’s Abridgment, p. 358, by Jacob {Law Didionary, s.v. bastardy) for stating the law governing such a case in a form containing two qualifications. One relates to the incapcaity of the husband by reason of infancy, the other to its being impossible that he is the father.
298HIGH COURT
[1947.
| H. | C. OF A.Jacob says ; “ Where a child is born within a day after marriage | |
|
Cocksthe husband should be the father of it, the child is no bastard but
V.supposed to be the child of the husband.” This statement, which
JCNCKEN. has passed into Tomlin’s Law Dictioywmj (s. v. bastard) is not a
Dixon J.
translation of Rolle but a deduction from or interpretation of a
number of entries.
Up to this point the law with respect to the legitimacy of a child born or conceived during coverture had not only refused to allow the question of paternity to be determined as a matter of probability, and made it depend upon possibility or impossibility, but it had restricted the grounds upon which impossibility might be shown. But early in the eighteenth century the restriction upon the grounds for showing impossibility broke down and was abandoned. “ As the age became more enlightened, the rule of law requiring proof of the husband’s ” (absence) “ beyond the four seas, where the legitimacy of the child was impeached on the ground of non-access, gradually fell into disuse, whilst the attention of the judge was more exclusively directed to the circUmstatial evidence ” (ie Marchant, op. cit., p. Iviii.). The question passed from the province of physical impos sibility to that of moral impossibility. Cp. Lord Ellenborough’s
| language in the Banbury Peerage Case (1) ; | Le Marchant, pp. 457, 458. |
There is a doubt whether Lord Hale had not in his day allowed the mere separation of the spouses to repel the presumption of the legitimacy of a birth in wedlock ; see the reference to Dickens (or Hospell) V. Collins in St. George v. St. Margaret, Westminster {Parishes of) (2) and the discussion thereon by Sir Harris Nicolas, op. cit., pp. 121-126, to whom it seemed incredible that the great Chief Justice should thus innovate. But, however that may be. Lord Raymond in 1732 told a jury at the Guildhall “ that the old notion of the ■presumption intra quattuor maria was exploded and that the evidence to overturn this presumption need not be so strong as was insisted on by the counsel: that the evidence was the same in this as in all other cases, a probable evidence was sufficient and it was not neces sary to prove access impossible between them ” {Buller’s Nisi Prius, 4th ed. (1755), p. 113). The case was Pendrell v. Pendrell (3), and, according to that report, “ it ŵas agreed by court and counsel . . . that the old doctrine of being wdthin the four seas was not to take place ; but the jury were at liberty to consider of the point of access, which they did, and found against the plaintiff.”
(1) (!8I1) 1 Sim. & St. 153 [57 E.R.
(2) (1706) 1 Salk. 123 [91 E.R. 115].
62].
(3) (1732) 2 Stra. 925 [93 E.R. 945j.
74 C.L.R.]OF AUSTRALIA.
299
It was an issue directed by Lord Talbot L.C., who said in Sidney v.
H. C. OF A.
Sidney (1) : “ What has been asserted of a child begotten and born
1947.
during the time of the voluntary separation of the husband and
Cocks
wife, viz. that no evidence shall be admitted to prove the illegitimacy
V.
J
uncken.
of such child, is now held to be otherwise.
For if a jury find the
husband had no access, such child will be a bastard, according to the Dixon J.
determination in the case of Pendrell v. Pendrell (2).”
“ This case proved fatal to the old law of adulterine bastardy ”
{Nicolas, op. cit., p. 129).
In the first part of the nineteenth century three celebrated cases in the House of Lords carried on the development of the law and not without some controversy the general rule came to be that the pre sumption of the legitimacy of a child born during marriage may be rebutted by any admissible evidence of circumstances establishing to the exclusion of doubt that sexual intercourse did not take place between the spouses at the period of conception {Banbury Peerage Case (3), fully reported, Nicolas, op. cit., pp. 291 et seq. ; also Le Marchant, op. cit., pp. 389 et seq.; Gardner Peerage Case (4) ; Morris v. Davies (5) ). See further the discussion by Cussen J. in In the Estate of L. (6) ; Hooper, Illegitimacy, Part III., ch. 2, r. 4, pp. 162 et seq., and Piggott v. Piggott (7).
In my opinion this rule extends to the case of a child born during a marriage but conceived while the mother was unmarried, which I regard as only a particular case within the operation of the general presumption. In principle I can see no sound reason for excluding the case of pre-marital conception from the operation of the general rule and making it the subject of a separate and irrebuttable presump tion. To make the critical fact knowledge of her condition on the part of the pregnant woman’s bridegroom or his subsequent ack nowledgement or acceptance of the child is to select a disputable and uncertain matter as the basis of a presumption and one which, according to prevailing ideas, would be reckoned an evidentiary fact the probative force of which would depend on circumstances. Such considerations as the necessity for certainty, the unfairness to the child of bastardizing it after recognizing it and so on, are equally true of a child conceived during a marriage. Indeed such arguments of policy as have been suggested will be found to form part of the groimds for Sir Harris Nicolas' objection to the alteration in the law of adulterine bastardv stricto sensu which he ineffectually resisted.
(1) (1734) 3 P. Wms. 269, a1, p. 275
(4) (1824) Le Marohant’s Report 169.
[24 E.R. 1060, at p. 1063].
(5) (1837) 5 Cl & F. 163 [7 E.R. 365].
(2) (1732) 2 Stra. 925 [93 E.R. 945].(6) (1919) V.L.R. 17.
(3) (1811) 1 Sira. & St. 153 [57 E.R.
(7) (1938) 61 C.L.R. 378, at pp. 389,
62].
401, 402, 412-415, 422, 428, 429.
74 C.L.R.]OF AUSTRALIA.
307
of Gardner v. Gardner (1) without referring to any possible distinction
H. C. OF A.
1947.
between Scots and English law.
But he relies on the Poulett Peerage
Case (2) and also upon R. v. Lujfe (3), evidently interpreting the
Cocks
V.
judgments as meaning that the presumption, though strong, is
.JuNCKEN.
rebuttable (see p. 188, par. 2). Sir Travers Humphreys’’ article in
Halsbury’s Laws of England, 2nd ed., vol. 2, par. 769, p. 560, states
Dixon J.
the rule in the same way and relies on Lord Blackburn’s observation in Gardner v. Gardner (4). See, too, vol. 2, p. 202, of 3rd ed. of the
Encyclopaedia of the Laws of England.
Phipson on Evidence, ch. 48,
is to the same effect.
The modern editions of Best on Evidence, s. 349,
say almost in terms that the irrebuttability of the presumption in favour of a child born in wedlock has gone in the case of conception before marriage as well as conception after marriage. In Jenks’ Civil Digest, par. 1918, considered with pars. 1922 and 1923, makes it clear that this also was the author’s view. And I think it was the view of Hubback : Treatise on the Evidence of Succession, p. 412. For the foregoing reasons I am of opinion that the presumption of legitimacy may be rebutted by a sufficiency of legal evidence in a case where a child born during a marriage was conceived before the marriage by a woman not previously married or if previously married discovert before the period of conception and that this is so notwith standing that the husband knew of the pregnancy at the time of the marriage and subsequently acknowledged the child. The case of a child conceived during one marriage and born during a subsequent marriage of its mother is a special one and even more special is that referred to by Blackstone’s Commentaries, vol. 1., p. 456, “ If a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either husband ; in this case he is said to be more than ordinary legitimate.” See, further. Law Quarterly Review, vol. 30, p. 153. But even in such cases there is no reason to suggest that by evidence of circumstances negativing marital access the child
may not be wholly bastardized.
.
It was suggested that in the case before us the facts were strange and the proofs defective because the husband was not called, and, accordingly, bastardy should not be considered established. Doubt less the facts are strange, particularly to ears unaccustomed to stories disclosing the divers purposes for which matrimonial agencies exist. But, in the relationships such as those with which this case is con cerned, it is a mistake to reason from fixed moral premises and to regard the unexpected or curious as incredible. I notice in Mr.
(1) (1877) 2 App. Cas. 723.(3) (1807) 8 East 193 [103 E.R. 316].
(2) (1903) A.C. 39.5.
(4) (1877) 2 App. Cas., at p. 738.
308HIGH COURT
[1947.
H. C. OF A. iJooper's book (p. 17) an extract from the Stepney Baptismal Record of 163.3 which may serve as a lesson in the persistence of patterns in
Cocks
human conduct that might not be anticipated. It is as follows :
V.“ Alexander son of Katherine, wife of Alexander Tacky of Pojilar,
JUNCKEK. begotten she affirmed in the field on this side the mud wall near the Dixon J.Gunne, about nine of the clock at night : the father she knew not,
but the said Alexander by them that brought the child to be bajitized, requested that it might be recorded in his name.” There is some analogy in this to the present case and in the story told to, but not accepted by, Stuart V.C. (1).
The magistrate found the facts without any indication of mis giving and, on the evidence, I do not see why his finding should be doubted.
1 agree that the appeal should be held competent. Enough appears to warrant the conclusion that more than £300 is involved. I think the appeal should be allowed with costs. The order of the Full Court should be discharged and in lieu thereof it should be ordered that the appeal of the defendant (respondent in this court) to the Supreme Court be dismissed with costs and the order of the Court of Smnmary Jurisdiction restored.
Williams J. This is an appeal from an order of the Supreme Court of South Australia quashing an order made by a special magis trate in affiliation proceedings under the Maintenance Aci 1926-1941
(S.A.). In these proceedings the magistrate adjudged the respondent to be the father of an illegitimate child within the meaning of s. 52 of the Act, and ordered him to {>ay the sum of twelve shillings and sixpence per week to the Children’s Welfare and Public Relief Board until the child attained the age of eighteen years. The child was conceived whilst the mother was a widow, but was born after she had contracted a second marriage with a man who prior to the marriage knew that she was pregnant. The mother, with the knowledge and authority of her husband, registered the child in the register of births of South Australia as their legitimate child. The Supreme Court quashed the order on the ground that there is an irresistible presumption de juris et de jure that a child is legitimate where it is conceived before marriage to the knowledge of the husband, and the husband subsequently acknowledges it to be his offspring. The Supreme Court also expressed a doubt whether, assuming that the presumption is rebuttable, the evidence was sufficiently clear and convincing to justify the magistrate in adjudging that the respondent was the father of the child. The Suiireme Court said
(1) (1868) 18 L.T. 704.
74 C.L.R.]OF AUSTRALIA.
309
that in view of his express acknowledgement of the paternity of the
H. C. OF A.
child, the husband should have been called to tell the magistrate
1947.
what none of the other witnesses could tell him, i.e., where he was
Cocks
and what he was doing at the relevant time.
V.
JuNCKEir.
I am unable to agree with the Supreme Court on either point. The comnron law does not require that a child should be conceived
Williams J.
during the marriage in order to be legitimate.
It is sufficient if its
parents have married before its birth. At one time the presumption of legitimacy was so strong as to be irrebuttable unless it could be proved that it was impossible for the husband to be the father because he had dwelt beyond the four seas during the whole period of his wife’s pregnancy ; or was impotent. Thus in Hooper, The Law of Illegitimacy (1911), p. 12, it is stated that “ the legitimacy of a child born shortly after marriage, whether first or subsequent, was in fact as impregnable as if it had been also conceived in wedlock, though it was admittedly not begotten by the husband ; and ante- marital incontinence with another was not a ground for bastardizing. RadwelVs Case 18 Edw. I., Rolle 356 ; 1 H. 63 ; Fitzh. Bast., PL 1 ; Abr. Bast. (E) ; Coke, Litt. 244a.” But the doctrine of ex quattuor maria had become obsolete by 1732 {Pendrell v. Pendrell (1) ), and it is clear that the presumption is now rebuttable in the case of a child conceived and born during the marriage where the evidence establishes that no sexual intercourse took place between the spouses at any time when the child could have been conceived. It is only where sexual intercourse is proved to have taken place between the husband and wife at this time that the law will not permit an inquiry whether the husband or some other man was more likely to be the father of the child {Morris v. Davies (2) ). It would be a strange anomaly if the presumption is irrebuttable, except in the circumstances already mentioned, in the case of a child conceived before the marriage of its parents when it is rebuttable in the case of a child conceived during the marriage.
The Supreme Court founded itself to a great extent on the dictum in the judgment of Lord Ellenhorough C.J., in R. v. Lujfe (3), that “ with respect to the case where the parents have married so recently before the birth of the child that it could not have been begotten in wedlock, it stands upon its owm peculiar ground. The marriage of the parties is the criterion adopted by the law, in cases of ante nuptial generation, for ascertaining the actual parentage of the child. For this purpose it will not examine when the gestation began.
(1) (17.32) 2 Str. 925 [93 E.R. 935],
(3) (1807) 8 East, at pp. 207, 208
(2) (1837) 5 Cl. & F. 163, at pp. 242
[103 E.R., at p. 321].
244 [7 E.R. 365, at pp. 396, 397].
VOL.
LXXIV.
310HIGH COURT
[1947.
H. C. OF A.
looking only to the recognition of it by the husband in the subsequent
1947. act of marriage.” But his Lordship was there dealing with pre
Cockssumptions, and it is not likely that he would have used the word
V.“ criterion ” to express a presumption so strong as to be a positive
JUNCKEN.
rule of law. His statement that the law will not examine when the
Williams J.gestation began appears to be simply a reference to the rule of the
common law that a child born after the marriage of its parents need not be conceived in wedlock. This view of the meaning of his Lordship’s dictum was taken by Sttmrt V.C. in Re Parsons' Trusts (1). In Gardner v. Gardner (2) the House of Lords was engaged on an appeal from Scotland. Lord Cairns speaks of the much stricter presumption w'hich in the case of English law would be drawn from the circumstances of the marriage to a wmman avowedly pregnant,, and near the time of her delivery, by a man who had been courting her and keeping company with her and who subsequently provided for the child as his own (3). His Lordship did not however elaborate the extent of the much stricter presumption, and it would not in my opinion be right to infer that he meant that the circumstances mentioned would raise a presumption juris et de jure in English law. I can see no reason to suppose that Lord Blackburn's statement (4) is confined to Scotch law, or that Lord Cairns intended to disagree with Lord Blackburn's statement that, if it could be proved that the husband notwithstanding his opportunities did not in fact have intercourse at any time that the child could have been conceived, the child would be illegitimate. There follows the significant remark by Lord Blackburn that the presumption of parentage is not nearly so strong where the child is conceived before marriage as it would be, or ought to be, if the time when the child was begotten was after the parties were married and were husband and wife. Then there is the Poulett Peerage Case (5). In his speech the Earl of Halsbury L.C. first said that there was at one time authority for saying that if the husband and wife were within the four seas, you must presume that there w'as intercourse, and that you could not possibly contradict it, but that the doctrine of the four seas was completely exploded. He said that “ the question is to be treated as a question of fact, and, like every other question of fact, when you are answering a presumption it may be answered by any evidence that is appropriate to the issue ” (6). His Lordship was there, as we are here, dealing with a case where the child was conceived before marriage and could not have intended his remarks to be confined to the case of a child
(]) (1868) 18 L.T. 704.(4) (1877) 2 App. Ca.s., at p. 737.
(2) (1877) 2 App. Cas. 723.(.6) (1903) A.C. 39.5.
(3) (1877) 2 App. Cas., at p. 728.
(6) (1903) A.C.. at p. ,398.
74 C.L.R.]OF AUSTRALIA.
311
conceived during the marriage. His Lordship then said : “ The
H. C. OF A.
question is whether it is possible for a husband to be asked whether
1947.
he had intercourse before marriage with the woman who afterwards
Cocks
became his wife ” (1). His Lordship answered this question in the
V.
JuNCKEN.
affirmative, and I cannot agree with the Supreme Court that he
intended by the remarks which followed to confine the admissibility
Williams J.
of the evidence to the case where the husband was deceived into believing that he had married a virgin. To my mind his Lordship only intended by these remarks to point out that the facts before the House afforded a clear illustration in favour of the admissibility of the evidence. There was no deception in Gardner v. Gardner (2), but evidence of both spouses of non-intercourse before marriage was admitted. In my opinion, the presumption that the husband was the father of the child was not a presumption juris et de jure, but a presumption of fact, and evidence was admissible to prove that no intercourse took place between the spouses at any time when the child could have been conceived, and to fix the paternity upon the respondent.
The further question is whether the evidence was sufficient to justify the magistrate adjudging that the respondent was the father of the child. Lord Blackburn has pointed out in the remarks already cited that the presumption of the parentage of the husband is not nearly so strong where the child is conceived before marriage as it is where the child is conceived during marriage, but, in view of the husband’s acknowledgement of the child, strong and convincing evidence was required to establish that no sexual intercourse took place between the spouses at any time that the child could have been conceived. It is clear, however, from the magistrate’s reasons that he was fully aware of the degree of proof required. In my opinion there was sufficient evidence of this nature to support the finding of the magistrate that no sexual intercourse had taken place between the spouses. The evidence of Mrs. Smith, which he accepted, would be utterly inconsistent with any other finding. The registration of the child by the mother as the daughter of her husband, with his consent, is consistent with the evidence of Mrs. Smith and the mother that the arrangement was that he would marry the mother knowing she was pregnant by another man, but nevertheless adopt and acknow ledge the child as his own.
I cannot agree with the Supreme Court that therewas any obligation on the appellant to call the husband. The effect of the decision of the House of Lords in Russell v. Russell (3) is that evidence cannot
(1) (1903) A.C., at p. 398.(3) (1924) A.C. 687.
(2) (1877) 2 App. Cas. 723.
312HIGH COURT
[1947.
| H. | C. OF A. given by the husband or the wife to bastardize a child conceived | |
|
Cocksevidence to prove non-intercourse can be given by other persons.
V.The rule in Russell v. Russell (2) does not extend to a child conceived
JtJNCKEN. before but born after marriage and either spouse can give evidence
Williams J.
of non-intercourse before marriage to prove that a child conceived before marriage is illegitimate. The husband’s evidence was there fore admissible, but since he has left his wife for another woman, and she is divorcing him, he may easily have been a hostile witness. In view of his acknowledgement of the legitimacy of the child, his evidence of non-access would not have carried much weight. His absence from the witness-box was at most a circumstance for the magistrate to take into account. There was ample evidence on which the magistrate could hold that the respondent is the father of the child.
For these reasons I would allow the appeal.
Appeal allowed with costs. Order of Supreme Court set aside. In lieu thereof order that appeal of defendant to Supreme Court be dismissed with costs and order of Court of Summary Jurisdiction be restored.
Solicitor for the appellant: A. J. Hannan, Crown Solicitor for South Australia.
Solicitor for the respondent: R. M. Napier, Adelaide.
E. F. H.
(1) (1940) P. 96, at p. 110.
(2) (1924) A.C. 687.
14
0
0