Douglas v Longano

[1981] HCA 18

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason and Murphy JJ.

DOUGLAS v. LONGANO

(1981) 147 CLR 212

8 April 1981

Infants and Children

Infants and Children—Custody and access—Child born out of wedlock—Application by father—Discretion of judge—Marriage Act 1958 (Vict.), ss. 142, 147—Status of Children Act 1974 (Vict.), s.3.

Decision

1981, April 8.
THE COURT delivered the following written judgment: -
A child, the subject of these proceedings, Michael Joseph Douglas was born on 23 January 1978. His parents were not and never have been married to each other. He has at all times been in the custody of his mother, the appellant. In 1979 his father, the respondent, made application to the Supreme Court of Victoria for access. The application was heard and refused by Anderson J. on 22 November 1979. His Honour considered that the application had been brought under s. 142 of the Marriage Act 1958 (Vict.), as amended, and dealt with it accordingly. The respondent appealed to the Full Court of the Supreme Court. The Full Court allowed his appeal, making an order that the respondent should have access to the child on each alternate Sunday between the hours of noon and 5 p.m., the first access to be on Sunday, 29 June 1980. (at p214)

2. The appellant's appeal to this Court is brought by special leave. The point which attracted special leave is the appellant's argument that the Full Court erred in concluding that the application was made, not under s. 142, but under s. 147 of the Marriage Act. (at p215)

3. Section 142 (as amended by the Age of Majority Act 1977) provides: "The Court may upon the application of the mother of any minor (who may apply without a next friend) or of the father of any minor make such order as it thinks fit regarding the custody or control of such minor and the right of access thereto of either parent having regard to the welfare of the minor and to the conduct of the parents and to the wishes as well of the mother as of the father and may alter vary or discharge such order on the application of either parent or after the death of either parent on the application of any guardian under this Part and in every case may make such order respecting the costs of the mother and the liability of the father for such costs or otherwise as to costs as it thinks just." (at p215)

4. The Full Court considered that this section did not enable the Court to make orders as to the custody of, or rights of access to, ex-nuptial children. The source of that power, according to Young C.J., is s. 147. (at p215)

5. Section 147 provides:
"The mother of a minor to whose father she was not married at the time of its birth or at or after the time of its conception shall with or without assistance from the putative father maintain such minor and shall have the custody thereof until such child attains the age of sixteen years; but the Court, if it is of opinion that it is for the minor's benefit so to do, may refuse to restore such minor to the custody of such mother or may remove it therefrom or may make such order as to the custody or control of such minor or as to access thereto as it thinks fit." (at p215)

6. Another provision which is of relevance is s.3(1) of the Status of Children Act 1974 (Vict.) which provides:
"For all the purposes of the law of Victoria the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly." (at p215)

7. The Chief Justice thought that s. 3(1) did not require s. 142 to be read as if it conferred power to make orders with respect to exnuptial children. He noted that the Status of Children Act made certain amendments to the Marriage Act including an amendment to s. 147. This amendment substituted for the words "an illegitimate infant" the words "an infant to whose father she was not married at the time of its birth or at or after the time of it conception". His Honour regarded this as an indication of legislative intention that the power of the Court to make orders as to the custody or control of or access to children described in s. 147 was to continue to have the same force and effect as it had before the passing of the Status of Children Act. (at p216)

8. The Full Court held that Anderson J.'s reliance on s. 142 had led him to place too much weight upon the conduct of the parties, particularly upon the conduct of the respondent in failing to marry the appellant, a matter which his Honour had regarded as relevant and significant. Indeed, his Honour's refusal of access seems to have been based principally on this ground and on the appellant's desire that the child should not know his father. (at p216)

9. The established rule of construction was that, in the absence of a contrary intention, provisions in a statute respecting children refer exclusively to nuptial children. Consequently, until the enactment of the Status of Children Act, s. 142 did not empower the court to make orders in respect of ex-nuptial children. (at p216)

10. But the effect of s. 3(1) of the Status of Children Act in equating the relationship between an ex-nuptial child and its parents to that of a nuptial child and its parents, enabled s. 142 to be read as applying to ex-nuptial, as well as to nuptial, children. So Kaye J. held in G. v. P. (1977) VR 44, at p 47 when he said:
"In my view the effect of this section (Status of Children Act s. 3 (1)) is to declare that, as between him and his father and mother, a child's rights and duties are the same irrespective of whether he was born in wedlock or out of it. As a consequence, the putative father occupies the same position in law in relation to his natural child as he does to his child born in wedlock." (at p216)

11. The same interpretation has been given to similar legislation in New Zealand (H. v. J. (1978) 2 NZLR 623 , where the Court expressly followed G. v. P.), New South Wales (Gorey v. Griffin (1978) 1 NSWLR 739 , followed later in McM. v. C. (No. 1) (1980) 1 NSWLR 1 ) and Queensland (Re Hall (Infant) Supreme Court of Queensland; Unreported; 1979. ). (at p216)

12. The respondent submits that the Court of Appeal decision in Gorey is distinguishable. For this reason it is necessary to examine the case closely. An application was made pursuant to s. 5 (6) of the Infants' Custody and Settlements Act 1899 (N.S.W.) by the father of an ex-nuptial child for access, the child being in the custody of the mother. A special magistrate, sitting as the Children's Court, made an order for access in favour of the father. On appeal two questions arose: whether the special magistrate had jurisdiction to hear and determine the application and whether the District Court had jurisdiction to hear and determine the mother's appeal. Section 5 (1) and (6) of the Infants' Custody and Settlements Act 1899 are the counterpart of s. 142 of the Marriage Act (Vict.). Section 6 of the Children (Equality of Status) Act 1976 (N.S.W.) is the equivalent of s. 3(1) of the Victorian Status of Children Act. The Court of Appeal held that by virtue of s. 6 of the Children(Equality of Status) Act 1976, s. 5 of the Infants' Custody and Settlements Act must be applied in a case where the parents of a child are not and never have been married as though the child was born in wedlock. The Court held that as from 1 July 1977 fathers and mothers of ex-nuptial children could invoke the jurisdiction conferred on magistrates by the Infants' Custody and Settlements Act. Hutley J.A. (Moffitt P. expressing no view and Mahoney J.A. disagreeing) held that, apart from the Children (Equality of Status) Act 1976 no application could be made under s. 5 by the father or mother of an ex-nuptial child. (at p217)

13. The respondent argues that there is no section in the Infants' Custody and Settlements Act 1899 which is similar to s. 147 of the Marriage Act (Vict.). The respondent makes the point that in Victoria, unlike New South Wales, there is a specific section in the Marriage Act which makes clear reference to ex-nuptial children (s. 147) and as this section confers jurisdiction on the Supreme Court in respect of ex-nuptial children, there is no occasion to look to any other section as a source of jurisdiction. The respondent then contends that, if the appellant's construction be accepted, it would produce the curious result that there are two sections in the Marriage Act, namely ss. 142 and 147, that confer jurisdiction on the Supreme Court to hear custody and access cases in relation to ex-nuptial children, notwithstanding that the provisions of the two sections differ. (at p217)

14. The validity of the suggested distinction depends upon the significance to be given to the continuing presence of s. 147 in the Marriage Act (Vict.). The Full Court thought that, because the Status of Children Act amended the first limb of s. 147, the Parliament intended the proviso to that section to continue to govern custody and access cases relating to ex-nuptial children as though it were unaffected by the Status of Children Act. In our opinion the Full Court took too much from the fact that s. 147 was amended. As the amendment related to the obligation imposed by s. 147 on the mother to maintain the ex-nuptial child and to the right to custody conferred upon her until the child attains sixteen, it is a preferable conclusion that this provision alone was intended to have a continued operation, unaffected by s. 3(1) of the Status of Children Act. In view of s. 3 of that Act and the unequivocal legislative declaration which it contains, it is too much to say that the proviso to s. 147 was also to have a continued operation as if it also were unaffected by s. 3. The correct reading of the proviso to s. 147 after the Status of Children Act came into operation is that the court may make such order in relation to the custody or control of the child or as to access as it thinks fit having regard to the matters mentioned in s. 142, and may alter, vary or discharge such order and make orders for costs as provided in that section. Plainly enough Parliament did not intend that two different provisions should govern custody of, and access to, ex-nuptial children. It intended that the specific provision (s. 147) should continue to operate, but so that its operation conformed to the prescription contained in s. 142. (at p218)

15. The Full Court relied on earlier decisions in Edwards v. Hamment (1948) VLR 110 and Roberts v. Roberts (1971) VR 160 . In the first case the Court held that the jurisdiction to order custody in favour of the father of an ex-nuptial child derived from s. 150 of the Marriage Act 1928 (Vict.), the predecessor of s. 147 of the Marriage Act 1958. In the second case the Full Court held that under the 1958 Act the jurisdiction derived from s. 147, not from s. 142. These decisions provide no illumination on the question which now arises as they preceded the Status of Children Act. The Full Court was not referred to the New South Wales, New Zealand and Queensland decisions which quite obviously give strong support to the view expressed by Kaye J. in G. v. P. (1977) VR 44 . (at p218)

16. The question then is whether the Full Court reversal of the exercise of discretion by Anderson J. can be supported. Plainly it cannot be supported on the ground assigned by the Full Court, namely, that Anderson J. had incorrectly approached the case because he applied to it the provisions of s. 142. It follows from what we have already said, though the father's application may have been made under s. 147, it was for the Supreme Court to apply to that application the principle of law expressed in s. 142. (at p218)

17. Much, perhaps too much, has been made of the difference between s. 142 and s. 147. The former requires the Court to have regard not only to the welfare of the child but also to the conduct of the parents and to the wishes of the mother as well as the father. The latter refers only to the welfare ("benefit") of the child. This difference has led to the suggestion that under s. 142 the welfare of the child is merely a paramount consideration, whereas under s. 147 it is the exclusive consideration. It has also been suggested that under s. 142 the conduct and wishes of the parents are relevant, notwithstanding that they may not bear on the welfare of the child. These suggested differences are, we think, more apparent than real. Even under s. 142 the overriding consideration must be the welfare of the child. Generally speaking a court will only have regard to the conduct or wishes of the parents when they bear directly or indirectly on the welfare of the child. However, there may be some circumstances when a question cannot be resolved by reference to the welfare of the child and needs to be resolved by looking to the conduct or wishes of the parents, e.g. time and place of access. (at p219)

18. Reading the judgments in light of this interpretation of the provisions we agree with the Full Court that Anderson J. placed too much weight on the father's conduct without sufficiently relating that conduct to the welfare of the child in the future. His Honour appears to have decided the case adversely to the respondent by reason of his conduct in refusing to marry the appellant and upon the appellant's wish that the child should not know his father. (at p219)

19. It may be that the welfare of the child would have been advanced had the respondent assented to the appellant's proposal to marry and had be established a family home for the three of them. There can be no certainty about this, given the respondent's lack of enthusiasm for the proposal. In any event the respondent's refusal to marry the appellant is quite unrelated to the welfare of the child as it bears upon the issue of future access. The past refusal of the respondent to marry the appellant does not provide any guidance upon the question whether it is now in the interests of the child that he should be given access. (at p219)

20. The appellant's desire that the child should not know the identity of his father is unrealistic. Her elder child is aware that the respondent is the father and the probability is that in the ordinary course of events the child will acquire this knowledge. We agree with Young C.J. in thinking that it is undesirable that the appellant should persist in the pretence that her former husband was the father. (at p219)

21. In these circumstances we consider that the primary judge misdirected himself in exercising his discretion by basing his decision on the two grounds, neither of which was clearly related to the child's welfare in any relevant sense. (at p219)

22. The Full Court was therefore entitled to exercise the discretion for itself. We are unable to detect any error of principle in the approach taken by the majority of the Full Court in deciding that it was in the interests of the child to award access to the father. For this reason, notwithstanding the strength of the arguments advanced by Murray J. in his dissenting judgment, we would dismiss the appeal. (at p220)

Orders

Application for special leave to appeal granted.

Appeal dismissed with costs.