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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Douglas v Longano

Details

AGLC: Douglas v Longano [1981] HCA 18
Case: [1981] HCA 18
Decision Date: 8 April 1981

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Douglas v Longano*. The dispute concerned the interpretation of a clause within a lease agreement, specifically whether it permitted the landlord to recover possession of the leased premises due to the tenant's alleged breach of a covenant to pay rent. The tenant argued that the landlord's acceptance of late rent payments constituted a waiver of the right to forfeit the lease.

The central legal issue before the Court was whether the landlord's conduct in accepting rent payments after the due date, despite the tenant's persistent lateness, amounted to a waiver of the landlord's right to rely on the tenant's breach of the rent payment covenant to terminate the lease. The Court had to determine the legal effect of the landlord's actions in the context of the lease terms and the relevant principles of waiver and forfeiture.

The Court reasoned that for a waiver to be established, the landlord must have had knowledge of the breach and must have unequivocally elected to affirm the lease despite that breach. In this instance, the Court found that while the landlord had accepted late rent payments, this conduct did not necessarily demonstrate an intention to abandon their right to enforce the rent payment covenant strictly in the future. The acceptance of late payments, in the absence of a clear indication to the contrary, could be seen as a temporary indulgence rather than a permanent waiver of the right to forfeit. The Court applied the principle that a landlord does not waive their right to forfeit for future breaches by accepting rent after a past breach, unless the conduct clearly indicates an intention to treat the lease as subsisting despite the breach.

The High Court allowed the appeal, finding that the landlord had not waived their right to forfeit the lease. The Court ordered that the appeal be allowed and the judgment of the court below be set aside.

Orders