Terrance John Wilson v Gaye Lynette Kierans
[1982] FCA 279
•8 Apr 1982
IN THE FEDERAL COURT OF AUSTRALIA ) 1
AUSTRALIAN CAPITAL TERRITORY 1 NO. ACT G41 Of 1981 ) REGISTRY 1 1
DIVISION GENERAL 1
- ON APPEAL FROM THE SUPREME! COURT OF THE AUSTRALIAN CAPITAL TERRITORY - . . - BETWEEN: TERRENCE JOHN WILSON
Appellant
AND : GAYE LYNETTE KIERANS _. Respondent
ORDERS
JUDGES MAKING ORDER: Bowen C.J., Deane and Davies JJ. WERE MADE: Canberra
DATE : 8 April, 1982. THE COURT ORDERS THAT:
1. THE appeal be allowed.
-
2.
- THE order of the Supreme Court refusing the application for access be set aside and in lieu
thereof it be ordered that:
(i) Terrence John Wilson shall be entitled to have access to the infant Brett Andrew Kierans (now known as Brett Michael Kierans):
(a) on each of 2 May, 1982 and 6 June, 1982
between 2 p-m. and 4 p.m. at the home of Gaye Lynette Kierans and- Terrenc-e . . - Nichael. Kierans at 11 Gungara Crescent, Rivett in the Australian Capital Territory:
(b) on 4 July, 1982 and on the first Sunday
of each succeeding month at the home of
Mrs. Marie Olga Wllson at 7 Bardsley Street, Holt in the Australian Capital
Territory. On such days, if the said
Terrence John Wilson wishes to takeadvantage of his entltlement to access,
he shall call for the said Brett Flichael
Kierans at the said home of the sald Gaye Lynette Kierans and Terrence Michael Kierans between 2 p.m. and 2.30 p.m. and shall return the said Brett
Michael Kierans to the custody of the said Gaye Lynette Klerans and the sald Terrence Michael Kierans prior to 5 p.m;
._
-3-
2. - THE sa id Gaye Lynette Kierans and t h e said Terrence
John \?ilson may by agreement between them vary the
ent i t lement t o access of the said Terrence John Wilson by:
(a ) a r ranging tha t the said Terrence John Wilson
.. ..
s h a l l have access on days, a t t imes -o r a t
places other than those provided i n Order 1 i n
a d d i t i o n t o o r i n s u b s t i t u t i o n f o r t h o s e
provided for i n Order 1: o r
(b) tha t he s a id Te r rence John Wilson should not -
enjoy access on any par t icular day.
3 . EACH of the said Terrence John Wilson and the sa id -
Gaye L y n e t t e K i e r a n s e n s u r e t h a t t h e o t h e r is
informed of the address a t which he o r she i s from
time to t ime l iving.
4. - THE above Orders a re sub~ect to any subsequent order
which may be made by the Supreme Cour t of the
Aus t ra l ian Capi ta l Ter r i to ry of which Court the said
Brett Michael Klerans i s a ward and which Court
s h a l l b e a t l i b e r t y t o v a r y , modlfy or te r rn lna te a l l
o r any of t h e above Orders.
5. - TO the extent to which it may be necessary so to
provide, liberty is reserved to each of the sald
Terrence John Wilson and Gaye Lynette Kierans to
apply to the Supreme Court of the Australian Capital
Territory at any time upon three ( 3 ) days prior
notice to the other of them. 6.
EACH of the said Terrence John Wilson and Gaye
-
- Lynette Kierans pay hls or her own costs of the appeal to this Court.
I N THE FEDERAL COURT O F AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY NO. ACT G 4 1 of 1981 1
REGISTRY
1
GENERAL D I V I S I O N
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIMJ
TERRITORY CAPITAL . - -
BETWEEN: B - A p p e l l a n t
AND :
- - A R e s p o n d e n t
CORAM: B o w e n C . J . , D e a n e and D a v i e s JJ.
8 April 1982
REASONS FOR JUDGMENT
THE COURT: T h i s 1s an appeal f r o m the Supreme C o u r t
of t he A u s t r a l i a n C a p i t a l Territory. The learned tr ial Judge
( C o n n o r J . ) had before h i m t w o applications, one for adoptlon
of an i n f a n t ( " B r e t t " ) by Mrs. A ( m o t h e r of the i n f a n t ) and
Mr. A ( h e r present h u s b a n d ) and one by M r . B ( t h e n a t u r a l
fa ther of the i n f a n t ) for access. H l s H o n o u r d i d n o t accede
to the application for adoption b u t ordered t h a t B r e t t be
made a w a r d of the C o u r t d u r i n g h i s infancy o r u n t i l f u r t h e r order. He further ordered that Mr. and Mrs. A have custody and that the Director of Welfare in the Australian Capital
Territory provide to the Court at six monthly intervals commencing on 23 April, 1982 a report concerning Brett and
made certain incldental orders Including liberty to apply.
- His Honour refused Mr. B ' S application for access.
..
..
- The appeal before us is by Mr. B against he
refusal of access. No appeal has been brought concerning the other orders. We shall refer to Mr. B as "the appellant" and Mrs. A as "the respondent".
Brett was born on 6 December, 1978. He is, as has
been said, the natural son of the respondent and the appellant. The respondent was married previously to Mr. C in 1973. There was one child of that marriage, a daughter.
They parted in June, 1976 and that marriage was later
dissolved. Custody of the daughter was retained by the respondent and Mr. C was accorded weekly access. From June,
1977 to March, 1979 the appellant and the respondent lived
together in a de facto relationshlp on a somewhat intermlttent or irregular basis. After the birth of Brett, the appellant who had prevlously left the respondent, returned and stayed until 19 March, 1979 when he left again. The parties have not lived together since then and appear to
have developed a hearty dislike of each other.
_.
The respondent and Mr. A began living together in
November, 1Y79 and later, on 2 4 October, 1980, were married.Thls was Mr. A's fourth marriage and Mrs. A's second
marriage. The respondent had had a number of de facto relationships apart from those previously mentioned. At the time of the hearing before Connor J.. Mr. A vas 5 0 years of
age and the respondent was 28. The appellant at that time -was 31.
. .
. - -
-
Between the time when the appellant left the
respondent and the time of the proceedings before Connor J., the appellant had married but that marriage had proved
unsuccessful. Divorce proceedings were pending at the tlme
the current matter was heard by Connor J. In October, 1 9 7 9 , the Supreme Court of the Australian Capital Territory (McGregor
J.) made an order for
custody of Brett in favour of the respondent and arrangements
were made for access in favour of the appellant. The
appellant had access to Brett on 4 November, 1979 but did not
seek access again until 12 October, 1980, eleven months
later. An order for maintenance of Brett was made against the appellant by the Court of Petty Sessions but he did not
comply with this order or regularly contribute to Brett's support.
Refe r r ing to the cu r ren t app l i ca t ion for access by
the appel lan t , Connor J., found it "a d i f f i cu l t ques t ion of
f ac t t o de t e rmine whether ( t h e a p p e l l a n t ' s ) i n t e r e s t i n Bre t t
i s genuine or whether he is simply using Bret t as a means of
annoying ( the respondent)" . A report of James de Berigny
Wall , Director of Welfare , Department of t h e C a p i t a l -
Terr i tory, dated 14 Apri l , 1981 referr ing to the respondent
.-
and her - present husband state: "the couple frankly admit-
tha t the adopt ion ac t ion is intended to r i d them of the boy 's fa ther" .
A g rea t dea l of evidence was before the learned
t r i a l judge concernlng the character and conduct of the
p a r t l e s and the tenslons between them b u t It i s unnecessary
t o s e t t h i s f o r t h i n d e t a i l . Faced with a d i f f l c u l t s i tua t ion , the l earned t r ia l judge took the view t h a t h e
should not a t t h i s s t a g e make an adoption order. He said:
"Other things being equal I would l i k e t o see the
passage of some more time i n order t o b e s a t i s f i e d
tha t the marr iage (of
l a s t " .Mr. and Mrs. A ) is l i k e l y t o
In argument before his Honour, reference was made
to the ease wi th which a fur ther appl ica t ion could be made a t some appropriate future t ime for an order of adoption. As t o
t he appe l l an t ' s app l i ca t ion €or access , h i s Honour sald: “I am not satisfied that (his) interest in Brett,
as it is manifested at the moment, is such as to advance Brett‘ S welfare“.
Later, referring to his proposal to make Brett a ward of Court, he said:
“Wardship, as distinct from adoption, does not permanently exclude the natural father if in the
light of subsequent events it should be-in the --
interests of the child that the natural father - should play a part in h s up-bringing”.
The matter is governed by the Infants’ Custody and
Settlements Ordlnance, 1956 (A.C.T.). The material portions
~
of this provide:
“5 . In this Ordinance, unless the contrary intention appears -
‘parent‘, in relation to an infant, includes a person at law liable to maintain the infant or entitled to his custody: 6. (1) The Court may, upon the application of a parent of an infant, make such order
as it thinks
fit regarding the custody of the infant and the right of access o f that parent or another parent to the infant, having regard to the welfare of the infant, and to the conduct and wishes of the
parents. 17.
( 1) Where, in a proceeding before a court, the custody or upbringing of an infant or the
administration of property belonging to r held in trust for an infant or the application of the
income of any such property is in question, the court In deciding that question shall regard the welfare of the infant as the first and paramount consideration and shall not take into consideration whether from another point of view the claim by the father or a right at common law
possessed by the father in respect of the custody, upbringing, administration o r application is superior to that of the mother or the claim of the
mother is superior to that of the father”. The discretion which is conferred upon the Court by
s.6(1) falls to be exercised by the Judge who hears ihe
matter. He has the opportunity as did the Judge in this case of seeing and assessing the persons involved in the witness
box. As was said in House v. The Kin? ((1936) 55 C.L.R. 499), the manner In which an appeal against the exercise of -
discretion should be determmed is governed by established
principles. - Dixon, Evatt and McTiernan JJ., in that case, at pp. 504-505 said:
"It is not enough that the Judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant
matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination
should be reviewed and the appellate court mayexercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the
appellate court may infer that in some way there
has been a failure properly to exercise thediscretion which the law reposes in the court of
first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact
occurred".It was argued by counsel for the appellant that the
trlal judge had made a fundamental error in his approach to the question of access in that he had acted on the basis that
the appellant carried an evldentiary onus of demonstrating that access was in the interest of the child. Although the
learned trial judge in the sentence which has been quoted
above expressed the view that he was not satisfied that- the - appellant's interest was such as to advance Brett's welfare, it appears to us that he did so not in the sense of treating the appellant as carrying an onus of proof, but by way of language appropriate to express his conclusion on the evldence as to the questlon which was posed for him by s.6 as to the welfare of the infant. We think it is clear that the
decision on access did not turn on any question of onus but the Judge took the whole of the evidence which was before hlm and endeavoured to arrive at a conclusion n the question of what was best for the welfare of the infant. It follows that
we do not consider that any error by the Judge has been demonstrated in this respect.
It was then argued by counsel for the appellant
that there were certain matters whlch were properly regarded
as relevant by the learned trial judge but to which he attrlbuted undue weight whereas In fact thelr weight was
insufflcient to constitute solid ground for refusing access.
The factors referred to were the appellant's conduct: the
fact that access in the past had been disturbing to the
. .* child: and, the fact that access had been taken by the . >.
appellant in fits and starts. It appears to us that these were relevant factors and undoubtedly the Judge attached some weight to them. However, we do not consider that he has
shown to have attached undue weight to them. While undue weight attached to particular factors may in some circumstances be a ground of reversal, the weight to be attached to any particular factor, especially when it depends
-
upon assessment of wltnesses, is peculiarly a matter for the
trial Judge: it is not enough that an appellate court, .left-
-
to itself, would have arrlved at a different conclusion (Gronow v. Gronow (1979) 54 A.L.J.R.
243).
It does not
appear to us that error on the part of the learned trial judge has been shown in relation to these matters.
It was then argued by counsel for the appellant
that there were various factors which were not relevant but
which the Judge wrongly nook into conslderation. These are set out in ground 5 of the Amended Notice of Appeal in
paragraphs (a) to (f) inclusive. The task of the Judge
involved, in the words of the statute, that he pay regard to. the welfare of the infant and to the conduct and wishes of the parents. Everything whlch was relevant to those matters to the extent to whlch they bear directly or indirectly on the welfare of the child or are necessarily relevant to the resolution of a particular question which might arise (e.g., time and place of access) (see Douglas v. Lonyano (1981) 34
A . L . R . 371 at p. 375) was properly to be considered. In our
view, the trial judge has not made any error of principle in the way in which he has taken matters lnto conslderatlon or in which he has approached the ultimate question concernlng
the welfare of the infant.
- The remaining argument advanced on behalf 'of the-
appellant was ultimately that on which most reliance was placed. It was that the starting point of an application for access by a natural father should be recognition of the prima
facie claim of an infant to have contact with its natural
parent. It was sald that hls Judgment Indicates that the learned trial judge had failed to pay due regard to this prima facie claim of the infant. This submission is not without substance. We turn to a consideration of it.
The application for access in the present case
needed to be considered in the context that the appellant was'
the natural father of the child, that after the birth of the child the appellant returned to live with the respondent and
the child for some months and that, though the exercise of access has been spasmodic and unreliable with one gap of eleven months, some bond between the appellant and the child
had developed and been preserved. In these circumstances,
cogent reasons needed to exlst to warrant a refusal of an appllcatlon for access where the plain and intended
i
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consequence of the refusal would be that the child would, while the refusal remained operative, be deprived of any direct contact with his natural father. It may be that that was the approach whlch Connor J. adopted. Careful reading of his Honour' S Judgment has, however, led us to the view that it was not. In the result, we are, with some hesitatlon, of
the view that his Honour failed to give due weight to the ..
.. . .
-importance and desirability in the ordinary case that a child be permltted to enjoy access to his or her natural father.
The result of our conclusion In that regard is that the exercise of his Honour's discretion miscarried and it becomes
necessary that we conslder the merits of the application for access for ourselves in the light of his Honour's express
findings as to the facts and his assessment of the wltnesses. In reaching the conclusion that the applicatlon for
access should be refused, his Honour relied upon a number of dlfferent factors. These were conveniently divided by Mr. Crowley, who appeared for the respondent, into the following:
(1) the mtense mutual dlsllke of the respondent
and the appellant for one another:(ii) the fact that hls Honour was of the vlew
that no reliance could be placed upon the appellant's testimony:
(iii) His Honour's expressed doubts as to whether
t h e a p p e l l a n t ' s i n t e r e s t i n Bre t t i s genuine
or whether he is simply using the child as a
means of annoying the respondent:
the appel lan t ' S pas t and cont lnuing fa i lure
t o c o n t r i b u t e t o B r e t t ' s f i n a n c i a l s u p p o r t
.. -
or t o comply with a maintenance order - in that regard:
t he f ac t ha t he appe l l an t " w l l l probably be facing ser ious cr iminal charges in the
near future" . The criminal offences which
h l s Honour had i n mind were the f raudulent
r e c e i p t o f unemployment b e n e f i t s a n d perjury:
tha t pas t access exerc ised on the par t o f
the appel lan t had been d i s tu rb ing to Bre t t .
All of the above f ac to r s which hls Honour took into
account were r e l evan t . The welght which should properly be placed upon them obviously var ies great ly . Their e levance
l i e s p r imar i ly i n t h e i r e l a t i o n s h i p to the assessment of
what i s i n t he i n t e re s t s o f Bre t t ' S welfare i n the fu ture .
Some of them (e.g., intense antagonlsm between the parents,
f a l l u r e t o pay maintenance, lmputation of unworthy motives
and u n r e l i a b i l i t y of evidence) appear to be n o t a s r a r e a s
one would wish i n mat te rs re la t lng to access or custody.
I , .
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I t i s apparent from h i s judgment t h a t Connor J.
formed a most adverse view of the appellant. A reading of
the appel lan t ' S evidence explains why t h a t w a s so. The
appel lan t had not been prepared t o c o n t r i b u t e r e g u l a r l y t o
Bre t t ' S support and had been prepared t o commit p e r j u r y t o
avoid doing so: he swore before the Court of Petty Sessions
tha t he was unemployed when he was both working under an
assumed name and, a t t h e same time, f raudulent ly rece iv ing
unemployment b e n e f i t s . Some of his evidence before the
Supreme Court w a s c l e a r l y f a l s e . When he ad had the
opportunity of access to Brett i n the pas t ,he p la in ly su i ted
h i s own convenience as to whether he took advantage of the opportunity.
I t should be apparent from what has been said that
the appellant emerges quite unfavourably from the evidence.
Some d i s p a r a g i n g a d j e c t i v e s p r i n g t o mind b u t it 1 s
p r e f e r a b l e t o r e f r a i n from using them. On the o the r hand,
the evidence is n o t a l l one way: it indicates genuine-
de l igh t on the appe l l an t ' S p a r t on t h e b i r t h o f h i s s o n , a
number of a c t s of kindness towards his son and, it seems t o
u s , a degree of genulne - a lbe i t no t unse l f i sh - af fec t lon
f o r h i s son. The ev ldence a l so ind ica tes tha t pas t fau l t has
not been solely on the side of the appellant. An experienced
soclal worker, M r s . Maguire, gave vidence which not only
ml l l t a t ed aga ins t making an adoption order b u t which, i n ou r
view, supported the d e s i r a b i l i t y of a cont inuing re la t lonship
between Bre t t and the appel lan t a t l e a s t a t t h e p r e s e n t t i m e -
There was evidence before Connor J., which h i s
€Ionour accepted, that access by the appellant had, in the
pas t , had a d i s tu rb ing e f f ec t on B r e t t . I n the context of
intense antagonism between parents however, the disturbing
e f f e c t upon a chi ld of the exercise of access by one of them
goes no t necessar i ly re f lec t more adversely on the paren t
exercis ing access than on the parent enloylng custody nor .- necessarily support the view that access should be disaliowed-
rather than encouraged. I t is p l a i n t h a t h e i r r e g u l a r i t y
with which the appellant took advantage of the opportuni ty of
access was l i a b l e t o prove d i s turb ing to the ch i ld . On the
other hand, there was no acceptable evidence of any acts of unkindness by the appel lant to his son a t times of access:
indeed the acceptable evidence indicates qulte the contrary.
I n t h i s r e g a r d , we would make spec i f i c r e f e rence t o the
repor t of a Cour t Counsellor of the Family Court of Australia
who, i n r e s p o n s e t o a r e q u e s t b y t h e Supreme Court,
interviewed the respondent, Mr. A, t he appe l l an t and Bre t t on
5 May, 1981. Tha t r epor t s t a t e s t ha t when the appe l l an t '
en te red the room, "Brett gave him a cheerful smile and
responded i n a way which showed he was a fami l ia r f igure" and
t h a t B r e t t "moved comfortably between" the appellant and t h e
respondent . After reference to a number of matters including the l imi t ed number o f v i s i t s which the appe l l an t had paid t o
Bre t t I n the past , the report cont lnued: "However, he (the appellant) has spent somc time
wlth Brett and he obviously recognises and is atease with his father.
Brett did not cry when his mother was asked to
leave the room. He quite willingly moved close to his father and played with him. I noted that they had a familiar game of hiding things in (the appellant's) hand with Brett trying
to find it. It was obviously an old routine that they did each time they were together.
- Brett seems to be a fairly happy child, willing to
respond to people and is not afraid. He would .-
respond to anyone who approached him in a friendly- -
- manner. - It is possible that he could enjoy them all, if
the tension between the adults diminished". In one sense, the present application for access
relates to an interim perlod: the period pending the outcome
of any renewed application for adoption. If an adoption order is ultimately made or if the respondent's present marriage fails, the subsequent positlon will plainly be quite different to that which presently exists. In the one event, the considerations supporting continual access by the appellant may dimlnish in weight: in the other event, they
would increase. In the circumstances which exist at present,
it seems to us undesirable, from the point of view of Brett's interests, that there should be a complete break In any dlrect contact between Brett and his father. In our view a
limited order for access should be made. It seems to us that
the appropriate order for access is that, for the present,
._
the appellant have access on one Sunday per month for a total
perlod of up to three hours and that, in the absence of agreement to the contrary between the appellant and the
respondent or further order of the Court, such accsss should be at the home of the appellant' S mother after tb70
introductory perlods of access for up to two hours at the respondent's home. The orders of this Court to that effect
should be made subject to any subsequent order which the Supreme Court might make in the light of altered
- - circumstances.
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- - There is one further matter which should be
mentioned. While it is presently in Brett's Interests that
there not be a complete break In direct contact with h l s father, it 1s plainly of parmount importance that =he
maintenance of that contact neither prejudices the happmess
nor disrupts the szability of Brett's home life. It 1s
encumbent upon all concerned to submerge personal antagonlsms at least to the extent necessary to avoid such pre~udlce or
disruption. The right access o hould be exercised
responsibly and with sensitivity and Mr. B should not assume
that, if it be not exercised regularly, it will continue:.
Any problems which may arise because of slckness or llke eventuality should be handled wlth common sense and resolved
by reference to the Interests of the infant.
judgment herein of the Court
/-A - Associate
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