Lovell v Lovell

[1950] HCA 52

High Court of Australia|1950-07-01|Before: Kitto JJ

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Source facts

Court

High Court of Australia

Decision date

1950-07-01

Before

Kitto JJ

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

The application to Coppel A.J. was made upon affidavits of the wife, her father and sister, two friends or acquaintances and a doctor. There were answering affidavits of the husband, his mother, his married sister, his sister-in-law and a woman friend. All the deponents knew the child well and, with the exception of the doctor who deposed as to the state of the health of the child, were relatives or friends of one or other party. The learned judge interviewed the husband and wife in his chambers separately, the interviews occupying about an hour and a half. The wife and the husband were cross-examined upon their affidavits.

[2]

The parties were married on 16th September 1944. The wife became jealous of an association between the husband and a female employee with whom he regularly worked back at his father's factory on one night a week. Upon cross-examination the wife admitted that the work which they did was work which only the woman in question could do and as to which her husband "had to manage." In July and August 1949 differences had arisen between the parties and the wife through her father and sister suggested that they should separate. The husband always maintained that he was anxious to continue living with his wife. In August 1949 the wife left him without his consent and took the child with her. The wife went to live with her father, who is "comfortably off" and who is willing to have his daughter and her child living with him. On 12th September there was an interview between the parties and the husband agreed to pay a pound a week for the maintenance of the child on condition, as he said, that the appellant did not go to work and that she occupied herself in looking after the child. A few days later, without informing her husband, the wife did accept employment. Her employment meant that she had to leave home about 8 o'clock in the morning and did not return until after 6 o'clock at night. In December 1949 the child became ill. She had sores on her face and the husband was of opinion that her mother had been neglecting her. The medical evidence, however, satisfied the learned trial judge that this was not the case and that the sick condition of the child was due to the fact that her tonsils were infected. The child was taken to a hospital and the tonsils were removed. The husband took the child from the hospital on 17th January 1950. He gave evidence that until March the wife made no attempt to visit the child. She said to him that she did not want to see the child, and when asked to return home refused, saying that "she had her own life to lead as well as the child". When application was made to her to send the child's clothes to the father she refused to send them.

[9]

In Storie v. Storie [1] it was considered by this Court that in effect no weight had been given to the claim of a parent as against a stranger to the custody of a child. The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield [2] ) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal. In Blunt v. Blunt [3] Viscount Simon L.C. quotes from Charles Osenton & Co. v. Johnson [4] the following passage: - "The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way" - as well as the passage relating to giving no sufficient weight to relevant considerations.

[46]

The child was a girl of three and had been in its mother's, the respondent's, care from birth until the appellant took it from the hospital on 17th January last. The mother was a respectable young woman and was not lacking in affection for her child. The appellant during cross-examination admitted that the respondent was a good and affectionate mother. Immediately after the child was taken from her she took steps to recover its custody from the appellant. His Honour doubted very much whether the application was not motivated by bitterness against the appellant rather than by affection for the child, but his Honour did not state how he resolved his doubt, and we are in no better position than his Honour was to determine that the application was not motivated by affection. The respondent's action in going out to work was relied upon as showing lack of affection. It was submitted that if she were fond of the child she would have stayed at home to look after it. She left for work between 8 a.m. and 8.30 a.m. and returned at 6.30 p.m. on five days of the week, and she was at work on Saturday morning. But she was with the child each night; and also on Saturday afternoons and throughout all Sundays. There was no evidence that she did not remain with the child when she was not working. During the respondent's working hours the child was in charge of its aunt, against whose character nothing was alleged, as his Honour observed. Moreover, although the respondent's father was prepared that the respondent and the child should live with him, it is not clear that he was prepared to provide them with all their needs and to do so indefinitely. He had retired from business of printer and publisher and was in comfortable circumstances, but we know nothing as to the extent of his means apart from the ownership of his house. I do not think it displayed lack of affection for the respondent to go out to work under those circumstances. She was not guilty of any neglect of the child. The case for the appellant was based on neglect; but that was met by the evidence of the family doctor and others. However it is not necessary to deal with this question of neglect in detail, as his Honour does not appear to have based his decision against the respondent on her neglect of the child; although he found that the appellant's mother had more experience than the child's mother and aunt in looking after children. That could be said for any woman who has reared children, when comparing her with a young woman who has only one child or with a spinster who had not had the care of children; but it is not a good ground for taking the child from the custody of its mother.

[47]

The interests of the child being paramount it is the court's duty to do what is best for the child, having regard to all the circumstances. Everything that has a bearing on the question of the child's interests is to be considered. It is in the paramount interests of the child that it should be with at least one of its parents. Where the child is of tender years it is usual to give its custody to its mother when she is a respectable woman capable of taking care of it and anxious to do so, more particularly when the child is very young. But this is not a rule or presumption of law. As Williams J. said in Storie v. Storie [1] , referring to s. 136 of the Victorian Marriage Act 1928 in question here, the courts have made it "particularly clear that there are the strongest reasons, based on fundamental natural and social laws for holding that, in the absence of very special circumstances, the best interests of the child will be served by leaving it in the custody of one of its parents, and in the case of a female child of tender years in the custody of the mother. Thus in Austin v. Austin [2] , Lord Romilly said: - "No thing and no person and no combination of them can, in my opinion, with regard to a child of tender years, supply the place of a mother, and the welfare of the child is so intimately connected with its being under the care of the mother, that no extent of kindness on the part of any other person can supply that care. It is the notorious observation of mankind that the loss of a mother is irreparable to her children, and particularly so if young. If that be so, the circumstances must be very strong indeed to induce this Court to take a child from the guardianship and custody of her mother. It is, in point of fact, only done where it is essential to the welfare of the child. There are cases of unnatural mothers, and of immoral mothers, where the Court is obliged to take away the child from the mother, finding that a bad mother is really worse than no mother at all, but in these cases it acts solely for the benefit of the child" ".

[49]

If the mother does not possess the necessary qualifications, the child's best interests require that she should not have its custody. It is not simply a question of the competing rights of father and mother: the question is, what do the paramount interests of the child require? The best interests of a girl of three require that she should be with her mother, unless in all the circumstances the mother cannot be regarded as qualified to have the custody of even so young a child. I do not think that is contested. The respondent is not disqualified. I think her decision to go out to work during the day does not disqualify her in the circumstances of this case. They do not reveal any lack of affection for the child nor show neglect of the child, or even a tendency to neglect it. This circumstance would have more weight if it appeared that the respondent's father was not only willing, but was able to provide indefinitely for all her needs and those of her child; or if the respondent's sister or father was not suitable to have the child in her or his care during the respondent's absence at work. The respondent's father was prepared to provide a home for her and the child, but beyond that there was nothing definite. The respondent's sister and father were able and willing to take care of the child during the day. As the respondent was without means it was reasonable that she should take advantage of the opportunity, which might prove fleeting, of earning money without having to leave the child in the care of strangers. In my opinion her conduct in going out to work in such circumstances cannot be a ground for holding her unfit to have the custody of the child, as revealing neglect. The respondent's action in leaving her husband is, in my opinion, a circumstance of greater weight. She acted wrongly in leaving him and in not returning to him. It would be in the best interests of the child that it should be with both parents, and I accept the view of his Honour that it is the fault of the respondent that they are separated. It is a great hardship to the appellant that he should lose the society of his wife through no fault of his own, and that hardship will be greater if he is deprived also of the custody of his child. But ordinarily the paramount interests of a girl of three require it to be with its mother. To give the child's custody to the appellant simply to console him or to avoid adding to the hardships he has already suffered would be to subordinate the child's interests to his. I would take a different view if I thought the respondent, or her sister or father, would be likely to try to turn the child against the appellant. There is evidence that her sister and father have said they have no time for the appellant, and the respondent's attitude to the appellant is hostile. But I think it would be unreasonable to draw the conclusion without more evidence that any of those three persons would be likely to try to poison the child's mind against its father. The appellant will be given access to the child and if any such attempt is made it will become obvious to the appellant and may warrant an application by him for a change of custody. The appellant and his mother are well qualified to have the custody of the child should its paramount interests require that it should be taken from its mother's custody. Meanwhile I think the position is as stated by Smith J. in the Full Court, that the respondent mother can be expected to supervise the child's physical and mental state with care and sympathy as only a mother can, and that her maternal affection will give it the necessary feeling of security.

[54]

In the cases on the subject a variety of expressions is to be found describing grounds upon which such a clear conclusion may be formed in a discretion case. Lord Simon, in Blunt v. Blunt [2] , spoke of "a misapprehension of fact in that it (the primary court) either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant". His Lordship also quoted Lord Wright's statement in Charles Osenton & Co. v. Johnston [3] , that "if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations then the reversal of the order on appeal may be justified". The proposition that the appeal court will consider whether "no sufficient weight" has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully. Lord Atkin, in Evans v. Bartlam [4] , said that if the appellate tribunal "sees that on other grounds (i.e. other than grounds of law) the decision will result in injustice being done it has both the power and the duty to remedy it"; and Lord Wright in Osenton's Case [5] interpreted this as applying when there is a reasonable danger of an injustice. But it is to be noticed that Lord Wright prefaced his judgment [6] with a quotation from Ormerod v. Todmorden Joint-Stock Mill Co. Ltd. [7] , in which Brett L.J. said that "This court lays down for itself the rule, which I think is the right one, that it will not exercise its own discretion unless it thinks the case is perfectly clear"; and later in his speech Lord Wright used words [1] which I think are important: "I have already explained that, in my opinion, when the statute gives a right of appeal from an order made by a judge in exercise of his discretion and an appeal is taken, the discretion of the appellate court is substituted for that of the judge, as Brett L.J. pointed out in the passage which I have quoted above. The responsibility of deciding is then placed on the appellate court. No doubt that court starts with the presumption that the judge has rightly exercised his discretion. It must be satisfied that the exercise was wrong - "clearly satisfied" is the phrase used; but if the court is said to be satisfied, it must mean that it is "clearly" satisfied. "Clearly" strictly adds nothing, though it is useful to emphasize the strength of the presumption in favour of the judge's order being right. The appellate court must not reverse the judge's decision on a mere "measuring cast" or on a bare balance".