R v Oregan; Oregan, Ex p

[1957] HCA 18

High Court of Australia|1957-07-01|Before: Webb J, Taylor J

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Source facts

Court

High Court of Australia

Decision date

1957-07-01

Before

Webb J, Taylor J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

The applicant, her mother, her sister and the respondent were cross-examined on their affidavits. Other affidavits were filed, some on behalf of the applicant and others on behalf of the respondent, but the deponents were not called for cross-examination.

[2]

The applicant, then Doreen Elizabeth Hegarty, and the respondent, James Edward Oregan, were married in Melbourne on 12th December 1947, in the office of the Government Statist of Victoria. The applicant was a Catholic. The respondent was a Protestant and a divorcee. Their respective ages were twenty-six and thirty-three years. The applicant's father appears not to have expressed any views about the marriage; but her mother thought it was "a sad mistake"; although she said nothing to respondent about it. However, the applicant's sister, Mary Hegarty, and her brothers appear to have expressed to the respondent their disapproval of the marriage, if not their resentment at it, and their reasons for their attitude. The respondent does not appear to be a member of any religious congregation, although he suggests he is a Protestant. But he is somewhat hostile towards the Catholic Church, due probably to its attitude to his marriage with the applicant. It may appear remarkable that a Catholic woman who had decided to contract such a marriage would have had scruples about the form of baptism of any child of the marriage; but I am satisfied that she did tell the respondent before the marriage that any child of the marriage must be baptised in the Catholic Church, and that, although he did not give his express approval, he did not then object. The respondent admitted that the matter was discussed before the marriage, but he said that he had insisted on any child of the marriage being baptised in a Protestant Church. I accept the applicant's evidence where it differs from the respondent's. She appeared to me to be a truthful person, whereas I am unable to regard him as a reliable witness. He swore in cross-examination that the statement in his affidavit that the applicant's family prevented him from seeing the applicant was untrue, and that he did not make it; and he suggested that his solicitors had wrongly included it in the affidavit. Probably with some reluctance, he attended the baptism of the child in a Catholic Church and at times escorted the applicant and the child to Mass on Sundays and also took the child to the Catholic School.

[3]

After the marriage the parties went to Hobart and resided there until the beginning of September 1956, when the respondent took his holidays and decided that he and the applicant should spend them in Melbourne, presumably with the applicant's people. At that stage, and for some two or three years before, the parties were on fairly good terms with each other and with the applicant's family. The applicant's mother in her evidence said that, although she regarded the marriage to the respondent as a sad mistake, she "never had any reason to object to him or his character", and that he had been welcome in her home whenever he came. However, on 12th September 1956, the applicant made up her mind to live permanently apart from the respondent. Her reason for this was that after they arrived in Melbourne early in September 1956 she became ill and was sharing a room with her mother when her husband came into the room and abused her because she would not get out of bed and have sexual intercourse with him. She said she decided to leave him on the Monday, "the first Monday that I was sick". Still, on the previous Sunday she had suggested to him that they should live in Melbourne; but he was not willing to do so as he did not want to leave his home, nor his employment in Tasmania which appears to have been constant. On the following Tuesday the respondent returned to Hobart without the applicant or the child. After he returned, the child was sent to a Catholic school in Melbourne close to where the applicant's people lived and the applicant secured employment in a factory. The child was at school on 19th November 1956, when the respondent called at the school and took him away to Hobart. The applicant then commenced proceedings in the Supreme Court of Victoria to obtain the custody of the child; but these were not carried beyond the extension of the time for service of the summons on the respondent. It so happened that the order for extension was made on the day that the respondent took the child from the school, but he disclaims any knowledge of that.

[5]

I propose now to trace very briefly the history of the matrimonial relationship in Hobart where, as I have already stated, the parties resided from the end of October 1949 to early in September 1956. During the whole period that the parties lived in Hobart the respondent appears to have been in constant employment, mostly as an employee, but for about seven months on his own account. The applicant admitted that he gave her most of his wages or earnings throughout that period; but she said, and I believe her, that at times the amount left after paying rent, hospital and other medical expenses, and debts contracted by the husband for the purposes of his employment or in the course of his business, was not sufficient to buy necessary food and clothing for herself and the child. She says, and again I believe her, that the respondent spent more money on liquor than he could reasonably afford, that on several occasions he was drunk, and on one occasion was so drunk that he became violent and threatened to shoot his brother-in-law. But that incident occurred in September 1950. Thereafter and up to the time they left Hobart in September 1956, his behaviour was not such as to warrant her leaving him. He appears to have been fond of his wife. She said that his purpose in taking the child from Melbourne to Hobart was to force her to go back and live with him. There is no suggestion of his association with any other woman. Here one recalls that the applicant's mother said she never had any occasion to object to him or to his character and that he was always welcome in her home. He appears to be a hardworking man. He is vigorous and alert with no history of illness. Unfortunately this cannot be said of the applicant. But he is aggressive and domineering and was selfish in that he spent more on liquor than he could afford and so at times left his wife and child short of food and clothing. However, although he cannot properly be regarded as an exemplary husband, he fell far short of being a bad one.

[6]

I have come to the conclusion that she was not justified in deciding to live apart from him in September 1956. If he demanded too much of her in her then condition of health, he does not appear to have insisted unduly in the assertion of what in normal circumstances would have been his marital rights. I suspect, however, that the actual reason for her decision was that, according to the faith which she professed, she felt that she was living in sin with her husband and that by continuing to live with him the eternal salvation of herself and her child would be endangered. But I cannot act on suspicion, and in any event in the eyes of the law this marriage imposed the same obligations and conferred the same rights on both parties as any other marriage would. I must therefore deal with this case on the basis that the applicant has separated from the respondent without just cause or excuse. However, it does not follow that she is not entitled to have the custody of the child, if it is in his paramount interests within s. 136 of the Marriage Act 1928 Vict. or for his welfare within s. 145, that she should have his custody, as I think is the case. Section 136 is not found in the Tasmanian statutes but s. 145 corresponds with s. 10 of the Guardianship and Custody of Infants Act 1934 Tas.. Whether the child is left with his father or is returned to his mother he will have a reasonably comfortable home and, so far as food and clothing and his secular education are concerned, there will be no difference between the two homes. However, the child is not yet seven years of age and is in delicate health. It is common ground that he is subject to convulsions and he has had other less serious illnesses. Clearly he is in need of constant care and attention. At present, apart from the respondent, the only person who gives the child any attention is a married woman who is a neighbour of the respondent. However it appears that her contact with the child ceases when he returns from school and the respondent then takes him to his home. But should the respondent take ill, or for any other reason become incapable of looking after the child, or should he have to work overtime at night - and he does work overtime - there is no certainty that the child will then get that close and continuous care and supervision for which his state of health calls. I emphasize that the child is subject to convulsions. On the other hand, if the child is transferred to the custody of his mother he will, except during school hours, be under the constant care and supervision of his mother or his grandmother or of one of his aunts. I am satisfied then that the applicant is fit to have the custody of the child and should have it, having regard to his welfare or paramount interests, if there be any difference between these two considerations required by ss. 136 and 145. It is true that there is no man in the mother's house; but as he is under seven years of age there is at present no real need for his supervision by a man. I am dealing with the existing situation, which as far as I can judge is likely to continue indefinitely as the respondent did not suggest the contrary. It may be that later on the respondent will be able to provide for the necessary care and supervision of the child at all times, and that his claim to have the custody will be strengthened.

[18]

As to whether the applicant and the respondent are residents of different States within the meaning of s. 75 (iv.): In Australasian Temperance and General Mutual Life Assurance Society Ltd. v. Howe [1] Knox C.J. and Gavan Duffy J. said that s. 75 (iv.) seemed to assume that a resident of one State cannot at the same time be a resident of another State [2] . They referred to the dictionary meaning of the term "resident" as being a natural person, one "who resides permanently in a place" [3] . Isaacs J. [4] said that he was in substantial accord with the decision expressed in Quick and Garran on the Constitution (p. 776) that residence in a State for the purposes of s. 75 (iv.) should be interpreted as involving a question of State membership and of a character to indentify the litigant to some extent with the corporate entity of the State; that the identification by reason of residence of the litigant with one State connotes his exclusion from similar identification by reason of residence within any other State; and that if he were to express it in a word it is "status". His Honour added that every Australian was, when all the facts were known, residentially identifiable preeminently with one State, and was therefore a resident of that State and of that State alone for the purposes of s. 75 (iv.) [5] . His Honour said that a natural person is a resident of a State within s. 75 (iv.) where in fact the nature of his residence shows it is his real home [6] . Higgins J. emphasised that the expression is "resident of a State" and not resident in a State, and that the language of s. 75 (iv.) "obviously implies some close connection between the resident and the State, some exclusive link with some one State which cannot at the same time be had with any other State" [7] . His Honour said there was not much difficulty in defining the residence of an individual, " It is where he sleeps and lives " [7] . Starke J. said the word "resident" in its primary meaning signifies a natural person who lives, dwells and has his home in some country or place [8] . In this case the only real difference between their Honours was as to whether a corporation could be a resident of a State. Isaacs J., as he then was, and Starke J. thought it could be; but they were a minority.