Terrance John Wilson v Gaye Lynette Kierans [1982] FCA 279

Federal Court of Australia|1982-07-01|Before: Davies JJ, Connor J

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Appellant AND: GAYE LYNETTE KIERANS Respondent ORDERS JUDGES MAKING ORDER: Bowen C.J., Deane and Davies JJ. WHERE MADE: Canberra DATE: 8 April, 1982.

THE order of the Supreme Court refusing the application for access be set aside and in lieu

on 4 July, 1982 and on the first Sunday of each succeeding month at the home of Mrs. Marie Olga Wilson at 7 Bardsley Street, Holt in the Australian Capital Territory. On such days, if the said Terrence John Wilson wishes to take advantage of his entitlement to access, he shall call for the said Brett Michael Kierans at the said home of the said Gaye Lynette Kierans and Terrence Michael Kierans between 2 p.m. and 2.30 pem. and shall return the said Brett Michael Kierans to the custody of the said Gaye Lynette Kierans and the said

THE said Gaye Lynette Kierans and the said Terrence John Wilson may by agreement between them vary the entitlement to access of the said Terrence John

places other than those provided in Order 1 in addition to or in substitution for those

Gaye Lynette Kierans ensure that the other is informed of the address at which he or she is from

THE above Orders are subject to any subseguent order which may be made by the Supreme Court of the Australian Capital Territory of which Court the said Brett Michael Kierans is a ward and which Court

shall be at liberty to vary, modify or terminate all

TO the extent to which it may be necessary so to provide, liberty is reserved to each of the said Terrence John Wilson and Gaye Lynette Kierans to apply to the Supreme Court of the Australian Capital

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: B Appellant AND: A Respondent CORAM: Bowen C.J., Deane and Davies JJ. 8 April 1982 REASONS FOR JUDGMENT THE COURT: This is an appeal from the Supreme Court

of the Australian Capital Territory. The learned trial judge (Connor J.) had before him two applications, one for adoption of an infant ("Brett") by Mrs. A (mother of the infant) and Mr. A (her present husband) and one by Mr. B (the natural father of the infant) for access. His Honour did not accede to the application for adoption but ordered that Brett be

made a ward of the Court during his infancy or until further

-2- 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 incidental orders including liberty to apply.

_ The appeal before us is by Mr. B against the refusal of access. No appeal has been brought concerning the other orders. We shall refer to Mr. B as "the appellant" and

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 relationship on a somewhat intermittent or irregular basis. After the birth of Brett, the appellant who had previously 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

The respondent and Mr. A began living together in November, 1979 and later, on 24 October, 1980, were married. This 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 was 50 years of age and the respondent was 28. The appellant at that time

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 time

In October, 1979, 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

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Referring to the current application for access by the appellant, Connor J., found it "a difficult question of fact to determine whether (the appellant's) interest in Brett is genuine or whether he is simply using Brett as a means of annoying (the respondent)". A report of James de Berigny Wall, Director of Welfare, Department of the Capital Territory, dated 14 April, 1981 referring to the respondent and her present husband state: "the couple frankly admit-

that the adoption action is intended to rid them of the boy's

A great deal of evidence was before the learned trial judge concerning the character and conduct of the parties and the tensions between them but it is unnecessary to set this forth in detail. Faced with a difficult situation, the learned trial judge took the view that he

should not at this stage make an adoption order. He said:

"Other things being equal I would like to sée the passage of some more time in order to be satisfied that the marriage (of Mr. and Mrs. A) is likely to last".

In argument before his Honour, reference was made to the ease with which a further application could be made at

some appropriate future time for an order of adoption. As to

the appellant's application for access, his Honour said:

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"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

"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 his up-bringing".

Settlements Ordinance, 1956 (A.C.T.). The material portions

"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;

(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 of 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.

(1) Where, in a proceeding before a court, the custody or upbringing of an infant or the administration of property belonging to or 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 or 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 the 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 King ((1936) 55 C.L.R.

499), the manner in which an appeal against the exercise of

discretion should be determined is governed by established principles. Dixon, Evatt and McTiernan Jd., in that case, at

"Tt 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. Tt must appear that some error has been made in exercising the discretion. Tf 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 may exercise 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 the discretion 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 trial 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 evidentiary 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 evidence as to the question 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 him and endeavoured to arrive at a conclusion on 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-

It was then argued by counsel for the appellant that there were certain matters which were properly regarded as relevant by the learned trial judge but to which he attributed undue weight whereas in fact their weight was insufficient 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 witnesses, is peculiarly a matter for the trial Judge; it is not enough that an appellate court, left. to itself, would have arrived 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

It was then argued by counsel for the appellant that there were various factors which were not relevant but which the Judge wrongly took into consideration. 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 which was relevant to those matters to the extent to which 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. Longano (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 into consideration or in which he has approached the ultimate question concerning 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 said that his 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 exist to warrant a refusal of an

application for access where the plain and intended

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 which 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 hesitation, of the view that his Honour failed to give due weight to the -importance and desirability in the ordinary case that a child be permitted 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 consider 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 witnesses.

In reaching the conclusion that the application for access should be refused, his Honour relied upon a number of dafferent factors. These were conveniently divided by Mr.

Crowley, who appeared for the respondent, into the following:

-ll- (iii) His Honour's expressed doubts as to whether the appellant's interest in Brett is genuine or whether he is simply using the child as a

(iv) the appellant's past and continuing failure

to contribute to Brett's financial support or to comply with a maintenance ordér "in_

(v) the fact that the appellant "will probably be facing serious criminal charges in the near future". The criminal offences which his Honour had in mind were the fraudulent receipt of unemployment benefits and

All of the above factors which his Honour took into account were relevant. The weight which should properly be placed upon them obviously varies greatly. Their relevance lies primarily in their relationship to the assessment of what is in the interests of Brett's welfare in the future. Some of them (e.g., intense antagonism between the parents, farlure to pay maintenance, imputation of unworthy motives

and unreliability of evidence) appear to be not as rare as

one would wish in matters relating to access or custody.

It is apparent from his judgment that Connor J. formed a most adverse view of the appellant. A reading of the appellant's evidence explains why that was so. The appellant had not been prepared to contribute regularly to Brett's support and had been prepared to commit perjury to avoid doing so: he swore before the Court of Petty Sessions that he was unemployed when he was both working under an assumed name and, at the same time, fraudulently receiving unemployment benefits. Some of his evidence before the Supreme Court was clearly false. When he had had the opportunity of access to Brett in the past,he plainly suited

his own convenience as to whether he took advantage of the

It should be apparent from what has been said that the appellant emerges quite unfavourably from the evidence. Some disparaging adjectives spring to mind but it is preferable to refrain from using them. On the other hand, the evidence is not all one way: it indicates genuine delight on the appellant's part on the birth of his son, a number of acts of kindness towards his son and, it seems to us, a degree of genuine - albeit not unselfish - affection for his son. The evidence also indicates that past fault has not been solely on the side of the appellant. An experienced social worker, Mrs. Maguire, gave evidence which not only

militated against making an adoption order but which, in our

view, supported the desirability of a continuing relationship

between Brett and the appellant at least at the present time.

There was evidence before Connor J., which his Honour accepted, that access by the appellant had, in the past, had a disturbing effect on Brett. In the context of intense antagonism between parents however, the disturbing effect upon a child of the exercise of access by one of them does not necessarily reflect more adversely on the parent exercising access than on the parent enjoying "custody nor necessarily support the view that access should be disallowed rather than encouraged. It is plain that the irregularity with which the appellant took advantage of the opportunity of access was liable to prove disturbing to the child. On the other hand, there was no acceptable evidence of any acts of unkindness by the appellant to his son at times of access: indeed the acceptable evidence indicates quite the contrary. In this regard, we would make specific reference to the report of a Court Counsellor of the Family Court of Australia who, in response to a request by the Supreme Court, interviewed the respondent, Mr. A, the appellant and Brett on 5 May, i981. That report states that when the appellant entered the room, "Brett gave him a cheerful smile and responded in a way which showed he was a familiar figure" and that Brett "moved comfortably between" the appellant and the

respondent. After reference to a number of matters including

the limited number of visits which the appellant had paid to

"However, he (the appellant) has spent some time with Brett and he obviously recognises and is at ease 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 _

It is possible that he could enjoy them ail, if the tension between the adults diminished".

In one sense, the present application for access relates to an interim period: 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 position will plainly be quite different to that which presently exists. In the one event,

the considerations supporting continual access by the

appellant may diminish 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 direct 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

period 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 access should be at the home of the appellant's mother after two introductory periods 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

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 his father, it 1s plainly of paramount importance that the maintenance of that contact neither prejudices the happiness nor disrupts the stability of Brett's home life. It 1s encumbent upon all concerned to submerge personal antagonisms at least to the extent necessary to avoid such prejudice or disruption. The right to access' should 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 sickness or like eventuality should be handled with common sense and resolved

| certify that this and the 4 - preceding pages are a true copy of the reasons for

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Judgment (96 paragraphs)