Douglas v Longano [1981] HCA 18

Douglas v Longano [1981] HCA 18

Section 3(1) of the Status of Children Act 1974 (Vict.) operates to require that references to 'child', 'father', and 'mother' in s. 142 of the Marriage Act 1958 (Vict.) encompass ex-nuptial children, meaning both s. 142 and s. 147 empower courts to make orders regarding such children. The primary question for access remains the welfare of the child, and the primary judge erred by basing his discretionary refusal of access on the father's failure to marry the mother and the mother's wish that the child not know his father, neither of which was sufficiently related to the child's welfare. The Full Court was correct in re-exercising the discretion and granting access.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave to Appeal and Appeal / High Court Decision on Special Leave and Substantive Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['custody' 'access to Child' 'ex Nuptial Children' 'statutory Interpretation']
['family Law'] ['custody' 'access to Child' 'ex Nuptial Children' 'statutory Interpretation']

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Procedural Posture

Application for Special Leave to Appeal and Appeal / High Court Decision on Special Leave and Substantive Appeal

Legal Issues

  1. 1 ['Does s. 142 of the Marriage Act 1958 (Vict.) apply to ex-nuptial children following the enactment of the Status of Children Act 1974 (Vict.)?' 'What is the operative legal test for making orders as to access and custody in the case of ex-nuptial children under the Marriage Act post-amendment?' 'Did the primary judge err in the exercise of discretion in determining access on irrelevant grounds?']

Ratio Decidendi

Section 3(1) of the Status of Children Act 1974 (Vict.) operates to require that references to 'child', 'father', and 'mother' in s. 142 of the Marriage Act 1958 (Vict.) encompass ex-nuptial children, meaning both s. 142 and s. 147 empower courts to make orders regarding such children. The primary question for access remains the welfare of the child, and the primary judge erred by basing his discretionary refusal of access on the father's failure to marry the mother and the mother's wish that the child not know his father, neither of which was sufficiently related to the child's welfare. The Full Court was correct in re-exercising the discretion and granting access.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Application for special leave to appeal granted.' 'Appeal dismissed with costs.']