F.C. In re LANGE Chubb J. motion to make absolute an order nisi calling on the maternal grandmother of an infant to show cause why a writ of habeas corpus should not be directed to her to produce the body of the child for determination as to his future custody, the learned Judge refused, at that time, to order that the child should be delivered up to the prosecutor, the father of the child; but indicated that his order was not final, and that when circumstances justified it, another application could be made. The notice of appeal asked that the order be set aside, and that in lieu thereof the order nisi be made absolute, with costs, and a declaration be given that the prosecutor was entitled to the custody of the infant, on the ground that the judgment or order was contrary to the evidence and weight of evidence and contrary to law. The facts appear in the judgment of CHUBB J. This is a motion on behalf of the father of the infant to make absolute an order calling upon K. H. Spies, the infant's maternal grandfather, to show cause why a writ of habeas corpus should not be issued directing Spies to produce the infant before the Court for determination as to his future custody. The facts as I find them to be are as follows: The child is now of the age of three years and nine months. His mother was a daughter of Spies, and died in Brisbane when the child was about seven months old. The father was then employed in Brisbane, and he took the child to the home of his parents at Meringandan, and returned to his employment in Brisbane. The child remained for two or three weeks with these grandparents, when he was, with the father's consent, taken to the home of his maternal grandparents, who lived, and still live, about half-a-mile from the paternal grandparents, and from that date to the present the child has been well and most affectionately cared for and maintained by them. On the evidence and, further, having seen all the parties and the child in Court, I am satisfied that, so far as I am able to judge of the welfare and happiness of the child, he could not be in better hands. At the same time, I am unable to say that if he had been left with his paternal grandparents from the first he would not have been equally as well cared for by them as he has been by Mr. and Mrs. Spies. They have also living with them a young daughter, now aged 14, whose care and companionship I am sure has materially contributed to the happiness of the child, an advantage not possessed by the other grandparents. If this were solely a contest between the grandparents for the child's custody, I should certainly decide to leave him where he is. But for a petty squabble which happened some six months ago between the two grandfathers over a bit of farm work, involving a matter of less than £1 in value, I have very considerable doubts indeed if the child's father would have attempted to disturb the present custody of the child. After his wife's death the child's father worked in Brisbane for about five months, visiting the child monthly; then he returned to Meringandan, and worked there for about fifteen months, during which time he saw his child two or three times a week and twice on Sundays. Then he returned to Brisbane, where he has been employed ever since in the Tramway service, meantime visiting the child from time to time, and spending the Easter and Christmas holidays at Meringandan. Last Easter he asked Spies to give him possession of the child, but Spies refused. Subsequently he endeavoured to take the child away, but was resisted. Hence these proceedings. Under these circumstances, what are the father's rights? The law on that subject is settled beyond any question. In re Fynn (1), In re Agar-Ellis, Agar-Ellis v. Lascelles (2), Goldsmith v. Sands (3), Moule v. Moule (4). Stated in a few words it is, "The right of the father to the custody and control of his children is one of the most sacred of rights. No doubt the law may take away from him this right or may interfere with his exercise of it, just as it may take away his life or his property or interfere with his liberty, but it must be for some sufficient cause known to the law. He may have forfeited such paternal right by moral misconduct or by the profession of immoral or irreligious opinions deemed to unfit him to have the charge of any child at all; or he may have abdicated such right by a course of conduct which would make a resumption of his authority capricious and cruel towards the children. But in the absence of some conduct by the father entailing such forfeiture or amounting to such abdication, the Court has never (1) 1848, 2 DeG. & S. 457. (2) 1878, 10 Ch.D. 49. (3) 1907, 4 C.L.R. 1648. F. C. In re LANGE. Chubb J. THE QUEENSLAND LAW REPORTER, NOVEMBER, 1917. F.C. In re LANGE. Chubb J. yet interfered with the father's legal right. It is a legal right with, no doubt, a corresponding legal duty, but the breach or intended breach of that duty must be proved by legal evidence before that right can be legally interfered with." There is no question here of impropriety of conduct on the part of the father, and I am unable to find that he has abdicated his paternal right, or so conducted himself as to make a resumption of his authority "capricious and cruel" towards his child. But while the right of the father is as I have stated, it is also settled law that in the exercise of the paternal jurisdiction of the Court of Chancery the dominant matter for the consideration of the Court is the " welfare of the child." Goldsmith v. Sands (1), per Griffith C.J., citing R. v. Gyngall (2). "The term 'welfare' in this connection must be read in its largest possible sensethat is to say, as meaning that every circumstance must be taken into consideration, and the Court must do what under the circumstances a wise parent, acting for the true interests of the child, would or ought to do. It is impossible to give a closer definition of the duty of the Court in the exercise of this jurisdiction." See also In re Holmes (3). In Goldsmith v. Sands (4), the happiness of the child was regarded by the Court as an essential element of human welfare to be taken into consideration. The question, then, on the materials before me, is what is best for the child? Moule v. Moule (5). What home does the father propose to provide for the child? The father lives at present in Brisbane in lodgings. When this motion was opened his counsel stated that it was proposed to bring the child to Brisbane to his father's lodgings, and there place him in the care of the landlady, a stranger-a person I have not seen--and of whose capability to look properly after the child I have had no opportunity of judging. Now the applicant says that since the adjournment of the hearing he has arranged with his father to leave the child with him until he can make a home of his own. He also says that he has had thoughts of volunteering for the war service, and further that he contemplates getting married soon, and again that he proposes to leave his employment in Brisbane, and return to Meringandan, and work on his father's farm to be near the child. There is certainly at (1) 1907, 4 C.L.R. 1648. (4) 1907, 4 C.L.R. 1648. (5) 1911, 13 C.L.R. 267, at p. 270. present an element of uncertainty, to say the least, about these various propositions. I have been unable to discover the expression by him of any feeling of gratefulness to the child's grandparents for their care of the child in the past. He did offer, when he claimed the childfor the first time to pay the full State allowance of 7s. 6d. a week for the three years," which is, I understand, the pauper's allowance paid to State foster mothers. 66 One suit of clothes, costing 13s. 6d., sent last Christmas, is the extent of the contribution he has made in three years towards the child's maintenance. Certainly he has never been asked for any, the grandparents being only too glad to provide everything the child needed. Having regard to the facts as they are at present, I do not see that transferring the child from the home of one set of grandparents, where he has been well cared for and happy for the past three years, to the home of another set of grandparents, not altogether strangers, but much less familiar to him, would make for the welfare or happiness of the child. If I had to decide between the two sets of grandparents, having heard them all, my inclination would be to give the preference to the Spies grandparents, though I do not wish to be understood as suggesting anything derogatory to the Lange grandparents, but I think the child would be happier where he is. The comparative advantages of being with the father or with his grandparents is not a matter for inquiry if the father is, as apparently he is, able to maintain the child in reasonably comfortable circumstances. The child is of too tender an age to choose for himself, and though he would at first feel the change from his present affectionate surroundings, he would naturally, being little more than a baby, if kindly treated, soon become accustomed to a new home. But the difficulty with me is that as things are, the father's movements being so undecided, I see no present certainty of a permanent happy home for the child. I think until the father has made a proper home of his own--if a married one so much the better-it is better for the child to remain where he has been almost from his birth. My order is, of course, not final, and when the circumstances are such as to justify it, the application can be renewed. I should, however, not grant the application without considering the propriety of ordering the father to pay Spies a reasonable sum for the maintenance of the F.C. In re LANGE. Chubb J. F.C. In re LANGE. Chubb J. child during the whole period, which I have power to do under s. 11 of The Guardianship and Custody of Infants Act of 1861, as I did in Stemp v. Fulton and Wife (1), though I think he would prefer to be allowed to keep the child than to have the money. In the meanwhile, the father must have all reasonable access to the child, and be allowed to take him out at reasonable times for reasonable periods, returning him, of course, to his Spies grandparents. This will, I have no doubt, be amicably arranged between the parties, but if any difficulty arises it can be disposed of on a summons in chambers. The present motion will, therefore, be refused, and, under all the circumstances, without any order as to costs. From this judgment the father appealed. A. D. Graham, for the appellant, contended that the order was wrong in law. The right of the father in this case, who had been guilty of no misconduct, indiscretion, or impropriety which operated to forfeit his right, is absolute. No suggestion of such conduct or of abandonment or desertion of the child was made; or that his right had been lost or suspended. He has a natural jurisdiction over the child and a right to the custody. The evidence showed that he was prepared to establish a proper home and provide suitable maintenance. The learned Judge should have given effect to the father's right, and was wrong in refusing to recognise the prima facie right of the father to the child's custody which the father had done nothing to abdicate or lose, or the duties of guardian which, on the evidence, the father was eminently fitted to properly discharge. He cited Halsbury Laws of England, Vol. XVII., pp. 105, 106; Re Fynn (2), In re Goldsworthy (3), R. v. Gyngall (4), Guardian and Custody of Infants Act of 1891, ss. 10, 11; R. v. Smith, In re Boreham (5), Eversley on Domestic Relations, p. 513; Thomasset v. Thomasset (6), Moule v. Moule (7), Goldsmith v. Sands (8). Grove, for the respondent, was not called on. On the hearing of the appeal the fact was disclosed that the prosecutor had since the date of the hearing married a second (1) 1899, 9 Q.L.J. 299. (2) 1848, 2 DeG. & S. 457, at p. 473, (4) [1893] 2 Q.B. 232, at p. 242. (5) 1853, 22 L.J.Q.B. 116. |