Bennett v Aigner [1991] TOCA 1; CA 17 1997 (30 August 1991)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

APPEAL NO. 17/1991

BETWEEN

KARL JAMES ("GEORGE") BENNETT
Appellant

AND

MARIA VIOLETA AIGNER
(formerly Bennett)
Respondent

Coram:
Morling J, Ryan J, Quilliam J.

Counsel:
Mr. F.P. Hogan for Appellant
Mrs. Vaihu for Respondent

Hearing: On written submission
Date of judgment: 30 August 1991.

JUDGMENT OF THE COURT

The parties to this appeal were formerly husband and wife. They are now divorced and each of them has remarried. Their only child, Siaosi Christian Bennet, is now aged 7. His parents separated in 1984. The appellant was granted a decree nisi in November 1989 which was made absolute shortly afterwards.

In February 1985 an order was made in the Magistrates' Court giving custody of Siaosi to the respondent and ordering the appellant to pay maintenance.

In October 1988 Webster J heard an application for custody and in a careful judgment he confirmed the order made in the Magistrates' Court, but further ordered that Siaosi should not be removed from Tonga.

The respondent and her present husband now plan to move to Vienna where they propose to reside permanently. The respondent therefore applied for consent to remove Siaosi from the jurisdiction. When this application was made the appellant made a cross-application for an order that Siaosi be placed in his custody.

Both applications come before Martin C.J. After a contested hearing he confirmed the order for custody in favour of the respondent and removed the restriction on Siaosi being removed from Tonga. The appellant appeals to this Court from the orders made by the Chief Justice. The parties have requested the Court to hear the appeal on written submissions by counsel for both parties.

The decision which Martin CJ was called upon to make in the present case was a decision which required him to exercise a judicial discretion. It is therefore of central importance to the determination of the appeal to identify the approach which an appellate Court should take when considering the decision of a trial judge founded upon the exercise of such a discretion. In Blunt v Blunt (1943) AC 517 at 526, Viscount Simon LC, speaking for the House of Lords, said:

"This brings me to a consideration of the circumstances in which an appeal may be successfully brought against the exercise of the divorce court's discretion. If it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached because the Court's discretion will have been exercised on wrong or inadequate materials, but as was recently pointed out in this House in another connexion in Charles v Osenton v Johnson [1942] AC 130 138: '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. But 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."

To the same effect is the decision of the High Court of Australia in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513. That was a case in which it was sought to disturb the decision of a trial judge in a matter concerning the custody of a child. At p.519, Stephen J said:

"The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that is it never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight; it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight."

When reference is made to the facts of the present case, it becomes apparent that the considerations relevant to determining whether Siaosi's future welfare would or would not be best served by confirming the order for custody in favour of his mother and removing the restriction on his removal from Tonga were openly balanced. Martin C.J. carefully weighed the competing considerations. No useful purpose would be served by reciting in these reasons what those considerations were. As Martin C.J. pointed out they gave rise to the necessity to make a choice between two stark alternatives which he described in the following terms:

"1. He goes to Vienna. He will be uprooted from the developing country and the culture which he knows, and taken from his father and from his few close friends. He will be transferred from a quiet town to a bustling European city in a totally different environment where he does not yet speak the language. Although it should be possible to arrange access, in effect he will lose his close bond with his father and his father's family.

There will be material benefits. There will be a wider choice of schools. It is proposed that at first he attend the International School in Vienna where the main language there is English. No doubt in the future there will be greater opportunities for him in Austria than in Tonga. But at this age his immediate emotional needs are a much more important consideration.

2. He remains in Tonga. He will remain in the comfortable background which he knows and in which he feels secure. He will not enjoy the wider opportunities available to him in Europe. Most important, he will be effectively separated from his mother who has been and remains the most important person in his young life."

Recognising that there were inevitably uncertainties about Siaosi's future in Austria, Martin C.J. nevertheless came to the view that the first alternative would best serve Siaosi's welfare. He recognised that each parent would provide Siaosi with a good home but was of the view that the most important consideration at his age was the effect on him of separation from his mother. He said that although the appellant's present wife was ready to take on the role of the child's mother "... she cannot take the place of his real mother who has cared for him since birth and around whom his life has always revolved. I think he is too young to be taken from her." Nevertheless he thought that, with the love and support of his mother and step-father, he would adapt and settle in a new life in Vienna.

It would have been open to Martin C.J. to have concluded that Sioaosi's welfare would be best served by him being brought up by his father in Tonga. I do not know what decision I would have reached had I had the advantage (enjoyed by Martin C.J. but denied to me) of observing Siaosi and his parents and the homes in which they live. But even if I would have reached a conclusion different from that reached by Martin C.J., it does not follow that it would be proper to set aside his decision. I do not think it can be said that he gave weight to irrelevant matters or omitted to take into account matters that were relevant, or that this decision was plainly wrong because it was not a proper exercise of his judicial discretion. In these circumstances, to allow the appeal would be inconsistent with the authoritative decisions to which I have referred.

In his comprehensive submissions, counsel for the appellant submitted that Martin C.J. erred in law in assuming that there was a presumption that the custody of a young child should be given to his mother. In my opinion, he did not assume that there was such a presumption, nor did he apply any such presumption in reaching his decision. It is plain from his reasons that he arrived at his decision after consideration of many factors touching on Siaosi's present and future welfare. Some of the more important of these factors are referred to in the two alternatives referred to in his reasons and set out above. He said that the choice between the alternatives had to be ".........decided on an assessment of which course will best serve the welfare of Siaosi." It is true that he was of the opinion that most important consideration, having regard to Siaosi's age, was the effect on him if he was separated from his mother. It is incontestable that consideration was of great importance, just as separation from his father was of importance. But to say that a consideration is important and to give it great weight is not to apply a presumption. It was essential for Martin C.J. to give such weight as he though proper to the competing considerations affecting Siaosi's future welfare. Having reached an opinion as to the importance of separating Siaosi from his mother, it was well open to him to reach the conclusion that, on balance, the respondent should be allowed to take Sioasi with her to Vienna.

The approach taken by Martin C.J. was not inconsistent with the cases, of which there are many, which are authorities for the proposition that when the custody of a child is at issue there is no presumption that custody should be given to the mother. Gronow v Gronow (supra) is itself authority for the proposition. As Stephen J said in that case (at p.520):

"The question whether or not special bonds necessarily exist between the biological mother and her children, bonds which should lead to her being the preferred custodian of young children, has been much debated of late and judgments in the Family Court have tended to deny to the mother any preferred role: it will be enough to refer to Raby v Raby [1976] FamCA 89; [1976] F.L.C. 90-104 as representative of such views. These judgments reflect to some extent, but subject to important qualifications, recent writings of behavioural scientist, many of whose views appear to run counter to conventional judicial wisdom in their denial to the biological mother of the benefit of any prima facie presumption, that she is the preferred custodian of young children, especially if they are little girls."

......................

"The learned primary judge undertook a searching analysis of all those qualities of each of the parties which might in any way relate to their respective suitability as custodian of their daughter. When this is done there can be little room for any presumptions: a full investigation of the relevant circumstances must necessarily provide a much more accurate assessment of the suitability of each parent than will any arbitrary presumption or rule, applied regardless of the infinite variability of human beings. In this case there was such an investigation, ......".

In my opinion, what Martin C.J. did in this case was to undertake a searching analysis of the kind referred to by Stephen J, and the very fact that he carried out such an analysis demonstrates that he did not reach his decision by reference to any presumption.

The material and educational advantages to Siaosi in living in Vienna will be considerable. His mother appears to have cared for him well in the past under what must have been difficult circumstances. There is no reason to assume that her past solicitude for his welfare will not continue. Mr Aigner, her present husband, gave evidence (AB 22) that he is attached to Siaosi and treats him as a son. I have not been able to find in the evidence any material which required Martin C.J. to reject Mr Aigner's evidence. Indeed, the appellant appears to concede that Siaosi is treated well by his new stepfather.

It follows that, in my opinion, the appeal should be dismissed.

Counsel for the appellant has submitted, in the alternative, that if the appeal is not successful then the Court should determine stringent access arrangements. Martin C.J. recognised that it was of importance to Siaosi that he maintain his contact with his father. He said that visits should be arranged so that he can see his father and his family in Tonga at regular intervals. He recognised that this would be expensive and said that he thought it was proper that both parents should contribute to the expense. As some contribution to the expense which will necessarily be incurred by the appellant should he contribute to the cost of Siaosi's trial from Vienna to Tonga, Martin C.J. revoked the order for maintenance made by the magistrate, thereby relieving the appellant of the commitment and enabling him to put the money saved towards the cost of bringing his son to Tonga.

The appellant is not unnaturally concerned that once his son is removed from Tonga he will have no effective means of ensuring that the respondent will comply with any order for access or contribute to the cost of Siaosi's travel to Tonga. He therefore asks that an order be made requiring the respondent to give satisfactory security to the Registrar of the Supreme Court so that a fund will be available each year to pay for Siaosi's air fare from Vienna to Tonga. It is submitted that the fund should be secured either by payment of the cash equivalent to the Registrar or by entry into a bond, appropriately secured, in the same amount.

I do not think that it would be satisfactory to deal with this aspect of the matter on appeal. I think it should be agitated before Martin C.J. I do not know what means the respondent would have of complying with such an order. It may well be reasonable for some security to be given which would operate as a substantial inducement to her to comply with any order for access which is made in favour of the appellant. The precise form of any order for access and the giving of security to ensure compliance with it are best left to be decided by Martin C.J.

However, in case it should be of assistance to Martin C.J. in formulating an appropriate order for access it may be helpful for me to indicate a form of order which he might think appropriate. It is as follows:

"There will be an order for reasonable access in favour of the father and until further order of the Court reasonable access is defined as access for a period of up to 3 weeks per annum in Vienna, Austria at such times the child shall not be required to attend school. The father shall during such access periods have the sole care and control of the child but shall not remove him from Austria. The mother shall contribute to the cost of the father's travel by depositing the sum of US$5,000 with the Registrar of the Supreme Court of Tonga and such sum shall be utilised by the father in the sum of US$1,000 per annum and shall be paid to him upon production of satisfactory evidence establishing the purchase of a return air ticket from Tonga to Austria. At the end of 5 years the question of access shall be subject to review by the Court, if an application to vary this order is then made."

I understand that Martin C.J has already made an order that Siaosi be not removed from Tonga pending the resolution of this appeal and of the question of access. If that be not the case, I think an order should be made that Siaosi be not removed from Tonga until all questions as to access have been finally resolved.

I would dismiss the appeal. I do not think this is an appropriate case in which to make an order for costs.

MORLING J