Lovell v Lovell [1950] HCA 52

High Court of Australia Latham C.J. McTiernan, Webb and Kitto JJ. Lovell v Lovell [1950] HCA 52

ORDER Appeal allowed. Order of Full Court discharged. Order of Coppel A.J. restored.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 27 Latham C.J.

This is a contest between a husband and wife as to the custody of the only child of the marriage, Pamela Diane Lovell, a girl aged three and one-half years at the time of the institution by the wife of proceedings for custody. Coppel A.J. dismissed the wife's application. Upon appeal the Full Court of the Supreme Court of Victoria set aside the order made and gave the custody of the child to the wife. The Full Court stated that it accepted the findings of fact of the learned trial judge but formed a different opinion as to the significance of those facts with respect to the order which ought to be made.

The application to Coppel A.J. was made upon affidavits of the wife, her father and sister, two friends or acquaintances and a doctor. There were answering affidavits of the husband, his mother, his married sister, his sister-in-law and a woman friend. All the deponents knew the child well and, with the exception of the doctor who deposed as to the state of the health of the child, were relatives or friends of one or other party. The learned judge interviewed the husband and wife in his chambers separately, the interviews occupying about an hour and a half. The wife and the husband were cross-examined upon their affidavits.

The parties were married on 16th September 1944. The wife became jealous of an association between the husband and a female employee with whom he regularly worked back at his father's factory on one night a week. Upon cross-examination the wife admitted that the work which they did was work which only the woman in question could do and as to which her husband "had to manage." In July and August 1949 differences had arisen between the parties and the wife through her father and sister suggested that they should separate. The husband always maintained that he was anxious to continue living with his wife. In August 1949 the wife left him without his consent and took the child with her. The wife went to live with her father, who is "comfortably off" and who is willing to have his daughter and her child living with him. On 12th September there was an interview between the parties and the husband agreed to pay a pound a week for the maintenance of the child on condition, as he said, that the appellant did not go to work and that she occupied herself in looking after the child. A few days later, without informing her husband, the wife did accept employment. Her employment meant that she had to leave home about 8 o'clock in the morning and did not return until after 6 o'clock at night. In December 1949 the child became ill. She had sores on her face and the husband was of opinion that her mother had been neglecting her. The medical evidence, however, satisfied the learned trial judge that this was not the case and that the sick condition of the child was due to the fact that her tonsils were infected. The child was taken to a hospital and the tonsils were removed. The husband took the child from the hospital on 17th January 1950. He gave evidence that until March the wife made no attempt to visit the child. She said to him that she did not want to see the child, and when asked to return home refused, saying that "she had her own life to lead as well as the child". When application was made to her to send the child's clothes to the father she refused to send them.