Alberto Gabbai v. Anna Gabbai

CACV000159/1981

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Coram: Sir Alan Huggins V. -P., Barker, J. A., and O'Connor, J.

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JUDGMENT

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Sir Alan Huggins, V. -P. :

1. For lawyers it is unnecessary to say that cases of this kind always cause the Court a great deal of anxiety. We have before us an application in respect of one of two children of a couple who unhappily are contemplating divorce. The child before us is aged four years: her sister is aged 10. We are asked to make an interim order whereby the ward would be transferred from the present custody of the father into the custody and control of the mother.

2. The position is that there has been considerable litigation in relation to these two children. The learned Judge, Mr. Justice Power, made the order now appealed against on 22nd December 1981. He decided that it was in the interest of the child that she be transferred to the care and control of the mother. For my part I would be very unwilling to interfere with that order if I were satisfied that the judge had considered all the matters which should be considered and had excluded from his mind all matters which should have been excluded, but I have come to the conclusion that he took into consideration matters which he should not. He stated that it was suggested to him that the status quo established by an order of Judge Cruden be maintained until the hearing of the originating summons which is to come before the High Court on 19th March of this year, i.e., in just over 2 months' time. My first comment is that it is, of course, conceded that the status quo was certainly not established by that order. That order in effect continued a status quo then existing. The fact is that by 22nd December 1981 circumstances had changed and, in so far as Mr. Justice Power clearly attached considerable weight to the order of Judge Cruden in these contemporaneous proceedings, I think he was in error. I think he was entirely right to disregard an allegation that the ward had expressed some fear of her mother. That is a matter which I think would be very dangerous to consider in relation to a child of four. As I said in argument, even older children than that are often affected in their assessment of a parent by generous gifts on the one hand and by the infliction of proper discipline on the other.

3. That being the position I think that we have to consider this case ourselves, without attaching weight to the opinion of Mr. Justice Power. It was suggested that we should also have regard to the opinion of Judge Cruden in the matrimonial proceedings and another opinion of Mr. Justice Macdougall in the present case. As I have already said, the position when Judge Cruden made his order was different. As regards the order of Mr. Justice Macdougall he was considering the matter ex paste and he did not have the advantage of hearing the father, whilst again the matter was being considered on a different date. These two children spent the first part of their lives in the matrimonial home with both parents. subsequently the mother went away. She came back and it was in July 1981 that the mother took care and control of the two children in the matrimonial home, and it was in that month that Judge Cruden made his order. In October the mother voluntarily handed over the children to the father while she went to Italy. We will assume that she went for the purpose of the intended divorce and that she was in no way indicating a desire to surrender the children. He returned in November and at that time, after a discussion about the children, the older child was left with the mother and the father took the ward with whom we are concerned, so that by December for some two months the Ward had been away from the mother living with the father. She was thus taken away from the school which she had been attending, from the matrimonial home which had been her home for most of her young life and from her sister, and it was that status quo which existed when the matter came before Mr. Justice Power. With respect to him I do not think that he fully appreciated that, nor did he apparently-for we have only a short note of his judgment - attach proper weight to the fact that he was dealing with an application which would affect the situation for no more than just under three mouths - until the hearing of the application for care and control to be heard on 19th March. The vital thing for the interest of the ward is that she be not disturbed any more than is necessary. If eventually the mother is given care and control, the fact that the ward has had to spend three further months away from the mother with the father is not going to make a great deal of difference to the ward. If on the other hand the father is eventually given care and control, the fact that she has been uprooted from the father's hand, taken to the mother and then has to be returned to the father will be a considerable disruption and one which, if it can be avoided, ought to be avoided.

4. It has been suggested that we ought to have regard to the fact that the elder daughter is being upset by the separation from her young sister. I would not say that that is a consideration which is wholly irrelevant, but we are not concerned directly with the interests of the elder daughter but only with the conditions of the elder daughter as they may affect the ward. I am not persuaded on such information as we have before us that any upset to the elder girl is going to cause substantial harm to the ward.

5. In these circumstances, and not without considerable reluctance, I have come to a conclusion different from that reached by Mr. Justice Power. I would allow this appeal and direct that care and control do remain with the father pending the hearing of the application.

Barker, J. A. :

6. I agree and merely add this out of deference to Miss Leong's most able arguments. Matters of this kind, as my lord the Vice-President has said, always cause the utmost of anxiety in any judge's mind and I am sure it will be explained most forcefully to the Respondent that the decision at which we have arrived today is in no gray a final decision, and I for my part during the course of the argument have been prepared to assume (and it is in all probability a valid assumption) that the Respondent - the wife - is most concerned and most anxious for the welfare and well-being not only of the child who is living with her but the child who will temporarily at least be living with her husband. As to what the final decision will be, it is not for us to say. All I am of the view is that we should not disturb that child at the moment. It may be that when the judge who eventually hears this application and hears evidence given on both sides - with cross-examination on both sides - he will arrive at a different decision from that at which we have arrived today, but that is not a matter which we consider now. For the reasons which have been given by my lord the Vice-President I agree that this appeal should be allowed.

O'Connor, J.:

7. I agree with both judgments.

7th January 1982.