Deane v Duncan

• Jurisdiction: Trinidad & Tobago
• Judge: Kelsick, J.A.
• Judgment Date: 20 December 1979
• Neutral Citation: TT 1979 CA 3
• Docket Number: Mag. App. No. 56 of 79
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 20 December 1979

Court of Appeal

Kelsick, J.A.; Cross, J.A.

Mag. App. No. 56 of 79

Deane

and

Duncan

Appearances:

W. Campbell for the appellant.

E. Roopnarine for the respondent.

Family law - Custody.

Kelsick, J.A.

1 In a complaint laid by the respondent under section 5 of the Affiliation Ordinance Ch. 5 No. 14 the appellant was adjudged by a San Fernando magistrate to be the putative father of the respondent's child, Allan, for whose maintenance until he attains the age of 16 years the appellant was ordered to pay the weekly sum of $30.00. The order in these first proceedings was made on January 31, 1979. On the following day the appellant instituted these proceedings in which he is applying for custody of Allan under section 8(1) and (5) of Ch. 5 No. 14 “on the ground that the mother is not a fit and proper person to have custody”.

2 That enactment, as amended, provides that:–

“8. (1) Whenever under this Ordinance an order has been made against the putative father for payments in respect of a child, any Magistrate may, at the time of making such order or from time to time thereafter, on being satisfied that the mother of the child or other person having custody of the child is not a fit and proper person to have custody of such child, appoint some other person to have custody of such child provided that such person be willing.

… … … … … … … … … … …

(5) A magistrate may also on the application of the putative father of a child or any public assistance officer make an order that the custody of such child be committed to the father.”

3 The ground stated in the complaint for the application for the granting of the order of custody is the one mentioned in section 8(1). A court is not confined to this ground under section 8(5), but may also make an order thereunder notwithstanding that the respondent is a fit and proper person, the paramount consideration being the welfare of the child. Halls v. Mattal (1963) 6 W.I.R. 481. A summary of the evidence given by the appellant follows. From the date of his birth on June 12, 1971, Allan lived with the appellant and respondent until June 28, 1973, when the respondent apprised the appellant that she was going to St. Croix to be married. Allan and the respondent thereafter lived with the appellant at his parents' home and then at the appellant's home after his marriage in July 1976.

4 In or before the month of April, 1978, the respondent returned to Trinidad, whereupon Allan gravitated between the homes of his parents until the respondent finally kept him in October, 1978. The respondent informed the appellant that she had married in St. Croix and was divorced. She had four children, a son born before Allan, and after him two daughters of her marriage. The appellant complained that the environment in which Allan lived with the respondent after October, 1978, was undesirable for a child of tender years. This was at a restaurant and bar. As a result his education had suffered. The appellant, who had been a teacher, had assisted Allan in his studies when they resided together. In January, 1979, Allan received a severe beating. On the advice of a public assistance (probation) officer the appellant took Allan to a doctor whose certificate reads:–

“This eight (8) year old child was seen in my office on 31st January, 1979. Upon examination there were wheals about the back and buttocks, four (4) in number, measuring about 1 ¹/₂” by 4”. One area on the back, the skin was denuded about ¹/₂” in diameter. These injuries were probably inflicted with an object like a strap and the denuded area would indicate greater than average force on the angle at which the strap landed on the back. Treatment was mainly symptomatic”.

5 Courtney Brewster corroborated the appellant's testimony that Allan had for six years resided with the appellant at the home of his mother, to whom Brewster is a neighbour. At this stage of the proceedings counsel for the appellant indicated to the magistrate that he wished to call two further witnesses, the Clerk of the Peace and a Miss Hassanali. There is a note in the record that the court both adjourned and resumed at 1.00 p.m. The time of adjournment would appear to be a mistake.

6 On the resumption both counsel proceeded to address the court. It transpires from the Reasons of the magistrate that the appellant was given until 1.00 p.m. to produce the witnesses, which he failed to do; whereupon the court refused him an adjournment. After hearing legal submissions from counsel the magistrate dismissed the complaint, without calling on the respondent for her defence. The magistrate's Reasons were written after he saw the four grounds set out in the Notice of Appeal and took the form of a reply to those contentions which may be summarised under two heads alleging errors of law.

7 The first error is that the appellant was estopped by virtue of the first proceedings from seeking and obtaining in these proceedings custody of the child which he could, and should, have applied for in the first proceedings. The magistrate opined that where a putative father admits paternity of the child (as he is alleged to have done in the first proceedings) he should pursue the question of custody at the same time, more especially where evidence to support his allegation that the mother is an unfit person is then available to him; and that it is against public policy for him to make such an application in subsequent proceedings. This conclusion is based on an erroneous construction of subsections (1) and (5) of sections 8 of Ch. 5 No. 14. Section 5 of Ch. 5 No. 14, so far as material, reads:–

“(1) A magistrate … may adjudge the person...