Morrison v Jenkins [1949] HCA 69

High Court of Australia Latham C.J. Rich, Dixon, McTiernan and Webb JJ. Morrison v Jenkins [1949] HCA 69

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Dec. 22 Latham C.J.

On 22nd June 1945 a baby girl was born to Mrs. Alberta Gwen Morrison in the labour ward at the Kyneton Hospital in Victoria. Within the preceding five minutes a baby girl had been born in the same ward to Mrs. Jessie Jenkins. Mrs. Morrison and her husband claim that the baby known as Nola Jenkins, who has lived with the Jenkins family ever since Mrs. Jenkins left the hospital, is her (Mrs. Morrison's) baby and that the girl known as Johanne Lee Morrison who was given to Mrs. Morrison at the hospital as her baby is not in fact her child. Mr. and Mrs. Morrison took proceedings against Mr. and Mrs. Jenkins by way of habeas corpus, claiming the custody of Nola. The Supreme Court of Victoria (Barry J.) held that the evidence showed that Nola was the daughter of Mr. and Mrs. Morrison, that prima facie it was for the welfare of any child that it should be brought up by its parents and not by strangers, that Mr. and Mrs. Morrison were not disqualified by character or circumstances in any way from discharging the duties and responsibilities of parents in respect of custody and nurture, and that in the circumstances of the present case the welfare of Nola required that she should be given into the custody of her parents. Upon appeal to the Full Court the order of Barry J. was discharged. Herring C.J. was of opinion that habeas corpus proceedings were unsuitable for the determination of the parentage of a child where that matter was in dispute, and that such a question should be determined only in proceedings which were described as proceedings in rem; that is, proceedings which would be binding on all persons whomsoever and, in this case, in respect of both children. There is provision for proceedings in rem in the Legitimacy Declaration Act 1858 Imp., s. 1. The law of Victoria, however, makes no provision for such proceedings and no suggestion was made to this Court of any proceeding which Mr. and Mrs. Morrison could take which would in any single proceeding, determine the parentage of both children. Application for a writ of habeas corpus is an appropriate procedure whereby a parent may obtain the custody of a child. The law is as stated in Halsbury, Laws of England, 2nd ed., vol. XVII., p. 666—"a father, whose infant child is not in his custody, and a mother, where she is entitled to the custody, may, in the absence of good reason to the contrary, obtain the custody of the child by a writ of habeas corpus"—and see R. v. Waters [1] . Herring C.J. was also of opinion that the parentage of Nola was not satisfactorily established by the evidence. The Chief Justice said:—"However convincing on the balance of probabilities the proof may be it is not such as to conclude the matter beyond all possible doubt." Fullagar J. based his judgment upon the view that there was room for doubt as to the parentage of Nola and that in view of the gravity of the consequences following upon a decision as to parentage no order should be made if there was "even the slightest room for doubt." Lowe J. agreed with the other members of the court.