Shaw v Ipatoff [1957] HCA 30

248 HIGH COURT (1957.

[HIGH COURT OF AUSTRALIA]

SHAW . 6 : ' Z 6 a . APPELLANT;

APPLICANT, AND

IPATOFF. . 5 ; 5 a : . REsPoNDENT. ResponDEnt,

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

H.C. or A. Infants—Custody—Illegitimate child—Death of natural mother—Wishes of mother 1957. and blood relatives of child—Weight to be given to—Contest between blood relative ae and stranger in whose care for reward the child had been placed—Discretion of Merpourne, — primary judge—Principles governing appeal from—Infants—Adoption— Feb, 15, 18; Whether Victorian statutory provision for, extends to child not domiciled in May 20. Victoria—Supreme Court Act 1928 (No. 3783) (Vict.), s. 62 (5)—Marriage Act 1928 (No. 3726) (Vict.), s. 36—Adoption of Children Act 1928 (No. 3605)

(Viet.). Kitto and 'There is no principle of law which gives a person even a prima facie right to BEATE the custody of an illegitimate child simply because the deceased mother, while

living, expressed a wish that the child should go to that person.

Nor in the case of such a child whose mother has died is there a prima facie right in the mother's relatives to decide the custody of the child, though, if they wish to have the custody themselves the trial judge must naturally give particular weight to that claim in determining what is most conducive to the welfare of the child.

So held by Dixon C.J., Kitto and Taylor JJ.

'The weight to be given to the wishes of the deceased mother or of her relatives, discussed.

Quaere whether the Adoption of Children Acts (Vict.) are to be construed as applying only to infants domiciled in the State of Victoria.

In a contest for the custody of an illegitimate child between a sister of the child's deceased mother and a stranger in whose care she had placed the child and whom she had paid for the upkeep of the child,