Storie v Storie [1945] HCA 56

Apel Mins for Cons Dist

ME nrond SION, x (ee grinch Bret aot 80 C.L.R.] OF AUSTRALIA. 597

{HIGH COURT OF AUSTRALIA.]

STORIE . 2 4 3 : i 5 APPELLANT ; APPLICANT, AND STORIE . ' : . 5 : . ResponDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Custody of Infant—Application by mother for custody—Child placed by father in 31, 0. ow A. care of a stranger—Welfare of child—Need of parental care—Refusal of wife's 1945, application by primary judge—Bwercise of discretion—Functions of appellate = ~~ court on appeal from discretionary order—Marriage Acts, 1928-1941 (No.3726— Murpovenr,

No. 4839) (Vict.), 8. 136. May 25; : ak re ae Sypyzy, S. took from his wife, who was living apart from him in Melbourne, the

July 21.6

child of the marriage—a female, about seven years of age—and placed the

child with his cousin, a married woman living in the country, with whom the Tatham 0. ch, Starke, child remained for about two years. It appeared that this woman and the Dixon,

wifo were not on friendly terms and, as the child was living in the country, "Qian yy

access by the wife was difficult and expensive. The wife applied for custody of the child. The application was opposed by S., who sought to have the child left in its present care. The wife had made arrangements to board the child and herself with a friend of many years' standing, a married woman who had no children of her own and who had promised to look after the child while the wife was at work. The primary judge refused the wife's application.

Held, by Latham C.5., Rich, Starke, Dizon and Williams JJ. (McTiernan J. dissenting), that, although the making of the order was a matter of discretion, the order dismissing the wifo's application should be set aside because due weight had not been given to all considerations material to the welfare of