R v Langdon; Ex parte Langdon [1953] HCA 66

High Court of Australia Taylor J. R v Langdon; Ex parte Langdon [1953] HCA 66

ORDER The Queen v. Langdon and Another; Ex parte Langdon. Application dismissed with costs. Langdon v. Langdon. Application dismissed.

Cur. adv. vult.

Taylor J. delivered the following written judgment:—

Oct. 7 Taylor J.

On 1st September, 1953, the abovenamed applicant Donald Maxwell Langdon, made an application in Sydney for an order nisi for a writ of habeas corpus directed to his wife, the first named respondent in the first mentioned application, and to her father requiring them to produce in court the child of the applicant and his wife. At the time this application was made the applicant resided in the State of Victoria where he still resides and his wife, together with the child, resided and still resides at Grassy, King Island, which is part of the State of Tasmania. The application, it was claimed, could properly be made in the original jurisdiction of this Court since, as it was said, the application was in respect of "a matter between residents of different States".

Upon the making of the application referred to I refused to make an order nisi for the issue of the writ and acting under r. 2 of Order 55 of the High Court Rules directed that the application should be made by notice of motion to a justice in court and I adjourned the application until 15th September, 1953, so that notice might be given to the respondents. Such notice was duly given and before the hearing took place the wife procured the issue of a summons out of this court asking that custody of the child be granted to her and that an order for the maintenance of both herself and the child be made. Both applications were heard together on 5th October, 1953.

At the outset a number of legal problems presented themselves. In the first place the question arose whether, having regard to the form of the husband's application, the parties to it can be said to be residents of different States. On this point I was referred to a recent unreported case: Reg. v. Macdonald; Ex parte Macdonald [1] in which Fullagar J. made an order absolute for habeas corpus in a custody case where the husband and wife resided in different States. This order, made as it was, at the request of and with the consent of the parties, was made after some discussion as to the jurisdiction of the court. I should, perhaps, be prepared to assume that this initial difficulty should be resolved in favour of the prosecutor but, in this case, there arises the additional question as to what extent, if any, the Tasmanian law—which I take to be the law which governs this case (see Johnstone v. Beattie [2] , and McKee v. McKee [3] )—is capable of any real application in the original jurisdiction of this Court. The husband's application is, of course, for the issue of a prerogative writ and there is no doubt that this Court has jurisdiction to direct the issue of such a writ. But in Tasmania the husband's right to obtain its issue from the Supreme Court in a case such as the present is subject to substantial statutory restrictions. In particular, s. 12 of the Guardianship and Custody of Infants Act 1934 Tas. provides as follows:—"Where the parent of a child applies to the Court for a writ or order for the production of a child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may, in its discretion, decline to issue the writ or make the order".