R v Oregan; Oregan, Ex p [1957] HCA 18

High Court of Australia Webb J. R v Oregan; Oregan, Ex p [1957] HCA 18

ORDER

1. Declaring the proceedings herein valid notwithstanding the applicant's failure to proceed by summons and that the applicant is entitled to the custody of the child James William Oregan;

2. That the child be handed over to her by the respondent; and

3. That the questions of access and maintenance be reserved. Liberty to both parties to apply.

Cur. adv. vult.

Webb J delivered the following written judgment:

April 4 Webb J

This is an application by a wife who claims to be a resident of Victoria for an order nisi for a writ of habeas corpus directed to her husband who is a resident of Tasmania. She is seeking the custody of their son aged six years and eight months who is now in his father's custody in Hobart. The affidavit of the applicant in support of the application was made on 24th November 1956, and filed on 26th idem. When the application came before me on 27th November in Sydney I directed, pursuant to r. 2 of O. 55 of the High Court Rules, that the application be made by notice of motion, following the course taken by Taylor J. in Reg. v. Langdon: Ex parte Langdon [1] .

1. (1953) 88 C.L.R. 158.

The motion was duly served on the respondent in Hobart and the application was set down for hearing before a single Justice at the sittings of this Court appointed to commence at Melbourne on Tuesday 12th February 1957. The matter had not been reached when on 14th February 1957, the respondent applied on summons for an order that the trial of the matter be removed from Melbourne to Hobart. This application was dismissed by me and the hearing, which was in open court throughout, began in Melbourne on 4th March 1957 and concluded on 6th idem, when I reserved my decision.

Counsel for the respondent submitted that the Court had no jurisdiction to entertain the application because the applicant and the respondent were not residents of different States within the meaning of s. 75 (iv.) of the Commonwealth Constitution; and because, in any event, a writ of habeas corpus was not the proper remedy when the respondent, as the father of the infant, had its legal custody. Other questions raised and argued were as to the law that is to be applied if this Court has jurisdiction, i.e. whether that law is the common law, with or without modification by the rules of equity or statute law, the statute law of Victoria, or the statute law of Tasmania. In the matter of the custody of infants the statute law of these States is not identical, at all events in the wording.