Mace v Murray [1955] HCA 2

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. Mace v Murray [1955] HCA 2

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of New South Wales discharged and in lieu thereof order that the appeal to that court from the order of McLelland J. be dismissed with costs and the order of McLelland J. restored.

Cur. adv. vult.

The Court delivered the following written judgment:—

March 2, 1955 Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ.

On 13th April 1953, the appellants applied by notice of motion to the Supreme Court of New South Wales in its equitable jurisdiction for an order of adoption in their favour in respect of a male child then five months old. The child, Wayne Murray, was the illegitimate son of the respondent.

The application was made under s. 164 of the Child Welfare Act 1939-1952 N.S.W. which authorizes the court to make, in a prescribed form, an order for adoption of any child in favour of the person by whom or on whose behalf an application is made. By par. (a) of s. 163 (1) a husband and wife are enabled to make such an application jointly. Section 167, as it applies to the case of an illegitimate child under the age of twelve years, provides that an order of adoption shall not be made unless the court is satisfied, first, that the person is of good repute and a fit and proper person to have the care of the child and of sufficient ability to maintain, clothe, support, train and educate the child; secondly, that the welfare and interest of the child will be promoted by the adoption; and, finally, that the mother of the child consents to the adoption. The section adds, however, by way of proviso, that the court may dispense with the consent where, having regard to the circumstances, the court deems it just and reasonable so to do.