Moule v Moule [1911] HCA 50; (1911) 13 CLR 267 (28 September 1911)

HIGH COURT OF AUSTRALIA

Annie Moule Appellant; and Arthur Moule Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

28 September 1911

Griffith C.J., Barton and O'Connor JJ.

Jacobs, for the appellant.

The respondent appeared in person.

Griffith C.J.

The principles upon which a question of this kind is to be determined were laid down by this Court very clearly in Goldsmith v. Sands[1]. I said in that case:—"It is also settled law that in the exercise of the paternal jurisdiction of the Court of Chancery the dominant matter for the consideration of the Court is the welfare of the child." The same doctrine was laid down by Hood J. in In re Holmes[2]. The child in this case is a girl a little over three years of age who has always lived with her mother. The father and mother have been separated for more than a year. There is nothing in the evidence to suggest that the mother is not a fit person to have the custody of the child. Under these circumstances the father, who has been separated from his wife for that length of time, obtained a writ of habeas corpus to get the custody of the child, and Hodges J. made an order that the child should be handed over to the father. The learned Judge appears from the report of his judgment to have directed his attention to the old rule of the common law that the father was the person entitled to the custody of his child unless very strong reasons to the contrary were made out. But the Act commonly called Serjeant Talfound's Act (36 & 37 Vict. c. 12), which is embodied in sec. 31 of the Marriage Act 1890, has altered that, and the rule is now as I have stated. The question, then, for us to consider is whether it is for the interest of this little girl that she should be taken from the custody of her mother and handed over to the custody of the father. He is a smelter and lives at Port Pirie in South Australia. She lives in Melbourne, where she has been for over a year with the knowledge of her husband and, for the greater part of that time, with his consent, and where she has been earning her own living. In Goldsmith v. Sands[3] two conflicting views were put before the Full Court of Victoria. That was an appeal from Hodges J. from whom the present appeal is brought. Higgins J., who dissented from the opinion of the majority of this Court, stated the two views thus[4]:—"Mr. Justice Hodges asked himself—What residence would be the better for the infant on the materials before me? The Full Court asked itself: What proof is there that to permit the father to have his child would involve any serious injury to the child?" He thought the form of question put by the Full Court was right, but the majority of this Court thought that the question put by Hodges J. was right. That learned Judge, however, in the present case seems to have taken the other view. In my opinion the question for us is what on the materials before us is best for the child, and, applying my mind to the evidence, I am unable to come to any other conclusion than that it is better for the child to remain where she has always been, with her mother. I think, therefore, that the order appealed from should be discharged, and that the child should be remanded to the custody of her mother. The respondent asks that he may have access to the child, and that is a reasonable request. We think that he should have access to the child not oftener than once a week within reasonable hours after 24 hours notice has been given to the mother. If in the future events happen which render it desirable that the child should not remain with her mother the Court has ample jurisdiction to do what is necessary to protect the child. As the matter stands at present the mother is the proper custodian.

Barton J.

I concur, and have nothing to add.

O'Connor J.

I am of the same opinion.

Appeal allowed. Order appealed from discharged. Child to be remanded to the custody of the appellant. Respondent to have access once a week at reasonable hours after 24 hours notice. Respondents to pay the costs of the appeal.

Solicitor, for the appellant, P. J. Ridgway.

[1] [1907] HCA 47; 4 C.L.R., 1648, at p. 1653.

[2] 21 V.L.R., 358.

[3] [1907] HCA 47; 4 C.L.R., 1648.

[4] [1907] HCA 47; 4 C.L.R., 1648, at p. 1661.