R v Langdon; Ex parte Langdon [1953] HCA 66; (1953) 88 CLR 158 (7 October 1953)

HIGH COURT OF AUSTRALIA

THE QUEEN v. LANGDON; Ex parte LANGDON [1953] HCA 66; (1953) 88 CLR 158

High Court

High Court of Australia
Taylor J.(1)

CATCHWORDS

High Court - Original jurisdiction - Matter between residents of different States - Habeas corpus - Husband and wife - Recovery of custody of infant child of marriage - Child taken by wife to different State - Application by husband for writ of habeas corpus - Application by wife for custody and maintenance - State law conferring on State court special jurisdiction with respect to infants - Appropriateness of High Court as forum - The Constitution (63 & 64 Vict. c. 12), s. 75 (iv.) - Guardianship and Custody of Infants Act 1934 (Tas.) (25 Geo. V., No. 29), ss. 10, 12.

HEARING

Melbourne, 1953, October 5, 7. 7:10:1953
Reg. v. Langdon; Ex parte Langdon.
ORDER NISI for habeas corpus.

DECISION

October 7.
TAYLOR J. delivered the following written judgment: -
On 1st September, 1953, the abovenamed applicant Donald Maxwell Langdon, 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". (at p160)

2. 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 p160)

3. 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 [1953] HCA 35; (1953) 88 CLR 197 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 [1843] EngR 702; (1843) 10 Cl & Fin 42 (8 ER 657) , and McKee v. McKee (1951) AC 352 ) - 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". (at p161)

4. The wife's application for custody is made under s. 10 of this Act which is in the following terms: "The Court may, upon the application of the mother of any infant (who may apply without next friend), make such order as it thinks fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in any case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just". (at p161)

5. The "Court" in each case is defined by the Act to mean the Supreme Court of Tasmania and the jurisdiction which is conferred by these sections is a special statutory jurisdiction with respect to infants. I very much doubt whether the jurisdiction conferred by the latter section is exercisable by this Court in its original jurisdiction merely because the husband and wife are residents of different States and I have no doubt that the jurisdiction of this Court to issue a prerogative writ should not be exercised on the husband's application unless it is open to the Court to refuse the application in the exercise of a discretion similar to that reposed in the Supreme Court. The writ, although grantable ex debito justitiae, does not issue as of course (R. v. Commanding Officer of Morn Hill Camp Winchester; Ex parte Ferguson (1917) 1 KB 176 ) and it may be sufficient to say that the husband's application should be refused on the ground that it would be more appropriate for this and similar applications to be made in the Court to whom the appropriate special jurisdiction has been committed. But it is quite clear that it should be refused unless it is open to this Court to exercise such a discretion as that given by the statute to the Supreme Court. (at p161)

6. The proposition that, where parties are residents of different States, this Court may exercise powers conferred upon particular courts for special purposes involves such far-reaching consequences that I think the question, if and when it arises in an appropriate case, should be determined by the Full Court. This, however, is not an appropriate case for I am firmly of the opinion that no order should be made on either application. (at p162)

7. The applicant and his wife were married on 28th November, 1950, and their child the subject of this application was born on 6th December, 1951, so that he is not yet two years of age. The parties themselves are young, the wife having attained the age of twenty-one years on the 26th June last. During the period which has elapsed since their marriage there has been a number of quarrels and the wife has during that period left her husband on a number of occasions. The last occasion was in the month of May 1953 when, following a quarrel, she left her husband and, taking the child with her, went to her parents' home in King Island. (at p162)

8. The evidence as to the causes of these quarrels is conflicting but I have no hesitation in saying that, whatever the initiating cause was on any particular occasion, the husband has, on every occasion, behaved foolishly and quite irresponsibly. He has, on a number of occasions assaulted his wife though he swore in his affidavit in support of this application that he has never assaulted her. His own admissions in the course of cross-examination showed that on a number of occasions he had, as he said, slapped his wife on various parts of the body, but these, he said, he did not regard as assaults. On the evidence I have no doubt that his conduct towards his wife was more violent than he was prepared to admit. His evidence is in conflict with that of the respondent and also with that of her father and that of Constable Evans and to the extent to which it is in conflict I am not prepared to rely on his evidence. (at p162)

9. Although he has acted foolishly and irresponsibly and, no doubt, selfishly, I am inclined to think that he has some real affection for his wife and child but I am quite convinced that the interests of the child would be best served by leaving him with his mother. No real suggestion of any kind was made that she was not a fit and proper person to have the custody of her child, nor was there any evidence that the home in which the child is living is not suitable. Indeed the evidence, including that of the husband and his mother, is to the effect that the respondent is a good mother and I have no doubt that the child will be well cared for by her in a suitable home. In these circumstances I think it would be quite wrong to remove the child, who is not yet two years of age, from the custody of his mother and place him in the custody of his father who, in my opinion, is a far less suitable person to see that he is cared for and to attend to his upbringing. Accordingly I am of the opinion that the husband's application should be dismissed. (at p163)

10. The wife's application, even if I have jurisdiction to make the order asked for, should also be dismissed. She has at the present time actual custody of the child and if circumstances arise which require, in the interests of the child, that an order should be made her application should, I think, be made in the appropriate court. It would, I think, be most inappropriate for this Court to make an order for custody and maintenance when there exist courts specially constituted for this purpose and which may, if and as occasion requires, review the matter from time to time. (at p163)

ORDER

The Queen v. Langdon and Another; Ex parte Langdon.

Application dismissed with costs.

Langdon v. Langdon.

Application dismissed.