Boyd v Macpherson

This matter concerned an application for special leave to appeal to the High Court of Australia from an order of the Full Court of the Supreme Court of Victoria. The dispute involved the custody of a child, Mary Macpherson, between her father, James Simpson Macpherson, who resided out of the jurisdiction, and Mrs. Edith Boyd, in whose care the child had been living.

The legal issues before the High Court were whether special circumstances existed to justify granting special leave to appeal from the Full Court's decision. The Full Court had reversed an earlier order by a single judge of the Supreme Court, which had refused to grant custody of the child to her father. The father sought to have the child brought to his home in British Columbia.

The High Court, in refusing special leave, reasoned that while its discretion under section 35(1)(b) of the Judiciary Act 1903-1915 was unfettered, the term "special leave" implied the necessity of demonstrating a prima facie case showing special circumstances. The Court considered the arguments presented by both parties but concluded that the applicant had not established such special circumstances. The Court noted that the appeal was largely based on questions of fact, and that the Full Court's decision, while reversing a finding of fact by a single judge, did not present a sufficiently compelling reason for the High Court to intervene.