R v Jenkins; Ex parte Morrison

The applicants, Mr. and Mrs. Morrison, sought custody of a child, Nola Jenkins, who had been in the care of the respondents, Mr. and Mrs. Jenkins, for approximately four years. The Morrisons alleged that a confusion of identity occurred at the maternity hospital where both women gave birth around the same time, resulting in Mrs. Jenkins being given the Morrisons' child and Mrs. Morrison being given the Jenkins' child. The primary judge found that Nola was indeed the child of the Morrisons and ordered that they have custody.

The legal issues before the High Court were whether the evidence sufficiently established the parentage of Nola Jenkins, and if so, whether it was in Nola's welfare to be removed from the custody of the Jenkins and placed with the Morrisons. The Court also considered the appropriateness of the habeas corpus proceedings for determining disputed parentage and the standard of proof required for such a determination.

A majority of the High Court, comprising Rich, Dixon, and Webb JJ., held that the order for custody should be set aside. Rich and Dixon JJ. reasoned that the evidence left the parentage of the child in such doubt that it would not be for the child's welfare to remove her from her current custodians. Webb J. concluded that the evidence, when considered as a whole, did not support the primary judge's finding of parentage. Latham C.J. and McTiernan J. dissented, believing the evidence did establish parentage and that the child's welfare favoured placement with her parents. The Court emphasised that the paramount consideration in custody matters is the welfare of the infant, and that while parental rights are significant, they are not absolute and must be weighed against the child's best interests, particularly when there is doubt about parentage and the child has been in stable care for an extended period.