R v Langdon; Ex parte Langdon

[1953] HCA 66

158 HIGH COURT

[1963.

[HIGH COURT OF AUSTRALIA.]

THE QUEEN

AGAINST

LANGDON AND ANOTHER ; EX PARTE LANGDON.

LANGDON Appl ic a n t

;

AND

LANGDON

R e s p o n d e n t .

H. C. OF A. 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 M elbourne , for writ of habeas corpus—Application by wife for custody and maintenance— Oct. 5, 7.State law conferring on State court special jurisdiction with respect to infants—

1953.

Appropriateness of High Court as forum—The Constitution (63 & 64 Viet, c. 12), s. 75 (iv.)—Guardianship and Custody of Infants Act 1934 (Tas.) (25 Geo. V., No. 29), ss. 10, 12.

Taylor J.

The jurisdiction of the High Court in its original jurisdiction to issue a prerogative writ should not be exercised unless it is open to the Court to refuse the application in the exercise of a discretion similar to that reposed in the court of the State the law of which is applicable to the matter not­ withstanding that the parties are residents of different States. Accordingly, the Court refused to grant an application by a husband resident in Victoria for a writ of habeas corpus directed to his wife and another, who were resident in Tasmania, for the production in Court of the body of the child of the marriage.

The Court also refused to grant an application by the wife for custody and maintenance on the ground that, even if it had jurisdiction to make the order asked for, the wife had de facto custody of the child and it was most inappro­ priate for the High Court to make an order for custody and maintenance

88 C.L.R.] OF AUSTRALIA.

159

when there existed courts specially constituted for this purpose and Avhich might, if and as occasion required, review the matter from time to time.

Quaere whether where parties are residents of different States the High Thj; Qu e e n

Court may exercise powers conferred on State courts for special purposes

V.

L a n g d o n ;

by the. law of the State applicable in the matter.

E x PAETB L a ng don .

Reg. V. Langdon ; Ex paxte Lang don.

Order Nisi for habeas corpus.

On 1st September 1953 Donald Maxwell Langdon of Melbourne in the State of Victoria applied ex parte in Chambers to the High Court for an order nisi for a writ of habeas corpus directed to his wife Lily Florence Langdon and to her father, Hughie Archibald Fraser, both of Grassy, King Island, in the State of Tasmania, to produce the body of Christopher Maxwell Langdon, the infant child of the marriage, aged one year.

Taylor J . directed that the application be made to a justice in court on notice to the respondents, and adjourned the application in order to enable this to be done.

Langdon v. Langdon.

Summons.

On 30th September 1953, the abovenamed Lily Florence Langdon procured the issue of a summons out of the High Court in its original jurisdiction claiming that orders be made granting custody of the infant child Christopher Maxwell Langdon to her, and providing for the maintenance of herself and of the child. The respondent to this summons was the abovenamed Donald Maxwell Langdon.

The applications were heard together.

Further facts appear, and the relevant statutory provisions are

sufficiently set forth, in the judgment hereunder.

Mrs. Joan Rosanove, for the husband.

R. J . Davern Wright, for the wife.

Cur. adv. vult.

T a y l o r J. delivered the following written judgm ent:—

Oct. 7.

On 1st September, 1953, the abovenamed applicant Donald Maxwell Langdon, made an application in Sydney for an order nisi for a writ of habeas corpus 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

160 HIGH COUET

[1953.

H. C. OF A; application was made the applicant resided in the State of Victoria where he still resides and his wife,

T he Q u e e n I'^g^tlicr with the cliild, resided and still resides at Grassy, King

V.Island, which is ])art of the State of Tasmania. The application,

L anudon ;it was claimed, could ])roperly he made in the original jurisdiction

E x

i'AUlMO

La n l i d u n .

of this Court since, as it was said, the application was in respect

Taylor ,r.

of “ a matter . . . between residents of different States

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 I/iffh 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 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 (1) in which Fullagar J. made an order absolute for habeas corpus in a custody case where the husband and wfife resided in different States. This order, made as it was, a t 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 (2), and McKee v. McKee (3) )—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.)

(1) (1963) 88 C.L.R. 197.(3) (1951) A.C. 352.

(2) (1843) 10 CL & Fin. 42 [8 E.R.

657].

88 C.L.R.] OF AUSTRALIA.

161

provides as follows :—“ Where the parent of a child applies to the H. C. of A.

Court for a writ or order for the production of a child, and the Court

1953.

is of opinion that the parent has abandoned or deserted the child, T h e Q u een

or that he has otherwise so conducted himself that the Court

V.

L a n g d o n ;

should refuse to enforce his right to the custody of the child, the Ex PARTE

Court may, in its discretion, decline to issue the writ or make L an g d o n .

the order ” .

Taylor J.

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 ” .

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 apphcation in the exercise of a discretion similar to that reposed in the Supreme Court. The writ, although grantable ex dehito justitiae, does not issue as of course {R. v. Commanding Ojjicer of Morn Hill Camp Winchester ; Ex parte Ferguson (1)) 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 appro­ priate 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.

The proposition that, where parties are residents of different States, this Court may exercise powers conferred upon particular

(1) (1917) 1 K.B. 176.

V O L. L X X X V in .— 11

162 HIGH COURT

[1953.

H . C. OF A.

courts for special purposes involves such far-reaching consequences

I!))-)').

that I think the question, if and when it arises in an appropriate case, should be determined by the Full Court. This, however,

'I’ l i u

Q u i o k n

is not an appropriate case for I am firmly of the opinion that no

I.,ANOi)oN ;

order should be made on either application.

E x

P.A RTU

.L a NC!1)ON.

The applic.ant and his wife were married on 28th November,

Taylor J.1950, and their child the subject of this application was born on

6tli 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.

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. 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

88 C.L.R.] OF AUSTRALIA.

163

cared for and to attend to liis upbringing. Accordingly I am of

H. C. 03? A.

the opinion that the husband’s application should be dismissed.

1953.

The wife’s application, even if I have jurisdiction to make the order asked for, should also be dismissed. She has at the present

T h e Qu e e n

V.

L angdon ;

time actual custody of the child and if circumstances arise which Ex PARTE

require, in the interests of the child, that an order should be made

L ang don .

her application should, I think, be made in the appropriate court. I t 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 recjuires, review the matter from time to time.

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

Application dismissed with costs.

Langdon v. Langdon.

Application dismissed.

Solicitor for the husband, T. D. Armstrong.

Solicitors for the wife, John W. & Frank Galhally.

R. D. B.