R v Macdonald; Ex parte Macdonald

[1953] HCA 35

Foil

RyOirgin;

88 C.L.R.] OF AUSTRALIA.

197

[H IG H COURT OF AUSTRALIA.]

THE QUEEN

AGAINST

MACDONALD;

Ex PARTE MACDONALD.

High Court— Original jurisdiction— Matter between residents of different States-

H . C. OF A.

Habeas corpus— Husband and wife— Recovery of custody of infant child of

1953.

marriage— Child taken by husband to different State— Application by wife

for writ of habeas corpus— Order absolute in first instance— The Constitution

M e l b o u e n e ,

(63 & 64 Viet. c. 12), 5. 75 (iv.).

2 5 . ’

A husband and wife had resided a t Melbourne, Victoria, since their marriage in 1941.

June 3, 12.

Since 19th Septem ber 1952, w'hen the sta te of cohabitation between

them ended, the ir infant son, aged six years, had resided with the wife. On

Fullagar J.

15th April 1953 he was intercepted, while on his way to school in Melbourne, by the husband. Although it was impossible to trace the husband and child, there was evidence th a t very shortly after 15th April 1953 they had stayed at a house in Sydney, New South Wales, and th a t the husband had stated, both before 15th April 1953 in a conversation with a th ird party , and on th a t date in a le tte r to his wdfe, th a t he intended to make his permanent home in New South Wales. On appheation by the wife for a writ of habeas corpus directed to the husband to produce the body of the child.

Held th a t the m atte r was one between residents of different States within the meaning of s. 75 (iv.) of the Constitution, and, accordingly, the High Court had jurisdiction to issue the writ. In the circumstances, the order for its issue should be absolute in the first instance.

H a b e a s

C o r p u s .

Anthony Grant Macdonald (hereinafter called the infant) an infant aged six years, lived at Melbourne with his father Spencer Eldred Grant Macdonald (hereinafter called the respondent) and his mother Joyce Patricia Macdonald (hereinafter called the appheant) until 19th September 1952, on which day the respondent was sentenced to be imprisoned for two months. After his release from prison the respondent did not resume cohabitation with the appheant, with whom the infant had continued to live. On 15th April 1953 the infant disappeared while on his way, to school. From that time diligent search was made but the only indications

198 HIGH COURT

[1953.

H. C. OF A. o f ] o g whereabouts given were : {a) a letter from the respondent applicant, dated 15th April 1953, and bearing the address

T he Q u e e n '' Haberfteld P.O., Haberfield, Sydney, N.S.W.” in which the

V. following sentences appeared : “ I have decided to live in Sydney.

̂Ex' î'\uTE ’ ̂ brought Tony to live with me in Sydney ”. A reply by the

M a o d o n a e d . applicant addressed to Spencer Eldred Grant Macdonald c/o the

address he had given was returned by the postal authorities unopened. I t was known that the respondent had been brought up and had lived at Haberfield, Sydney, where his mother still lived, until his marriage in 1941, after which time he had lived and carried on an estate agency business in Melbourne. Moreover he had told the applicant’s father a few weeks before 15th April 1953 that “ the bottom had dropped out of his world and he intended to sell up all he had in Victoria when he could and to return to Sydney to live ” ; (6) Inquiry by a private inquiry agent which revealed that the respondent and the infant had stayed at a house in Sydney for a short time immediately after 15th April 1953.

On 16th April 1953 the applicant presented a petition under the Marriage Act 1928 (Viet.) to the Supreme Court of Victoria praying that her marriage with the respondent might be dissolved on the ground that he had been guilty of a repeated act of adultery wdth Edith Mary Peters.

On the same day the applicant issued a summons in the Supreme Court of Victoria for custody of the infant. Neither of these documents was served on the respondent because of lack of knowledge as to his whereabouts.

On 25th May 1953, application was made ex parte to Fullagar J. for a writ of habeas corpus directed to Spencer Eldred Grant Macdonald to produce the body of Anthony Grant Macdonald. The facts, as set out above have been taken from the affidavits filed in support of the application.

B. J. Dunn, for the applicant. On the facts this is a matter between residents of different States within the meaning of s. 75 (iv.) of the Constitution.

[ F u l l a g a r J.

I think you make a prima facie case of that, which

is sufficient at this stage.]

Because there is a probability of the infant being kept in con­ cealment or his custody being changed or parted with, I ask for the order for the writ of habeas corpus to be absolute in the first instance. [He referred to Ex parte Diedrich Witte (1).]

Fullagar J. made an order that the wTit of habeas corpus issue and for substituted service of it and of the notice required by 0. 55

(1) (1853) 13 C.B. 680 [138 E.R. 1367],

88 C.L.R.] OF AUSTRALIA.

199

r. 40 (4) (5) of the High Court Rules. His Honour intimated that

0- of a .

he would on 3rd June 1953, if the respondent appeared, hear the

question of custody. t,

^

i J

I he Queen

On 3rd June 1953 the respondent appeared and requested an

v.

adjournment to 12th June 1953, which was granted on his personal ^̂ Ex° parte ’ undertaking that he would not, in the meantime, take the infant Macdonald. out of the State of Victoria.

On 12th Jiine 1953 the appearances were as follow :—

Dr. E. G. Gospel Q.C. (with him B. J. Dunn), for the applicant.

C. H. Lucas for the respondent.

Dr. E. G. Coppel Q.C.

The parties have reached agreement and

i t IS desired that an order be made by consent.

[ F u l l a g a r J. Before I make an order I must be satisfied that I have jurisdiction. I think that you should direct your attention to two questions : (a) Whether an application for habeas corpus and proceedings on the return of the writ can be a “ matter between” residents of different States ; (b) Assuming the answer to (a) is satisfactory to you, whether the respondent and the applicant here are residents of different States.]

The writ is the Sovereign’s writ, and therefore the matter is instituted as if the Sovereign were a party. But that is all mere matter of procedure. In substance one party litigant is seeking relief in the Court against another, and either may be ordered to pay costs to the other. As to the second question the respondent is in Court and may be examined as to his residence.

The respondent was then sworn and gave evidence that although he and the infant were in the State of Queensland when the existence of the writ came to his notice, he had originally taken the infant to New South Wales with the intention (which still subsisted) of making his permanent home in that State, and that he had disposed, or was in the course of disposing, of his assets in the State of Victoria.

F u l l a g a r J. I will make the order. Order that the respondent this day deliver the infant Anthony Grant Macdonald into the custody of the applicant.

Order accordingly.

Solicitors for the applicant, E. P. Johnson Davies.

Solicitor for the respondent, R. H. Dunn.

R. D. B.