Shaw v Ipatoff

The Supreme Court of Victoria heard an appeal concerning the custody of an illegitimate child. The dispute arose following the death of the child's natural mother, with competing claims for custody brought by a blood relative of the child and a stranger into whose care the child had been placed for reward.

The primary legal issues before the Court were the weight to be given to the wishes of the deceased mother and her blood relatives in determining custody, and the principles governing an appeal from the discretion exercised by a primary judge in such matters. Additionally, the Court considered whether a Victorian statutory provision for adoption extended to a child not domiciled in Victoria.

The Court affirmed that in custody disputes involving illegitimate children, the welfare of the child is the paramount consideration. While the wishes of the natural mother and her blood relatives are important, they are not determinative and must be weighed against other factors, including the suitability of the proposed custodians and the stability of the child's environment. The Court also reiterated that an appellate court will only interfere with a primary judge's exercise of discretion if it is demonstrated that the judge made an error of principle or that the decision was plainly wrong. The question of adoption was also considered in light of the relevant Victorian legislation.