Morrison v Jenkins

[1949] HCA 69

High Court of Australia|1949-07-01|Before: Webb JJ, Barry J, Fullagar J, Lowe J

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Source facts

Court

High Court of Australia

Decision date

1949-07-01

Before

Webb JJ, Barry J, Fullagar J, Lowe J

Source

Original judgment source is linked above.

Judgment (71 paragraphs)

[1]

For the reasons which I have stated I am of opinion that the appeal should be allowed with costs, that the decision of the Full Court should be set aside and that the order of Barry J. should be restored, the respondents paying for the costs of the appeal to the Full Court of the Supreme Court.

[2]

In this matter special leave was granted from the judgment and decision of the Supreme Court of Victoria. The facts of the case are sufficiently set out in the judgment of Fullagar J. and need no repetition. I agree entirely with his Honour's reasons. But as the matter is of very great importance I consider that I should state shortly my own reasons. The procedure adopted in this case is unfortunate as the children the subject of the controversy are not parties and will not be bound so far as the question of parentage is concerned by any order the Court may make. Usually in cases relating to the guardianship of infants no issue as to parentage is raised. Moreover one must bear in mind that proceedings by way of habeas corpus are discretionary. The question for determination in reality is whether it is for the welfare of the child that a change of custody should be ordered. Originally in England courts of law interfered by habeas corpus for the protection of the person of anybody who is suggested to be improperly detained. The old Court of Chancery interfered for the protection of infants qua infants by virtue of a prerogative which belongs to the Crown as parens patriae, and the exercise of which is delegated to the Great Seal: Re Spence [1] . Now under the Judicature Act the High Court in England has inherited the combined powers of the courts whose functions were transferred to it.

[6]

The appellants treated parentage as the sole issue in the case instead of something merely supplemental to the main issue, namely the welfare of the child. No evidence or none that is convincing was led to prove that a change of custody would in any way benefit the child. On the contrary, it appears that the present custody is satisfactory and conducive to the health, happiness and general well-being of the child. The appellants, on whom the onus lies, have not proved that any change is necessary. The claim made and the issue raised by the appellants are that of parentage and I cannot conceive that any advantage or benefit would at this stage accrue to the infant even if it would gratify the female appellant. The evidence shows that the male appellant was not anxious to make any application. His relations towards the child are shown in the following passages from his evidence: - "I was not anxious to go on with the matter. I take it that you are very fond of Johanne Lee and so is your wife? - Yes. May we take it that Johanne Lee has been at all times brought up as an integral member of your family? - Yes. At no stage has she ever been given cause to think that she was not a member of your family? No, at no time. There is no question that she unquestionably regards you as her father and your wife as her mother? - No question whatever. And the other two children believe that she is their sister? - Yes. So that, as far as your family circle is concerned, Johanne Lee always has been and is now an integral part of your family? - That is true. And we may take it that you and your wife have a strong attachment for the child? - Yes. Does she get on with the other two children as one of themselves? - Yes. When was it that you first consulted your solicitor about the matter? - I came down to town and knew nobody in Melbourne. I had not been there for any length of time and had not had any dealings with any solicitors at all and I was advised to go and see Mr. Galbally. When was it that you first consulted your solicitor? - Some time early this year, I think. We have a letter from Mr. Galbally dated 6th February 1948 to Mrs. Jenkins at Kyabram. It must have been some time early this year, don't you think? - That is right. That would be after the article that appeared in "Truth"? - Yes. I take it that you saw the article that appeared in "Truth" newspaper some time in January? - Yes, I did."

[7]

No doubt in ordinary circumstances a child should be with its parents but in the instant case the circumstances are unique or at least unusual. Between the parties to this proceeding a de facto relationship has existed for four years and four months and each child was suckled by the respective mother from the hour of its birth. In the ordinary litigation there is no doubt or issue as to parentage and the child knows the parent as its parent. After this length of time a change of custody would wrench the child from its present happy and contented condition and throw it into an unknown place and among persons strangers to her. The result would be a menace not only to its health and happiness but would also affect the welfare of the other child: cf. R. v. Murdoch [1] . For nearly five years a de facto parentage has existed and also a de facto relationship of brother and sister with the other children of each family. In these circumstances it would be disastrous to upset the present conditions and cause unrest and unhappiness to both children. Moreover, there is real doubt whether Nola is the child of the Morrisons and this is another factor to be taken into consideration in determining the issue of welfare. I am not satisfied that the scientific evidence is infallible. At most it goes to show that Johanne Lee is not the child of the Morrison union. But it neither shows nor purports to show that Nola Jenkins is the child of that union although it does show that Johanne Lee could be the child of Mrs. Morrison. On this issue the appellants must exclude every other reasonable hypothesis. Did a mistake in fact occur? The evidence of Mrs. Williams is inconsistent with that of her daughter, the female appellant, and is also inconsistent with the finding of the learned primary judge that the exchange of babies occurred shortly after birth. Moreover at the time of the alleged mistake two other recently born babies - the Perry and Hayes children - were born on the 19th and 20th June in the same nursery in the same hospital. The appellants led no evidence as to these children or their mothers or that either mother had ever seen her child before the morning of 22nd June. In these circumstances the possibility of a mistake with either of these children cannot be excluded. Thus the probability of a mistake with the Jenkins' child to the exclusion of any other is considerably lessened, if, indeed, a mistake did in fact occur. A decision as to parentage will not bind the child and at a later stage in other proceedings - for example under a will or settlement - in which the child should be a party a decision contrary to that in the instant case would be a grievous blow to the happiness and welfare of the child. Indeed in a proceeding to which the child is not a party the Court has no jurisdiction to decide a question of legitimacy.

[12]

This view of the Full Court appears to me to be clearly sound. The whole future happiness and welfare of the child is at stake. Not only is her happiness and welfare involved, but so is that of the other child, Johanne Lee, whom the Morrisons have hitherto brought up as their child. What is to happen to her if the Court were to transfer the custody of Nola to the Morrisons does not appear. The Jenkins of course repudiate her as their child and could not be required to receive her into their family. It would militate against Nola's future happiness and welfare if the transfer were made notwithstanding the continued existence of reasonable cause for doubt as to the child's parentage and it would be little short of disastrous if afterwards further information made it appear more likely that after all the Jenkins were her parents. The inference that Nola is the child of the Morrisons rests of course wholly on circumstantial evidence. Notwithstanding the wealth of detail gone into, particularly as to the circumstances of the birth of the two children, the whole case depends upon a chain consisting of a very few evidentiary facts or circumstances and some steps in reasoning which together are relied upon as warranting the inference. The first of these facts or steps is the conclusion deposed to by scientific witnesses that Johanne Lee belongs to a blood group that is inconsistent with her being the child of Mr. Morrison. This conclusion the Jenkins are powerless to deny. The second step is the inference that she is therefore not the child of Mrs. Morrison. Any other inference would reflect upon Mrs. Morrison and the Jenkins make no such reflection. The third is the fact that from the time that Mrs. Morrison left the hospital with a girl child and until the scientists took the blood tests there has been no change in the identity of that child and she is Johanne Lee and was the child submitted to the blood tests. This fact is proved by the Morrisons. Nothing of course could be more probable and it may be accepted as possessing as much certainty as attaches to the proof of any fact in human affairs. But as it is an essential step in the reasoning it must not be omitted. The fourth step is proof that at the hospital where both women were confined there was a real chance of confusion between the female child which Mrs. Morrison bore and some other female child. The fifth step is the elimination of the possibility that any other child but Mrs. Jenkins' could have been attributed to Mrs. Morrison. The sixth step is the inference that correspondingly Mrs. Jenkins must have received Mrs. Morrison's child.

[63]

If there had been only two infants in the Kyneton District Hospital on 22nd June, 1945, namely those born on that day, this Court would, I think, be obliged to restore the judgment of Barry J. and give the custody of Nola to the Morrisons as their child. The onus of proof was on the Morrisons, but the credibility of witnesses was for the learned judge to determine. His Honour believed Mrs. Morrison when she said that the child born to her on 22nd June, 1945, was by her husband, and he naturally accepted the evidence of the blood tests that Johanne was not a child by Mr. Morrison. So he could properly have concluded that Nola was the child of the Morrisons, if there were only the two infants in the hospital on 22nd June, 1945. The same result would follow if it had been common ground that Mrs. Morrison and Mrs. Jenkins each received a newly-born baby on the morning of 22nd June, 1945. Mrs. Morrison and Mrs. Jenkins each claim to have received a newly-born infant that day. Mrs. Morrison contends that Mrs. Jenkins did receive a newly-born baby, because Mrs. Morrison is claiming Nola from Mrs. Jenkins. But the case for Mrs. Jenkins is that if Mrs. Morrison did not get her own baby she got one of the older babies born on 19th and 20th June, 1945, and not the baby of Mrs. Jenkins. The conduct of the proceedings and the judgment indicate that there was no common ground that Mrs. Morrison and Mrs. Jenkins each received a newly-born baby. Sister Lockhart who made an affidavit on behalf of Mr. and Mrs. Jenkins, was cross-examined with a view to showing that Mrs. Morrison's child was not given to one of the mothers of the two older infants born on 19th and 20th June, 1945, and the judgment gives grounds for holding why Mrs. Morrison's child was not given to one of these two mothers, namely, an assumption by his Honour as to the ability of mothers generally to recognize their infants, and the evidence of Sister Lockhart as to the impossibility in ordinary circumstances of mixing up a newly-born baby with one twenty-four hours old.

[70]

Briefly, ether was administered to Mrs. Morrison at the birth of her child but it does not appear to have dulled her perception. It can be safely concluded that if she received one of the two older infants she would have realised the mistake, unless for some reason it appeared to her to be newly-born, as might have been the case if it had been born prematurely. But Barry J. assumed in favour of the parties with the onus of proof, the Morrisons, that both infants and their mothers were normal on 22nd June, 1945. To find that they were normal he was obliged to make that assumption, because there was no evidence as to their condition. However he also relied on Sister Lockhart's evidence that she did not think that a newly-born infant could be mixed up with one twenty-four hours old; but that could be true only where the mothers and infants were normal. If she intended to say that under no circumstances could two such infants be mixed up, then, apart from making an incredible statement, she had twice said just previously that sometimes there is a noticeable difference. Yet it was on this assumption, for which I can find no warrant in law, and on this evidence of Sister Lockhart, which was not evidence bearing on the actual appearance of the older infants and the condition of their mothers on 22nd June, 1945, that his Honour based his finding on the most important issue, Nola's parentage. Beyond question his Honour exercised great care, but, in my opinion, he arrived at his conclusion without convincing proof. The evidence as a whole did not warrant his conclusion, even if the onus of proof had shifted to Mr. and Mrs. Jenkins after Sister Lockhart gave her evidence. The evidence as to the condition of the mothers of the older infants and of the appearance of those infants on 22nd June, 1945, may not have been available but that did not dispense with the need for proof of those matters to warrant the finding that Nola was the child of the Morrisons. It becomes unnecessary for me to decide the other questions raised. However I do not see how worthy people like the Morrisons could properly be deprived of the custody of Nola if she were shown to be their child. In the case of a child so young and with such respectable parents it could not be said to be in its paramount interests to leave it in the custody of strangers. I can well understand the determination of the Morrisons to secure the custody of a child which they believe to be theirs and the support given to them for that purpose. But what at the outset probably appeared to them and those supporting them to be a simple matter of establishing parentage by blood tests has proved not to be so, because of happenings which they could not have anticipated. The Morrisons and those supporting them might well have thought that the parents concerned would be as anxious as they to settle the questions of paternity by blood tests, but such was not the case. However, in fairness to Mr. and Mrs. Jenkins it should be pointed out that when the question of Nola's parentage was first raised they had blood tests of themselves and Nola made by Dr. Loughran who had attended Mrs. Morrison and Mrs. Jenkins at the births of their infants on 22nd June, 1945. Dr. Loughran was not in Australia during the proceedings before Barry J., but he made an affidavit which was filed on behalf of Mr. and Mrs. Jenkins and in which he claimed to have been experienced in making blood tests and to have found that Nola could be the child of Mr. and Mrs. Jenkins. No blood test could go further in support of the view that Nola was the child of Mr. and Mrs. Jenkins. But as Dr. Loughran was not available for cross-examination Barry J. gave no weight to his evidence, although this was the only blood test of Nola. However the Full Court of Victoria gave it some weight and I am not prepared to say that Court was not justified in so doing, although I have arrived at my conclusion without regard to that affidavit. But whatever may be the value of this affidavit as legal evidence it is unlikely that the faith of Mr. and Mrs. Jenkins in Dr. Loughran's blood test would be shaken by the absence of any cross-examination of Dr. Loughran. This blood test explains, if it does not warrant, the refusal of Mr. and Mrs. Jenkins to submit Nola to any further blood test. In conclusion it is observed that his Honour saw each child in the company of the appellants and of the respondents and saw them together but did not derive any assistance from this inspection. He said both children were attractive and well-developed but he was unable to observe any features of resemblance that he could feel were of such a kind that he could place reliance on them. That is an answer to the evidence, or at least to the suggestions in the evidence, for the Morrisons as to the resemblance Nola bore to them.