Morrison v Jenkins

1. (1847) 2 Ph. 247, at p. 252 [41 E.R. 937, at p. 938].

In the instant case as the matter is governed by the law of Victoria it is essential to have regard to the Marriage Acts, 1928-1941 Vict. which in s. 136 - adapted from s. 1 of 9 & 10 Geo. V. c. 71 - provides that the Court in deciding the question of the custody or the upbringing of an infant shall regard the welfare of the infant as the first and paramount consideration. "The duty of the Court," said Lindley L.J., "is in our judgment to leave the child alone, unless the Court is satisfied that it is for the welfare of the child that some other course should be taken": In re McGrath [2] . And this being the basal consideration this Court as a Court of Appeal "must approach the matter independently and not as a matter determined by the discretion of the Court below": In re J. M. Carroll [3] . The Court sits primarily to guard the interests of the infant and its jurisdiction is in this respect parental and administrative and the disposal of controverted questions is an incident only in the jurisdiction - Scott v. Scott [4] per Viscount Haldane L.C. - and this doctrine should, I think, be observed by this Court in the exercise of its appellate jurisdiction.

1. (1893) 1 Ch. 143. 2. (1931) 1 K.B. 317, at p. 333. 3. (1913) A.C. 417, at p. 437.

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."

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.

In my opinion this appeal involves no question of law and is concerned only with a very special set of facts raising a problem of judicial discretion. The judicial discretion is committed to the Supreme Court but this Court has jurisdiction upon an appeal by special leave to review the decision of that Court if we think the discretion has not been soundly exercised. I was not able to agree in the order granting special leave to appeal from the order of the Supreme Court because I thought that the matter was not of a description falling within the principles upon which we exercise our power of giving special leave. But special leave being granted, the question is simply whether we should be satisfied of the unsoundness of the conclusion of the Full Court of the Supreme Court. The very fact that the parentage of the two children has been the subject of litigious proceedings is itself a misfortune for both of them and I think that it will be in the future interests of both of them if in disposing of the appeal we confine our reasons to a bare statement of the essential steps leading to the conclusion.

I am not satisfied that the view taken of the case in the Full Court of the Supreme Court is unsound. The closely-reasoned judgment of Fullagar J. appears to me to be quite satisfactory and I think that in all substantial respects it has withstood the criticism to which it was subjected. Herring C.J. and Lowe J. expressed their agreement with the views of Fullagar J. I cannot however, concur in the first ground given by Herring C.J., namely, that the proceedings were inappropriate and that unless all possible doubt were excluded the Court should require a decision in rem as to parentage before it decided upon any change of custody based solely on the parentage of the child. This ground must, I think, be attributable to a mistaken supposition that the provisions of the Legitimacy Declaration Act 1858 have been transcribed in Victoria.

In deciding a question as to the custody of an infant the Court is bound by statute to regard the welfare of the infant as the first and paramount consideration. In ordinary circumstances an infant's welfare is best consulted by being placed under the care and control of his or her parents. We all take it for granted and the courts in dealing with infants proceed from that presumptive position. In the present case, however, the child Nola has from birth been accepted by Mr. and Mrs. Jenkins as their own offspring. She is now over four years of age and has been reared as one of their children. They have never doubted that she is their child and she has of course never doubted that they are her parents. At present her life and happiness are bound up with her membership of the family, with the sisterly and brotherly affection of the other children and the parental affection of Mr. and Mrs. Jenkins. Nothing that has happened in the course of the litigation seems to have shaken Mrs. Jenkin's conviction that Nola is her child. If therefore she is left in the custody of Mr. and Mrs. Jenkins Nola will be brought up by those who suppose that she is their child and, it may be added, by estimable people and in conditions of comfort. It is manifest that if she is to be torn by judicial decree from this family life it can only be for a very strong reason which is regarded as forming an overriding consideration decisive of her more lasting welfare. The reason assigned is that however strong may be the conviction of Mrs. Jenkins to the contrary Nola is in truth the child of Mr. and Mrs. Morrison but by some tragic mistake committed at the Kyneton Hospital was given to Mrs. Jenkins, instead of her own child, immediately or soon after each woman had given birth to a daughter.

Now the foundation of the decision of the Full Court of the Supreme Court is that before, on such a ground, the Court overturns the existing state of things and takes Nola from the Jenkins and entrusts her custody to the Morrisons, it should be completely assured that it is true. Unless the proofs exclude all real doubt and risk of error in the conclusion, Nola should be left with those who have brought her up in the confident belief that she is their daughter.

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.

By this chain of reasoning the result that Nola is Mrs. Morrison's child is said to be established. To make good the last three steps a great deal of evidence was adduced at the hearing. The events of the morning of 22nd June 1945 when both women were delivered of female children within ten or fifteen minutes in the same labour ward were inquired into in great detail. I should have thought that neither nurses nor patients could be expected to observe or recall so much and that their attempts to reconstruct the incidents of the morning could not safely be relied upon. But two conclusions emerge which are clear enough. One is that there was no routine for identifying babies which excluded the possibility of mistake and the other is that because two women were delivered by the same doctor and nursing staff in the same ward within such a short time there was a greater liability to confusion.

But in my opinion the further inference or conclusions which have been drawn as to the precise manner in which the babies were handled and exactly by whom are doubtful and in some respects speculative and they are unsafe.

Two other recently born female children were in the hospital, one born on 20th and the other on 19th of June. It does not appear whether they were full-time children nor was the condition of the mothers or any other circumstances proved really relevant to the possibility or impossibility, likelihood or unlikelihood, of the confusion (if one took place) being with either of those children. The case for the Morrisons naturally was that their child was confused with the Jenkins' child immediately after the birth of the children. That was the view which Barry J. adopted and acted upon. But Mrs. Morrison's mother, who visited the hospital later on the same day, in the afternoon, said that she was shown a child as her daughter's which was not the child her daughter brought home from the hospital. The tendency of her evidence if it were correct was to show a confusion at some later time and not as a result of the birth of two children at nearly the same time in the same ward. There would therefore be little or no reason to suppose that the confusion was with Mrs. Jenkins' child rather than with one of the other two girl babies.

The only further fact I shall mention is that little or nothing is known concerning the blood grouping of the Jenkins and Nola. They submitted themselves to their medical adviser for a blood test and he reported that it disclosed that Nola might be their child, that is that their blood grouping was consistent with their being the parents of Nola. He made an affidavit to that effect but he was abroad and not available for cross-examination. The Jenkins declined to submit themselves and the child to further blood tests.

I shall not go into the question of when and why the Morrisons began to doubt that Johanne Lee was their child and how their claim to Nola originated and came to be litigated. No doubt every element in the case has a bearing upon the exercise of the Court's discretion in determining whether Nola should be transferred to Mr. and Mrs. Morrison's custody. But the Supreme Court has dealt sufficiently with these additional matters. To my mind the chief issue is whether the chain of fact and of reasoning I have briefly set out establishes the inference that Nola is the child of Mr. and Mrs. Morrison with such a high degree of certainty that the Court should give effect to their claims at the expense of the considerations which otherwise would make it imperative for the child's welfare that she continue as a member of the Jenkins family.

In my opinion this issue was properly decided in the negative by the Full Court of the Supreme Court.

With any chain of circumstantial evidence the chances of error in the conclusion arise first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion from the whole of those facts and considerations. It is therefore wrong to take each fact or consideration separately, to assess the possibilities of error in finding it is established and then if you think it should be found afterwards to treat it as a certainty and pass to the next fact or consideration and so on to the conclusion. The possibilities of error at all points must be combined and assessed together.

In the present case I think that when all the possibilities are taken into account there is too much uncertainty in the inference that Nola is the child of Mr. and Mrs. Morrison to warrant an order taking her from Mr. and Mrs. Jenkins and placing her in the custody of Mr. and Mrs. Morrison. It was a sound exercise of the discretion of the Supreme Court to leave her in the custody of Mr. and Mrs. Jenkins.

I do not think that we should interfere with the order of the Full Court of the Supreme Court as to costs.

In my opinion the appeal should be dismissed with costs.

In my opinion the appeal should be allowed and the order of Barry J. restored.

The Chief Justice has analysed the evidence and it is not necessary for me to review it again. I agree with his Honour's reasons for allowing the appeal.

The evidence proves that the child born to Mrs. Morrison on 22nd June 1945 in the labour ward of the Kyneton District Hospital was begotten by her husband. This fact is an irresistible inference from the evidence, given by Mrs. Morrison, that she never had sexual intercourse with any man other than her husband. Barry J. believed this evidence. There is no ground upon which an appeal court could properly decide that his Honour erred in believing this evidence or why the Court itself should disbelieve it or suspect that the child born to Mrs. Morrison was not begotten by her husband. The scientific evidence of the blood tests, the validity and the reliability of which are established by the evidence, proves that Johanne Lee, a child under the custody of the appellants, could be the child of Mrs. Morrison but not of her and her husband. The evidence further proves that Johanne Lee is the baby who was given to Mrs. Morrison after she had given birth to a child at the above-mentioned time and place, upon the supposition that it was the child to which she had given birth; she was the child whom Mrs. Morrison took with her from the hospital when she returned to her home.

These facts establish beyond any reasonable doubt that Mrs. Morrison was given a baby to which she did not give birth and the baby is Johanne Lee.

The next crucial question is when was the mistake made at the hospital which led to the substitution of Johanne Lee for the baby to which Mrs. Morrison gave birth. The answer to this question is that the mistake was made within half an hour of the birth of Mrs. Morrison's own child. This fact is proved by the following evidence elicited by the cross-examination of Mrs. Morrison: - Q. "May we take it that that was the baby that was brought back to you within half an hour at the outside of its birth and that you took away with you when you ultimately left the hospital? - Yes." Q. "So that, if any mistake was made, in the transposition of these babies, it was prior to that time? - Yes."

Barry J. accepted this evidence. It proved that the result of the mistake was complete before the afternoon of 22nd June. Mrs. Morrison's baby was then in the possession of some other woman.

In the light of this fact, Mrs. Williams' evidence, to which importance was attached in the Full Court, can have but small significance. It probably provides the reason why Barry J. paid no attention to Mrs. Williams' evidence (a fact noticed in the Full Court); she was not cross-examined. Mrs. Williams is Mrs. Morrison's mother; her evidence is in an affidavit filed in support of the appellant's application.

The evidence proves that the parturitions of Mrs. Morrison and Mrs. Jenkins occurred at the same time and place and their babies were born within five to ten minutes of each other: their simultaneous parturitions created an emergency described in the evidence; arrangements had to be made quickly to cope with it.

The evidence further proves that in this hospital a female baby was born on 19th June 1945; and another female baby was born on 20th June 1945.

Assuming that each of these babies was born at the latest point of time to make those dates respectively their birthdays, then on the morning of 22nd June, when Mrs. Morrison and Mrs. Jenkins gave birth to their babies, the first of the two other babies would then be fifty-five hours old, and the second thirty-one hours old. If either was born at an earlier hour she would of course be older.

It is reasonably certain that before the morning of 22nd June these older babies would have been placed under the usual routine of a baby's life. They would have been more than once bathed, dressed, fed, and have been in the possession of their mother. It is hardly probable that either would at that stage of her life have been placed with a woman not her mother.

Sister Lockhart, a double-certificated nurse, said in the course of her evidence that she did not think it was possible to mix up a newly-born baby with a baby forty-eight hours old.

It is less probable that confusion could have taken place between Mrs. Morrison's baby and one of the older babies, than between her baby and Mrs. Jenkins' baby. The births of their babies were almost contemporaneous.

Barry J. found that a nurse carried them out, one on each arm, from the labour ward to the nursery to be bathed, and they were left unattended until Sister Lockhart bathed them.

The field within which the mistake could occur, upon any reasonable view, must be limited to the two mothers and the two babies who were all together in the comparatively small labour ward, receiving the attention of the doctor and nurses: these two mothers and babies were involved in the same set of circumstances.

Lowe J. said that he would want blood tests of all four children before he could be satisfied that Mrs. Morrison's baby was given by mistake to Mrs. Jenkins. If blood tests of Nola and Mr. and Mrs. Jenkins showed that they could not be her parents, there would be no need for any other tests.

There is no evidence which could raise a doubt that the members of the hospital staff did give each of the babies born on 19th June and 20th June respectively to her mother. It is not a probable hypothesis that Mrs. Morrison's baby was exchanged for one of those babies, upon a reasonable view of the circumstances.

Argument is directed against the primary judge's findings of fact and his views of the credibility of the witnesses. In the case of Powell v. Streatham Manor Nursing Home [1] , there is a passage in the judgment of Lord Macmillan which I will take leave to use to describe the disadvantages of an appeal court in this case: - "I have had an uneasy feeling, as I listened to the able arguments of counsel in this appeal, that I was remote from the poignant realities of the case and that I was being asked, as it were, to dispose of the fate of the parties in their absence. It is only the written evidence which reaches this House; the other evidence which the judge of first instance tells us that he has relied upon cannot be reproduced or subjected to review here, and I have never felt more conscious of the disability imposed by the absence of this aid to judgment."

It is not necessary that there should be evidence showing precisely how a wrong baby was given to Mrs. Morrison before the conclusion that she was not given her own baby can be reached. The mistake no doubt was unintentional and it is not surprising that the nurse who made it has not revealed how it occurred.

The short facts proved by the evidence are that Mrs. Morrison did not get her own baby; necessarily some other mother got her baby, and Mrs. Morrison got that other woman's baby.

The only rational conclusion is that the other mother is Mrs. Jenkins, and that she got Mrs. Morrison's baby and Mrs. Morrison got her baby.

In R. v. Burdett [2] Best J. said: "We are not to presume without proof. We are not to imagine guilt, where there is no evidence to raise the presumption. But when one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases. Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just. It has been solemnly decided, that there is no difference between the rules of evidence in civil and criminal cases. If the rules of evidence prescribe the best course to get at truth, they must be and are the same in all cases, and in all civilized countries. There is scarcely a criminal case, from the highest down to the lowest, in which courts of justice do not act upon this principle. Lord Mansfield, in The Douglas Case gives the reason for this. "As it seldom happens that absolute certainty can be obtained in human affairs, therefore reason and public utility require that Judges and all mankind, in forming their opinions of the truth of facts, should be regulated by the superior number of probabilities on one side and on the other." "

1. (1820) 4 B. & Ald. 95, at pp. 121, 122 [106 E.R. 873, at p. 883].

Barry J. was very mindful of the gravity of the issue whether the appellants are Nola's parents. The issue involves the welfare of children and the happiness of parents. The learned judge's reasons show that he thoroughly appreciated that the issue is fraught with these consequences. He said: "I bear in mind the gravity of the issues before the Court and I have reached my conclusions in the words of Lord Lyndhurst "not as I think upon a bare balance of probabilities but as a result of the thorough conviction of my mind founded upon a careful (and patient) attention to all the evidence in the case." " The principle by which his Honour guided himself in reaching his conclusions is correct: Briginshaw v. Briginshaw [1] ; Helton v. Allen [2] .

1. (1938) 60 C.L.R. 361, at pp. 362, 372. 2. (1940) 63 C.L.R. 712, at p. 713.

I agree that in a case like the present a mere balance of probabilities is not sufficient to establish the affirmative of the issue raised by the appellants namely that they are Nola's parents. But I do not agree that it ought not to be decided in the affirmative unless the proof excludes "all possible doubt." It is sufficient if the proof excludes "all reasonable doubt." The proof in this case does not lack that force.

A learned writer has said that "a reasonable certainty" is the "converse of reasonable doubt": Legal Duties & Other Essays in Jurisprudence by C. K. Allen (1931), p. 287.

In the opinion of Fullagar J. the evidence of Mrs. Williams detracts from the reliability of the evidence which Mrs. Morrison gave as to the time the baby was given to her. Mrs. Morrison said that it was brought to her "within half an hour of its birth." Mrs. Williams gave evidence by affidavit. There is no material upon which to form any conclusion about her reliability as a witness in comparison with Mrs. Morrison.

The primary judge accepted the evidence of Mrs. Morrison; he was satisfied that she was a trustworthy witness. Fullagar J. rightly observes that no point was made at the trial that Mrs. Williams' affidavit might cast doubt upon the reliability of Mrs. Morrison's evidence. It seems to me that an appeal court would not be justified in deciding that Mrs. Williams' affidavit is sufficient in itself to enable the Court to find that the primary judge erred in relying upon the evidence of Mrs. Morrison to reach his conclusions.

I would add that if a baby was substituted for Mrs. Morrison's baby, it is more probable that the mistake occurred within a short time after birth, before the babies were dressed. The identity is ascertained by the baby's clothes. A mistake could more easily occur before the newly-born babies were clothed than afterwards. It could be caused by carelessness after they were clothed: for instance if a nurse undressed them and bathed them at the same time; but it is not necessary to suggest that there was that degree of carelessness in this case.

Mrs. Morrison said that the child brought to her within half an hour of the birth was dark and unclad and was the child she took home with her. Mrs. Williams said the baby shown to her on that afternoon and which a member of the nursing staff told her was her daughter's baby was a fair-skinned baby and resembled Mrs. Morrison's other children. This incident might possess significance only if Mrs. Morrison was present. She was not present.

Fullagar J. added that Mrs. Morrison's evidence "proves only that a substitution may have taken place, not that it did take place."

I respectfully make this comment. If Mrs. Morrison gave birth to a baby begotten by her husband she was not given that baby. The evidence of the blood tests establishes this fact beyond reasonable doubt. The conclusion that there was a substitution is inescapable unless the Court doubts that she has been faithful to her husband. The Court cannot doubt that she has been faithful to him unless it rejects or declines to accept her sworn evidence that the child to which she gave birth was begotten by her husband. There is no proper ground for an appeal court to take either of these courses.

Fullagar J. also said: "It must not be overlooked that the only direct scientific evidence with regard to Nola, while admittedly weak, suggests that Nola is the child of Mr. and Mrs. Jenkins." This is Dr. Loughran's affidavit. The Assessor's Report made to Barry J. has the following comments on Dr. Loughran's evidence - "Thus little significance can be attached to the finding of Dr. Loughran that Noella's blood group is compatible with parentage by Mr. and Mrs. Jenkins." There is also this comment in the same Report - "Furthermore in the absence of factual data regarding the blood tests performed by Dr. Loughran, it is doubted whether any significance can be attached to his affidavit in respect of blood tests." Further Dr. Loughran was not available for cross-examination.

The Full Court decided that it was erroneous for Barry J. to adjudicate upon the issue whether the appellants are Nola's parents, because it was not for her welfare to make a finding that they are her parents unless the proof that they are excludes all possible doubt and not perhaps even then, because of the circumstances. With respect I do not agree.

The parents are the natural and lawful guardians of their child: they have a legal right to the child's custody: they may enforce the right of habeas corpus: at the instance of the parents the Court issues a writ of habeas corpus directed to a person detaining their child for the production of the child to the Court, and upon the production of the child in obedience to the writ, the Court makes an order for the delivery up of the child to the parents if it is for the child's welfare to be under their custody. The appellants applied for a writ of habeas corpus directed to the respondents for the production of Nola to the Court. They alleged that they are her parents and there is, upon any view, substantial evidence to support their allegation. It would be a denial of justice to the appellants not to adjudicate upon the issue which they raised, whether they are Nola's parents. It is clearly raised by the application and it is a material issue in the proceedings.

Barry J. took the issues in their right order. First he tried the issue of parentage and having found that the appellants are Nola's parents, he considered the question whether it was for her welfare to be placed under their custody. Whatever Parliament has done to make the respective rights of father and mother equal when one is contending against the other for the custody of their child, leaving the Court to settle the dispute by the criterion of the child's welfare, which is made the paramount consideration, it has not enacted any law which places strangers on the one hand and parents on the other hand on an equal footing when there is a contest between them for the custody of a child; in that case the parents' right to custody may be asserted against the strangers, but the Court would not enforce the right if it would not be for the child's welfare to be under the parents' custody. Applicants for custody of a child could not have a more excellent reason for asking for an order for the custody or a better right to the order than that they are the parents and their fitness to be the guardians is unassailable.

The care and affection of a child's parents are most important elements in the child's welfare.

The appellant's case having raised, at any rate, a strong doubt whether the Morrisons or the Jenkins are Nola's parents, it was for her welfare that Barry J. should resolve the doubt by making a finding on that issue upon all the evidence before the Court.

If the appellants are Nola's parents it is for her welfare that she should be removed to their custody as soon as possible. The fitness of the respondents to be her guardian is not in question. The appellants are equally fit to be her guardians; upon the finding of Barry J. they have the advantage of being her parents. Regarding the finding as one that ought not to be disturbed, Barry J. was right in giving the custody of Nola to the appellants. He was guided by the principle that it would be better for the child's welfare to be in the custody of the appellants whom he found to be her parents than in the custody of the respondents, who upon his finding are not her parents. His Honour did not take any irrelevant or extraneous matter into consideration or fail to take any material matter into consideration in determining that it is for Nola's welfare to remove her from the respondents' to the appellants' custody.

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.

Part of the cross-examination of Sister Lockhart was as follows: -

Is there much difference between a newly-born baby and a baby twenty-four hours old from the point of view of telling the difference to a nurse or a mother? Sometimes there is. Are they any more lively, any better developed, any different characteristics? Oh! the features settle a bit sometimes. Would you think it possible to mix up a newly-born baby with a baby twenty-four hours old? I don't think so.

These questions suggest that the possibility that the infant born on 20th June was born about midnight of that date. Of course the baby born on 20th June was at least thirty-one hours older than the babies born about 7 a.m. on 22nd June; but the older the baby is the less likely is it to be mistaken for a newly-born baby.

His Honour in his judgment under the heading "What other child could have been substituted for Mrs. Morrison's?" says: - "It appears that between the 19th June 1945 and 22nd June 1945, four female children were born at the Kyneton District Hospital. A female child was born on the 19th, another on the 20th and the two children, the circumstances of whose births have been examined, on the 22nd. It was submitted by Mr. Hudson that the evidence did not exclude the possibility that some baby other than Mrs. Jenkins' child may have been mistakenly exchanged for Mrs. Morrison's baby. I do not think there is any substance in this submission. It appears to me most unlikely that a mother of a child born on the 19th or 20th would fail to detect the mistake if a child born on the 22nd were brought to her. Moreover, Sister Lockhart was asked, "Would you think it possible to mix up a newly-born baby with a baby twenty-four hours old?" and she answered, "I don't think so." If this be excluded as a possibility the findings of fact I have set forth earlier leave open only one conclusion, and it is that the only baby that could have been exchanged for Mrs. Morrison's baby was the baby born to Mrs. Jenkins."

Neither the cross-examination of Sister Lockhart nor the judgment of Barry J. deal with the actual condition of the two mothers of the older infants or the appearance of those infants. It is confined to mothers and infants generally. There was no evidence to show the actual condition of these two mothers on 22nd June. Neither may have been in a condition to receive or to recognize her infant. Further there was no evidence that neither of the two older infants could have been mistaken on 22nd June for a newly-born infant. Either or both could have been prematurely born. There was no evidence to the contrary. It is not a matter of common knowledge that under no circumstances could a baby two or three days old be mistaken for a newly-born infant. Sister Lockhart said twice that sometimes there is a noticeable difference before saying she did not think it possible to mix up a newly-born baby with a baby twenty-four hours old; that is, of course, if both mothers and both infants are normal at the time of the exchange, in which event no evidence is really necessary to show a mistake would not be likely to occur. I do not think that any presumption arose that the other two mothers and infants were normal, or that the Morrisons had given enough evidence, as a result of getting these obvious answers from Sister Lockhart, to shift the onus of proof to Mr. and Mrs. Jenkins that one of the two other mothers or one of the two older infants was not normal in condition or appearance on 22nd June, 1945. The onus of proof is not shifted by a mere statement of what is common knowledge. Although Mrs. Morrison had ether administered to her at the birth of her child on 22nd June she appears to have been in a normal condition when she received Johanne; but if Johanne was prematurely born on 20th June, or even on the 19th, she might have appeared newly-born on 22nd June.

So far I have assumed that the standard of proof in these proceedings was according to a mere balance of probabilities and have decided against the appellants, the Morrisons, because they failed to discharge the onus of proof. However Barry J. said in his judgment that he reached his conclusion not on a bare balance of probabilities but as a result of thorough conviction. Of course, he may still have regarded the standard of proof to be according to a balance of probabilities, as I think was the case; but before the Full Court and this Court it appears to have been assumed that where a birth certificate is challenged as not disclosing the true parentage of the child, the Court is required to be thoroughly convinced that the certificate is wrong before disregarding it. A Court cannot change the standard of proof, but it can and should insist on exact or cogent proofs on issues of grave importance like that of parentage. Such being the case then; even if the onus of proof shifted to the respondents, Mr. and Mrs. Jenkins, as a result of the cross-examination of Sister Lockhart, I am unable to hold that on all the evidence the Full Court should have shared, and that this Court should share, the conviction of Barry J., that Nola was the child of the Morrisons. He based his conclusion on this the most important issue on an assumption as to the condition on 22nd June 1945 of the mothers of the older infants and as to the appearance of those infants which, I think, was unwarranted, and on evidence of little, if any, weight, namely that of Sister Lockhart. I am not now referring to the fact that he did not regard Sister Lockhart as entirely truthful, but to the nature of her evidence as quoted above. There was of course no other way of reaching a conclusion that Nola was the child of the Morrisons on the evidence.

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.

[Editor's Note: - On 3rd July 1950 the Judicial Committee of the Privy Council refused special leave to appeal from this decision.]