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[1953] HCA 66
High Court of Australia
1953-07-01
Taylor J, Fullagar J
Original judgment source is linked above.
The applicant and his wife were married on 28th November, 1950, and their child the subject of this application was born on 6th 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 cared for and to attend to his upbringing. Accordingly I am of the opinion that the husband's application should be dismissed.
The wife's application, even if I have jurisdiction to make the order asked for, should also be dismissed. She has at the present time actual custody of the child and if circumstances arise which require, in the interests of the child, that an order should be made her application should, I think, be made in the appropriate court. It 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 requires, review the matter from time to time.
R
Langdon; Ex parte Langdon
High Court of Australia Taylor J. R v Langdon; Ex parte Langdon [1953] HCA 66