Case Note MORRISON v JENKINS (1949) 80 CLR 626

cause Note MORRISON v JENKINS (1949) 80 CLR 626 Case Note On MORRISON v. JENKINS (1949) 80 CLR 626(Whose foil role)Name of Court broad(prenominal) Court of AustraliaName of CaseMORRISON v. JENKINSCitation(1949) 80 CLR 626Parties to the ActionAlberta Gwen Morrison, the AppeallantJessie Jenkins, the respondentNature of CaseCivil Matter (Family Matter) time of mindDate of Decision 22nd December, 1949BenchFive Judges Bench (Large/Full) including knob Justice.Mr. Latham CJ, (dissenting)Mr. replete J,Mr. Dixon J,Mr. McTiernan J, (dissenting)Mr. Webb, J.Facts and SummaryMrs. Alberta Gwen Morrison gave a birth of a kid female tiddler on 22nd June 1945 in the Kyneton Hospital in capital of Seychelles. On that similar day, within five minutes an some other lady named Mrs. Jessie Jenkins also gave a birth to a baby girlfriend in the same ward.Mr. an d Mrs. Morrison claimed that their baby girl had been swapped in the ward with the baby girl of Mrs. Jenkins. And Mrs. Jenkins had left the hospital with their baby (baby named Nola Jenkins). After four years, this matter reached to the high act of law with termination of all lower greet exercises.Mr. and Mrs Morrison cute the back of their baby Nola, except the Jenkins family did not want to return Nola because they were convinced that they Nola was their baby and they had brought a tike right from the hospital.At that time, there was no DNA testing, save from the encompass of blood test showed that Mr. Morrison could not be military chaplain of the baby which they had had from the Victoria Hospital. After that, the irresponsible Court of Victoria held in this matter that the baby girl (Nola) was the daughter of Mr. and Mrs. Morrison and Jenkins Family should be return Nola to postponement of her satisfying provokes.The decisions and judgments of resolve in the hig h court were divided.On the one part, Mr. Justice Rich and Mr. Justice Dixon said that the status of declension of a kidskin is so much doubt ful as wll as itfavorable be in the friendly circumstance for the youngster to return tike to her original parent from persent handgrip parent.On the second part, Mr. Justice Webb did not agree with the decision of the tarial venture that the baby girl belonged to Morrisons family. There was an enjoin which included another fact which was that the within twenty four hours there was more(prenominal) barbarianren born and readiness be one of those collect been given to Morrison family.On the third part, headman Justice Latham and Mr. Justice McTiernan said that Nola should be given back to Morrison family. correspond to Mr. Justice McTiernan, blood test is a enough evidence for proving that Nola is the tyke of Mr. Morrison. He also explained that The test of best-interest-of-the- electric s keepr only applied when parents fight wi th each other for the custody of minor, but in this situation parents are unitedly and real parents are raw(a) and lawful guardian of their give birth got child and also have an absolute legal right to the custody of their profess child.The majority of judges decision were that Jenkins family should retain the custody of Minor child Nola and Morrisonss family should retain custody of Johanne. And in the result, the appeal was refused.Brief Judgement/Decision of Trail Court/ highschool CourtThe decision by the supreme court of Victoria (Barry.J) regarding above said matter is that Nola was the daughter of Mr. Morrison and the benefit of children is that to leave and brought up with her own real parent because real parent can take circumspection better than others. Nola should in the custody of her real parents. According to Herring C.J, the writ of habeus corpus is un suitable of this proceeding because this is a proceeding for the determination of the parentage of child but drill for the habeus corpus is much suitable procedure because oarents wants to obtain the custody of their own child. According to Fullage.J. there is benefit of doubt as the parantge of the child even so no order should be made if a slightest doubt is occurring. suffering J. Agreed by all other members of the bench.Relevant law legitimacy Declaration Act 1858 section 1The Marriage Acts 1928-1941 (Vict.), s. 136 are derived from the side of meat Guardianship of Infants Act 1925Halsbury, Laws of England, 2nd ed ., vol. XVII., p. 666Section 136 of the Marriages Acts 1928-1941 (Victoria) provide that the court have power to decide the question of custody of minor regarding the offbeat as the first essentio consideration.Halsbury, Laws of England, 2nd ed ., vol. XVII., p. 666 utter that a father, whose child child is not in his custody, and a fetch, where she is entitled to the custody, may, in the absence seizure of good reason to the contrary, obtain the custody of the child by a writ of habeas corpusAccording toIssueThe main issues in this boldness were thatWhether is this matter relating to guardianship or parentage?Whether is it the wellbeing of child or not to change the guardianship?Whether is there defacto human relationship has existed between child and present guardian?Whether appeal should be allowed or not?Which parents have custody right on the child?Whether comman law applied on this matter?Whether Nola is legitimate child of Mr. and Mr. Morrison?Ratio DecidendiThere are devil points in which determines the judgment of all judges that isThat the welfare of child is more important than everything and welfare of child is a paramount consideration.That the Parentage of child is ligitimate.According to Mr. Latham, that this is a welfare of the child that he or she should be brought up with and by its real parents not other than and should be in the custody of her real parents. And Mr Latham fully supports the judgment of Mr. Barry J the Judg e of Supreme Court of Victoria. He also mentioned the affidavit of Mr. Morrison in the trial court proceedings that Mrs. Morrion gave evidence that she neer ever had any sexual relationship with any person except her husband. And Johanne Lee is not a child of her husband.Mr. Rich J, stated that the one thing which is more important later on parentage issue that is welfare of child. In this matter the de-facto relationship has create between the both parents and children and they have also defacto relationship exists between siblings and other family members.McTiernan J. relied on the scientific evidence which was blood test. He also mentioned that the natural parents are the lawful guardians of their own child and have right to custody. And they have the right of habeas corpus. He also state that the in the interest of welfare of child it is most important thing that parent should take care of their own child.Mr. Webb J. mentioned that both children are well developed and attract ive but he was not able to check and observe the features of resemblance with parents and that word form could placed reliance on them.Mr. Dixon J. gives the opinion that this matter donot have any question of law and have only question of fact. According to him welfare of a child as a paramount consideration and never be neglected. He also fully support the view of the High Court that the whole future happiness and welfare of both child is on stake.Obiter Dicta / NotesAfter the hearing of both parties the leave to appeal dismisses by a a majority of three to two judges, Mr. Rich, Mr.Dixon and Mr.Webb JJ Mr.Latham CJ and Mr. McTiernan J dissenting. all(prenominal) judges of court describe and castigate the standard of proof at very high level.Mr. Rich J.He stated that the Morrison must drum out every other reasonable hypothesis1Mr. Dixon J.He expressed his organization with the view of the Victorian Full Court.2the further inference or conclusions which have been drawn as to th e precise manner in which the babies were handled and critically by whom are doubtful and in some respectsspeculative and they are unsafe.3Mr. McTiernan J.He stated that all reasonable doubt must be excluded. 4Mr. Webb J.He was not prepared to go so far. His Honour stated that while a court cannot change the standard of proof, it can and should insist on exact or cogent proofs on issues of grave importance like that of parentage.5Mr. Latham CJ ,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.6ConclusionIn my point of view, This en outcome is a family matter of guardianship as well as parentage. Morrison family wanted return their baby from the Jenkins family. There was sufficient evidence for proof that Mr. Morrision was the father of baby girl but the majority of judges of high court did not allow to gave custody of baby. So that guardianship of baby girl remaind status Quo.The evidences proves that the baby born on 22nd June 1945 and beloged to Mrs. Morrison. Affidavits and cross examinations as well as blood test of baby and Morrison also proves that the Nola is a legitimate child of Mr. Morrison but after all of these was not in the favour of child to change the guardianship and return to her real parent because there was defacto relationship existed and if court change the custody of the child whence it may be harmful effect on child.This is very foreign and interesting case because this case set as special case because there is no question of law included in this case. The case is depends upon question of fact rather then question of law and treated as a special case. Because in normal circumstances, father and mother fights for custody of the minor but in this case two diverse families were fighting for custody of the child. The Majority of judges agreed after examined the evidence that Mr. Morisson was a father of child but they focus on welfar e of child rather than legitimacy of child. 1 Morrison v Jenkins 1949 HCA 69 (22 December 1949) varlet 6402 Morrison v Jenkins 1949 HCA 69 (22 December 1949) summon 6463 Ibid page 6434 Ibid page 6485 Ibid page 6546 Ibid page 637