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Decisions of the Superior Courts of New South Wales, 1788-1899

Storey v Storey [1832] NSWSupC 62

custody of child - married women's legal disabilities - habeas corpus - bastardy

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 15 September 1832

Source: Sydney Gazette, 18 September 1832[1 ]


A writ of Habeas Corpus was applied for on a former day, on the part of the father of a child named Catherine Storey, directed to the mother in whose custody she was stated to be, and calling upon her to shew cause why she should not be restored to the applicant.  The parties being now before the Court.

The Chief Justice stated briefly, to Mr. Justice Dowling, the circumstances under which he had directed the writ to issue.  His Honor said, that an application was made to him for a writ ofHabeas Corpus, on the grounds that the applicant was the father of a girl of nine or ten years old, with whose mother he had intermarried at Van Diemen's Land; that after living together for some time, she eloped from him, taking the child with her, and that he heard nothing of her for upwards of four years; that at last hearing she was in Sydney, he came here in search of her, and found that she had, in the mean time, conducted herself in a disreputable manner, being then the mother of another infant child.  In consequence of this, and she having no means of maintaining the child she had by the applicant, he prayed that the girl might be restored to him; being willing and able to maintain her reputably.  From the affidavits which accompanied the return to the writ on the following day, it appeared that the child was born some months before the intermarriage of the parents; and under all the circumstances, as the case was rather one of a domestic consideration, he thought it the safest course to let it stand over till the whole of the Judges were present.  The Court was not prepared to hear, upon the part of the applicant, what he had to say why the child should be restored to him.

Mr. M'Dowell, in support of the application, said he had no doubt of being able to satisfy the Court that the father had a right to the custody of the child before the Court.  It appeared from the affidavits in this case, that about seven years ago, the father and mother, having previously cohabited together, had a child born to them some months before they intermarried; and although the mother in her affidavit, as part of the return to the writ, had disclosed a variety of circumstances having no reference to the case, she had not ventured to swear that the child was not the child of the applicant (her husband), but had admitted it - at all events she had not denied it.  It appeared also, that from the time of her eloping from her husband, at Van Diemen's Land, upwards of four years ago, until within a few days, he had not been able to discover thier [sic] residence; when finding that she had been living in a disreputable state, and had shortly before given birth to an illegitimate child, he, anxious that his own offspring should be educated and provided for in a more reputable manner than the mother had either the inclination or the means to do, came before the Court to claim possession of his child.  With respect to the question, whether or not a parent was entitled to the guardianship of an illegitimate child, he thought there was no difficulty in deciding it.  He certainly was not aware of any decided cases to shew that a father had a right to the custody of his illegitimate child; but he thought the right might be established by analogy to other cases.  In the case of the King against Hopkins and wife [7 East 578where an application was made that an illegitimate child should be restored to her mother, Lord Ellenborough  doubted how far the Court could interfere in favour of the mother of an illegitimate child, and desired the matter to be mentioned again.  On a subsequent day, his Lordship decided that, as it appeared that the mother of the child had had possession of it during the period of nurture, and that she had been dispossessed of it by force and strategem, the child should be restored to her.  Now, he (Mr. M'Dowell) would ask, was at not that an analagous case to the one before thst [sic] Court?  Was not this child taken away by strategem? Here was the mother, after living for more than three years with her husband, the father of this child, eloping, taking the child with her, and leaving him ignorant of what had become of her for four years and a half.  The Court he contended, had a right to interfere in such a case - more even for the benefit of the child than of the father, who was anxious to get possession of her, in order that her education, her morals, and her future interests might not suffer from the contaminating influence of, on her own showing, a worthless woman.

Mr. Williams followed on the same side, and read several affidavits from which it appeared that the applicant was an industrious man of good moral character, possessed of some property at Launceston, and perfectly capable of maintaining his daughter, Catherine Storey.

Mr. Chambers briefly replied, and contended, upon the authority of several decided cases, that the putative father has no right to the custody of his child.

The Chief Justice said[ 2] the case originally came before him at Chambers, and that he had gone, with the greatest attention, through all the cases on the subject, in the hope of finding one parrallel [sic] with the present, but had not met with one.  It was a distressing case; for here was a child claimed by each of two persons who had the strongest natural right to her.  He had looked through all the cases to be found on the subject, in order that he might, if possible, be relieved from exercising a discretion, but had not been able to find one at all analagous to the present.  It did at first seem to him that by the circumstance of the father and mother having intermarried after the birth of the child, the father acquired a right over the child, in analogy with the provisions of the civil law - but it was not so by the law of England; the father had no more than the natural right to maintain it.  Under all the circumstances, therefore, it appeared to him, that that legal right to the possession of the child was not shown to be in the applicant, which would authorise the Court in ordering that she should be delivered up to him.

Mr. Justice Dowling perfectly coincided in the view of the case taken by the Chief Justice.

Motion refused.



[1 ] See also Australian, 21 September 1832.

[2 ] The Australian, 21 September 1832, reported that the "learned Chief Justice ruled, that the child having been born out of wedlock, was not liable to the control of the putative father, and as for the guardianship of her person, that of natural right appertained to the mother.  The Court accordingly, dismissed the rule without costs, and the parties separated mutually chagrinned."

Published by the Division of Law, Macquarie University