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

Ex parte Cooper [1838] NSWSupC 36

custody of child

Supreme Court of New South Wales

In banco, Dowling C.J., Burton and Willis JJ, 10 March 1838

Source: Australian, 13 March 1838[ 1]

Exparte George Leonard Cooper. -- Mr. a'Becket moved the Court in its summary jurisdiction for a rule nisi, calling upon Mrs Ellen Sewell, and her daughter, Mrs Cooper, the applicant's wife, to shew cause why Ellen Cooper, the infant child of the applicant and his said wife, should not be delivered over to the care of the father.  It appeared from the affidavits submitted to the Court, that the applicant was married to his present wife about the latter end of the year 1829; and that about fifteen months afterwards, the subject of the present application to the Court was born.  Before the birth of the child, Mrs Cooper had gone to reside with her mother at Sutton Forest, whence she never could be persuaded to return home to her husband; the refusal being given, as was supposed, at the instance of her mother.  Mr Cooper had never seen the child, which was now nearly seven years of age.  Being about to proceed to England, and being desirous to take his child with him to educate her there, he had sent an agent a short time since, with a written demand for the child, when the grandmother of the child refused to deliver up the infant.  The Court granted a rule nisi, returnable on Saturday next; the Chief Justice remarking to Mr. a'Becket, that it would be necessary to have the child before the Court when the argument came on.

 

In banco, Dowling C.J., Burton and Willis JJ, 28 March 1838

Source: Australian, 3 April 1838[ 2]

 

Exparte George Leonard Cooper. - On a former day, Mr a'Beckett moved the Court, in its summary jurisdiction, for a writ of habeas corpus, directed to Elizabeth Sewell and Jane Cooper, to bring up Ellen Cooper, the infant daugher [sic] of the applicant and Jane Cooper, in order that she might be delivered over to the natural custody of her father.  The application was made upon the affidavit of the father, who stated that his wife voluntarily quitted him in 1831, before the firth of the child, and went to reside with her mother, Mrs. Elizabeth Sewell, with whom she had ever since resided, notwithstanding his repeated applications to her to return home.  He further stated that he had never even seen his daughter - and that, being about to proceed to England, he was anxious to take her with him with a view to her being educated there.  The return to the writ was now made, Mrs Sewell and her grand-daughter appearing in Court.  The return stated that Mrs Jane Copper left her home in consequence of the ill-usage of her husband, who cohabited with a married woman at the time - that he had frequently turned her out of doors, and left her to sleep in the bush at night - that when she left him she was bruised and injured, and unable to stand, from the effects of his ill-treatment - that she had never recovered from the effects of it, and had been unable to sit up for the last twelve months - that the applicant had since cohabited with one Jane Moore, with whom he lived up to the present moment, and who adopted his name with his consent - that he had disposed of the whole of his property to one Joseph Newton, for an annuity during the lives of himself and the said Jane Moore - that he had never called but once to see his wife since their separation, and that then he rode up to the door of the house with two horse-pistols in his hand, threatening to blow her brains out could he catch her - that the child had always been supported without reference to the father - and that the child was sickly, and that any removal from her mother, or harsh treatment, might prove of fatal consequence to her.  Mr Windeyer was about to shew cause, when Mr a'Beckett observed that the father, who was now absent in the interior, had made arrangements with Miss Crook, who conducted a seminary in Jamison-street, to have the child educated there.  The learned gentleman prayed that the Court would therefore order the child to be delivered over at once.  The Chief Justice said that by the common law, no doubt, a father had a right to the custody of his child; in the present case, however, from what had been disclosed - and taking into consideration the delicate health of the child - he would recommend Mrs Sewell and her daughter to file a bill in equity, they being made defendants in the suit, when the Court could deal with the case according to the circumstances.  Mr a'Beckett suggested that in the mean time the child might be delivered over to Miss Crook, as it could not be kept in Court while the case was pending.  Mr. Justice Willis said the application reminded him of Mr Wellesley's celebrated case, at which he happened to be present, and the children being in Court during the lengthened argument which arose in that case, a complaint was made that ``they had been playing something and tommy among the law books."  The Chief Justice thought that as the mother had had the custody of the child for more than six years, she might be safely entrusted with it for another month or so.

 

Notes

[ 1]See also Sydney Herald, 12 March 1838.

[ 2]See also Sydney Herald, 29 March, 1838; Sydney Gazette, 3 April 1838.

Published by the Division of Law, Macquarie University