MORRISON v JENKINS (1949) 80 CLR 626 – Case Note

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– – – – – – – – – – – – – – – – – – – – – – –MORRISON v. JENKINS– – – – – – – – – – – – – – – – –

– – –( 1949 ) 80 CLR 626

( Whose babe instance )

Name of Court:

  • High Court of Australia

Name of Case:



  • ( 1949 ) 80 CLR 626

Parties to the Action:

  • Alberta Gwen Morrison,the Appeallant
  • Jessie Jenkins,the Respondent

Nature of Case:

  • Civil Matter ( Family Matter )

Date of Judgement:

Date of Decision: 22neodymiumDecember, 1949


  • Five Judges Bench ( Large/Full ) including Chief Justice.
  1. Mr. Latham CJ, ( dissenting )
  2. Mr. Rich J,
  3. Mr. Dixon J,
  4. Mr. McTiernan J, ( dissenting )
  5. Mr. Webb, J.

Facts and Summary:

Mrs. Alberta Gwen Morrison gave a birth of a babe miss on 22neodymiumJune 1945 in the ‘Kyneton Hospital’ in Victoria. On that same twenty-four hours, within five proceedingss another lady named Mrs. Jessie Jenkins besides gave a birth to a babe miss in the same ward.

Mr. and Mrs. Morrison claimed that their babe miss had been swapped in the ward with the babe miss of Mrs. Jenkins. And Mrs. Jenkins had left the infirmary with their babe ( babe named Nola Jenkins ) . After four old ages, this affair reached to the high tribunal with completion of all lower tribunal proceedings.

Mr. and Mrs Morrison wanted the dorsum of their babe Nola, but the Jenkins household did non desire to return Nola because they were convinced that they Nola was their babe and they had brought a kid right from the infirmary.

At that clip, there was no DNA testing, but from the study of blood trial showed that Mr. Morrison could non be father of the babe which they had had from the Victoria Hospital. After that, the Supreme Court of Victoria held in this affair that the babe miss ( Nola ) was the girl of Mr. and Mrs. Morrison and Jenkins Family should be return Nola to detention of her existent parents.

The determinations and judgements of Judgess in the high tribunal were divided.

On the one portion, Mr. Justice Rich and Mr. Justice Dixon said that the position of parenthood of a kid is so much uncertainty ful every bit wll as itfavorable be in the favorable circumstance for the kid to return kid to her original parent from persent detention parent.

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On the secod portion, Mr. Justice Webb did non hold with the determination of the tarial justice that the babe miss belonged to Morrisons’ household. There was an grounds which included another fact which was that the within 20 four hours at that place was more kids born and might be one of those have been given to Morrison household.

On the 3rd portion, Chief Justice Latham and Mr. Justice McTiernan said that Nola should be given back to Morrison household. Harmonizing to Mr. Justice McTiernan, blood trial is a adequate grounds for turn outing that Nola is the kid of Mr. Morrison. He besides explained that The trial of “best-interest-of-the-child” merely applied when parents fight with each other for the detention of minor, but in this state of affairs parents are together and existent parents are natural and lawful defender of their ain kid and besides have an absolute legal right to the detention of their ain kid.

The bulk of judges’ determination were that Jenkins household should retain the detention of Minor kid Nola and Morrisons’s household should retain detention of Johanne. And in the consequence, the entreaty was refused.

Brief Judgement/Decision of Trail Court/High Court:

The determination by the supreme tribunal of Victoria ( Barry.J ) sing above said affair is that Nola was the girl of Mr. Morrison and the public assistance of kids is that to go forth and brought up with her ain existent parent because existent parent can take attention better than others. Nola should in the detention of her existent parents. Harmonizing to Herring C.J, the writ of habeus principal is un suited of this proceeding because this is a proceeding for the finding of the parenthood of kid but application for the habeus principal is much suited process because oarents wants to obtain the detention of their ain kid. Harmonizing to Fullage.J. there is benefit of uncertainty as the parantge of the kid even no order should be made if a little uncertainty is happening. Low J. Agreed by all other members of the bench.

Relevant jurisprudence:

Legitimacy Declaration Act 1858 subdivision 1

The Marriage Acts 1928-1941 ( Vict. ) , s. 136 are derived from the English Guardianship of Infants Act 1925

Halsbury, Laws of England, 2nd erectile dysfunction. , vol. XVII. , p. 666

Section 136 of the Marriages Acts 1928-1941 ( Victoria ) provide that the tribunal have power to make up one’s mind the inquiry of detention of minor sing the public assistance as the first essentio consideration.

Halsbury, Laws of England, 2nd erectile dysfunction. , vol. XVII. , p. 666 stated that “ ” a male parent, whose infant kid is non in his detention, and a female parent, where she is entitled to the detention, may, in the absence of good ground to the contrary, obtain the detention of the kid by a writ of habeas principal ”

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Harmonizing to


The chief issues in this instance were that:

  • Whether is this affair associating to guardianship or parentage?
  • Whether is it the public assistance of kid or non to alter the care?
  • Whether is at that place defacto relationship has existed between kid and present defender?
  • Whether entreaty should be allowed or non?
  • Which parents have detention right on the kid?
  • Whether comman jurisprudence applied on this affair?
  • Whether Nola is legitimate kid of Mr. and Mr. Morrison?


There are two points in which determines the judgement of all Judgess that is:

That the public assistance of kid is more of import than anything and public assistance of kid is a overriding consideration.

That the Parentage of kid is ligitimate.

Harmonizing to Mr. Latham, that this is a public assistance of the kid that he or she should be brought up with and by its existent parents non other than and should be in the detention of her existent parents. And Mr Latham to the full supports the judgement of Mr. Barry J the Judge of Supreme Court of Victoria. He besides mentioned the affidavit of Mr. Morrison in the test tribunal proceedings that Mrs. Morrion gave grounds that she ne’er of all time had any sexual relationship with any individual except her hubby. And Johanne Lee is non a kid of her hubby.

Mr. Rich J, stated that the one thing which is more of import after parentage issue that is public assistance of kid. In this affair the de-facto relationship has formed between the both parents and kids and they have besides defacto relationship exists between siblings and other household members.

McTiernan J. relied on the scientific grounds which was blood trial. He besides mentioned that the natural parents are the lawful defenders of their ain kid and hold right to detention. And they have the right of habeas principal. He besides province that the in the involvement of public assistance of kid it is most of import thing that parent should take attention of their ain kid.

Mr. Webb J. mentioned that both kids are good developed and attractive but he was non able to look into and detect the characteristics of resemblance with parents and that sort could put trust on them.

Mr. Dixon J. gives the sentiment that this affair donot have any inquiry of jurisprudence and have lone inquiry of fact. Harmonizing to him public assistance of a kid as a paramount consideration and ne’er be neglected. He besides to the full back up the position of the High Court that the whole hereafter felicity and public assistance of both kid is on interest.

Obiter Dicta / Notes:

After the hearing of both parties ; the leave to appeal dismisses by a a bulk of three to two Judgess, Mr. Rich, Mr.Dixon and Mr.Webb JJ ; Mr.Latham CJ and Mr. McTiernan J dissenting. All Judgess of tribunal describe and put the criterion of cogent evidence at really high degree.

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Mr. Rich J.

He stated that the Morrison must except ‘every other sensible hypothesis’ [ 1 ]

Mr. Dixon J.

He expressed his understanding with the position of the Victorian Full Court. [ 2 ]

“the farther illation or decisions which have been drawn as to the precise mode in which the babes were handled and precisely by whom are dubious and in some respectsspeculative and they are unsafe.” [ 3 ]

Mr. McTiernan J.

He stated that ‘all sensible doubt’ must be excluded. [ 4 ]

Mr. Webb J.

He was non prepared to travel so far. His Honour stated that while a tribunal can non alter the criterion of cogent evidence, ‘it can and should take a firm stand on exact or cogent cogent evidence on issues of sedate importance like that of parentage’ . [ 5 ]

Mr. Latham CJ,

that the entreaty should be allowed with costs, that the determination of the Full Court should be set aside and that the order of Barry J. should be restored. [ 6 ]


In my point of position, This instance is a household affair of care every bit good as parenthood. Morrison household wanted return their babe from the Jenkins household. There was sufficient grounds for cogent evidence that Mr. Morrision was the male parent of babe miss but the bulk of Judgess of high tribunal did non let to gave detention of babe. So that care of babe miss remaind position Quo.

The groundss proves that the babe born on 22neodymiumJune 1945 and beloged to Mrs. Morrison. Affidavits and cross scrutinies every bit good as blood trial of babe and Morrison besides proves that the Nola is a legitimate kid of Mr. Morrison but after all of these was non in the favor of kid to alter the care and return to her existent parent because there was defacto relationship existed and if tribunal change the detention of the kid so it may be harmful consequence on kid.

This is really unusual and interesting instance because this instance treated as particular instance because there is no inquiry of jurisprudence included in this instance. The instance is depends upon inquiry of fact instead so inquiry of jurisprudence and treated as a particular instance. Because in normal fortunes, male parent and female parent battles for detention of the minor but in this instance two different households were contending for detention of the kid. The Majority of Judgess agreed after examined the grounds that Mr. Morisson was a male parent of kid but they focus on public assistance of kid instead than legitimacy of kid. – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –