Regina v Wahl; ex parte Wahl [1969] PGLawRp 468; [1969-70] PNGLR 65 (25 November 1969)

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INFANTS AND CHILDREN - Habeas corpus - Jurisdiction to order issue of writ - Writ to person out of jurisdiction at date of order - Motion for attachment based on failure to make return to writ - Jurisdiction to make order for custody of children out of jurisdiction.

The Supreme Court has no power to order the issue of a writ of habeas corpus directed to a person who at the time of the order is out of the jurisdiction.

A judge of first instance has no power to quash an order made by another judge of the Supreme Court but when punitive proceedings are taken for disobedience of that order the judge may inquire into its validity and also exercise an inherent jurisdiction to stay further proceedings under it.

The Supreme Court has jurisdiction to make orders with respect to the custody and control of children out of the jurisdiction.

Frank Nicholas Wahl (the respondent) moved the Supreme Court of the Territory of Papua and New Guinea that an order absolute in the first instance for habeas corpus made by that Court (Clarkson J.) on 6th November, 1969, directing the respondent to have before the Court the two infant children of the respondent and Elizabeth Gunda (the applicant) be quashed. The applicant moved that the respondent’s return to the writ be enforced by attachment. All relevant facts appear in the judgment.

MINOGUE ACJ: On 6th November Elizabeth Gunda Wahl made application for a writ of habeas corpus directed to her husband Frank Nicholas Wahl to compel him to have before the Court the bodies of Nicole Christina and Karen Gunda Wahl the children of the parties said to be taken and detained in the custody of their father. According to an affidavit sworn by the applicant Nicole Christina who was born on 11th August, 1964, and Karen Gunda who was born on 20th June, 1966, had been in her custody since 1st April last which was about six weeks after she and the respondent separated. The applicant lives and works in Port Moresby and she states was residing with the children in a flat there. The respondent lives at Bereina. On three occasions since the separation the children had been with him for short holidays. On 5th November the applicant received a telephone call from a person in charge of a nursery at which she appears to have left the children during her working hours and was informed that the respondent had taken the children just before 4 p.m. on that day. She was unable to find either him or the children and being afraid that he would remove them from the jurisdiction of the Court she came before the Court on the following morning seeking the issue of the writ. Clarkson J. made an order absolute in the first instance and the writ was issued later in the morning. Unfortunately for the applicant the respondent had departed with the children a few minutes after 4 o’clock on the previous afternoon for Hong Kong and Zurich at which latter place they arrived at 2 p.m. on 6th November. In fact whilst the application for the writ was being made the respondent and the children were in the air somewhere between Hong Kong and Zurich. He returned to Port Moresby on 13th November and was served with the writ immediately on his arrival at the airport. On the same day a motion on his behalf was served on the applicant’s solicitor seeking to quash the writ for want of jurisdiction or such other orders as to the Court should seem meet. On 14th November the respondent was served with a motion seeking his committal for contempt for his disobedience of the writ in that he had failed to make a return thereto. The motion was forthwith heard by Clarkson J. who refused to make any order pending the determination of the motion to quash already in existence. This was returnable on 18th November.

When the matter came before me on 18th November a return to the writ had been filed on the 17th in which the departure of the respondent and children was set out and it was stated that they were beyond the Territory of Papua and New Guinea at the time of the issue of the writ. It further went on to state that the respondent on 11th November gave the custody, care and control of the children to his sister who resides in Zurich in Switzerland and that they at the time of filing of the return remained in her custody, care and control and that he had not then their custody, care or control. Previously on 13th November the respondent in an affidavit in support of his motion deposed to the facts set out in the return and specifically stated that at the time of Clarkson J.’s order he was outside the jurisdiction of the Court.

Mr. Wood for the respondent submitted that had the facts been known to Clarkson J. on 6th November he would not have made the order which he did and that in the circumstances a writ of habeas corpus was inappropriate to the situation as it existed and in fact as both the respondent and the children were out of the jurisdiction when the writ issued the Court had no jurisdiction to issue such a writ. He further submitted that if I were to hold the issue of the writ to be within jurisdiction I should deal with the applicant’s motion, hold that the return made is good and that in consequence the motion to commit for contempt should be dismissed. Mr. Hoath for the applicant agreed that as far as I could I should dispose of both motions and deal with the question of the custody of the children which after all was the real and sole purpose of the issue of the writ. This seemed to me to be a proper course to follow particularly as it was most desirable that whatever the ultimate disposition of the children they should be disturbed as little as possible.

In support of the motion to quash Mr. Wood relied on R. v. Pinckney[lxxxix]¹ . In that case Walton J. ordered a writ of habeas corpus to issue. On the return day of the writ it was brought to his knowledge that the respondent as well as the child the subject of the writ were and had been at the date of the order out of the jurisdiction. The learned judge thereupon ordered that the writ already issued should be quashed and instead thereof that the prosecutor (Mr. Pinckney):

“be at liberty to issue a fresh writ at once on application at the Crown Office of this Court at any time before the appeal in this prosecution be heard, and that the return day to such fresh writ be within seven days after the issue of such fresh writ”[xc]² .

In allowing Mrs. Pinckney’s appeal to the Court of Appeal against the subsequent order Collins M.R. said that the original leave to issue a writ of habeas corpus was apparently given under a misapprehension. It was clear from the evidence that the appellant was out of the jurisdiction at the date of the order and he went on to say:

“Under the circumstances it was not strenuously contended on behalf of the respondent that there was jurisdiction to allow the issue of a writ of habeas corpus against a person who was out of the jurisdiction of the Court, and reliance has been placed on a suggested estoppel on the ground that that point was not taken before the judge in chambers. But the mere failure to take such a point cannot give the Court a jurisdiction which otherwise it does not possess, and if the appellant was out of the jurisdiction when leave to issue the writ was given this appeal must, in my judgment, succeed”[xci]³ .

Mathew L.J. thought that the learned judge of first instance was quite right in quashing the original writ because he thought it ought never to have issued, i.e., it was issued without jurisdiction. At the outset I should say, having taken time to consider the matter, I cannot see how as a judge of first instance I can quash an order made by another judge of this Court. Such a result can surely only be brought about by the judge himself who made the order, upon cause shown, vacating his order or by the Full Court. However, when proceedings are brought before me for attachment (which is what the applicant’s motion really amounts to) if the jurisdiction to make the order upon which the proceedings are founded is challenged in my view I must consider for myself whether that order was properly made—particularly as it has now been shown that the factual situation upon which jurisdiction was based is not as the judge who ordered the writ to issue thought it to be.

In Mr. Wood’s further submission, even assuming that the Court had jurisdiction to issue the writ, it is in the circumstances not the appropriate means by which to determine the custody of these children. The return shows, so he said, that the respondent has parted with their custody, care and control and it is not to the point whether that relinquishment was legal or illegal. He relied on what was said by Lord Herschell in Barnardo v. Ford[xcii]⁴:

“The question is not whether one who has parted with the custody of a person committed to his care can be made amenable to the law if he wrongfully parts with that custody, but whether the writ of habeas corpus is the appropriate remedy. The terms of the writ require the recipient to have the body of the person named in it ‘taken and detained under your custody, as is said, together with the day and cause of his being ‘taken and detained, to undergo and receive all and singular such matters and things as the said Court shall then and there consider of concerning him in this behalf’. This indicates that the very basis of the writ is the allegation and the prima facie evidence in support of it, that the person to whom the writ is directed is unlawfully detaining another in custody. To use it as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for having parted with it, strikes me at present as being a use of the writ unknown to the law and not warranted by it.”

Mr. Hoath for the applicant contended that the Court had jurisdiction to order the issue of the writ because the parties and the children were ordinarily resident within the Territory and because also of the inherent jurisdiction of the Court to deal with resident children. Further he submitted that at the time the writ was issued the respondent was within the jurisdiction having in effect never really left it and that this Court has jurisdiction over the children the subject of the writ and should exercise it to enforce their return to the Territory. The writ in the particular circumstances of this case was, he said, the proper and the best remedy available to the applicant and proceedings for attachment and committal of the respondent should not be regarded as punitive. Any inconvenience brought about by imprisonment or other consequences which the respondent might suffer are brought about solely through his own action in kidnapping the children.

That the Court has jurisdiction to order the issue of a writ even though the body the subject matter of the writ be outside the jurisdiction is in my opinion clear. This situation was considered at length in R. v. Secretary of State for Home Affairs; Ex parte O’Brien[xciii]⁵ . There the applicant O’Brien had been (as the Court of Appeal held) illegally detained and transferred to the Irish Free State. At the time of the application he was held in Mountjoy prison in Dublin where he was in the custody and control of the Governor of the prison. The Attorney-General contended for the respondent that he had no further control over the applicant and consequently should not be called upon to make a return to a writ of habeas corpus. The Court of Appeal thought otherwise and made an order absolute for the writ to issue so that it could consider whether or not such return as should be made to the writ was a good one. As was said by Atkin L.J.[xciv]⁶:

“The case of Barnardo v. Ford[xcv]⁷ appears to me to afford ample ground for the conclusion that this Court should order the writ to go addressed to the Home Secretary in order that he may deal fully with the matter, and if he has in fact parted with control show fully how that has come about.”

“Now it has been laid down by the House of Lords in Barnardo v. Ford[xcvii]⁹ that if the Court is satisfied that the body whose production is asked is not in the custody, power or control of the person to whom it is sought to address the writ, a writ of habeas corpus is not the proper remedy, though there was an original illegal taking and detention. The object of the writ is not to punish previous illegality, but to release from present illegal detention. I do not wish to tie myself to the exact degree of power over the body which justifies the issue of the writ, for various high authorities have used different words. Lord Herschell’s language is ‘custody, power or control’[xcviii]¹⁰; Lord Macnaghten’s ‘under control or within reach’[xcix]¹¹; Lord Halsbury’s ‘wrongful detention by himself or his agent’[c]¹².”

The Home Secretary had filed an affidavit in which he swore that the prisoner was in the custody or control of an Irish official who was not subject to the orders or direction of the Home Secretary or the British Government. Scrutton L.J. took the view that from the material before the Court of Appeal it was quite doubtful whether or not if an order were made for the production of the body the Home Secretary could or could not produce that body. In his view the rule nisi should be made absolute for the writ to issue so that on its return the truth might be ascertained. In fact upon the return of the writ O’Brien was produced in Court and thereupon discharged.

Mr. Hoath sought to show also that the presence of the respondent within the jurisdiction was immaterial. In support of this proposition he relied on R. v. Leishman[ci]¹³ where Mansfield C.J. ordered the respondent (who lived and probably at the time of the order was present in South Australia) to attend at the Supreme Court at Brisbane to show cause why a writ of habeas corpus should not issue to have the child which he had taken away from Brisbane before the Court for determination as to his future custody. And he also relied on Zwillinger v. Schulof[cii]¹⁴ where Gowans J. cited R. v. Leishman[ciii]¹⁵ with approval. But I do not think these cases give him the comfort he seeks to draw from them. They were concerned with children within Australia and as Gowans J. pointed out in Zwillinger v. Schulof[civ]¹⁶ the presence of s. 118 of the Commonwealth Constitution providing that full faith and credit shall be given throughout the Commonwealth to the laws and judicial proceedings of every State were significant in the case before him. I cannot conceive of any circumstances where the writ can go to a person in a foreign country: see R. v. Roberts[cv]¹⁷ and Re Mwenya[cvi]¹⁸.

In my opinion the law is as stated in R. v. Pinckney[cvii]¹⁹ and because of the facts of the respondent’s whereabouts now known to me (and unknown to Clarkson J.) the learned judge had no jurisdiction to make the order which he did and consequently I cannot make any punitive order by way of compelling compliance with that order.

But to leave the matter stand there is in my view most unsatisfactory and is a result which would tend to bring the law into disrepute. As I said during the course of the argument, on the face of it, Mr. Wahl’s action was most high-handed. By what appears to be a tactic akin to kidnapping the father has whisked the children out of their mother’s lawful custody to a country where one would not expect her to be readily able to follow them. I agree with Mr. Hoath that this Court has jurisdiction to make orders with respect to their custody and control. See also Re P. (G.E.) (an infant)[cviii]²⁰; Fabbri v. Fabbri[cix]²¹; Harben v. Harben[cx]²²; Mitchell v. Mitchell[cxi]²³; and Scheffer v. Scheffer[cxii]²⁴. The father and mother are both present within the jurisdiction and there is nothing before me to show that the father has relinquished legal control of the children. As at present advised I find it difficult to see how he could relinquish such control. It is obviously desirable that as far as possible their future should be safeguarded and their custody determined without delay. Accordingly, whilst on the view of the law I have taken I must dismiss Mrs. Wahl’s motion for attachment which I now do I order that Frank Nicholas Wahl attend at the Supreme Court at Port Moresby on 8th December next to show cause why a writ of habeas corpus should not issue directed to him to have the bodies of Nicole Christina Wahl and Karen Gunda Wahl produced before the Court for determination as to their future custody. I further order that such affidavits as to him or his advisers seem necessary to assist the Court in determining that custody be served and filed by 2nd December next and that such affidavits as Elizabeth Gunda Wahl seeks to rely upon be served and filed by 5th December next.

With regard to the motion to quash the writ as I have already stated I am unable to take this course. However, in my opinion I have an inherent jurisdiction to stay further proceedings under it and I so order. I reserve the costs of all proceedings on these applications.

Order absolute for habeas corpus stayed. Motion for attachment dismissed. Order nisi for habeas corpus. Costs reserved.

Solicitor for the applicant—Elizabeth Gunda Wahl: W. A. Lalor, Public Solicitor.

[lxxxix]>[1904] 2 K.B. 84.

[xc][1904] 2 K.B., at p. 85.

[xci][1904] 2 K.B., at p. 88.

[xcii][1892] UKLawRpAC 34; [1892] A.C. 326, at pp. 338 and 339.

[xciii][1923] 2 K.B. 361.

[xciv] [1923] 2 K.B. 361, at p. 399.

[xcv][1892] A.C. 326.

[xcvi][1923] 2 K.B., at p. 391.

[xcvii][1892] A.C. 326.

[xcviii][1892] A.C., at p. 338.

[xcix][1892] A.C., at p. 340.

[c][1892] A.C., at p. 333.

[ci][1958] Q.W.N. No. 23.

[cii][1963] VicRp 57; [1963] V.R. 407, at p. 413.

[ciii][1958] Q.W.N. No. 23.

[civ][1963] V.R., at p. 413.

[cv][1860] 2 F. & F. 272; 175 E.R. 1056.

[cvi][1960] 1 Q.B. 241; [1959] 3 All E.R. 525.

[cvii][1904] 2 K.B. 84.

[cviii][1964] 3 All E.R. 977; [1965] Ch. 568.

[cix][1962] 1 All E.R. 35.

[cx][1957] 1 All E.R. 379.

[cxi][1963] N.Z.L.R. 999.

[cxii] [1967] N.Z.L.R. 466.

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Papua New Guinea Law Reports

Regina v Wahl; ex parte Wahl [1969] PGLawRp 468; [1969-70] PNGLR 65 (25 November 1969)

Papua New Guinea Law Reports - 1969-70