Gronow v Gronow

High Court of Australia|1979-07-01|Before: Wilson JJ, Stephen J

High Court of Australia Stephen, Mason, Murphy, Aickin and Wilson JJ. Gronow v Gronow [1979] HCA 63

ORDER Appeal allowed. Order that the judgment of the Full Court of the Family Court be set aside and that in lieu thereof it be ordered that the order made by Evatt C.J. on 30th June 1978 be restored.

Annabel Louise Gronow, a little girl of four and a half, is the only child of parents now in their early thirties who married in March 1972 and have lived apart since February 1977. Each has a full-time profession, the father as a medical practitioner, the mother as a nursing sister. When they separated Annabel went to live with her father. There she remained through three hearings before the Family Court, in the last two of which, before Evatt C.J., the mother was unsuccessful in seeking custody. On the last occasion, in June 1978, sole custody was given to the father. There then followed a successful appeal by the mother to the Full Court of the Family Court in January 1979, as a result of which custody was given to her: hence the father's present appeal to this Court.

This is not the case of an unloved or neglected child, the sad outcome of a broken marriage. Annabel is a happy, well-adjusted child. She has two loving parents, each anxious to care for her and each able to offer her high standards of material comfort and to surround her, as well as a single parent can, with the warm and caring atmosphere of home. Each is intelligent and of good character, devoid of disqualifying attributes. Each has a mother willing and able to assist in caring for Annabel, the maternal grandmother perhaps displaying more "motherly" qualities than does Mrs. Gronow senior. Annabel is denied life in a home in which husband and wife live amicably together and unite in devoting themselves to the rearing of their child: her parents' separation denies her that and whatever disabilities she will suffer in consequence are not now remediable by any Court order. But whichever parent does have the custody of her can be relied upon conscientiously to provide a large measure of care, affection and material comfort.

All this makes the protracted history of court proceedings in this case, culminating in the present appeal to this Court, seem less than useful either to Annabel or to the community which has provided the legal framework within which it has occurred. This is emphasized by the fact that it is now well over a year since Evatt C.J. delivered judgment in June 1978. The intervening period represents a quarter of Annabel's life to date, the most recent quarter and no doubt also the most relevant period so far as predictions as to her immediate future welfare are concerned. Yet the Full Court and, in turn, this Court, involved as each has been in the appellate process, has concerned itself exclusively with what is now long past history, regardless of any recent developments which may have a bearing upon her present well-being. Any such developments thought to affect the question of custody may no doubt be canvassed by further application at first instance. But all this does nevertheless demonstrate the extent to which litigation, particularly appellate litigation, can all too readily provide a continuing and disruptive accompaniment to the rearing of children of separated parents.

The very fact that each of Annabel's parents has much to offer her, there being little to choose between them, no doubt leads, easily enough, to different minds forming different views concerning her best interests. The learned trial judge herself, after a most careful assessment of all material circumstances, concluded that "matters are evenly balanced between the parties". And so they were: one supposes that her Honour might, in the ultimate weighing up of competing considerations, easily enough have come to a conclusion the opposite of that at which she in fact arrived. Had she done so I would not have thought it possible, looking at the recital of circumstances which her reasons for judgment contain, to have said that she had erred.

In this case the fine balance of competing circumstances not only made the decision facing the learned trial judge a difficult one. It should also have gone far to satisfy the Full Court that this was not an occasion upon which it was proper for an appellate court to disturb the outcome of a discretionary judgment, particularly when made after a most careful review at first instance of all relevant circumstances and made with that unique advantage which the primary judge alone possessed, that of seeing the parties and those associated with them and gaining at first hand some personal impression of their personalities. Where very evenly balanced competing claims are in question and where it is custody that is in issue this advantage must be of particular significance.

When the Full Court, by a majority, reversed the decision of the primary judge it did not do so because of any error in principle or mistake of fact on the part of the primary judge. In a lengthy judgment Joske J. reviewed the circumstances of the parties, with copious citation not only from the judgment of Evatt C.J. which was the subject of the appeal but also from her Honour's earlier judgment of June 1977. There followed quite full citation concerning the proper approach of appellate courts to appeals from discretionary judgments. Coming to his conclusion, his Honour said that this was no evenly balanced case since the maternal grandmother was to be preferred to the paternal grandmother, it being common ground that one or other of them would have a deal to do with the child of these working parents. His Honour then described the friendship which the father had formed with a family, the Quinns, which friendship Evatt C.J. had thought beneficial to Annabel, as "entirely unsatisfactory" and as lacking stability, and, after making some reference to access, stated his conclusion that the appeal should succeed and that the wife should have custody.

In a short judgment Watson J. agreed with Joske J. that the appeal should be allowed, described the judgment of Evatt C.J. as "unreasonable" and said that, while it involved no mistakes of fact nor any introduction of irrelevancies, the weight she placed upon some of the evidence was erroneous. He then shortly reviewed her Honour's findings of fact, isolated four matters which he thought had led her Honour to her conclusion and said of these that they could not, "on a total evaluation of her Honour's findings", leave it open to her to arrive at the conclusion she did. In my view his Honour did not correctly reproduce what Evatt C.J. had said as to one of those three matters: her Honour did not, as Watson J. suggests, offer "considerable criticism" of the paternal grandmother. Be that as it may, it was the fourth matter, the wife's continuing hostility to the husband, which his Honour found to be "really troubling". His Honour concluded that excessive weight had been given to this aspect, and this, as I understand it, because he considered that in the future that hostility would diminish, "Human feelings being what they are, relationships between former spouses can change". It was apparently in the expectation of such a change occurring that his Honour concluded that far less weight should have been given to this factor. However, as Herring C.J. pointed out in Priest v. Priest [1] , the ability of judges to predict the future is very limited. Their ability to do so with such certainty as to allow another's different prediction to be treated as clearly wrong must be more limited still, especially when that future depends upon the state of future relationships between estranged couples. His Honour did also comment upon the "failure to take account altogether" of the possible use of a welfare officer to supervise custody and access but I would not suppose this to have provided, of itself, any ground for reversal.

Fogarty J. would have dismissed the appeal. After a close analysis of the primary judge's findings and a discussion of the various arguments urged on behalf of the appellant, he saw no reason for interference. This was a case where there was no distinction to be drawn between the two parents so far as concerned the ordinary physical arrangements for the child, moreover the child had an equally warm association with each party. His Honour stressed the discretionary nature of the judgment and the extent to which custody cases generally and this case in particular must depend upon the primary judge's assessment of the character and personality of the parties, aided as it must be by seeing and hearing them in Court. Having said that it was inappropriate for an appellate court in a custody case to substitute its own subjective assessment of the evidence for the assessment by the trial judge not only of the evidence but also of the parties as they revealed themselves in the course of the case, his Honour concluded that there was no basis upon which the primary judge's finding should be disturbed. The very fact that the case was a finely balanced one made it the more difficult to show that the result arrived at was wrong.

My own views are very much in accord with those of Fogarty J.: this was not a case in which the Full Court should have intervened. It will serve little purpose to refer to the numerous authorities which, in varying language but with unvarying emphasis, describe the principles which should be applied by an appellate court in an appeal from a decision founded upon the exercise of a judicial discretion. Both the judgments of the majority and the dissenting judgment of Fogarty J. in the present case refer to appropriate authorities and cite relevant passages. It is not the principles which are in doubt. It is in the application of those principles to particular cases that difficulties arise.

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.

The respondent sought to support the majority judgments in the Full Court, which gave custody of Annabel to her mother, by reference to a consideration which was notably absent from any one of the three judgments in that Court: namely, that Evatt C.J. had failed to take into account the peculiar advantages which custody by the biological mother is said to offer to a very young child, particularly to a little girl.

It is true that in her 1978 judgment Evatt C.J. said nothing to suggest that, all else being equal, the mother should be preferred because she was the mother of Annabel, still a very young female child. However in her 1977 judgment, when the matter had first come before her, Evatt C.J. had said that the "most weighty" matter supporting the mother's claim was "that she is the child's mother and the importance of the mother to a child of this age cannot be overlooked". When her Honour came to write her 1978 judgment she referred to the parties' history and circumstances as having been dealt with in her earlier judgment and described her later judgment as "in a sense, a continuation of the Court's decision of 20th July 1977". In those circumstances I do not think that her Honour's judgment is properly open to the attack sought to be made on it.

However there is, I think, another consideration that no less effectively answers that attack. To appreciate it one must understand why it was that the very judgments which the respondent seeks to support are themselves silent on this aspect, as is, for that matter, the minority judgment of Fogarty J. The question whether or not special bonds necessarily exist between the biological mother and her children, bonds which should lead to her being the preferred custodian of young children, has been much debated of late and judgments in the Family Court have tended to deny to the mother any preferred role: it will be enough to refer to Raby v. Raby [2] as representative of such views. These judgments reflect to some extent, but subject to important qualifications, recent writings of behavioural scientists, many of whose views appear to run counter to conventional judicial wisdom in their denial to the biological mother of the benefit of any prima facie presumption that she is the preferred custodian of young children, especially if they are little girls.

The increase in the proportion of working mothers in the community has no doubt led to significant changes in the respective roles of husband and wife in family life: family life itself has much changed. It is not always easy for those of a generation born and brought up in times when those changes had scarcely manifested themselves fully to assess and appreciate their consequences for young families in the community. However it is not only to such changes that these new views are attributable, they also seem to rely in large measure upon what are said to be new insights into the behaviour patterns of children and upon a better understanding of their psychology.

Some, but by no means all, recent advances in the social sciences have been followed by precipitous retreats to old positions, the overthrow of some conventional wisdom being but shortlived. On the other hand many instances of what were regarded as undoubted truths concerning motiviation and behaviour generally have been convincingly disproved and now seem unlikely of resurrection. What will be the ultimate outcome of this present matter of debate is perhaps still in doubt: I venture no opinion concerning it and this because it seems to me to be quite unnecessary to do so in deciding this appeal.

The reason why it is unnecessary to do so in this case, and, I would have thought, in many other like cases, also supplies the further reason why the judgment of the learned primary judge is not open to attack upon the ground urged on behalf of the respondent. The learned primary judge undertook a searching analysis of all those qualities of each of the parties which might in any way relate to their respective suitability as custodian of their daughter. When this is done there can be little room for any presumptions: a full investigation of the relevant circumstances must necessarily provide a much more accurate assessment of the suitability of each parent than will any arbitrary presumption or rule, applied regardless of the infinite variability of human beings. In this case there was such an investigation, both in 1977 and again in 1978; it dealt in much detail with the mother's personality, her emotional stability and her relationship with Annabel, as well as considering her continuing relationships with her husband and her mother-in-law. In her Honour's 1978 judgment she devoted no little time to an examination of the mother's emotional stability. She later quoted substantial passages from her judgment of the previous year. In one of those her Honour had concluded that the mother "has been and could be in the future a loving and concerned mother if she were able to cope with the frustrations and disappointments of life". After quoting this passage, her Honour in 1978 referred to other relevant facts and concluded that the mother had by now "achieved stability and is able to offer Annabel a secure home".

It was, then, after a painstaking examination not only of the mother's present circumstances, emotional state and relationship with Annabel but also of such changes, all for the better, as had affected her since her earlier application in 1977, that her Honour concluded that matters were nicely balanced as between the competing claims of the mother and the father. For her Honour, in those circumstances, to have then given any weight, in favour of the mother, to some additional factor of "maternal preference" would have been to distort, indeed to nullify, the whole process of conscientious evaluation which she was in the course of undertaking. When the individual qualities of the parties have been closely assessed, the subsequent addition of a factor of quite imprecise weight which duplicates matters already weighed in the scales would only serve to ensure an erroneous result.

Three cases in this Court were said by the respondent to support the view that there is some general principle preferring the mother as custodian of young children. I would myself doubt whether they do more than acknowledge that same circumstance to which Evatt C.J. referred in her 1977 judgment when she spoke of "the importance of the mother to a child of this age". I take it to be the very common, although not invariable, past experience of mankind that mothers have tended to be better able to care for little children than have fathers. The causes contributing to this, perhaps including the male's customary role as breadwinner and woman's social conditioning to a mothering role, are, for present purposes, important only as a reminder that as causes alter or disappear the result will change accordingly. Even in a community of unchanging social conditions, hard and fast rules or presumptions, based only upon matters of common but not invariable experience, provide a poor basis for the assessment of human behaviour compared with detailed investigation of the individuals in question. In times of rapid social change their inadequacy will be the greater.

The first of these three cases, Storie v. Storie [3] , was a contest between a mother and a woman unrelated to the child by blood or marriage but in whose de facto custody the father had placed his daughter. The father had forfeited all claim to custody of the child but the mother could provide her with a home, was anxious to do so and her maternal affection and solicitude was undoubted. The mother had difficulty in having access to the child, who was living in a home in which the mother was hated. In those circumstances the contest was a one-side one and references to the preferred claim of the mother were not made in the context of a contest between a mother and a father. The precedent authorities principally relied upon, ranging from Austin v. Austin [4] through In re McGrath [5] ; Reg. v. Gyngall [6] ; In re O'Hara [7] ; In re Thain [8] to In re Carroll [9] , were likewise all concerned with the prevailing claim to custody of a parent over that of a stranger. Moreover, much of what is said in Storie v. Storie is, I think, no more than an acknowledgement that mothers very commonly can provide better care for their children than can anyone else: it was certainly in this sense that Dixon J. spoke when he said [10] "when the choice is between the parents, the advantages of a young girl being with her mother usually outweigh the considerations in favour of the father". Judgments which seem to go rather further, such as that of Rich J. [11] and of Williams J. [12] , may be seen to be influenced by the then applicable legislation which required that regard be had not only to the welfare of the child but also to the conduct of the parents and "to the wishes as well of the mother as of the father". The welfare of the child was the paramount but not the only consideration. It was in those circumstances that Rich J. [11] , for example, cited with approval what was said in In re Thain [13] , that "the wishes of an unimpeachable parent stand first".

(1945) 80 C.L.R. 597. 2. (1865) 34 Beav. 257 [55 E.R. 634] 3. [1893] 1 Ch. 143. 4. [1893] 2 Q.B. 232. 5. [1900] 2 I.R. 232. 6. [1926] 1 Ch. 676. 7. [1931] 1 K.B. 317. 8. (1945) 80 C.L.R., at p. 612. 9. (1945) 80 C.L.R., at pp. 606-607. 10. (1945) 80 C.L.R., at p. 620. 11. (1945) 80 C.L.R., at pp. 606-607. 12. [1926] 1 Ch., at p. 684.

Lovell v. Lovell [14] and Kades v. Kades [15] each involved a contest between husband and wife for the custody of their young daughter. In the first the Court decided in favour of the husband. Of the majority, Latham C.J. described the effect of the applicable legislation as excluding any assumption that the claim of the mother as such in the case of any infant is "superior to that of the father", adding that small children would no doubt "as a general rule" and as a proposition of "common sense" be better looked after by their mother [16] . McTiernan J. [17] took a similar view but, associated the special role of a mother with the fact that she "remained at home and devoted herself to the child". Neither judgment attributes more to the position of a mother than that, when the facts are looked into, she will probably be found to be better able to care for young girls than her husband. Kitto J. [18] put the matter more strongly: he thought that very good reason to the contrary must be shown to deprive a mother of the custody of her three year old daughter. However I doubt whether what his Honour said is, in substance, different from the other majority judgments.

(1950) 81 C.L.R. 513. 2. (1961) 35 A.L.J.R. 251. 3. (1950) 81 C.L.R., at p. 523. 4. (1950) 81 C.L.R., at p. 527. 5. (1950) 81 C.L.R., at p. 535.

In Kades v. Kades [19] the Court was faced with a position in which it found many of the trial judge's findings of fact to have been erroneous: his view of the mother's unfitness "appears clearly enough to be founded on error" [20] . The Court was, in consequence, largely deprived of acceptable findings concerning the mother. It was in those circumstances that it relied upon the "strong presumption , founded on experience and upon the nature of ordinary human relationships, that a young child, particularly a girl" should preferably be in a mother's custody. The decision illustrates the occasion when the so-called presumption of maternal preference may be of use. As Sir Richard Eggleston says in Evidence, Proof and Probability (1978), p. 94, presumptions of fact are statements that from fact A it is permissible to infer fact B. But when there is extensive evidence of fact B, in the present case of the suitability or otherwise of a mother, as compared with a father, to have the custody of their child, there is no need to rely upon inferences: unlike Kades v. Kades, the primary judge's findings of fact in the present case concerning the qualities of each parent stand unimpeached and no inferential process is called for.

(1961) 35 A.L.J.R. 251. 2. (1961) 35 A.L.J.R., at p. 254.

It follows that, in my view, there was here no occasion for Evatt C.J. to add any factor of maternal preference to the sum of considerations from which she arrived at her conclusion. The respondent's criticism of her failure to do so is without substance.

While I would allow this appeal I am concerned that this will involve a change in the custody of Annabel, who has for the past seven months been in the custody of her mother pursuant to the order of the Full Court. My concern arises because, as already mentioned, neither the Full Court nor this Court knows anything of the events either of those seven months or, for that matter, of the six months which preceded them and which commenced with the conclusion of the hearing before Evatt C.J. in June 1978. With this situation may be contrasted that in In re B (T.A.) (An Infant) [21] in which Megarry J., on a custody appeal under guardianship legislation, heard and took account of evidence of events which occurred after the order appealed from so as to "dispose of the case, so far as possible, on the facts as they now are and not as they once were". There are reasons why this Court should not, on appeal, do likewise, but some at least of these reasons have no application to the case of the Full Court of the Family Court. Not having had the benefit of full argument I do no more than refer to the quite special approach which the English courts have adopted to the admission of fresh evidence in custody cases, attributable to the courts' overriding concern with the welfare of the child and to the continuing nature of their concern with a child's custody: Corbett v. Corbett [22] exemplifies that approach.

[1971] Ch. 270, at p. 275. 2. [1953] P. 205.

If any significant changes in circumstances have occurred since June 1978 they can, no doubt, be investigated on an application for a variation of the order of Evatt C.J. but in the meanwhile custody of Annabel will have reverted to her father, with the possibility of yet another change of custody were such an application for variation to succeed. I would therefore, while allowing this appeal and restoring the order of Evatt C.J., stay the operation of this Court's order for such time as would allow the mother, if so advised, to make application for variation of that order; should such an application be made within that time the order would be further stayed until the determination of the application.

The facts of this case are set out in the judgment of Aickin J.

The case for the appellant was that the Full Court of the Family Court, in upholding the appeal from Evatt C.J., had departed from the settled principles which govern an appeal from the exercise of a discretionary judgment, principles which have been enunciated in the cases referred to by Aickin J. such as Storie v. Storie [23] . The first rejoinder made by Mr. McAlary for the respondent was that the established principles had been displaced by the joint judgment of Gibbs A.C.J., Jacobs and Murphy JJ. in Warren v. Coombes [24] , and that it is now for an appellate court to substitute its own exercise of discretion for that of the primary judge in every appeal against the exercise of a discretionary judgment.

(1949) 80 C.L.R. 597. 2. (1979) 142 C.L.R. 531.

The submission proceeds upon an incorrect reading of Warren v. Coombes and the problem with which the authors of the joint judgment were dealing. The question under consideration was: What is the proper function of an appellate court in hearing and determining an appeal when a challenge is made to the drawing of an inference of fact or to the refusal to draw an inference of fact at first instance? Their Honours answered the question by saying [25] :

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. 1. (1979) 142 C.L.R., at p. 551.

The Court was not called upon to consider, nor did it consider, the very different question which arises on an appeal from an exercise of a discretionary judgment. There is nothing in the joint judgment in Warren v. Coombes to lend any support to the notion that their Honours intended to discard, or to depart from, the settled principles of law which govern such a case.

By way of a second answer to the appellant's case, the respondent's counsel endeavoured to show that the Full Court's displacement of the judgment of Evatt C.J. fell within the correct application of the settled principles. We agree with the reasons expressed by Aickin J. for rejecting this argument. Accordingly, in our opinion the reasons given by the majority in the Full Court for allowing the appeal from Evatt C.J. cannot be sustained.

The respondent's final answer to the appellant's case was to submit that Evatt C.J. had failed to take into account the principle or presumption that a young child, especially a young female child, is best left in the custody of her mother. It was submitted that, although the Full Court placed no reliance on this principle or presumption as a ground for allowing the appeal from Evatt C.J., the Full Court's order could be justified on this ground and that it was open to the respondent to support the Full Court's order accordingly.

The principle invoked by the respondent - that a young female child is best left in the custody of the mother - is not, and never has been, a rule of law. It is, or was, a canon of common sense founded on human experience. The weight or value to be given to it has varied with the times and from case to case.

In earlier days, when there was no role for a father in the upbringing of children and in the running of the household, the care and the upbringing of children was left almost entirely to the mother who was able to devote the whole of her time and attention to that responsibility and to household affairs. In this situation it was natural that the so-called principle carried very considerable weight. Even as late as 1961, in Kades v. Kades [26] , this Court spoke of it as "the strong presumption which is not one of law but is founded on experience and upon the nature of ordinary human relationships, that a young child, particularly a girl, should have the love, care and attention of the child's mother" [27] . It was understandable that the Court referred to it as a strong presumption in Kades v. Kades because there the mother was able to devote the whole of her care and attention to her family.

(1961) 35 A.L.J.R. 251. 2. (1961) 35 A.L.J.R., at p. 254.

But in recent times, particularly in the last twenty years, there has come a radical change in the division of responsibilities between parents and in the ability of the mother to devote the whole of her time and attention to the household and to the family. As frequently as not, the mother works, thereby reducing the time which she can devote to her children. A corresponding development has been that the father gives more of his time to the household and to the family. The consequence has been to diminish the strength of the principle or of the factual presumption as it has been applied by the courts.

It has, of course, long been recognized that the weight to be given to the presumption depends upon the circumstances of the particular case. Thus, in Lovell v. Lovell [28] McTiernan J. said, with reference to "the mother factor":

That consideration would have all the weight which common sense could attach to it when the mother remained at home and devoted herself to the child. The weight of this consideration on the mother's side in such a contest must be considerably diminished in a case in which she leaves home every day except Sunday to attend to business and by reason of these circumstances leaves the child to the care and attention of another person. 1. (1950) 81 C.L.R. 513, at p. 527.

In very recent times conflicting views have been expressed upon the topic. The strongest advocate for the old regime has been Glass J.A. in Epperson v. Dampney [29] , though he was at pains to underpin it by reference to biological considerations. His Honour said [30] :

The bond between a child and a good mother expresses itself in an unrelenting and self-sacrificing fondness which is greatly to the child's advantage. Fathers and stepmothers may seek to emulate it and on occasions do so with tolerable success. But the mother's attachment is biologically determined by deep genetic forces which can never apply to them. 1. (1976) 10 A.L.R. 227; [1976] F.L.C. 90-061. 2. (1976) 10 A.L.R. 227, at p. 241.

On the other hand, the judges of the Family Court have reduced the presumption to the status of "a factor", or "an important factor" to be taken into account in assessing what is in the best interest of the child. Thus, in Raby v. Raby [31] , Watson, Fogarty and Lindenmayer JJ., after strongly criticizing the observations of Glass J.A. in Epperson v. Dampney, said [32] :

We are of the opinion that the suggested "preferred" role of the mother is not a principle, a presumption, a preference, or even a norm. It is a factor to be taken into consideration where relevant. And in Hobbs and Ludlow [33] , the Full Court of the Family Court said [34] : While the mother's role is an important factor to take into account, especially in the case of a young child it by no means displaces the need for a father or father figure, nor should it be elevated to the status of a "principle". 1. (1976) 27 F.L.R. 412; [1976] F.L.C. 90-104. 2. (1976) 27 F.L.R., at p. 427. 3. (1976) 29 F.L.R. 101; 12 A.L.R. 443; [1976] F.L.C. 90-119. 4. (1976) 29 F.L.R., at p. 106; 12 A.L.R., at p. 447.

There are obvious difficulties in Glass J.A.'s statement of the bond which exists between the mother (or the good mother) and the child. For one thing, it fails to take account of an adoptive or foster mother. For another thing, though his Honour's view of the relationship which subsists between mother and child is expressed to be based on biological and genetic links, the connexion cannot be demonstrated.

On the other hand, the Family Court, in reaching its conclusion, appears to have proceeded according to sociological and psychological perceptions the truth of which are incapable of precise demonstration: Perceptions of this kind are very much a matter of expert opinion which is notable for its fluctuation. It therefore constitutes an insecure foundation from which to arrive at a generalized conclusion. Despite this, the Family Court was in our opinion correct in Hobbs v. Ludlow in describing the mother factor as "an important factor" because human experience demonstrates that it is so. The effect of the alteration in the division of parental responsibilities to which we have already referred reduces the strength of the factual presumption on which the courts formerly acted, but it does not, we think, eliminate the mother factor or reduce its significance to a consideration which is less than important.

The precise weight to be given to it as a factor necessarily depends upon the circumstances of the particular case - see Mathieson v. Mathieson [35] . It is the responsibility of the Family Court to consider where the future of the child would be better served (ss. 64 (1) (a) and 43 (c) of the Family Law Act). In discharging this responsibility the Family Court will give weight to the mother factor in common with other features of the particular case. The precise weight to be given to that factor will necessarily depend on the particular circumstances - the structure of the family, the respective roles of the parties within the family relationship, the personalities of the parents and of the child and the arrangements made for the care of the child. Where the mother stays at home and looks after the children while the father works and has little to do with them, the factor has more weight than it has in the case where the mother works on a full-time basis and makes other arrangements for the care of the child.

(1976) 29 F.L.R. 101; 12 A.L.R. 447; [1977] F.L.C. 90-230.

The issue, then, is whether Evatt C.J. failed to give due weight to the mother factor.

The judgment of her Honour Evatt C.J. following the first custody hearing in 1977 contained the following statement:

The issue which I have to determine in this matter is that of the interests of the child Annabel, now two-and-a-half. The wife's claim to custody is based on several matters and the most weighty of these is the fact that she is the child's mother and the importance of the mother to a child of this age cannot be overlooked. It is a fact which I must weigh in the balance. There is no similar statement in the judgment of her Honour following the second custody hearing in 1978 but we agree with Fogarty J. in the Full Court that the 1978 judgment may be considered a "continuance of her previous judgment and it was hardly necessary for her to re-state the obvious, particularly in a case where a good deal of the evidence centred around that very aspect". Admittedly Evatt C.J. did not expound on the "mother principle" in great detail but both her 1977 and 1978 judgments are carefully reasoned analyses of the advantages and disadvantages of placing Annabel in the custody of either her mother or her father. Her Honour had the benefit of a welfare report on each occasion and she took into account many factors relating to the emotional well-being of the child.

In the face of her Honour's carefully reasoned judgment in 1978, in relation to the weight to be given to the factor that it would be in the interests of a young girl to be in the custody of her mother, this is a borderline case. Perhaps one might have expected more of a discussion of the factor than her Honour accorded it. However, we are not prepared to say that, in the circumstances of this case, where both parties worked full-time, Evatt C.J. gave insufficient weight to the factor and thereby improperly exercised her judicial discretion.

One further matter needs to be mentioned. It is that since January 1979 Annabel has been in the custody of her mother. We do not know whether the circumstances of the parties have altered since the Full Court gave its judgment or since Evatt J. made her order in 1978.

In England the courts have adopted an extremely lenient approach in custody cases to the admission of evidence of altered circumstances since the making of the order at first instance. The approach is based on the court's paramount concern for the child. In re B. (T.A.) (An Infant) [36] and Corbett v. Corbett [37] illustrate this approach. But there are strong reasons why this Court, as an ultimate court of appeal, should in general leave the investigation and determination of altered circumstances to the courts below.

In the result we would allow the appeal and restore the order of Evatt C.J.

The father of a girl, aged about four years, appeals from the order of the Full Court of the Family Court of Australia which, on 12th January 1979, by majority reversed Evatt C.J.'s order made on 30th June 1978 granting him custody of the child, and granted custody to the mother.

The parents separated on 21st February 1977 when the child (their only child) went to live with the father. An earlier application by the mother for custody was refused by Evatt C.J. on 21st February 1977. At the second hearing, Evatt C.J. found that each parent was fit to have custody. Previously the mother was not fit by reason of an alcoholic problem. Some material in the evidence suggests that the father was at least careless of the mother's alcoholic problem in keeping the household supplied with alcoholic drinks in bulk. Since the separation, the mother has overcome her alcoholism. Evatt C.J. took the view that the case for father custody and mother custody were fairly evenly balanced, but she considered that there was a slight balance in favour of father custody. Before the Full Court, the slight balance towards father custody was increased by the fact that the child had continued in his custody.

In custody, the Family Law Act 1975, as amended, gives equal rights to the mother and father but provides that the welfare of the child is the paramount consideration (s. 64 (2)). In applying that statutory mandate it may be necessary to have regard to sex differences so far as they bear on the child's welfare.

Over the centuries, the prevailing attitudes in regard to custody were closely associated with the attitudes regarding property rights as between spouses. From feudal times, the father ordinarily had the right to custody of his children. This persisted up until the nineteenth century and was probably affected by the circumstance that often the father worked in or near the household (e.g. farm, cottage industry, village or small town). In the nineteenth century, the attitude altered; the industrial revolution took most fathers into employment for long hours away from the household and left mothers as full-time mothers. In property, the predominance of the husband's rights was diminished by the operation of equitable doctrines and later by Married Women's Property Acts. In custody, the "mother" principle emerged that (if a choice had to be made between mother and father), unless a mother was unfit, the welfare of a child "of tender years", especially a female, was promoted by its custody being placed with her. Many cases demonstrate the acceptance of this principle (see Kades v. Kades [38] ). In recent times, the industrial system has changed its character. Perhaps the greatest phenomenon of the mid-twentieth century in Australia and similar countries has been the movement of women into the industrial work force. That industrial change has been accompanied by a social change; many women have become part-time mothers. The attitude to property rights has changed in the direction of equality between the spouses, and this has been followed by a changed attitude to the roles of the spouses, including their rights and duties in relation to the care of children. In consequence, the "mother" principle has been greatly weakened in recent times. The Family Court of Australia said in Raby v. Raby [39] :

In Epperson v. Dampney [40] Glass J.A. had claimed the mother principle was genetically based. It is regrettable that profound shifts in the application of a law as important in everyday life as custody are being made with little evidence on what validity there is to the mother principle and whether in some cases other approaches may be preferable alternatives. In some cases, despite some switching back and forth, joint custody may be a desirable solution where the parents live near one another, so that schooling and other behaviour patterns are not disrupted. The theory is that, although some adaptation on all hands is necessary, the child does not suffer deprivation of one parent, which is only slightly mitigated by access which itself may lead to artificial relationships and problems worse than those of joint custody (see Foster & Freed, "Joint Custody: A Viable Alternative?", Trial , vol. 15, no. 5 (1979), at p. 27, and cases and articles referred to). In this case, joint custody is impracticable because the wife lives in Newcastle and the husband in Sydney and also because of the hostility between them. It may well be that the consistency and warmth of the relationship, rather than the sex of the custodial parent, is the governing factor in the welfare of a child. The Family Law Act created an Institute of Family Studies (s. 116). The investigation of the factors affecting child welfare, particularly the question whether, and in what circumstances, mother custody is to be preferred, seems to be an appropriate subject for the Institute. I would prefer to leave consideration of this important issue until the court can be supplied with material upon which it can reasonably found a conclusion. No material was available in this case.

Although it was contended that the decision in Warren v. Coombes [41] applied to discretionary judgments, in my opinion, as one of the members who formed the majority, it was not intended to do so. However, I am of the view that the appellate function should not be diminished in relation to discretionary judgments. In some of the cases, there are statements which would incorrectly transform the appellate function into a supervisory function. In a true appeal, the duty of the appellate court, whether a matter be discretionary or otherwise, is to give the judgment that it thinks is warranted and not to defer to the court below when it thinks otherwise. In custody cases, however, the primary judge's normal advantage in observing the witnesses, and the appellate court's normal disadvantage in not doing so, is generally so greatly magnified that an appellate court will rarely be able to come to a conclusion opposed to that of the primary judge. All the appellate court has is the evidence and the reasons for judgment. Reasons for judgment, necessarily in many cases, especially in a finely balanced case, are a rationalization of a largely intuitive judgment based on an assessment of the personalities of the parties and the child. To this end, the Family Law Act states that "A person shall not be appointed as a Judge unless - by reason of training, experience and personality, he is a suitable person to deal with matters of family law" (s. 22 (2) (b)). It would be extremely regrettable if reasons in custody judgments suffered the same fate as reasons in many non-jury civil cases (and directions in jury criminal trials), that is, that they become a technical exercise designed more to satisfy an appellate court than to deal with the problem in hand.

Evatt C.J.'s decision was an appropriate one. Even taking the widest view of the appellate power to alter such a decision, it should not have been altered on appeal. The reasons given by the majority of the Full Court for allowing the appeal are unconvincing. In particular, I reject as being without foundation Watson J.'s statement that the decision of the primary judge was "unreasonable".

Giving effect to the statutory direction that, in custody applications, the paramount consideration is the child's welfare may mean, in a finely balanced case, that an appeal court will maintain an order which it considers should not have been made, because the carrying out of the order generally shifts the balance in its favour. Attempts to obtain de facto custody reflect human experience or, at least, a general belief that (other things being equal or nearly so) it is against the child's welfare to switch its custody back and forth.

If the case concerned property or some static relationship, the obvious consequential order would be the restoration of the original order, but we are concerned with a human dynamic relationship. If the Full Court's order had not been carried out, clearly the order of Evatt C.J. should be restored. However, we were informed that because of the Full Court's order, the child has been with the mother. Simply to restore the original order would change a relationship, about the present operation of which we have no information. It would not be in accord with the statutory mandate if the child's custody were now altered to father custody without any enquiry about her present circumstances and about whether that change would now be contrary to her welfare. It may well be (and I express no opinion) that the child's welfare would now best be achieved by leaving custody with the mother.

The appeal should be allowed, the order of the Full Court set aside and the case remitted to Evatt C.J. to receive evidence on the present circumstances of the child, the probable effect of another change, and to make such order as would now be just.

The appellant in seeking to have this Court set aside the majority decision of the Full Court of the Family Court and restore the decision of the primary judge, Evatt C.J., in that Court, contends that the Full Court departed from the well established principles which lay down the manner in which an appellate court should deal with an appeal from the exercise of a judicial discretion. Those principles have been stated in this Court on many occasions and are not in doubt. It is sufficient to refer to such cases as House v. The King [42] ; Evans v. Bartlam [43] ; Storie v. Storie [44] and Lovell v. Lovell [45] . Two short passages make the position clear. In House v. The King [46] , Dixon, Evatt and McTiernan JJ. said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. (1936) 55 C.L.R. 499. 2. [1937] A.C. 473. 3. (1949) 80 C.L.R. 597. 4. (1950) 81 C.L.R. 513. 5. (1936) 55 C.L.R., at pp. 504-505.

But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellant tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield [48] ) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognized in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal. 1. (1950) 81 C.L.R., at p. 519. 2. [1891] A.C. 173, at p. 179.

I turn now to the facts of the present case and the problems with regard to the application of these principles. The parties were married on 4th March 1972 and had one child, Annabel, born in 1974. After a period of what the trial judge described as "acute marital disharmony" they separated on 21st February 1977. The husband was a practising medical practitioner and the wife a nursing sister. From an early stage they had encountered marital difficulties, the wife complaining of severe depression and anxiety from a variety of causes, which had resulted in her increasing dependence on drugs and alcohol, as a result of which she was in hospital on several occasions in 1975 and 1976. The trial judge concluded that the wife's drinking had reached "an unacceptably high level" in 1976 and that, while there was no evidence of harm being suffered by the child in that period, she was of opinion that "the wife should have realized that she was creating a situation where she might not be fit to see to the child's needs or to deal with any emergency."

The husband left the matrimonial home taking Annabel with him and on 23rd February 1977 he applied to the Family Court for an order seeking custody and guardianship of the child. On 28th March the wife in turn applied to that Court for "the use and occupation of the matrimonial home, for overnight access to the child for two days in each week, and an order restraining the husband from coming to the matrimonial home". An order was made by consent on 4th April 1977 granting the wife such access provided that her mother was present at all times that overnight access was involved or that some other agreed person was present. An order was made for counselling and the filing of a counsellor's report.

On 17th June 1977 the wife applied for an order seeking interim custody for a period of six months and upon the expiration of that period permanent custody.

On 20th July 1977 Evatt C.J. delivered judgment on the wife's application, having before her evidentiary material in the form of affidavits and a good deal of oral evidence together with a welfare report. She concluded that the wife "has been and could be in the future, a loving and concerned mother if she were able to cope with the frustrations and disappointments of life" and described the father as "an affectionate and concerned father". She dismissed the wife's application saying:

The Court is asked to give the mother a chance to prove what she can do by changing the custody of the child, but I can only base my decision for the future on what has occurred in the past. The child is reasonably well cared for now. The mother needs to establish herself emotionally and while the child may help her in this, my concern must be for the child first and foremost.

In December 1977 an order was made that the wife should have access to the child on four days each fortnight and on 8th February 1978 an application was made by the husband for custody.

The matter was heard on 13th-16th March and on 11th April 1978. Evatt C.J. delivered judgment on 30th June 1978 and observed that it was a "continuation" of her decision of July 1977 and referred at length to the changed domestic circumstances of both parties in the twelve months that had passed. She remarked that it was a matter for regret that the Court could not be confident of the credibility of either party.

I accept that she has not drunk alcohol since the separation of the parties. I accept the view of Mr. Hill (the wife's psychiatrist) that provided she continues to accept the responsibility of work and refrains from drinking she is not likely to have further problems in regard to alcohol. I note also his opinion that the wife should become as independent as possible so that she can cope without the constant support of her parents. This is a factor which must be taken into consideration.

Her Honour then observed that joint custody was not practicable and that for the future sole custody should be vested in one parent.

Evatt C.J. found that the qualities of the two parents were fairly equally balanced, each being able to provide properly for the child a comfortable and loving home and that each was a fond and devoted parent. In the end she regarded the factor that tipped the balance in favour of the husband as being the hostility which the wife felt to the husband and which she displayed in the presence of the child. She felt that the wife would not be able to control that hostility or to conceal it from the child, or at least that she was unable to feel sure that she would do so, and said:

On the other hand, Annabel's welfare in my view requires that her close relationship with her father continue and I cannot be sure that Mrs. G. (i.e. the wife) would help to foster this relationship. She has said in her affidavit and in her evidence that she not be rigid but would be lenient in her attitude towards access. This may be so, but a child as young as Annabel would be affected by the custodial parent's general attitude towards the other parent as well as by the behaviour of the parents towards each other at access times. Mrs. G.'s attitude towards her husband might be tempered by the more balanced approach of her mother, but I cannot be sure of this.

The concluding paragraph of her judgment was as follows:

I remain concerned about her (i.e. the wife's) attitude towards her husband as evidenced by her behaviour and about the possible effect of this on Annabel. Matters are evenly balanced but I have come to the conclusion that in present circumstances Annabel's welfare will be better served by granting custody to the father, with reasonable access to the mother.

In the result she awarded custody to the husband and ordered "reasonable access" without making a detailed order. From that decision the wife appealed to the Full Court of the Family Court which delivered its judgment on 12th January 1979 and by majority (Watson and Joske JJ., Fogarty J. diseenting), reversed the trial judge's decision and awarded custody to the mother.

Watson J. reversed the trial judge's finding on the basis that "the decision reached by her is unreasonable". An examination of his reasons, with which Joske J. agreed, demonstrates in my opinion that they did no more than exercise their own discretion and substitute their conclusion for that of the trial judge.

Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell [49] :

The proposition that the appeal court will consider whether "no sufficient weight" has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully. 1. (1950) 81 C.L.R., at p. 533.

It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.

The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.

Watson J., in agreeing with Joske J. that the appeal should be allowed, said that the trial judge had relied on four factors for her conclusion and he said that the weight placed on some matters was erroneous. The first factor was the concern of the husband for the child's welfare and his capacity to be a sensitive, concerned and caring parent. The second point was her reliance on the availability of assistance from the paternal grandmother as to whom Watson J. added "concerning whom her Honour offered considerable criticism". Evatt C.J. however did not offer "considerable criticism" of the paternal grandmother. The third factor was the association with "the Quinn family" which provided Annabel with contact with other young children, and the fourth was the "continuing hostility of the wife to the husband". Watson J. did not regard the first three factors as outweighing the wife's claims. He said as to the fourth point that "Human feelings being what they are, relationships between former spouses can change." As a general proposition that is no doubt unimpeachable but it is also unhelpful in a particular case. The trial judge was the only person who had seen and heard the wife and she had not been satisfied that an early change was likely. Predictions about such a matter are difficult in any circumstances, but the mere existence of a possibility provides no warrant for overruling the view of the trial judge or for concluding that she had given too much weight to this factor. The absence of express reference to supervised custody under s. 64 (5), to which Watson J. referred does not appear to me to involve any error in the present case for no problem of compliance with any order arose. Evatt C.J. made no order for access beyond saying that there should be "reasonable access". If problems about compliance with an order as to access should arise, no doubt consideration would be given to the possibility of supervision.

In my opinion the factors relied on by Watson J. demonstrate no more than that he would have decided the case differently if he had been the trial judge.

Joske J. in a long judgment quoted extensively from the reasons of the trial judge. He differed from the view of the trial judge that "matters were evenly balanced" because the maternal grandmother was to be preferred to the paternal grandmother, and said that the friendship which the husband had formed with the Quinn family "was entirely unsatisfactory and lacked stability", though on what grounds does not appear. It is to be observed that Mrs. Quinn gave evidence and the trial judge accepted her evidence as frank, sincere and truthful and regarded that association as beneficial to the child. A different assessment of that association might no doubt have been made by a different trial judge but that is not a relevant consideration. The view of the trial judge was plainly open and she alone had an opportunity to judge the character and truthfulness of Mrs. Quinn. I do not regard the matters referred to by Joske J. as enabling the Full Court to exercise its own discretion.

In the result I prefer the reasons and conclusions of Fogarty J. who dissented in the Full Court. That would be enough to warrant the dismissal of the appeal and the restoration of the order of Evatt C.J., but for the fact that two new grounds were relied on which had not been taken in the Full Court.

The first was a submission that the law with respect to the manner in which an appellate court should consider an appeal from the exercise of a judicial discretion had been fundamentally changed by the decision of this Court in Warren v. Coombes [50] . It was submitted that in the light of that decision the appellate court should substitute its own discretion for that of the trial judge and consider the matter for itself de novo. This argument must fail because it is based upon a misunderstanding of the joint judgment of Gibbs, A.C.J., Jacobs and Murphy JJ. That case was not concerned in any way with the exercise of a discretion. Their Honours said [51] : " in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge."

(1979) 142 C.L.R. 531. 2. (1979) 142 C.L.R., at p. 551.

There is nothing in that or any other passage in the joint judgment to suggest that the question of the proper approach to discretionary judgments was being considered; it would in fact have been entirely irrelevant. Accordingly this argument must fail.

The other new argument was that Evatt C.J. had failed to take into account what was called the "mother principle", i.e. the principle or presumption that a young child, especially a girl, should be or remain in the custody of her mother. The Full Court had not adverted to this aspect of the matter but it was argued that its decision could be justified on that basis.

In their reasons for judgment my brothers Mason and Wilson deal fully with this argument and with the relevant authorities. I agree with what they have written and have nothing to add.

I also agree with what my brothers Mason and Wilson have said about the possibility of circumstances having altered since the judgments of Evatt C.J. and the Full Court. It can but seldom be useful for a court of ultimate appeal to attempt to investigate altered circumstances. Such a court is not an appropriate tribunal for the investigation and determination of what will almost always be disputed facts. Under the Family Law Act no order for custody is permanent and application can be made to the Family Court for a variation of such orders.

Accordingly I would allow the appeal and restore the order of Evatt C.J.

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

Parties