Laidley, D.J. and Laidley, C.A. [1976] FamCA 99; (1976) FLC 90-120; (1976) 2 FamLN N26 (6 December 1976)

In the marriage of LAIDLEY, D.J. and LAIDLEY, C.A.

Full Court of the Family Court of Australia at Melbourne.

1. Watson S.J., Murray and Lusink JJ.: This is an appeal by the wife against a decision of the Honourable Mr. Justice Brinsden delivered in the Supreme Court of Western Australia on 15 July 1976.

4. The relevant facts in the matter are briefly that the parties were married on 5 September 1964 in Western Australia, from which marriage two children were born on 27 March 1967 and on 24 September 1969. Cohabitation between the parties finally ceased on 28 August 1973 when the wife left the matrimonial home. On that date the husband and the two children went to live at the residence of his mother and step-father where they remained until early November 1974. It appeared that during that time the husband's mother, one Olive Irene Stewart, mostly had the day-to-day care and control of the children. In or about the month of November 1974 the husband engaged the services of a Mr. and Mrs. Radford in his home to assist him to a certain extent in looking after the children, and the children then went to live with the husband where the Radfords were also living. This was at the former matrimonial home being a property at Kilmurray Way, Balga. As a result of the husband taking divorce proceedings in the Supreme Court of Western Australia against the wife and the corespondent one David Lloyd Jones, Mr. Justice Wickham, in November 1974, pronounced a decree nisi in favour of the husband and awarded custody of the child to him. The wife did not oppose the granting of the custody order but obtained regular although fairly inflexible access to the children thereafter.

7. From November 1974 until June 1975 the husband and Mr. and Mrs. Radford continued to live at the address in Balga with the children. However the children, particularly the younger child who was then of pre-school age, continued to spend a great deal of time with their paternal grandparents, Mr. and Mrs. Stewart. The Radfords departed from Kilmurray Way in June, 1974 after some argument with the husband and thereafter he returned with the children to live with Mr. and Mrs. Stewart. As the learned Judge pointed out in his judgment, some friction appeared to have developed between the husband and the step-father. The husband accused the step-father of spoiling the younger child and preferring him to the older child. There were apparently some other contentious matters between the two men. In October 1975 as a result of a quarrel which apparently developed suddenly one evening over some alleged deficiency in Mr. Stewart's attention to the child who was sick, the husband took the children away from the Stewart's home. In the interim, he had met Irene Ryan a divorcee and, on taking the children from the Stewart's home, the husband and the children went to live with Mrs. Ryan and her two children at her home. In February, 1976 the husband, Mrs. Ryan and the four children commenced living at Kilmurray Way. On the 26 March 1976 the wife commenced these proceedings and as a result of an application made ex parte, Lavan J. granted her interim custody of the boys until further order.

10. Brinsden J. in his judgment expressed doubt as to whether there had been sufficient justification for the making of the ex parte order, and although in fact the husband did apply to discharge that interim order, his application was refused because of the undesirability, as Brinsden J. thought, of moving the children again before the wife's application for custody was dealt with. As a result, on 1 April 1976, the children were collected by the wife from the school which they were attending and thereafter resided in the care and control of the wife and the corespondent until July, 1976 when Brinsden J. dismissed the wife's application for custody and restored the children to the custody of the husband.

13. The grounds of appeal by the wife are as follows: -

(a) The learned trial Judge erred in his finding that since the decree nisi of dissolution of marriage was granted to the husband on the 25th day of November 1974 and until the 1st day of April 1976 the husband had the effective custody of the children of the marriage.

(b) The learned Judge in exercising his discretion gave undue weight and consideration to the association of the said children and the husband and too little weight and consideration to the association of the said children and the wife.

(c) The learned Judge in exercising his discretion gave too little weight to the fact that the husband's financial circumstances would invariably deteriorate dramatically as a result of the failure of the husband to file income tax returns and discharge his income tax responsibilities.

(d) The learned Judge in exercising his discretion gave too little weight to the fact that the husband had allowed his ill-feelings towards the wife, his mother and his step-father to flow over into the area of the custody of and access to the children.

(e) The learned Judge gave insufficient weight to the preferred role of the wife in connection with a claim for custody of children aged 9 and 6 respectively.

(f) The decision of the learned trial Judge in ordering that the husband have custody of the said children is against the evidence and the weight of evidence and is wrong in law.

15. Grounds (a), (c) and (e) do not create great difficulty.

18. As to ground (a) when Brinsden J. stated in his judgment that the husband had had the effective custody of the children of the marriage, it seemed to us that he was using the words in their technical sense for there is no doubt that the husband had an order of the court in respect of custody, even although much of the day-to-day management of the children was left firstly in the hands of his mother, then Mrs Radford, then his mother again, and finally Mrs. Ryan. It nevertheless appears to us from reading the evidence that the husband took a concerned interest in the welfare of the two children especially in D.'s sporting interests and discharged his fatherly duties adequately with the successive assistance of the ladies hereinbefore mentioned. That concerned interest appears to have been a continuous factor in the lives of the children.

21. As to (c), our reading of the transcript indicates that there was but the flimsiest evidence presented to the Court concerning the possible deterioration of the husband's financial circumstances as a result of his failure to file income tax returns. We recommend counsel for the appellant for not pressing this ground seriously.

24. As to (e), we cannot accept that there is any principle of law which states that a wife has the preferred role in connection with a claim for custody of children aged 9 and 6 years respectively. We refer in particular to the words of the Full Court in Rose and Duroux (1976) FLC ¶90-064, to the judgment of Jenkyn J. in Thompson v. Thompson 1966 2 N.S.W.R. 534 and in particular to Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513 at 523 per Latham C.J. See also the judgment of Demack J. in Jurss and Jurss (1976) FLC ¶90-041.

27. Since the preparation of this judgment the Full Court has, on the 29 November, handed down a significant judgment on this question in the case of Raby and Raby (1976) FLC ¶90-105. We agree with the following passage from that judgment:

``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... A child's relationship with both its natural parents is a factor of great significance. Having regard to its age and sex the ability of either parent to provide proper care and control and to promote the welfare of the child, and the fitness of that parent to discharge these roles, is obviously a matter for close examination in each case.''

29. In fairness to the counsel for the appellant, we should state that he did not seek to press this ground.

32. Before dealing with the grounds (b) and (f), we wish to comment generally on the role of an appellate Court in custody cases. This has recently been expounded in the case of Sanders and Sanders (1976) FLC ¶90-078, a majority judgment of the Full Court of the Family Court of Australia.

35. In that case, the well known extract from House v. The King was set out in full and we do not propose to cite it again save and except to refer to it at p. 75,371 in the judgment in Sanders. We do, however, wish to set out the following passage from Sanders which we consider to be particularly relevant in this matter.

[Their Honours here quoted extensively from Sanders case beginning ``Applying the principles expounded in House v. The King...'' and concluding ``.... be interfered with and may be decisive.'' See p. 75,372.]

37. By way of support we add to this the remarks of Bridge L.J. inre F. 1976 1 All E.R. at p. 439-440:

``Can this conclusion prevail or is there some rule of law which bars it? The learned judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, left out of account any relevant matter, erred in law, or applied any wrong principle. On the view I take, his error was in the balancing exercise. He either gave too little weight to the factors favourable, or too much weight to the factors adverse, to the father's claim that he should retain care and control of the child. The general principle is clear. If this were a discretion not depending on the judge having seen and heard the witnesses, an error in the balancing exercise, if I may adopt that phrase for short, would entitle the appellate court to reverse his decision: Evans v. Bartlam; Charles Osenton & Co. v. Johnston; Ward v. James. The reason for a practical limitation on the scope of that principle where the discretion exercised depends on seeing and hearing witnesses is obvious. The appellate court cannot interfere if it lacks the essential material on which the balancing exercise depended. But the importance of seeing and hearing witnesses may vary very greatly according to the circumstances of individual cases. If in any discretion case concerning children the appellate court can clearly detect that a conclusion, which is neither dependent or not justified by the trial judge's advantage in seeing and hearing witnesses, is vitiated by an error in the balancing exercise, I should be very reluctant to hold that it is powerless to interfere.''

39. Returning now to ground (b) of the appeal we are of the opinion that the learned trial Judge did not give undue weight and consideration to the association of the children and the husband. This, it appears was a very important factor and we are unable to find that there was any obvious error in the balancing exercise (to adopt Bridge L.J.'s terminology) which he carried out. It is true that in reaching his conclusion that the long term welfare of the children would be best provided for by refusing the wife's application and by restoring the custody of the children to the husband, the learned Judge dealt more with the supportive aspects of the de facto partner of each of the parties themselves to the children, and he certainly did not in his judgment appear to explore in depth some of the matters referred to at p. 75,371 in the majority judgment of the Full Court in Sander's case, apart from stating that the difficulty found in the case was that he had not formed an adverse view about any one of the principal actors in the matter.

42. But we have no doubt that Brinsden J. in reaching his decision, had regard to the welfare of the children as the paramount consideration and he further stated that that welfare was the long term welfare of these children. Although he made a somewhat bold statement at p. 16 of the appeal transcript namely: - ``However on the whole it is my view that the long term welfare of the children is best provided for by refusing the application...'', without, as we have already said, having placed on record in much detail his assessments of the parties and other important dramatis personae and their relationships to the children, his Honour nevertheless had the opportunity of seeing all those persons in Court. Having examined the evidence ourselves, and being of the opinion that the decision does not appear unreasonable or plainly unjust, we are not prepared to infer that there has been a failure to exercise a discretion properly simply because these assessments are not placed on record in detail.

45. The learned Judge certainly expressed a favourable view as to the involvement of the husband with his two sons (see p. 7 of the judgment) and there may be a multitude of perfectly good reasons as to why in fact he did not express himself more adequately as regards the wife.

48. As regards (d) of the ground of appeal, the learned Judge did take into some account the fact that the husband had allowed his ill-feeling towards the wife and his mother and step-father to flow over into the area of custody of and access to the children; but the husband, we noted, gave evidence that he had already in fact modified his attitude towards his mother. While this Court may have placed more weight on the importance of the relationship as between the husband and his side of the family as well as his wife, we are not prepared to say that the learned Judge failed to take account of that consideration to such an extent that he wrongly exercised his discretion. What we are prepared to say is that the husband should undergo some counselling to help him in rebuilding his relationships with his former wife, step-father and mother for the sake of the children who clearly should be able to receive love and support from these persons without any intervening hostility on the part of the husband. Under sec. 14(5) of the Family Law Act we can only advise, not order, the husband to undergo this counselling. As a result of his Honour's words in his judgment as to the husband patching up his differences with his mother and step-father the re-building of those relationships may have already commenced. We hope that this is the case, but by way of cautionary note, we still advise the counselling.

51. Our formal order is, therefore, that the appeal be dismissed.