Harvey, J.P. v Cresswell, M
[1988] FCA 762
•23 DECEMBER 1988
Re: JOHN PETER HARVEY
And: MARY-ROSE CRESSWELL
No. ACT G3 of 1988
Child
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Kelly(1) and Neaves(1) JJ.
CATCHWORDS
Child - Custody and access - Appeal - Competing claims by father and mother of ex-nuptial children aged 6 years and 4 years respectively - Relevant principles - Relevance of preferred role of mother - Circumstances in which appellate court should interfere with the exercise of judicial discretion.
HEARING
CANBERRA
#DATE 23:12:1988
The Appellant appeared in person
Counsel for the Respondent: Mr B.J. Salmon, QC
Solicitors for the Respondent: Macphillamy Cummins & Gibson
ORDER
The appeal be dismissed.
The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from orders made by a Judge of the Supreme Court of the Australian Capital Territory with respect to the custody of the two children, Saul Harvey Cresswell and Abiona Helen Harvey, of the appellant, Peter John Harvey, and the respondent, Mary-Rose Cresswell.
The hearing before his Honour took six days. Both parties were represented by counsel. His Honour gave judgment on 14 December 1987. Notice of Appeal was lodged. A further document entitled "Supplementary Notice of Appeal" was dated 8 April 1988. The Supplementary Notice of Appeal set out 35 grounds of appeal and was signed by the solicitor for the appellant. Subsequently, legal aid for the appeal was refused. Finally, the appeal was listed for hearing in the November 1988 sittings of the Court. No appeal books were filed for that sitting and, on the appeal being called, Mr Harvey appeared in person and sought an adjournment. Counsel for the respondent, Mr B.J. Salmon, Q.C., moved to have the appeal dismissed for want of prosecution. The Court refused an adjournment of the appeal, as matters concerning the custody of children should be dealt with promptly. The Court must consider the matter on the material which was before the primary Judge in 1987. It was, therefore, inappropriate that the appeal should be determined at a time in the future when the relevant facts could have changed significantly. The Court gave the appellant the opportunity of making oral submissions and of subsequently supplementing those oral submissions by written submissions. As the appellant accepted this course, the Court refused the motion for dismissal.
On 2 November 1988 the Court heard Mr Harvey orally and also Mr Salmon for the respondent. On 23 November 1988, Mr Harvey lodged with the Court comprehensive typed and hand-written submissions of 101 pages. Written submissions in reply were lodged on behalf of the respondent.
The orders made by the primary Judge were as follows:
"(1) Until further order Mary-Rose Cresswell have custody of the two children Saul Harvey Cresswell and Abiona Helen Harvey.
(2) John Peter Harvey have access to those children every second weekend from Friday evening to Sunday evening, half all school holidays and at such other times as may be agreed between the parties."
The primary Judge described the issues as follows:
"These are cross applications for custody by the father and mother of two children, Saul Harvey Cresswell, born 18 February 1981, and Abiona Helen Harvey, born 19 August 1983. The applications are brought pursuant to s.6 of the Infants' Custody and Settlement Ordinance 1956 which provides that the court may make such order as it thinks fit regarding the custody of an infant and rights of access to parents, having regard to the welfare of the infant and to the conduct and wishes of the parents. Section 17 of the Ordinance provides that where the custody of an infant is in question the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and shall not take into consideration whether from another point of view the claim by the father or a right of common law possessed by the father in respect of the custody is superior to that of the mother, or the claim of the mother is superior to that of the father."
His Honour described the facts of the relationship between the parties, who are unmarried, as follows:
"The mother and father commenced a de facto relationship in Canberra on or about 18 February
1980. In September 1980 they moved to Perth in the State of Western Australia. The mother was pregnant with the first child at the time. In December 1980 they moved to Augusta where Saul was born. After the birth of Saul both parties shared at least equally in the care of the child. The father was working part-time from home as a homeopath and distributing 'alternative' literature. He did some voluntary work and involved himself in community affairs. But it is clear that he was in receipt of unemployment benefits from soon after arrival in Western Australia and is still in receipt of social security benefit as a supporting parent. The mother was not working. In about March 1983 the parties moved to Witchcliffe, Western Australia, which is approximately 180 miles from Perth and 20 miles from Augusta. After the birth of Abiona the parties shared the responsibilities and duties of caring for the two children, although the mother disputes that the father contributed equally in those respects after the birth of the second child."
The parties separated in March 1984 and thereafter shared the care of the children in various ways. In about October 1984, discussions took place between the parties and it was agreed that each would take "primary care responsibility" for the children for 2-3 months turnabout.
In November 1984 Mr Harvey returned from Western Australia to live in Canberra, which he regarded as his home.
The primary Judge described the facts thereafter as follows:
"In mid-August 1985 the mother brought the children back to Canberra so that they could be in the care of the father pursuant to the abovementioned agreement. At about that time the mother asked the father to consider moving back to Western Australia as she thought it was not in the best interests of the children for them to have to travel between Canberra and Perth for the purposes of spending time with each parent. The mother did not wish to live in Canberra but when the father refused to return to Western Australia she decided that in the interests of the children she would have to live in Canberra. She considered that travelling across the country every few months was too much of a burden for them. She obtained employment on a part-time basis at a women's refuge in O'Connor. The children were living with the father and the mother had access to them roughly three days a week and occasionally overnight. The family would meet in public places for the purpose of surrendering and returning the children.
In mid-October 1985 there were further discussions between the mother and father concerning the future living arrangements for the children. The father made it clear that he intended to remain in Canberra. The mother resolved that she would have to find suitable permanent accommodation for herself and the children in Canberra. While she was seeking accommodation and employment, the children remained in the care of the father beyond the agreed three month period on the clear understanding between the mother and father that when the mother had established herself she would resume the role of prime parent for a period equal to the period that they had been with the father. She continued to see the children on average three days a week and they stayed with her overnight from time to time. In February 1986 the mother returned to Perth to collect her belongings and those of the children. She was away for a month but maintained contact with the children by telephone and by letter. From March to mid-May 1986 the children were living with the father and staying overnight with the mother on average two nights a week as well as other times during the day. The arrangements between the parents were flexible and both parents co-operated to ensure that the children spent time with both parents.
That tension was beginning to mount is not surprising. The father had been keeping notes of conversations between him and the mother since September 1985. In September 1985 both parents had attended counselling at the Family Court, Canberra, in an endeavour to resolve future arrangements for the care of the children. The mother also started to keep notes from March 1986. She consulted solicitors in May 1986. Prior to the originating summons being issued, the parents had attended the Family Court for counselling on 3 and 13 June 1986 but no agreement was reached. Both parties were displaying at this time a determination to have custody of the children. Disagreements began to occur."
His Honour described the general principles to be applied in the case in these terms:
"The general principle to be applied in any case relating to the welfare of young children, whether in the inherent jurisdiction or the statutory jurisdiction, is both long and well-established; it is encapsulated in the following passage in the judgement of Griffith CJ in Goldsmith v. Sands (1907) 4 CLR 1648 at p 1653:
'It is also settled law that in the exercise of the paternal jurisdiction of the Court of Chancery the dominant matter for the consideration of the Court is the welfare of the child.
In R. v. Gyngall, Kay LJ (1894) 2 QB 232 at p 248) said "The term 'welfare' in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into account, and the Court must do what, under the circumstances, a wise parent acting for the true interests of the child would or ought to do. It is impossible to give a closer definition of the duty of the Court in the exercise of this jurisdiction." The Court must, however, act judicially and not as if it were a private person having an unfettered authority over his child.'"
His Honour referred to what in the appeal has been described as "the mother principle", in these terms:
"The hearing of the cross-applications has involved careful scrutiny of the history of the relationship between the mother and father, their present living circumstances, including their associates and their particular relationships with the children. Counsel for the mother did not seek to overstate the important position that a mother occupies in the life of a child and referred to the dicta of the High Court on that subject in Gronow v. Gronow 144 CLR 513 per Stephen J. at p 522 and per Mason and Wilson JJ. at pp 526-528. The correct approach to the formerly accepted presumption that a young child, especially a young female child, is best left in the custody of her mother, is that such a presumption is not, and never has been, a rule of law. It is a canon of commonsense founded on human experience. The weight or value to be given to it has varied with the times and from case to case. I proceed therefore to take it into account as an important factor in this matter."
The primary Judge noted that the appellant was 31 years of age, had undertaken study for a Bachelor of Arts (Computing Studies) degree at the Canberra College of Advanced Education but had abandoned that course after two years. At the time when he met the respondent, he had been working full-time in a clerical position with the Bureau of Statistics. When the couple moved to Perth in September 1980, he had transferred to a position with the Bureau. However, he gave up that position in December 1980. His Honour described the appellant's current position in these terms:
"The home in which the father lives is a three bedroom Government house at 8 Hawdon Street, Ainslie, in the Australian Capital Territory, of which he obtained the tenancy on 5 June 1986. He has no significant earnings and is in receipt of a supporting parent's benefit of approximately $290 per fortnight. He described himself in evidence as 'technically unemployed'. As a pensioner he receives rebates on his electricity, telephone, car registration and rent. The house is adequately furnished. The children share a bedroom which is comfortable and pleasant. Apart from the children he is involved in composing and arranging music and playing in a band. He and the band have had some recent success with one particular song but it is fair to say that that has been his only real achievement in the musical field. It is plain that the father has assumed the role of a full-time parent and he has no intention of taking full-time employment at least until the children are at high school. He last worked full-time in December 1980. He wants to make his name as a music arranger and composer. As I have already indicated he has had only very modest success in this field of endeavour .... When he is not engaged in full-time caring for the children, such as during the off week when they are in the care of the mother pursuant to the interim consent orders made on 20 June 1986, the father occupies himself with his domestic chores and music."
The respondent was 32 years of age. She had completed a diploma course in training the intellectually handicapped. She had worked as a psychiatric nurse, child care assistant, clinical therapist with the Australian Centre for Brain-Damaged Children, Melbourne, and as the manager of a health foods shop. His Honour described the respondent's current circumstances as follows:
"The mother shares a four bedroom house with two other women at 13 Elouera Street, Braddon, in the Australian Capital Territory. The other women are Kim Ellis, a single woman aged 23 years and Meredith Regan, a single woman aged 25 years. Kim Ellis works at a local radio station and Meredith Regan works with the mother at the Toora Single Women's Refuge, O'Connor. The three women obtained the lease of the house in August 1987. They had previously lived together in a house in O'Connor for over 12 months. They are very close friends and mutually supportive in all affairs. The mother is employed at the women's shelter as a drug and alcohol counsellor on shift work and she intends to continue that work. Her working arrangements are very flexible. I am satisfied that she is able to arrange her shifts so that she can spend most of her time with the children but otherwise the children would be with the other occupants of the Braddon house. They know and trust Miss Ellis and Miss Regan well. The evidence satisfies me that Miss Ellis and Miss Regan are very suitable and responsible people to have the care of the children when they are not in the care of the mother."
His Honour drew the following conclusions:
"In my opinion there is much force in the mother's contention that she is more financially equipped and more domestically competent to care for the two children. I was not impressed with the father's dependence upon the welfare system for such a long time, particularly in view of his obvious attributes and tertiary education. ....
He has adopted his full-time parenting role because of his overwhelming determination to provide a home for the children and be the dominant parent in their lives. In so doing he has applied fairly rigid views about education and medical care. On the one hand this attitude may appear commendable, but to focus all one's life upon one's children and in effect to make their upbringing a career is not, in my opinion, in the best interests of the children and must inevitably place undue pressure upon the children themselves .... In my opinion the children are more likely to be burdened by their father's emotional dependence than by that of the mother.
....
I am in no doubt that the mother has the more flexible and balanced attitude to sharing the children. In other words, I think that she can be more reliably depended upon not to create difficulties over the father's access to the children. .... In my opinion she is more likely to be concerned to allow appropriate access and to continue to recognise the importance to the children of maintaining their relationship with their father in their developing years."
His Honour's ultimate conclusions were as follows:
"The respective claims of the parents are, in my opinion, not finely balanced. I am in no doubt that the mother is to be preferred as the parent who should have primary care of the two children. Notwithstanding some serious errors of judgment in the past, such as taking the children to peace rallies and demonstrations, she emerges as the parent who is more emotionally mature, more stable, more flexible and sensitive to the children's demands and tantrums. The father has coped well but in my judgment he cannot match her quality of care. That is not to say that the father does not qualify in the fullest sense as a fit and proper parent. He should be given the right to play a full role in the children's upbringing consistent with the mother's right to custody of the children. For the purposes of access I shall implement the mother's proposal."
Both parties were fit persons to have the care of the children, but they were unable to agree between themselves as to how that care should be managed. No court can arrange affairs between disputing parents as well as can parents who are co-operative and flexible and work together in the best interests of the children and of themselves. His Honour was called upon to give the custody to one or other of the parents with access to the other, or to divide the children between the parents, or to have the children stay with one of the parents for a period of time and with the other for a like period. The last type of arrangement had failed and was thought by the parties to be unsatisfactory. It was not suggested in the appeal that his Honour ought to have divided the children, one child going to one parent and the other child to the other. The case put on the appeal by the appellant was that the custody of the two children ought to have been given to him rather than to the respondent.
There are 35 grounds of appeal but most fail to recognise that his Honour's judgment was a discretionary judgment, reached after a lengthy hearing in which it was necessary for his Honour to evaluate the parties and the witnesses. An appellate court can interfere with such a judgment only if an error of principle is established. As Stephen J. said in Gronow v. Gronow (1979) 144 CLR 513 at pp 519-20:
"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."
Aickin J. said at pp 537-38:
"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 (1950) 81 CLR at p 533: '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.' 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 recognises 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 personalties 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."
Likewise, in House v. The King (1936) 55 CLR 499 at p 504-505, Dixon, Evatt and McTiernn 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."
A point of principle raised in the grounds of appeal is that
"His Honour erred in taking into account the 'mother principle' as an important factor in the case. His Honour erred in basing his decision on any 'canon of commonsense' or principle, which was not founded on the evidence presented to his Honour in the case."
The written submissions presented by the appellant to the Court referred to many passages in Gronow v. Gronow, cited above. We take the position to be that enunciated by Mason and Wilson JJ. at p 526, where their Honours said:
"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."
At p 529 their Honours said:
"The precise weight to be given to it as a factor necessarily depends upon the circumstances of the particular case - see Mathieson v. Mathieson (1976) 29 FLR 110. 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 the 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."
This passage is reflected in the reasons of his Honour, which are set out above. His Honour took the principle into account as an important factor because the canon of commonsense was reflected in the facts of the case. For example, his Honour referred to the appellant's "fairly rigid views about education and medical care", to his "obsession with the parenting role" and to the fact that the respondent had "the more flexible and balanced attitude".
His Honour therefore had regard to the point discussed in Gronow v. Gronow, namely, that human experience has, in past years, tended to show that mothers care more appropriately for young children than do fathers. His Honour found this canon of experience to be reflected in the facts before him and appropriately took the matter into account as an important factor. His Honour was not wrong in giving weight to the point. His Honour would have been wrong not to have considered it. The weight which his Honour gave to it was a matter for him, and reflected his view of the facts.
There are grounds of appeal directed to the reception of two welfare reports and to the fact that one of the authors of the reports was not made available for cross-examination. However, we see no error in his Honour's conduct of the case in this respect. Counsel for the parties consented to the preparation of welfare reports. An order was made by consent on 20 June 1986, that a report prepared by an officer nominated by the Director of Welfare in the Department of Territories be prepared and submitted to the court on the hearing of the application. In fact two reports were tended. Miss Mickelburgh's signature appeared on both reports but she was not the principal author of one of them. Miss Mickelburgh was cross-examined. When it was subsequently found that Miss Quincy, who had prepared one of the reports under the supervision of Miss Mickelburgh, was not available for cross-examination, no submission was put to the primary Judge that he ought to reject either or both reports. It was therefore for the primary Judge to give to the reports such weight as he considered appropriate, having regard to the whole of the evidence before him.
These are the only clear points of principle raised in the appeal. The remaining grounds of appeal and the appellant's oral and written submissions range from points touching on matters of substance to points which are merely trivial and which it is quite impossible for a court of appeal to evaluate, not having seen the parties or any other witnesses giving evidence in the witness box. Many such trivial points probably should never have been litigated before his Honour. Such matters can have no influence whatever upon an appellate court, for they could not found points of principle or substance entitling an appellate court to interfere. Indeed, looking at the grounds of appeal, it is difficult to perceive any matters of substance to which the Court should direct its attention in this appeal.
It appears, from the appellant's oral submissions and it may be inferred from his written submissions that the appellant does not consider the respondent to be a fit and proper person to look after his children. The appellant was asked by the Court during his oral submissions what were the matters that he relied upon as showing that the respondent was not a fit person to have the custody of the children. He then referred to two matters which were not mentioned in his Honour's reasons for judgment, namely, lesbian relationships and drug taking or association with persons who took drugs. These were the allegations which he made against the respondent.
Not only were these matters not discussed in the reasons for judgment but they were not raised in the notice of appeal. The appellant put them under the ground of appeal that "his Honour's finding that the mother is more sensitive to the children's needs than the father was against the weight of evidence". If, however, lesbianism and drugs were regarded as important matters - and they had the potential to be very important indeed - they would have been discussed by his Honour and they should have been raised in a clear and unequivocal ground of appeal. His Honour obviously considered that the evidence given on these matters was not of sufficient significance to affect his Honour's overall assessment of the respondent. Presumably his Honour omitted all reference to these matters in his reasons for judgment lest the reasons for judgment be read in later years, obviously accepting that the lesbianism was engaged in as part of a search for physchological identity and was no longer a factor in the respondent's life and that she had ceased using drugs.
We have already indicated some of the many aspects of the respondent's behaviour and care of the children which have led the appellant to the view that the respondent is not an appropriate person to care for his children. It would not be useful to attempt to deal with the myriad of points made in this respect. The primary Judge concluded that the respondent was a suitable person to care for the children. None of the points that have been raised would entitle an appellate court to substitute its own view for that formed by the primary Judge.
The appellant also put forward his strong conviction that, of the two parents, he was by far the more suited to care for the children. His submission was in substance expressed in the following:
"The facts as evidenced: I offer the children the full-time care of a genuinely committed, more highly skilled, more sensitive, more consistent, and loving parent in a more supportive and more stable but diverse environment, and overall, a higher quality of care than does their mother."
Again, we do not think it appropriate to consider the many separate points put by the appellant in this respect. The primary Judge formed a different view of the facts. He had the advantage of seeing and hearing all the witnesses who gave evidence. He was able to consider the issues over the period of the hearing and while preparing his judgment. The Court must accept his findings unless they are shown to be clearly wrong.
Three important matters of fact stand out as supporting the decision taken by the primary Judge. The first is that the appellant, who is an intelligent person, well qualified to support himself and his children, is and has for a number of years been substantially unemployed, while the respondent has made arrangements which enable her to work part-time in a remunerated position and still to care adequately for the children. The appellant has submitted that the interests of the children are better served by full-time rather than by part-time parental care. This is no doubt a factor to be taken into account in an appropriate case. But the support of children is a responsibility which parents should undertake. In most families, the father is the breadwinner. In current times, it is common for both parents to work in remunerated employment. We are sure that his Honour formed the view that the appellant was not facing up to one of his prime responsibilities as a father, namely his responsibility to provide for his children, whereas his Honour thought that the respondent was doing all that could be expected of her in this respect, by taking a part-time job which enabled her to earn an income while providing adequate supervision of and care for her children.
The second point of significance is that, although the children were born in Western Australia and the respondent's mother lived in Perth, the appellant left Western Australia in 1984 and brought to an end any practice of sensible joint care of the children in that State. It was the respondent who subsequently acted in the interest of the children by moving with the children to Canberra, so that the children would have the support of both parents. As the primary Judge said, the respondent has demonstrated a flexibility on the question of access and a preparedness to permit both parents to share as fully as possible in the children's lives.
The third matter of fact is that mentioned, namely, the appellant's tendency to obsession or undue concern in the bringing up of his children and to rigidity and lack of flexibility in some aspects thereof. The appellant challenged these matters but, as has been said, there was evidence to support his Honour's conclusions, and, notwithstanding that there was evidence pointing the other way, his Honour is not shown to be clearly wrong.
For these reasons, there is no ground for disturbing his Honour's orders and the appeal must be dismissed with costs.
We should not conclude however without emphasising to both parties that there is a need for them to work together for the welfare of their children. Friction and the denigration of the other parent will be likely to inhibit the development of the children's full potential. We would hope that any bitterness arising out of this custody dispute can now be put on one side.
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