Rice v Miller

[1993] FamCA 87

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   Appeal No EA28/93

File No NC1582X/91

Between:MR RICE Appellant/Father

And:MS MILLER Respondent/Intervener       

REASONS FOR JUDGMENT

BEFORE: ELLIS, LINDEMAYER AND BELL JJ.

HEARD: 7th day of September 1993

JUDGMENT:           10th day of September 1993

Appearances:       Ms Winfield of counsel (instructed by Messrs Aubrey Brown Partners, Solicitors, appeared on behalf of the appellant father.

Mr Dwyer of counsel (instructed by Messrs John J. Moore & Co, Solicitors, appeared on behalf of the respondent intervener.

This is an appeal by the father against orders made on 26 March 1993 as follows:­

"1. That the Intervener Maternal Grandmother, M, have custody of the child, A born … 1989.

2That the father, R, have access to the said child each alternate weekend from 6 p.m. Friday to 6 p.m. Sunday, commencing at 6 p.m. Friday, 26 March 1993.

3Further that the Intervener Maternal Grandmother be responsible for transport in connection with the delivery and pick up of the said child for access purposes.

4That the father have access to such child for one half of all school holiday periods, to be arranged between the parties.

5That liberty be granted to either party to apply in relation to the implementation of any of the above orders."

The relevant facts are:-The child, the subject of these proceedings, A was born in 1989. Her father, R, is the appellant but her mother, K, although initially involved in the proceedings, did not appear at the hearing and sought no orders in relation to the child. K was the adopted daughter of M, the Intervener, who, at the hearing before the trial Judge, sought an order that she have custody of the said child. The father sought an order that he have the custody of the child.

The father and K (hereinafter referred to as "the mother") commenced to reside in a de facto relationship in about August 1985. They finally separated in October 1989. Prior to the birth of the child, they resided at X, Queensland. At that time, the father was employed in an occupation which necessitated him being away from home for up to weeks at a time. As a consequence, prior to the birth of A, the mother went to reside with her parents in their home at U on the Central Coast of New South Wales. The father visited her there on several occasions and was present at the birth of their daughter. After the birth, the father returned to X whilst the mother and the child remained at U for a few weeks. Both then, accompanied by the Intervener, returned to X where the mother resumed her relationship with the father. The father continued in his employment and as a consequence was absent from the home from time to time including one period of seven weeks. He did not work for a period of two months from March 1989 during which time he and the mother jointly cared for the child. He then worked for a further period of approximately two months before again staying home full time to share in the care of A.

In September 1989, the mother, with the child, visited her parents at U for a period of about a week. Upon her return to Queensland, she was not accompanied by A. After informing the father that she had decided that she and A would thereafter reside with her parents, the mother returned to U. The father followed a few weeks later and commenced to reside at Toowoon Bay partly to be near the child and partly in an endeavour to effect a reconciliation with the mother. After residing for about a month with her parents, the mother and they argued. She then went to live with the father at T on the New South Wales' Central Coast but some two weeks after that reconciliation, she and the father again separated. At that time, they agreed that the father should have A in his care. In October 1989, he returned with the child to Y in Queensland. The father attempted one further reconciliation with the mother at the end of December 1989. He travelled to the Central Coast with A but on his arrival at the mother's then residence, it was made clear to him by the mother and by her then de facto partner that he would be unable to resume his relationship with her.

The father returned immediately to Queensland where he arranged for A to be cared for temporarily by a local family. Following discussions with various members of his and the mother's family, a conference took place at Y on either 2 or 3 January 1990 in relation to the care of A. The maternal grandmother, the Intervener, agreed at that conference to take the child into her care and she then flew from Y back to her home with A.

The parties did not agree as to the conclusion reached at the conference. On the one hand, it was asserted by the Intervener that she was accepting the care of A on a long term basis whilst on the other it was asserted by the father that she would care for the child only on a short term basis until he was in a position to again resume the care of the child. The trial Judge suspected that the arrangements was a temporary arrangement but not for a period as short as that alleged by the father.

Approximately one week after the Intervener returned to U with A, the father arranged accommodation for himself at C and commenced proceedings seeking the return of the child. Subject to access periods, the Intervener has had the care of A from early January 1990 until the date of hearing except for a period of approximately five weeks when A was in the care of the mother.

Prior to the application coming on for hearing before the trial Judge, there were numerous proceedings, mainly arising out of access problems, culminating in orders being made on 22 September 1992 as follows:­

"1. That the Intervener and the Father be granted joint custody of the child A born … 1989.

2. That the Intervener be granted continuing access to the said child subject to access to the father as follows:

i. Each week from 9.00 am Wednesday to 4.00 pm (during Eastern Standard Time) and 5.00 pm (during Eastern Summer Time) on the following Friday other than 23rd to 25th December 1992 when such access terminates at 4.00 pm on 24 December 1992 .

ii. At Christmas 1992-93 from 3.00 pm on Christmas Day until Friday 15th January 1993 at 5.00 pm.

iii. At Easter 1993 from 9.00 am the Thursday prior to Easter until

9.00 am on the next Tuesday.

iv.For part of the June/July and September/October school holidays 1993 from the Wednesday prior to the break-up day until the Friday at the end of the first week at 5.00 pm.

1. By telephone each Monday night at 5.00 pm.

vi. That the father at his own expense will ensure that the child attends playgroup each week from 10.00 am to 12 noon.

vii. At such other times as the parties may mutually agree.

3That the parties attend counselling pursuant to section 62(1) of the Family Law Act.

4That all previous orders as to custody and access be discharged.

5That these proceedings be relisted in the Registrar's List for further directions on Wednesday 28 October 1992 ."

After referring to the relevant history, the learned trial Judge, in his reasons for judgment, made findings relating to the character and personality of the Intervener, the father and B who, at the date of hearing, was pregnant to him, their child being expected in June. In addition, he made findings in relation to A who he noted was described by witnesses called on behalf of the father as "a happy, bright, intelligent, well-presented, well-mannered child" He then gave specific consideration to various matters referred to in s.64 of the Act before making the orders against which the father has now appealed.

The appeal is one from discretionary orders. The principles which govern such an appeal are not in doubt and do not require repeating in the context of this case. See House v. The King (1936) 55 CLR 499 and Gronow v. Gronow (1980) 144 CLR 513.

It was first submitted that the learned trial Judge made a number of findings as to the facts and drew inferences which, it was submitted, were not open to him on the evidence. We do not consider that it is necessary to deal with each of the alleged errors as, in our view, the findings and inferences complained of were, in fact, open to his Honour on the evidence. Many of those findings were, however, irrelevant to his ultimate determination.

It was then submitted that, in coming to his decision, the learned trial Judge erred in not recognising in the proceedings a preference for a natural parent over the grandmother or alternatively that he did not attach sufficient weight to the fact that the father was the only party to the proceedings who was a natural parent to the child and who was seeking custody. In support of that submission, we were referred to E and E (1979) FLC 90 -645 and to Drew and Drew; Lovett and Lovett (Interveners) (1993) FLC 92 -360 as well as to the provisions of s.43(b) of the Act.

During the course of the submissions, counsel's attention was drawn to the unreported decision of Lindenmayer J. handed down in Brisbane on1 September 1993 in Hodak and Newman, BR3374 of 1992. In that case, in discussing the principles applicable in a custody dispute between the natural parent and a "stranger", Lindenmayer J. said:­

"The question of whether the law in Australia recognises a preference in custody proceedings for the natural parents over other persons (be they blood relations or otherwise) was recently considered in an obiter passage by Treyvaud J in In the Marriage of Drew and Drew; Lovett and Lovett (Interveners) (1993) FLC 92 -360. In that matter, his Honour was asked by Counsel for the maternal Grandparents to state a question for the determination of the Full Court of the Family Court, namely, whether the Family Law Act provides for a preference for parents in custody disputes between the natural parents and other persons. His Honour refused to accede to the application, but nontheless (sic), thought it useful to indicate to the parties his own view as to the state of the law.

At page 79,792 of Drew and Drew (supra), Treyvaud J recanted from the views which he had expressed in Allen and Allen (deceased); Hargreaves (Intervener) (1984) FLC 91 -531. In that earlier case, His Honour, after referring to the decision of Frederico J in Pearn and Appleby (1977) FLC 90 -231 at 79,300, had stated:

If what and all Frederico J means and is saying in Pearn's case is that there is no preferred role of a parent vis-a-vis a stranger in a custody contest between a parent and a stranger, but that the fact of parenthood is a relevant and significant factor in considering which competing proposal better advances a child's welfare, then I would accept and agree with such an approach. Indeed that is my own view.

In resiling from that earlier expressed view, Treyvaud J in Drew and Drew (supra) referred to the decision of Smithers J in Logie v The Department of Community Services of Victoria and Another (unreported, 29 August 1991), and in particular, to the passage which appears at p. 78 of that judgment:

"Parenthood is an extremely important factor. I do not agree with the proposition that there is no preferred role for a parent."

Although in Logie v Department of Community Services (supra), Smithers J continued on to state, that "of course, in every case the facts are decisive", he concluded, nontheless (sic), that the fact of parenthood represented a "substantial hurdle in the way" of a non-parent who seeks custody against the natural parent.

Treyvaud J also reviewed two decisions of the English Courts, namely Re K (a minor) [1990] 3 All E R 795 and Re K D (a minor) (ward: termination of access) [1988] 1 All E R 577. His Honour then sought to formulate a statement of principle, based upon an earlier guiding passage which is to be found in Re O'Hara (1900) 2 Irish Reports

232. At p. 79,793 of Drew and Drew (supra), Treyvaud J said:

In exercising the jurisdiction to control or ignore the parental role, the Court must act cautiously and act in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental role should be suspended or superseded.

His Honour then continued (supra at p. 79,793): I do not accept that when a family is irretrievably disrupted, it could well be contrary to the welfare of the child or children of the marriage to deal with issues of custody on the basis of the preferred role of a parent. In contemporary Australia, the family is

"The natural and fundamental group unit of society" as Section 43(1)(b) [sic] of the Family Law Act specifies. When a nuclear family or a nuclear unit breaks down because the marriage or relationship between the parents ceases, ordinarily children need the nurture, support, care and love of a parent and of each other just as when the family unit was viable. The extended family, that is, grandparents, uncles, aunts, cousins, are of great importance in the nurturing family unit but do not replace or supplant it. Unless the welfare of the child otherwise requires it, custody of a child or children ought to be given to a parent rather than a member of the extended family or to a blood stranger.

It is not without significance that ours is the Family Court. The Act we primarily administer is the Family Law Act. I suggest that Sections 43(1)(b) [sic] and (c) of the Act support this approach, as do a long and impressive line of significant world-wide authorities.

The decision of Kay J in Braithwaite and Braithwaite and Stocks (unreported, 19 December 1991 ) also reviewed the authorities relevant to a contest between a natural parent and a stranger, including the previous decision of Treyvaud J in Allen and Allen (deceased); Hargreaves (Intervener) (1984) FLC 91 -531 and the English decisions of Re K (a minor) and Re K D (a minor) (ward: termination of access). Kay J concluded:

Whilst the apparent preference for a natural parent is not without its detractors (see Dickey "Family Law" [second edition] 358-360), I am bound by the weight of authority, by the very structure of our own society and by common sense to conclude that parenthood, if not a decisive factor, is an extremely important factor . . . . I conclude on the balace (sic) that there are compelling reasons which require me to over-ride the prima facie right of this child to an upbringing by its surviving natural parent.

The decisions of Treyvaud J and Kay J refer to and rely upon the relevant English authorities for the propositions which they adopt in their respective judgments. At page 800 of Re K (supra), Waite J referred to the decision of Re K D (supra), as laying down the guiding principle of law for the English Courts:

"The principle is that the court in wardship will not act in opposition to a natural parent unless judicially satisfied that the parental rights should be suspended or superceded. The speeches in the House of Lords make it plain that the term "parental right" is not there used in a proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible with the parents who gave it life."

The question which the Court of Appeal indicated should be answered in making a determination is:

"are there any compelling reasons (which require the trial judge) to override the prima facie right of (the) child to an upbringing by its surviving natural parent ?"

The decisions in Re K (supra) and Re K D (supra) were referred to with approval by the Court of Appeal in F v Wirral Metropolitan Borough Council [1991] 2 WLR 1132 . In my opinion, however, the approach adopted by the English Court of Appeal in Re K (supra) does not represent the state of the law in Australia under the Family Law Act.

With the greatest of repect (sic) to the decisions of Kay J and Treyvaud J referred to above, I believe they misstate the position under the Family Law Act. In my opinion, it is incorrect, in a custody dispute as between a natural parent and a non-parent, to state that the role of the natural parent is to be "preferred", or to have recourse to a "presumption" that the welfare of a child will best be served by an order in favour of a natural parent.

The issue of whether the law in Australia recognises any preference for the natural parent in custody proceedings has been considered on numerous occasions in the past in a variety of different contexts, including the followings decisions: Smith and Swain (1978) FLC 90 -400; Overton v Martinez (1978) FLC 90-406; E and E (No. 2) (1979) FLC 90 -645; S v M 6 Fam LN 10; McGuire v Tull 7 Fam LR 195 and 326; Jarman v LLoyd 8 Fam LR 878; Beck v Phillips 6 Fam LR 837; C v T 10 Fam LR 458; Marriage of Robertson 2 Fam LR 11,699; Marriage of Steadman 3 Fam LN 68; Byrne v George 6 Fam LR 902; Werth v Rowe 7 Fam LN 16; Matthews v Chapman 7 Fam LR 982; C v Director General of Department of Youth 7 Fam LR 816; Stollery v Clarke 4 Fam LR 573; J v J 8 Fam LR 551; E, EL and PMP 4 Fam LR 1; Dodd and Dodd v Stuart 1 Fam LR 11,540; Nolan v Gardiner 3 Fam LN 1; C v Q 7 Fam LN 1; Sullivan v Read-Bloomfield 9 Fam LR 187; Stambe v Inzitari 2 Fam LR 11,607.

The Full Court of the Family Court had occasion to consider the issue in the course of its decision in E and E (1979) FLC 90 -645. Differing views were taken in that case, as between Pawley, SJ. and Strauss, J. on the one hand, and Asche SJ on the other. It is probably not correct to say, however, that the "majority" decisions lay down any binding authority, as Pawley, SJ. decided the case on a jurisdictional point, and merely expressed agreement (at p.78,830) with the judgment of Strauss, J. (which referred to the natural parent issue), as providing an alternative basis for the decision he reached, were he in fact incorrect on the preliminary jurisdictional issue.

E and E (supra) involved, in very general terms, a custody contest between the natural father of the child, as against the natural mother's Aunt and the Aunt's husband. Strauss, J. referred with approval to the statements of Latham, CJ. in Storie and Storie (1949) 80 CLR 597 at 603, where the then Chief Justice said:

"Prima facie the welfare of a young child demands that a parent who is in a position, not only to exercise parental rights, but also to perform parental duties, should have the custody of the child as against any stranger. The fact that a stranger can also provide as good (or even, I should say, a better) home is in the circumstances an element of only slight, if any, weight.

Strauss J also referred with approval to the decisions of Powell & Anor v Anderson (1977) FLC 90 -235 and Overton v Martinez (1978) FLC 90 -406.

While, in my opinion, a superficial reading of the decision of the High Court in Storie and Storie (1945) 80 CLR 597 at 603 , may lend some support to the concept of a preference for the natural parent in a custody dispute, the apparent rigidity of the statements made therein, has, I believe, been tempered by the later decision in Gronow v Gronow(1979) 144 CLR 513 . At pages 522-524, Stephen J referred to the previous decisions of the High Court in Storie v Storie (supra), Lovell v Lovell (1950) 81 CLR 513 and Kades v Kades (1961) ALJR 251 , which the respondent in Gronow v Gronow had submitted provided support for the view that there is some general principle preferring the mother as custodian of young children:

I would myself doubt whether they (the three cases referred to above) do more than acknowledge that same circumstance to which Evatt CJ referred . . . 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.

In my opinion, the "dissenting" opinion in E and E (supra at 78,370-2) of Asche SJ most aptly reflects the correct approach to be taken by the Court. His Honour read down, correctly I believe, the statements of Latham CJ in Storie v Storie (supra), and gave, as the Act requires, paramount consideration to the welfare principle. At page 78,371 of E and E (supra), Asche SJ stated:

The welfare of the child is always the paramount consideration and I do not, with respect, read the remarks of Latham CJ in Storie v Storie 80 CLR 597 at 613 as suggesting anything more than that a strong prima facie case can be made out in favour of a natural parent against a stranger in blood in any custody case. The approach however which seems to have since developed, has been to give greater emphasis to the general directive that the welfare of the child is the paramount consideration and less emphasis to "prima facie" rules such as that a parent is to be preferred to a stranger, a mother of young children to a father, a father of older male children to the mother, that the status quo is to be preserved; and so on.

... The present approach seems to be that such matters may be sometimes of great importance, sometimes of far less importance, according to the facts of the particular case; and that they are considerations to be thrown into the scale rather than prima facie assumptions; and are to be weighted on the fulcrum of the child's welfare (In the Marriage of Jurrs (sic) (1976) FLC 90 -041; In the Marriage of Raby (1976) FLC 90 -104; In the Marriage of Hobbs (1976) FLC 90 -119; In the Marriage of Mulligan (1976) FLC 90 -080).

His Honour then continued on, at p. 78,372, to examine the meaning of the phrase "paramount consideration", particularly referring to an article by Professor Finlay, "First or Paramount? The Interests of the Child in Matrimonial Proceedings" (1968) 42 ALJ 96 at 97, where that author had suggested that:

Purely as a matter of semantics the word "paramount" in the present context has the effect of subordinating all other considerations to the welfare of the child. The expression "paramount consideration" is meaningless except in relation to other, subordinate considerations. Other considerations are therefore not excluded from evaluation by the court, provided they are put in their proper, that is subordinate place.

Asche SJ concluded his discussion (at p. 78,372) of the principles applicable in the following manner, with which I would respectfully agree:

"If all other considerations are to be subordinated to the welfare of the child I see considerable dangers in any approach which proceeds from some presumptive position and then applies that to the facts of the particular case. The Judges of this Court were, if I may say so with respect, put on the right track early in the history of the Court by the judgment of Demack SJ in In the Marriage of Jurss (1976) FLC 90-041. His observations have been frequently quoted and I am happy to quote them again:

'The welfare of the child in any particular case must be determined on the facts of the particular case. Certainly rules of experience and prudence may indicate the limits of the inquiry in any particular case, and certainly experience may indicate certain factors which are more significant than other factors .... the inquiry is essentially a positive one designed to promote the interests of the child ....'

In this case I am satisfied that in the context of this particular child's welfare and bearing in mind the alternatives I have already mentioned, it is proper that great weight should be attached to the fact that one party is the father of the child while the interveners are relatives far more distantly removed. But, with great respect to my colleagues [Pawley SJ, Strauss J], I gain the impression from their judgment that they have started from a presumption that natural parents should be preferred to non-parents and then applied that to the present situation. If I am right in my impression, I cannot agree with the approach. I prefer the "essentially positive" approach suggested by Demack SJ."

Having then considered the authorities, I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved."

We would, with respect, adopt the conclusion of his Honour and his reasoning. We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.

In considering that matter, the learned trial Judge said:­

"The second factor which R points out strongly to the Court is that he is a parent of the child as opposed to the grandparents and that this is a factor which has always been of major concern to the courts which at various times have had jurisdiction in custody.

Both of these are very real concerns but neither in any way outweigh the simply expressed duty of the Court to come to the decision which the Court thinks best for the overall welfare of the child."

It was further put, in support of the submission, that the trial Judge failed to apply the provisions of s.43(b). Section 43 does not provide a separate head of power but does require the Court, when making a decision, to consider and have regard to a number of general principles. It cannot, however, override the provisions in the Act which are directly relevant to the proceedings before the Court including, in this case, the provisions of s.64(1). In coming to a decision, the Court must have regard to the provisions of s.43 and, in particular, to the provisions of both paragraphs (b) and (c) of that section. However, the Court must, nonetheless, have regard to the welfare of the child, the subject of the application, as the paramount consideration. In our view, on an overall reading of the judgment, the trial Judge had regard to the provisions of s.43 in coming to a decision based on how the welfare of the child could best be promoted.

In addition, it was put that the learned trial Judge erred in that he attached insufficient weight in coming to his decision to a number of other factors. It was put that he attached insufficient weight to the respective ages of the parties. At the date of hearing, the father was aged 31 years, B, 21 years and the Intervener, 57 years. Before considering the specific matters referred to in s.64(1) which were relevant to this case, in referring to the submissions made on behalf of the father, the trial Judge said:­

"The father puts his case on two major bases, firstly, he says that the child's welfare is more likely to be promoted by being brought up by a couple of the normal age to be bringing up a four-year-old child and this is obviously an important part of the father's case. One can imagine, when A leaves pre-school and goes to school that (the maternal grandpartents) will obviously be seen by everybody as loving carers of the child, but everybody will know they are not her parents. This is not a major matter but it is just one of a large number of matters which will handicap the (maternal grandparents) if they are the carers for A."

He continued by referring to the second factor emphasised by the father, namely that he was a parent of the child and the Intervener a grandparent and then said:­

"Both of these are very real concerns but neither in any way outweigh the simply expressed duty of the Court to come to the decision which the Court thinks best for the overall welfare of the child."

It was then put that the trial Judge failed to properly consider the provisions of s.64(1)(ba) in that, having regard to the age of the Intervener and of the child, there is a far greater likelihood of a change of circumstances occurring impinging upon the custodial arrangements if the child remains with the Intervener than if she were with the father. In his consideration of s.64(1)(ba), the trial Judge said:­

"I am required to make the order which is least likely to lead to the institution of further custody proceedings. I have usually found it difficult to satisfy this requirement of the Act, if I were capable of foreseeing what would happen in later years and capable of foreseeing what would go on in the minds of successful and unsuccessful litigants I would be unusually talented. I have no way of knowing which of these contestants is most likely, if a loser, to later seek to challenge the Court's findings by another custody action and I therefore, having thought about the matter, do not take it into account."

Section 64(1)(ba) should be read in conjunction with s.64(7) but the direction to attempt to avoid further proceedings relating to custody or guardianship should also be seen in the context of the basic provision that the child's welfare is to be the paramount consideration. It does not necessarily follow, in our view, that because of the ages of the father and the Intervener, there is a far greater likelihood of a relevant change of circumstances occurring resulting in the institution of further custodial proceedings, if the child remains in the care of the Intervener.

It was additionally argued that the trial Judge attached insufficient weight to the fact that further proceedings relating to custody were more likely to be avoided if the child were in the care of the father as she then would be living not only with him but also in a family situation with B and the new child. As this situation formed part of the overall proposal of the father, it was a matter considered by the trial Judge in reaching his decision.
Finally, it was submitted that the trial Judge erred in finding that it was unlikely that access would work whoever obtained custody of the child. At pages 18 and 19 of the Appeal Book, the trial Judge referred to orders made in July 1992 and then said:­

"...there were access orders made and those access orders have

worked tolerably well from that point on. They involved what

under ordinary conditions would be considered very generous
access to the father. It must be remembered however that M at that stage was not treated any longer as the
full-time carer for A, although the actual orders were

for continuous access to M and access orders to R and I read them in full:

Each week from 9 am Wednesday to 4 pm during Eastern Standard Time, 5 pm during Summer Time on the following Friday.

Then special arrangements were made for Christmas, Easter and for various school holiday periods. As I say, that access has worked reasonably well and much of the credit for it working reasonably well appears to me to be due to the husband's new de facto, B."

In relation to this submission, it is also necessary to consider the trial Judge's actual finding, namely:­

"Things have been so bitter between the parties that I think it unlikely that access will work well whoever is successful in this litigation. I hope that I am wrong. I hope that the parties when this litigation is over, will be able to put their differences behind them and not only direct their thoughts to the welfare of A, but allow those thoughts to guide their conduct. In practice, it often works out that people know how they should behave in these situations, but are utterly incapable of putting that knowledge into effect.

Coming as I do to the conclusion that I cannot find that one person will cater for access better than the other, I make no finding in the matter and have taken that question into account to the best of my ability."

On this issue, the interaction of the parties reported upon in the final Family Report dated 22 February 1993 , appearing at pages 198 and 199 of the Appeal Book, is relevant, particularly the counsellor's observation that the father and the Intervener "engaged in inflexible bickering over the interpretation of the current Court Orders regarding the January 1993 period". We are of the view that it was open to the trial Judge, having regard to the totality of the evidence, to express the doubt and come to the finding referred to.

In relation to the submissions based on questions of weight, the following observations of Stephen J. in Gronow v. Gronow (1980) 144 CLR 513 at page 519 are apposite:­

"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 our view, the learned trial Judge made neither an error of law nor a mistake of fact. No cogent reasons have been advanced to demonstrate that, in coming to his decision, inappropriate weight was attached by him to any of the matters to which we have been referred. The two cases, that of the father and that of the Intervener were, in our view, fairly evenly balanced. There were a number of factors which favoured custody being granted to the father including, inter alia, the respective ages of the parties, the fact that he was the only natural parent seeking custody, the child's relationship with B, his ability to cope with the intellectual needs of the child and his parenting abilities. However, the Court Counsellor reported, inter alia, in February 1993, that:­

"A's relationship with her father, however, is characterized by contradictions in feelings and perceptions. She seems to be in some discomfort about him. Whereas she acknowledged some affection for and from him, she indicated a predominantly negative relationship with him"

There were also a number of factors which favoured custody being granted to the Intervener including, inter alia, the fact that she has been the principal caregiver of the child since January 1990, that the child views her as she would a mother, that the child's most secure and reciprocal loving relationships are with her maternal grandparents, her ability to provide emotionally for the child and the stability she has given to the child for the past three years of her life. In all those circumstances, we are not satisfied that it has been shown that the discretion vested in the trial Judge miscarried.

Accordingly, we would dismiss the appeal. We have heard submissions as to the cost of the appeal and note that the Intervener seeks an order that the father pay her costs if the appeal is dismissed. Having regard to the respective submissions and the matters referred to in s.117(2A), we are not satisfied that the circumstances justify the making of that order.

We would therefore order:-1. That the appeal be dismissed. 2. That there be no order as to costs.