Swaney & Ward

[1987] FamCA 24

In the marriage of SWANEY, L.M. (formerly WARD) and WARD, G.G.

(1988) FLC ¶91-928

Full Court of the Family Court of Australia at Melbourne.

Judgment delivered 21 December 1987.

Before: Fogarty, Baker and McCall JJ.

Fogarty, Baker and McCall JJ.: This is an appeal from orders made by Justice K.A. Murray on 7 October 1987 following a hearing which commenced on 15 June 1987 and concluded on 19 June 1987. On 6 August 1987 her Honour delivered her reasons for judgment at the conclusion of which she informed the parties that it was her intention to defer her final decision until October in order that she might ascertain ``the position as regards the employment both of the wife and her present husband Dr R''.

Her Honour at the conclusion of her said reasons, in a passage to which we shall again make reference later, provided that if the wife had become pregnant and given up work by the adjourned date and further that if Dr R was by that time secure in his employment at the Royal Adelaide Hospital, then the wife should have the custody of the two children of the marriage so long as she remains in the State of South Australia. Her Honour then went on to indicate that if any of the abovementioned conditions had not been satisfied, the husband was to have the custody of the children and adjourned the applications until 7 October 1987 for further evidence in relation to the above issues only.

On 7 October 1987 three further affidavits were placed before her Honour whereupon having heard submissions from counsel, the trial Judge made an order that the husband have the custody of G and A, from which order the wife now appeals.

The parties were married on 7 April 1979 and separated in December 1983 although cohabitation between them commenced in May 1977. In early January 1984 the husband informed the wife that he considered the marriage to be at an end with the result that the parties thereafter did not resume cohabitation.

There were two children born to the parties, G on 15 October 1979 now aged eight and A born 9 September 1981 now aged six.

From the time of the separation the children continued to live with the wife in the former matrimonial home at Unley Park. In March 1985 the wife commenced cohabitation with Dr R, whom she married on 8 February 1986.

The husband for his part, immediately following the separation, shared a house with Mrs G, who had previously separated from her husband. The husband and Mrs G subsequently married on 7 August 1986.

Towards the end of 1985 the wife, Dr R and the two children left the Unley Park home thereby enabling the husband and Mrs G to move into that property. The wife and Dr R moved to a home at Fullarton owned by Dr R.

At the time of the trial the wife and Dr R were living at Fullarton whilst the husband and Mrs W (formerly Mrs G) were living at the former matrimonial home at Unley Park. Her Honour made a finding that both houses offered pleasant and comfortable accommodation for the children, which finding was not challenged in any way on the appeal.

At the time of the commencement of cohabitation in May 1977 the wife was employed as a Resident Medical Officer at the Royal Adelaide Hospital, whilst the husband was practising at the same hospital, at the Queen Elizabeth Hospital and the Repatriation General Hospital. He was at that time also in private practice.

The wife ceased work as a Resident Medical Officer during January 1979 and obtained employment as a Research Fellow in the Cardiothoracic Surgical Unit at the Royal Adelaide Hospital in which capacity she worked on a part-time basis for 20 hours a week until G's birth in October 1979.

The wife recommenced employment approximately three months after G's birth working as a locum in the employ of two doctors for 2½ days each week for a period of about six months. During the latter period G was cared for at the University of Adelaide Child Care Centre, however on weekends and in the evenings the parties shared the care of the child subject only to each other's commitments. Nevertheless, her Honour made the positive finding that the wife during this period was the child's primary care-giver.

The wife then obtained employment as a supervisor at the Flinders Medical Centre which involved four sessions of 3½ hours each week during which period the parties employed a Mrs O to care for the children.

The wife continued her employment at the Flinders Medical Centre working three days each week from 2 p.m. until 6 p.m. until March 1983 when she obtained employment as a visiting Medical Officer at the Kalyra Hospital, Belair. She continued in employment at the hospital for about 10 months working three half-days each week on the basis of two morning sessions and one afternoon session, each of three hours.

A was born whilst the wife was employed at the Kalyra Hospital following which she took two weeks' leave. The wife recommenced work at the expiration of the two week period, taking A with her to the hospital as the child was at that time being breast fed.

Some time during the year 1982 the wife commenced work as a trainee oncologist at the Royal Adelaide Hospital working 40 hours per week. The wife continued working in this capacity until after the separation, employing Mrs O as the care-giver of the child when both parties were at work.

The husband for his part was working long hours and, in addition, in 1978 he was elected Chairman of the Board of the Anti-Cancer Foundation.

It seems clear, as her Honour found, that during the years 1982-1983 the parties were busy with their respective careers and, in addition, the wife throughout 1983 was studying for exams to enable her to qualify as a specialist. Mrs O continued to care for the children as and when required and, although her Honour found that when the wife was at home, she assumed the primary care of the child, the husband on the occasions that the wife was studying played an equal role in the caring of the children.

The wife appeared to have become distressed when the separation occurred, but was able to rely upon the services of Mrs O to look after the children when her work commitments made it impossible for her to do so.

There were difficulties subsequent to the separation in relation to access but it is not necessary for us to consider such difficulties as eventually the parties agreed to a regular pattern of access. In any event, they were able to agree upon an access regime following the hearing before her Honour whichever party was to be successful in the competing claims for the custody of the children.

Early in 1985 the wife applied for various positions to enable her to have further clinical experience and she finally accepted a position at the Ontario Cancer Institute in Ontario, Canada. In or about the month of August 1985 the wife informed the husband that she wished to take the children to Canada the following year to which the husband objected strongly. As a result, on 23 October 1985 the wife filed an application for custody and guardianship of the two children together with an application for leave to take the children to Canada with her. The parties thereafter had several conferences with a court counsellor as a result of which the following agreement was reached, albeit with some reluctance on the part of the wife:

(a) That the wife and Dr R travel to Canada in April 1986, leaving the children in Australia in the care of the husband and Mrs W for a period of six months.
(b) That thereafter Mrs O travel to Canada with the children and remain in the wife's household as a live-in nanny.
(c) That following the wife's return to Australia the children thereafter be in the husband's custody until the defended hearing of the custody claims (which was expected to take place shortly after her return).

The above agreement was enshrined in orders which Bulbeck J. made with the consent of the parties on 17 March 1986.

Prior to the abovementioned arrangement, Mrs O had not lived in the household of either party when one of the parties had been present. Indeed, Mrs O did not occupy the husband's residence as a live-in nanny during the six months' period referred to in (a) above, apart from a period of three weeks during which the husband and Mrs W were overseas. Although Mrs W resigned from her position at the Anti-Cancer Foundation in June 1986, Mrs O continued to care for the children during week days.

Dr R, the wife and the two children returned to Australia on 27 March 1987, arriving in Adelaide on 3 April. At the date of the commencement of the trial on 15 June 1987 the husband had the custody of the children, although the wife did enjoy custody of them for a period of three weeks in May and had the benefit of access on alternate weekends at other times. The wife returned the children to the husband on her return from Canada as was required by an order of 5 May 1987, although at this time the parties believed that the hearing of the cross-applications for custody would commence later that month. In the end result the proceedings did not commence until 15 June 1987 which led to a further application by the wife for an order for custody, limited in time to one month which was resolved by the wife obtaining the order for the custody of the children for a period of three weeks referred to above.

The children have remained in the custody of the husband since the commencement of the trial on 15 June 1987, with the wife having the benefit of alternate weekend access in accordance with previous orders.

In the course of her reasons for judgment the learned trial Judge traced the history of the parties' relationships inter se both before and after the separation, together with their respective employment records.

Her Honour made the following finding:

``I find that the wife has not been entirely frank with the Court concerning her employment prospects, and the same applies to Dr R as regards his past employment.''

Her Honour was very much concerned with Dr R's employment prospects, particularly in view of the difficulties which Dr R was experiencing in obtaining full-time employment in Adelaide. Dr R gave evidence that he had applied for the position of Senior Registrar in Medical Oncology at the Royal Adelaide Hospital which evidence her Honour accepted. Her Honour's finding in this respect appears as follows:

``There is nothing in writing, but I accept his evidence when he says there is no uncertainty about the job, simply about when he starts.''

The evidence before her Honour was that both parties worked extremely hard in the course of the marriage in various forms of employment within the medical field and it is apparent that the wife has always worked, even in the course of and immediately after her pregnancies. That pattern on the part of the wife was clearly established from the time that the parties first cohabited.

Her Honour was concerned to fully investigate the wife's future proposals in relation to her work, as in her view that aspect of the case was one of the issues which she considered relevant. Her Honour made the following findings:

``In fact, it transpired during cross-examination of the wife, that the Royal Adelaide Hospital expected the wife to work full-time on her return to Adelaide, and it would appear that her manoeuvres in the system to convert that into part-time work incurred the displeasure of her superior officer. I accept the evidence of the husband that part-time work in the wife's field is very difficult to obtain and I find that there is no guarantee of the wife having part-time employment after September 1987. I do not make any finding as to whether this is a realisation the wife has only recently come to appreciate or otherwise. She concedes in oral evidence that she can only get part-time work in her field at the Royal Adelaide Hospital and that to negotiate that sort of employment she will have to pass her August/September examinations to become a Fellow of the Royal College of Radiotherapists. She states that if she cannot get part-time work she will stay full-time at home. In her oral evidence-in-chief she told me that she now intends to start a family forthwith, and has made arrangements to have an I.U.D. removed within the next two weeks. She says that she now wishes to become a full-time mother and stay at home, but nevertheless wishes to complete her examinations and continue her part-time work until September next. This contrasts with her affidavit evidence already referred to and the Royal Adelaide Hospital is apparently unaware of her plans.''

The wife's proposals involved a child-minder for the children each Monday afternoon for a period of some 2½ hours, but her Honour did not regard this limited absence by the wife from the children as being a major issue for concern in the decision to be made.

On the same page of the record the trial Judge made the following findings:

``This in itself however is not a major consideration as a care-giver would only be involved for 2½ hours each week; and this presumably only until the wife's pregnancy advanced and she gave up work altogether.

However there are two question marks in respect of this:

(1) whether the wife is likely to become pregnant immediately,
(2) whether in fact she would give up work completely in view of her years in practice and her dedication to her profession.''

We observe that these issues ultimately became of the utmost significance to her Honour and were at the very core of her reasons for judgment and the manner in which she approached her final decision.

Her Honour dealt with the relationship between the children and the members of each party's household. Her findings in this respect were as follows:

``I find from the Court Counsellor's report that A was `Quite certain and sure in reiterating her intentions to live with her mother', and G was ambivalent, avoiding making a choice between her parents. I find that both children have a warm and loving relationship with each parent and with each of Mrs W and Dr R.''

The trial Judge assessed the parties and their new partners whom she described as ``the four dramatis personae'' and concluded that the case before her was ``one of the most finely balanced custody cases that has come before me''. As her Honour's assessment of the parties and their new partners was a necessary ingredient in her decision-making process, we now set out seriatim her Honour's findings in regard thereto:

``Each party is in my view an admirable parent of intelligence and professional skill. I find that each is a loving and caring parent, although each is different in temperament from the other. I find that both children would be well looked after by either parent with their respective new spouses. Indeed I find that each new spouse is an admirable person also although I deal with their virtues in a little more detail later. I assess the husband as a highly cultivated man, with a wide range of interests including a deep interest in music. I assess the wife as a cultivated woman of charm, strength and vivacity. I find that the husband has eased off his heavy professional workload, as indeed he might now that he has reached the top of the ladder. This contrasts with the position of the wife who I assess as anxious to succeed in her career, and who is on her way up.''

The husband proposed that Mrs W would care for the children. Her Honour found Mrs W to be an intelligent equable woman who had no intention of returning to work in the foreseeable future.

The trial Judge's findings in relation to the husband were as follows:

``I find that the husband can offer the children a stable and settled existence. There is one large minus against the husband however, and that is his age. He is more of the age of a grandfather than of a father for two children as young as G and A. Fifty years separate him from the older child.''

In relation to Dr R, the trial Judge's findings were as follows:

``I was as equally impressed by Dr R as I was by Mrs W. I assess him as an equable, intelligent and caring person, who appears most devoted to the wife as she appears to him and who would share with the wife in a positive and excellent way the rearing of the two children if I granted custody to her. I see him as meticulous in his efforts to ensure that he does not displace the husband as a father figure.''

Her Honour assessed the husband to be fairly unbending in his attitudes, whereas she assessed Dr R as firm but relaxed. The trial Judge, as she observed in the course of her reasons, found the case to be finely balanced and set out her reasoning process in arriving at her final decision. Her Honour observed in relation to the wife's career in medicine:

``The major question mark hanging over the wife as far as the husband is concerned is whether she would be prepared to sacrifice her career for the sake of her children. He thinks not and neither do I. My own assessment of her is that she wants her cake and eat it too — unremarkable in these days of equality of opportunity. If the wife does not become pregnant, if she is unable to find work in Adelaide after September, I think it very likely that she would look to go interstate or elsewhere to further her career, particularly if she should pass her exams. I do not accept that part of her evidence the effect of which is that she has spent her years in practice working towards part-time employment. I see her as a highly motivated successful professional woman, and I would not expect her to give up her career. Her pregnancy however might compel this, at least for a few years.''

Her Honour considered A's positive wish to stay with her mother, although she was not prepared to give as much weight to that matter in view of the child's relatively young age, as might have otherwise been the case. The trial Judge when weighing all the factors to which she had referred in her judgment found the scales so evenly balanced that she came to the conclusion ``I must look at minutiae to see which way they tip''. She then expressed the view that she inclined towards the wife for reasons which she gave, but again referred to the question marks to which she had adverted earlier in her reasons. It is important, in our view, to record precisely what her Honour's findings were in relation to these matters and we now do so:

``Here I have weighed all factors and find the scales so evenly balanced that I must look at minutiae to see which way they tip. If anything I incline towards the wife partly because of what I see as her greater tolerance and sensitivity to the problems of teenage girls and because now the children are quite young and I regard her as being able to `grow along' with the girls a little more easily than the husband. But there are these question marks to which I have already referred, and which militate against my taking that final step at this present juncture of time.''

Her Honour then considered the possibility that the wife and Dr R may leave South Australia taking the children with them:

``I am torn between ensuring that the children stay within their settled and happy existence in South Australia with a father who although a good and caring one has two generations separating him from G, and placing the children with the wife who can care for them very well, but over whose future hang the shadows of possible removal from the State and/or full-time work. Both the wife and Dr R are adamant that they wish to stay in South Australia, but I could not expect them to say otherwise, and I keep in mind that the wife was prepared to go to Newcastle to be with Dr R in the event of him gaining a position there.''

Having considered all the options and taking into account the possibilities and probabilities, as far as the parties were concerned, her Honour was unable, on the day on which judgment was delivered, that is 7 August 1987, to reach a final decision.

Her reasons for taking such a course and her solution to a final determination of the proceedings is the gravamen of this appeal. Those reasons and the trial Judge's proposals in relation to the final disposition of the matter are contained in the following passage:

``What I have in mind is staying my final decision and calling the matter back on in October when I will ascertain the position as regards the employment of the wife and Dr R. It will be clear from these reasons that if the wife has become pregnant and given up work by then, and Dr R is secure in his employment at the Royal Adelaide Hospital the wife should have the custody of the two children so long as she remains in the State of South Australia. If any of these conditions are not satisfied, then the husband will have custody of the children. I therefore adjourn this matter until 7th day of October next at 10.30 a.m. before me for further evidence on these issues alone.''

Although the notice of appeal contained nine grounds of appeal in all, counsel for the wife made his submissions to us as it were ``in globo''. The essence of counsel's submissions was that her Honour's discretion miscarried for the following reasons:

(a) That the conditions which her Honour imposed upon the wife as a prerequisite to her obtaining an order for the custody of the children were either unreasonable, unnecessary or impossible to perform.
(b) That in failing to consider the evidence which the wife adduced on 7 October 1987 the wife was denied natural justice.

As we have said, her Honour, having considered all the evidence and, in particular, each party's proposals for the future welfare of the children, expressed the view that she was inclined towards the wife for the reason of the latter's character, tolerance and sensitivity to the problems of teenage girls. The trial Judge was not, at that stage, prepared to make a final order because of what she referred to as ``these question marks to which I have already referred''.

Her Honour then stated clearly and categorically that she proposed to defer her final decision and call the matter back in October ``when I will ascertain the position as regards the employment of the wife and Dr R''. In other words, in the final analysis, her Honour's only concerns were:

(a) to ensure that the wife was not working and therefore available as a full-time care-giver of the children, and
(b) Dr R's ability to obtain full-time employment in South Australia.

Having given her reasons for deferring her final decision, the learned trial Judge then imposed three conditions precedent upon the wife obtaining an order for the custody of the two children. They were:

(a) That the wife has become pregnant.
(b) That the wife has given up her employment.
(c) That Dr R is secure in his employment at the Royal Adelaide Hospital.

Her Honour then imposed a condition subsequent to the making of such order in these terms namely: that the wife remain in the State of South Australia.

With the greatest respect to her Honour, it is difficult to identify the basis for, and relevance of, the conditions relating to the wife's pregnancy and her continuing to live in South Australia with the reasons which her Honour gave for deferring her final decision in the passage ``when I will ascertain the position as regards the wife and Dr R''. In our view, having regard to the facts which were before her Honour, there would appear to be little or no connection between the two.

It seems to us, therefore, having regard to the precise reasons which her Honour gave, that the only matters in respect of which she expressed the need to receive further evidence on 7 October 1987 were:

(a) whether the wife had given up work; and
(b) whether Dr R was secure in his employment at the Royal Adelaide Hospital.

Had her Honour felt that the wife may have removed the children from South Australia in the event of her custody application being successful, then a restraining order could have been made. Her Honour's concern (see her reference to Kuebler (1978) FLC ¶90-434) that an application may subsequently be made to the Court for permission to take the children from South Australia was not a relevant consideration at this point. Any such application would be determined in the light of the situation at the time when it was heard and her Honour was not entitled to in effect pre-empt any such application.

When the applications came before her Honour on 7 October 1987 counsel for the husband submitted to her Honour that as two of the conditions which had been imposed on 6 August 1987 had not been met, the husband, as a matter of course, was entitled to have the judgment entered in his favour.

Counsel for the husband said:

``Now, in my respectful submission as a matter of law your Honour is essentially subject to an unusual contingency, functus officio. If, of course, one of the parties had been knocked over by a bus or become a quadriplegic it would have been a different matter, but otherwise your Honour has made your Honour's findings, your Honour has set the terms and conditions and your Honour has made the alternatives. In my respectful submission, upon the concession having been made in the affidavit material, the wife has not satisfied the first condition and the husband has not satisfied the second.''

The following exchange then took place between her Honour and counsel for the husband:

``Her Honour: The first condition is the most important one.

Counsel for the husband: In any event, in my respectful submission, to allow her to now call evidence that perhaps in the next 12 months she may become pregnant, which is as I understand the drift of the evidence, would be in my respectful submission a miscarriage of the correct procedures of the court. Now, unless your Honour wishes me to go on...

Her Honour: You do not have to address me further.

Counsel for the husband: Thank you, your Honour.

Her Honour: Because, in fact, you have — the first condition is the prime prerequisite.''

Counsel for the wife then made submissions to her Honour in the course of which her Honour said:

``Her Honour: I accept that it is before me but it does not move me. The condition has not been satisfied.''

In the course of further argument between the trial Judge and counsel for the wife the following exchange took place:

``Her Honour: Well, what further is there to say. I mean, I made it a condition. There has to be three conditions for me to award custody of the two children to her.

Counsel for the wife: Your Honour gave this woman from August, the date of judgment until now, to get herself pregnant.

Her Honour: That is right. Well, she had been trying before though, had not she?

Counsel for the wife: Yes, your Honour, and she has been trying since the date of the judgment as well.

Her Honour: Yes.''

There was then further argument between her Honour and counsel for the wife in the course of which her Honour said:

``Her Honour: Well, then, is not the proper thing for you to do, to take the matter on appeal? That seems to be the only — you see, I have laid down my preconditions, and it seems to me it is only proper then that the judgment should be given in favour of [the husband]. Then your proper course, of course, is to take the matter on appeal.''

We conclude from a reading of her Honour's remarks in the passages which we have cited that the husband was granted custody of the children because the first of the conditions which her Honour imposed on 6 August 1987 had not been complied with, namely that the wife become pregnant.

As we have already said, her Honour's decision to impose upon the wife a condition that she become pregnant as a prerequisite to her obtaining an order for the custody of her children had nothing to do with the wife's ability and capacity as a caretaker of her children and therefore seems difficult to justify.

Counsel for the wife sought to rely upon all three affidavits which had been filed at or prior to the hearing on 7 October 1987. Her Honour, however, took the view that she was functus officio and therefore unable either to hear and consider any further evidence or alter in any way her reasons for judgment of 6 August 1987. Her Honour said:

``Well, I do not think there is any point because I cannot — you see, I have made my judgment.''

We conclude from this passage and from other remarks made by her Honour on the final day that her Honour felt bound by the reasons for judgment already given and her only concern therefore was to inquire whether her conditions had been satisfied.

It is important, in our view, to record the evidence contained in the three affidavits which were before her Honour on 7 October 1987. Those affidavits were:

(a) An affidavit sworn by the wife on 1 October 1987.
(b) An affidavit sworn by a Dr X on 7 October 1987.
(c) An affidavit sworn by Dr R undated but apparently sworn on 7 October 1987 or shortly prior thereto.

The wife in her affidavit sworn on 1 October 1987 deposed as follows:

``1. I am the wife in these proceedings.

2. I refer to the judgment of the Honourable Justice K.A. Murray in this matter delivered on 6 August 1987 and to the statement in that judgment by her Honour that if I am pregnant and have resigned from my employment and if my husband, Dr R, has secure employment by October 1987, I will be granted custody of the said children of my marriage to the husband in these proceedings.

3. I have now resigned from my employment with the Royal Adelaide Hospital, my resignation being effective from 4 September 1987. Annexed thereto and marked with the letter `A' is a copy of a letter from the Assistant Medical Director of the Royal Adelaide Hospital, dated 13 August 1987 acknowledging and accepting my said resignation. I have only worked five sessions of 3½ hours each since 4 September 1987 in order to help out former colleagues who were absent from South Australia on work but otherwise I have spent most of the time since that date at my home.

4. There is now no prospect of me obtaining re-employment at the Royal Adelaide Hospital even if I were inclined to seek it as next year's appointments have already been made.

5. I sat for my radiotherapy exams in early August and unfortunately I was successful in only 5 of the 8 exams involved. I, therefore, failed the exams overall and will not receive the qualification that I have been seeking for many years.

6. My husband has now entered a partnership with one Dr A and they are practising in the field of medical oncology in Ward Street, North Adelaide. My husband is also likely to be offered visiting specialist in Palliative Care at the Lyell McEwin Hospital consisting of three paid sessions per week.

7. My husband and I would love to have a child and we continue to have regular unprotected intercourse in the hope that I may conceive a child. At the time of the swearing of this affidavit I cannot say with certainty whether I am or am not pregnant.

8. My qualifications are that I am a fully qualified medical practitioner with a Bachelor of Medicine Degree from Sydney University (1975) and a Diploma in Family Planning in Adelaide. I have worked in the area of obstetrics and spent many years doing consultative work at the Family Planning Clinic in Adelaide. I am aware that at the age of 38 years my fertility is decreasing and it is likely that I have a higher incidence of anovulatory cycles. In addition as my present husband has not children, his fertility is not proven. My intra uterine device was removed on 25 July 1987 and for people of our age attempting to conceive a child, it is possible that it might be up to 12 months before conception occurs. It is not reasonable to expect that conception would occur instantly or within a period of three months.

9. My husband is in secure employment and I am now full time at home. I am prepared to give this Court an undertaking to this Honourable Court that I shall not leave this State nor remove the children from the jurisdiction unless it is for a holiday and, of course, I would consult with my former husband in that regard. My husband and I see our lives as continuing in Adelaide during the children's years of schooling.

10. Since 6 August 1987 I have had my normal access to the children and on each occasion that I have the children with me the child A becomes distressed during and at the conclusion of periods of access and indicates a desire to remain with me.

11. On two occasions since 6 August 1987 the husband has requested me to have additional access to the children. On 28 August 1987 the children were delivered to me and they stayed with me until Sunday 6 September so that he and his wife could go on a skiing holiday.

12. On 15 September 1987 the children were again delivered to me when the husband went to Brisbane for a conference and on that occasion I had them with me until 20 September 1987 when the husband and his wife returned from the conference. It was during the second period of extended time with the children that the child G made the statement to me and to my husband that she would like to come and live with us.

13. At the end of the period of access namely, 23 August 1987 the children were returned to my former husband, the younger child A became distressed and wept and clung to me refusing to return to my former husband and his wife.''

In his affidavit sworn 7 October 1987 Dr X deposed as follows:

``1. I graduated from the University of Manchester with an ordinary degree of Bachelor of Medicine in the year 1958.

2. I have practised as a gynaecologist exclusively from the year 1960 until the date hereof. In the year 1963, I was examined for membership of the Royal College of Obstetrics and Gynaecology. I passed my examinations and was subsequently elected a Fellow of the same College in or about the year 1976. I was subsequently made a Fellow of the Royal Australian College of Obstetrics and Gynaecology in the year 1979.

3. I say that I have practised privately as a gynaecologist since the year 1968 and that I was an Assistant Honorary Gynaecologist at the Royal Adelaide Hospital in the year 1970 and attended to paid sessions regularly thereafter.

4. I was a part-time lecturer in gynaecology at the University of Adelaide in the year 1970 and have consistently given tutorials in this subject thereafter.

5. I have published papers in recognised medical journals, attended medical conferences regularly and prepared a five-yearly report for the Queen Elizabeth Hospital on perinatal medicine. I have been appointed Chairman of the Peer Review Committee of the Australian Medical Association in Adelaide and I am on the Ethics Committee of the same Association.

6. I know [the wife] and have known her for a period of many years. I say that I advised her about matters arising out of her pregnancy with both children, G and A. I first saw [the wife] in a professional capacity on 2 April 1979 when she came to me to seek advice when she was 10 weeks pregnant with her first child.

7. I say I last saw [the wife] on 26 June 1987 and had a long consultation with her during which, at her request I removed her intra uterine device and gave her advice generally concerning the possibility of amniocenteses and the procedure involved. During the course of this consultation she advised me that she wished to have a child. I further say that as a result of her examination on 26 June 1987 I advised her that she was fit to become pregnant.

8. I say that I am conversant with the fact that [the wife] is 38 years of age but am of the opinion that she is still quite fertile and she should not have any difficulty in conceiving a child in the near future.

9. I further say that gynaecologists look at fertility in terms of life span. It is acknowledged and well known that fertility diminishes particularly with women as they grow in age. Statistics which are well known indicate that even with a person of an age younger than [the wife] who engage regularly in acts of sexual intercourse, that pregnancy may not occur for the first 8 to 12 months. This is not an unusual phenomenon. However, as persons grow older then the span of time within which a woman can become pregnant increases.

10. I am of the opinion that with a woman aged 38 years and a man aged 35 years that it might take 12 months before the woman may become pregnant.

11. Women in the age group of [the wife] also experience less frequent ovulation than a woman of say 20 years. At the age of 20 years a woman may ovulate for 11 out of 12 months. However, at the age of about 38 years, a woman may ovulate 8 to 10 times out of 12 months, at the age of 45 years she might experience ovulation 3 times out of 12 months.''

Dr R in his affidavit undated but sworn on or about 7 October 1987 deposed as follows:

``1. At the hearing of this matter in June 1987 I gave evidence to the court concerning my employment at that time and my prospects for employment in the future. At that time I had just completed a five-week locum as a medical oncologist and I was hoping to commence a position as a Senior Registrar in Medical Oncology at the Royal Adelaide Hospital shortly after the time of the hearing.

2. The position at the Royal Adelaide Hospital did not become available and I have now sought and obtained alternate employment.

3. I have been appointed visiting specialist in Palliative Care at the Lyell McEwin Hospital and I shall be doing three sessions per week at the hospital commencing on Tuesday 13 October 1987. The remuneration of this position will be in the range of $19,000 to $19,500 per annum for the three sessions.

4. I have also commenced private practice in my own right as a Medical Oncologist and have rooms in premises leased by Dr A. We have an arrangement whereby I make a contribution towards overheads commensurate with the work that I bring into the practice. I am presently doing three sessions per week one of which is from premises situate in North Adelaide in the said State, I do one session per week at the Western Medical Centre and I do one session per week at the Central District Hospital. I anticipate that the number of sessions that I do each week will increase as my clients increase.

5. I intend to establish permanent rooms with Dr A within the next few months and discussions are taking place at this stage with a view to taking certain premises. I am not in a position to divulge the whereabouts of those premises until arrangements are finalized.

6. I earn an adequate income to support my wife and the two children A and G.

7. I say that I intend to continue working and living in the State of South Australia.''

The evidence which was before her Honour on 7 October 1987 therefore suggested:

(a) That the wife was not pregnant.
(b) That the wife had left her employment at the Royal Adelaide Hospital and was not working.
(c) That Dr R had obtained an appointment as a visiting specialist in Palliative Care at the Lyell McEwin Hospital earning between $19,000 and $19,500 per annum for three sessions per week. In addition, he had commenced private practice as a Medical Oncologist and intended to continue both working and living in the State of South Australia.

In cases involving the custody of, guardianship of and access to children, it is the proper function of a trial Judge to hear and determine the issues before him or her after a consideration of all the evidence and the submissions of counsel. The decision-making process involves not only the assessment of the character and demeanour of the parties and their witnesses, but also a close analysis of the parties' proposals for the future welfare of the children. A trial Judge has the unenviable task of endeavouring to predict what will actually happen in the future in contradistinction to what the parties themselves allege might happen.

Although in the proceedings before her Honour the wife as part of her proposals for the welfare of the children, gave evidence:

(a) that she wished to have a child;
(b) that she was intending to give up work;
(c) that Dr R either had or was about to have full-time employment in South Australia,

to impose such proposals upon the wife as conditions precedent to her obtaining an order for the custody of her children was not, in our view, an appropriate discharge by her Honour of her duty and responsibility to hear and determine the proceedings, having regard to the evidence that was before her, including each party's proposals for the welfare of the children.

Her Honour, in our view, in the reasons which she gave and the orders which she made subsequently, erred in the following respects:

(a) Her Honour imposed upon the wife as a condition precedent to the latter obtaining an order for custody that she become pregnant. Such a condition, in our view, had nothing to do with the employment either of the wife or of Dr R, and was not one of the matters in respect of which her Honour gave as her reasons for delaying her final decision.
(b) It was unreasonable, in our view, and against public policy, in any event, to require a party to become pregnant, a circumstance over which that party lacked complete control.
(c) To regard herself on 7 October 1987 as functus officio and therefore unable to hear and consider any further evidence in relation to the matter, was a clear error of law.

Although her Honour handed down her reasons for judgment on 6 August 1987 she made no orders and stood the applications over until 7 October 1987. On the latter mentioned day, the learned trial Judge, having ascertained that the condition that the wife shall have become pregnant in the meantime had not been satisfied, thereupon granted the husband custody of the children.

It is clear from authorities such as Carroll v. Price (1960) V.R. 651 at p. 657 and Pittalls v. Shere Fettin (1986) Q.B. 868 at p. 879 that a trial Judge does not become functus officio until after the orders which flow from his reasons for judgment have issued formally from the Court.

A trial Judge may hear further evidence, amend his or her reasons for judgment or change such reasons altogether at any time prior to the final issue of the order from the Court, as we have said. Her Honour was not functus officio on 7 October 1987 and was bound, in our view, to both receive and consider the further evidence, particularly in view of the provisions of sec. 64(1)(a) of the Family Law Act which places the welfare of children above all other considerations.

For these reasons therefore we would allow the appeal.

It was submitted by counsel for the wife that in those circumstances this Court should exercise its own discretion in the matter on the basis of the evidence before the trial Judge and grant to the wife the custody of the two children. Counsel for the husband submitted that if the Court proposed to exercise its own discretion in the matter the proper exercise of that discretion would lead to an order confirming the husband's custody of the two children. Alternatively, each counsel submitted that there should be a new trial of the proceedings.

As her Honour herself observed, the decision which she was called upon to make was finely balanced and depended upon a number of factors, including not only her assessment of the parties and their new partners, but also upon a close analysis of what each party proposed for the future of their children. This exercise must inevitably be much influenced by the opportunity of seeing and hearing the parties in the witness box whilst giving their evidence. In the circumstances of this case we do not consider that it would be appropriate for this Full Court to attempt to exercise its own discretion on a reading of the transcript of the evidence before the trial Judge.

In those circumstances we conclude that the only alternative is to direct that there be a retrial of the applications for custody before another Judge of the Adelaide Registry of this Court and that such retrial take place as soon as is practicable in the circumstances.

Orders

1. The appeal is allowed.
2. There be a retrial of the applications of the parties for the custody of the children, G and A, before another Judge of the Adelaide Registry of the Family Court, such retrial to take place as soon as is practicable in the circumstances.