Gronow v Gronow

Gronow v Gronow,[1] was a decision of the High Court of Australia which confirmed that the ‘preferred role of the mother’ is not a principle, a presumption, a preference, or even a norm. It was an important factor to be taken into consideration, but the precise weight depended on the circumstances of the case. The Court also made it apparent that the primary responsibility for these decision rests with the trial judge and if she has performed her task well and exercised her discretion correctly, there is virtually no room for an appellate court to interfere.

Gronow v Gronow
Court	High Court of Australia
Decided	14 December 1979
Citation(s)	[1979] HCA 63, (1979) 144 CLR 513
Case history
Prior action(s)	Family Court, Evatt CJ, unreported June 1978 Full Court of the Family Court, Watson, Fogarty & Joske JJ, unreported January 1979
Subsequent action(s)	Family Court, Evatt CJ, unreported
Case opinions
5:0 There is no principle or presumption that children are better off in the custody of their mother 4:1 custody is a discretionary decision that an appeal court cannot overturn unless there is identified error.Murphy J dissenting
Court membership
Judge(s) sitting	Stephen, Mason, Murphy, Aickin & Wilson JJ

Background

The Constitution gives the Australian Parliament the power to make laws about marriage, and divorce and matrimonial causes, including the power to make laws about parental rights and the custody and guardianship of infants.[2] The power to make laws about parental rights and the custody and guardianship of infants is part of the divorce and matrimonial causes power included Despite the desirability of such laws in 1901, no comprehensive law was passed until the Matrimonial Causes Act 1959, which provided at section 85 that in proceedings about "the custody, guardianship, welfare, advancement or education of children of a marriage ... the court shall regard the interests of the children as the paramount consideration".[3][4]

There were a series of cases in the High Court, Storie v Storie,[5] Lovell v Lovell,[6] and Kades v Kades,[7] which made comment about the role of a mother in raising children. Some judges, such as Dixon J,[5]^{:p 612} and Latham CJ,[6]^{:p 523} said that this was the usual outcome rather than a rule or presumption, an outcome that McTiernan J said applied when the mother remained at home and devoted herself to the child.[6]^{:p 527} Others such as Rich J,[5]^{:p 607} and Starke J put it more strongly with Starke J holding that "there are the strongest reasons, based on fundamental natural and social laws for holding that, in the absence of very special circumstances, the best interests of the child will be served by leaving it in the custody of one of its parents, and in the case of a female child of tender years in the custody of the mother".[5]^{:p 620} Similarly the High Court held that there was a "strong presumption ... founded on experience and upon the nature of ordinary human relationships, that a young child, particularly a girl should preferably be in a mother's custody.[7]^{:p 254}

Perhaps the strongest such statement,[1]^{:p 527} is found in the judgment of Glass JA in the NSW Court of Appeal:

I am directed by authority to apply the common knowledge possessed by all citizens of the ordinary human nature of mothers. That knowledge includes an understanding of the strong natural bond which exists between mother and child. It includes an awareness that young children are best off with both parents, but if the parents have separated, they are better off with their mother. The bond between a child and a good mother (as this applicant was found to be) expresses itself in an unrelenting and self-sacrificing fondness which is greatly to the child's advantage. Fathers and stepmothers may seek to emulate it and on occasions do so with tolerable success. But the mother's attachment is biologically determined by deep genetic forces which can never apply to them.[8]

The introduction of the Family Law Act 1975,[9] was controversial, however that controversy concerned the introduction of no-fault divorce and the establishment of the Family Court.[4] The law about custody was largely unchanged with the welfare of the child remaining as the paramount consideration.[10] The "preferred role of the mother" was criticised by the Full Court of the Family Court.[11][12] Watson J, Fogarty and Lindenmayer JJ held that "46. We are of the opinion that the suggested "preferred" role of the mother is not a principle, a presumption, a preference, or even a norm. It is a factor to be taken into consideration where relevant" and disagreed with the approach of Glass JA.[11] Similarly Evatt CJ, Demack J and Gun J said "13. ... While the mother's role is an important factor to take into account, especially in the case of a young child it by no means displaces the need for a father or father figure, nor should it be elevated to the status of a 'principle'".[12]

The principles governing a custody appeal were considered in Sanders v Sanders,[13] where the majority, Evatt CJ and Watson J had referred to the principles governing appeals from discretionary decisions in House v King,[14] and Mace v Murray,[15] before concluding that:

34. ... the appeal court may exercise its own discretion in substitution for that of the primary judge only where it is clearly of the view that his decision is not in accordance with the welfare of the child either because he was mistaken as to the facts, or because he took into account irrelevant matters or attached too much weight to some matter or because he failed to take account or sufficient account of some material consideration[13]

Facts

The Gronows were married in March 1972 and had a daughter in 1974. One of the issues during the marriage was the mother's consumption of alcohol, which Evatt CJ found had reached "an unacceptably high level" in 1976 and that the mother "should have realized that she was creating a situation where she might not be fit to see to the child's needs or to deal with any emergency."[1]^{:p 535} They separated in February 1977 with the daughter, then aged 2, living with the father. The father and mother consented to orders in the Family Court in April 1977 which gave the father custody and the mother access. The mother was granted custody for 4 days per fortnight from December 1977. The case came back before Evatt CJ in 1978 who found that the mother had not drunk alcohol since the separation of the parties and that, provided she continued to accept the responsibility of work and refrained from drinking she was not likely to have further problems in regard to alcohol. Evatt CJ found that the qualities of the two parents were fairly equally balanced, each being able to provide properly for the child and each was a fond and devoted parent. The factor that tipped the balance in favour of the husband was the hostility of the mother to the father displayed in the presence of the child.[1]^{:p 535} Evatt CJ ordered in June 1978 that the father have custody and the mother have "reasonable access".

Appeal to the Full Court

The mother appealed the decision to the Full Court, and a majority, Watson and Joske JJ allowed the appeal. Joske J, with whom Watson J agreed, concluded that the maternal grandmother was to be preferred over the paternal grandmother.[1]^{:p 517} Fogarty J dissented, holding that it was inappropriate for an appellate court in a custody case to substitute its own subjective assessment of the evidence for the assessment by the trial judge not only of the evidence but also of the parties as they revealed themselves in the course of the case.[1]^{:p 519}

Arguments

The father was granted special leave to appeal to the High Court, who argued that a decision on custody was a discretionary judgement,[16] and an appellate court was not entitled to substitute its own discretion for that of the trial judge. That is an appeal court could only intervene if the trial judge made an error in the exercise of the discretion.[1]^{:p 514–5} The mother argued that it was proper for an appellate court to exercise an independent discretion in respect of the facts found by the trial judge. Further custody of a young girl should be given to the mother where she was otherwise satisfactory.[1]^{:p 515}

Judgment

Custody and the preferred role of the mother

The majority judgment is that of Mason & Wilson JJ, with whom Aickin J relevantly agreed.[1]^{:p 540} The judgement is critical of the views expressed by Glass JA in Epperson v Dampney,[8] noting there was nothing to support the asserted biological and genetic basis for the relationship. They were also critical of the conclusions of the Family Court in Raby,[11] describing it as apparently based on sociological and psychological perceptions that could not be demonstrated to be true and on which expert opinion fluctuated.[1]^{:p 528} The majority endorsed the middle ground in Ludlow v Hobbs,[12][17] that the mother's role was an important factor to be taken into account in the exercise of the Family Court's discretion.[1]^{:p 528}

Murphy J, one of the architects of the Family Law Act,[4] noted that there had been significant social change since the nineteenth century, particularly the movement of women into the workforce, accompanied by changed attitude to the roles of spouses, including their rights and duties in relation to the care of children. There was little evidence as to the validity of the 'mother principle' and the court should not be acting in the absence of such evidence. This was an appropriate subject for investigation by the Institute of Family Studies.[1]^{:p 531–2}

Stephen J adopted a different approach, delivering what McLennan says is the clearest discussion of the problem.[17] Stephen J emphasised the question of what was in the best interests of this particular child, having regard to the qualities of each of her parents. To say the biological mother is the preferred custodian of young children, especially girls, was a presumption. Such presumptions should play only a very limited role in custody cases, stating "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 this case the trial judge had detailed evidence about each of the parents such that no presumption was necessary. The trial judge had concluded that each of the parents had much to offer the child and there was little to choose between them. As such different minds might form different views as to the best interests of the child.[1]^{:pp 517, 521–2}

Appeals from a discretionary decision

A second issue in the case was the proper function of an appellate court in considering a challenge to the exercise of judicial discretion, such as a decision in a custody matter. The majority of the High Court rejected the proposition that a decision on custody was an inference to be drawn from the facts found by the trial judge, which an appellate court was in as good a position as the trial judge to draw and that Warren v Coombes,[18] had not changed the "settled principles of law" that applied to an appeal from a discretionary decision.[19]

Murphy J disagreed that the role of an appellate court depended on whether the matter was discretionary or not, holding that the duty of an appellate court was to give the judgment it thought was warranted.[1]^{:p 532}

The time since the judgment

The third issue in the proceeding concerned the lapse of time between the decision of Evatt CJ and the decision of the High Court. Stephen J allowing the appeal would involve yet another change in the custody of the girl in circumstances where the elapsed time of a year was more than a quarter of her life. Stephen J would have stayed the operation of the order to allow the mother to apply for a variation of the custody order.[1]^{:p 525} Murphy J would have remitted the matter to Evatt CJ to hear evidence as to the present circumstances of the child and the effect of another change in custody.[1]^{:p 533} The majority however allowed the appeal which restored the child to the custody of the father.[19] Following the handing down of the High Court decision, the mother made a fresh application to Evatt CJ and this application was granted.[20]

Significance

The case is regarded as a significant precedent in the area of presumptions about the role of gender in custody applications. The case is part of the Higher School Certificate legal studies curriculum.[21]

In 1995 the Family Law Act was amended to emphasise the importance of the continuation of joint parental responsibility following the breakdown of parental relationships.[22] In 2003 the Australian Institute of Family Studies submitted that :

• The diversity of families and children’s situations reinforces the conclusion that no single post-divorce arrangement is in the best interests of all children.
• Most studies indicate that the interests of children post-divorce are generally best served when children can maintain ongoing and frequent contact with both parents who co-operate and communicate with low levels of conflict.[23]

Since 2006 the Court is required to "consider whether the child spending equal time with each of the parents would be in the best interests of the child" and whether it was reasonably practicable.[24] The High Court held in MRR v GR that these are statutory conditions which must be fulfilled before the Court has power to make a parenting order.[25]

References

1. Gronow v Gronow [1979] HCA 63, (1979) 144 CLR 513 (14 December 1979), High Court.
2. Constitution (Cth) s 51 Legislative powers of the Parliament subsections (xxi) & (xxii).
3. Matrimonial Causes Act 1959 (Cth).
4. Enderby, K. "The Family Law Act: Background to the Legislation". (1975) 1(1) University of New South Wales Law Journal 10.
5. Storie v Storie [1945] HCA 56, (1949) 80 CLR 597 (14 December 1979), High Court.
6. Lovell v Lovell [1950] HCA 52, (1950) 81 CLR 513 (14 December 1979), High Court.
7. Kades v Kades (1962) 35 ALJR 251 (1 September 1961) High Court.
8. Epperson v Dampney (1976) 10 ALR 227 (17 June 1976) NSW Court of Appeal per Glass JA at p 241.
9. Family Law Act 1975 (Cth).
10. Family Law Act 1975 (Cth) s 64 Powers of court in custodial proceedings.
11. In the marriage of Raby [1976] FamCA 89, (1976) 27 FLR 412 (29 November 1976), Family Court (Full Court).
12. Hobbs and Ludlow [1976] FamCA 100, (1976) 29 FLR 101 (8 December 1976), Family Court (Full Court).
13. Sanders and Sanders [1976] FamCA 47, (1976) 26 FLR 474 (2 August 1976), Family Court (Full Court).
14. House v R [1936] HCA 40, (1936) 55 CLR 499 (17 August 1936), High Court.
15. Mace v Murray [1955] HCA 2, (1955) 92 CLR 370 (2 March 1955), High Court.
16. A subsequent High Court described a discretionary judgment as "a decision-making process in which no one consideration and no combination of considerations is necessarily determinative of the result": Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 203 CLR 194 (31 August 2000), High Court.
17. McLennan, L. "Case notes: Gronow v Gronow". [1980] Federal Law Review 13.
18. Warren v Coombes [1979] HCA 9, (1979) 142 CLR 531 (13 March 1979), High Court.
19. Chisholm, R & Catanzariti, J. "Preference for Mothers in Custody Cases: Gronow v Gronow Note". (1980) 3 University of New South Wales Law Journal 339.
20. Gronow v Gronow (1979) 5 Fam LR 719 editor's note.
21. McCarthy, J (2003). HSC Legal Studies. Macmillan Education AU. p. 122. ISBN 9780732988135.
22. Easteal, Patricia & Harkins, Kate (2008). "Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act". Australian Journal of Family Law. 22: 259. ISSN 0817-623X.CS1 maint: uses authors parameter (link)
23. Caruana, C. "The "joint custody" debate. Where to now?" (PDF). Family Matters No.66 Spring/Summer 2003. Australian Institute of Family Studies. p. 66.
24. Family Law Act 1975 (Cth) s 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.
25. MRR v GR [2010] HCA 4, (2010) 240 CLR 461, High Court (Australia)