H v C [1987] ACTSC 81 (14 December 1987)

SUPREME COURT OF THE ACT

H. v. C.
S.C. No. 955 of 1986
Custody and Access

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Custody and Access - competing claims by father and mother of ex-nuptial children aged 6 years and 4 years respectiverly - relevant principles - relevance of the preferred role of the mother.

Infants' Custody and Settlement Ordinance 1956, ss. 6, 17

Director of Child Welfare v. Ford and Anor (1976) 12 ALR 577

Y v. Y (1970) 16 FLR 489

Goldsmith v. Sands [1907] HCA 47; (1904) 4 CLR 1648

Gronow v. Gronow (1979) 114 CLR 513

HEARING

CANBERRA
14:12:1987

ORDER

Until further order the mother have custody of the two children Saul and Abiona.

The father have access to those children every second weekend from Friday evening to Sunday evening, half all school holidays and at such other times as may be agreed between the parties.

DECISION

These are cross applications for custody by the father and mother of two children, Saul, born 18 February 1981, and Abiona, born 19 August 1983. The applications are brought pursuant to s. 6 of the Infants' Custody and Settlement Ordinance 1956 which provides that the court may make such order as it thinks fit regarding the custody of an infant and rights of access of parents, having regard to the welfare of the infant and to the conduct and wishes of the parents.

2. Section 17 of the Ordinance provides that where the custody of an infant is in question the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and shall not take into consideration whether from another point of view the claim by the father or a right of common law possessed by the father in respect of the custody is superior to that of the mother, or the claim of the mother is superior to that of the father. It was held by the High Court (Gibbs CJ, Stephen and Mason JJ) in Director of Child Welfare v. Ford and Anor (1976) 12 ALR 577 that s. 17 applies to all proceedings where custody is in question, even including proceedings between parents and strangers (see also Y v. Y (1970) 16 FLR 489).

3. The mother and father commenced a de facto relationship in Canberra on or about 18 February 1980. In September 1980 they moved to Perth in the State of Western Australia. The mother was pregnant with the first child at the time. In December 1980 they moved to Augusta where Saul was born. After the birth of Saul both parties shared at least equally in the care of the child. The father was working part-time from home as a homeopath and distributing "alternative" literature. He did some voluntary work and involved himself in community affairs. But it is clear that he was in receipt of unemployment benefits from soon after arrival in Western Australia and is still in receipt of social security benefit as a supporting parent. The mother was not working. In about March 1983 the parties moved to Witchcliffe, Western Australia, which is approximately 180 miles from Perth and 20 miles from Augusta. After the birth of Abiona the parties shared the responsibilities and duties of caring for the two children, although the mother disputes that the father contributed equally in those respects after the birth of the second child.

4. It is to be noted that the children have different surnames. When the child Saul was about 12 months old the mother and father decided to change his name in what appears to be a rather bizarre fashion. They decided that he should be known as Saul Ian H. (the father's surname), although the registration at birth was as Saul H. C. (the mother's surname). This explains why Saul is referred to in some of the documents produced in evidence under the name of Saul Ian H.

5. The parties separated in March 1984. The mother left the home in Witchcliffe and went to live in a house in Margaret River, a town approximately 10 kilometres from Witchcliffe. She took the children with her. At that time Saul was aged three years and Abiona six months. Notwithstanding the separation, the father maintained close personal contact with the children. There is a dispute about whether he saw them every day but I am satisfied that he maintained close contact and even stayed overnight with the mother and the two children at Margaret River occasionally. Saul stayed with him in the Witchcliffe house one or two nights a week and sometimes the mother and both children stayed overnight with the father at Witchcliffe. From May 1984 for a period of a few weeks, the mother and children lived with the father at Witchcliffe. Although relations between the mother and father were friendly there was no reconciliation as such.

6. Towards the end of May 1984 the mother moved again with the two children to Karridale, looking after her sister's house, and remained there until early August 1984. During that period the father maintained similar close contact with the children and sometimes stayed overnight at the Karridale house. The mother then moved with the children to her mother's residence in Perth. The father remained in Witchcliffe but travelled to Perth four or five days every two weeks and maintained his contact with both children. In mid-August 1984, with the agreement of the mother, the father took the child Saul on a holiday to Canberra and to his parents' home near Bodalla on the south coast of New South Wales. He returned the child to the mother's care on 19 October 1984. The father resumed residence at Witchcliffe and the mother was living at Prevelly Park in a house owned by her brother and available to her on an indefinite basis at a low rent. At that time discussions took place between the parents and it was agreed that they would each "take primary care responsibility" for the children for two to three months turn about.

7. In November 1984 the father returned to live in Canberra, which he regarded as his home. He lived at the home of the Wotton family and applied for government housing. This move obviously put pressure on the fulfilment of the agreement that the parents would share the responsibility of the children for two to three months at a time. While the father was in Canberra and the children were in Western Australia regular contact was maintained by telephone and by letter. In January 1985 both children travelled to Canberra to reside with the father for three months. This was pursuant to the agreement between the parties. During that time the mother maintained contact with the children by telephone and by letter. The father and the two children travelled back to Perth in April 1985 and the children were returned to the care of the mother. Approximately one week later the father returned to Canberra.

8. In mid-August 1985 the mother brought the children back to Canberra so that they could be in the care of the father pursuant to the abovementioned agreement. At about that time the mother asked the father to consider moving back to Western Australia as she thought it was not in the best interests of the children for them to have to travel between Canberra and Perth for the purposes of spending time with each parent. The mother did not wish to live in Canberra but when the father refused to return to Western Australia she decided that in the interests of the children she would have to live in Canberra. She considered that travelling across the country every few months was too much of a burden for them. She obtained employment on a part-time basis at a women's refuge in O'Connor. The children were living with the father and the mother had access to them roughly three days a week and occasionally overnight. The family would meet in public places for the purpose of surrendering and returning the children.

9. In mid-October 1985 there were further discussions between the mother and father concerning the future living arrangements for the children. The father made it clear that he intended to remain in Canberra. The mother resolved that she would have to find suitable permanent accommodation for herself and the children in Canberra. While she was seeking accommodation and employment, the children remained in the care of the father beyond the agreed three month period on the clear understanding between the mother and father that when the mother had established herself she would resume the role of prime parent for a period equal to the period that they had been with the father. She continued to see the children on average three days a week and they stayed with her overnight from time to time.

10. In February 1986 the mother returned to Perth to collect her belongings and those of the children. She was away for a month but maintained contact with the children by telephone and by letter. From March to mid-May 1986 the children were living with the father and staying overnight with the mother on average two nights a week as well as other times during the day. The arrangements between the parents were flexible and both parents co-operated to ensure that the children spent time with both parents.

11. That tension was beginning to mount is not surprising. The father had been keeping notes of conversations between him and the mother since September 1985. In September 1985 both parents had attended counselling at the Family Court, Canberra, in an endeavour to resolve future arrangements for the care of the children. The mother also started to keep notes from March 1986. She consulted solicitors in May 1986. Prior to the originating summons being issued, the parents had attended the Family Court for counselling on 3 and 13 June 1986 but no agreement was reached. Both parties were displaying at this time a determination to have custody of the children. Disagreements began to occur.

12. These proceedings were instituted by the father by originating summons issued on 17 June 1986. On 20 June 1986 this court ordered by consent:

1.That until further order and pending final hearing

the parties have joint custody of the children
SAUL H.C. and ABIONA H.
2.That until further order and pending final hearing
the parties have care and control of the said
children for one week turn about, the plaintiff to
have care and control of the children for one week
commencing the 20th day of June 1986, from 3.00pm
on that day and the defendant to have care and
control of the children in the following week from
3.00pm on the 27th day of June 1986 and thereafter
in the same manner.
3.That the party not having care and control of the
children in any particular week pursuant to order
2 hereof shall have access to the said children
each Tuesday evening from 3.00pm to 6.00pm.
4.That a report be prepared by an officer nominated
by the Director of Welfare of the Department of
Territories and submitted to the court on the
hearing of the application.
5.That liberty to apply on two days' notice be
reserved to the parties.

13. Two further counselling sessions with the Family Court counsellor failed to bring about a resolution of the dispute over the children. In addition, the mother enlisted the professional assistance of a private mediator, Mr C.R. Foley, a psychologist and a person trained in mediation and conflict resolution skills. At the mother's request he spoke to the father by telephone with a view to inviting him to a mediation session. After some hesitation the father declined to participate in any mediation process. Thus all dispute resolution methods have been tried and all to no avail. The only method left is by the decision of this court. That method has been inordinately expensive, time consuming and no doubt stressful for both parents. It has also aggravated the tension between them. The proceedings took six full hearing days from 23 November to 27 November and 7 December 1987.

14. The general principle to be applied in any case relating to the welfare of young children, whether in the inherent jurisdiction or the statutory jurisdiction, is both long and well-established; it is encapsulated in the following passage in the judgment of Griffith CJ in Goldsmith v. Sands [1907] HCA 47; (1904) 4 CLR 1648 at p 1653:

"It is also settled law that in the exercise of the
paternal jurisdiction of the Court of Chancery the
dominant matter for the consideration of the Court is
the welfare of the child.
In R. v. Gyngall, Kay LJ ((1984) 2 QB 232, 248) said
'The term "welfare" in this connection must be read in
its largest possible sense, that is to say, as meaning
that every circumstance must be taken into account, and
the Court must do what, under the circumstances, a wise
parent acting for the true interests of the child would
or ought to do. It is impossible to give a closer
definition of the duty of the Court in the exercise of
this jurisdiction.' The Court must, however, act
judicially and not as if it were a private person
having an unfettered authority over his child."

15. The hearing of the cross-applications has involved careful scrutiny of the history of the relationship between the mother and father, their present living circumstances, including their associates and their particular relationships with the children. Counsel for the mother did not seek to overstate the important position that a mother occupies in the life of a child and referred to the dicta of the High Court on that subject in Gronow v. Gronow (1979) 114 CLR 513 per Stephen J. at p 522 and per Mason and Wilson JJ. at p 526-528. The correct approach to the formerly accepted presumption that a young child, especially a young female child, is best left in the custody of her mother, is that such a presumption is not, and never has been, a rule of law. It is a canon of commonsense founded on human experience. The weight or value to be given to it has varied with the times and from case to case. I proceed therefore to take it into account as an important factor in this matter.

16. The father was born in Sydney on 8 December 1956 (now 31 years of age). His family moved to the Canberra region when he was 9 years of age, residing at Captain's Flat and Queanbeyan in New South Wales and finally Red Hill in the Australian Capital Territory where the father completed his education. He left home at the age of 18 years after completing Year 12 at Narrabundah High School. He spent a year living in Brisbane and returned to the Australian Capital Territory in 1976. He studied part-time for a Bachelor of Arts (Computing Studies) degree at the Canberra College of Advanced Education for a period of four years. In this period he mainly lived in college residences, being partially supported by his parents and by occasional work babysitting. He completed two years of the three year degree course. When he met the mother in 1980 he had been working full time in a clerical position with the Bureau of Statistics for five months. In addition to his degree course he was doing study in homeopathy with a local practitioner. When the couple moved to Perth in September 1980 the father was able to transfer to a position within the Bureau of Statistics. After three months in Western Australia he resigned from the Public Service and the couple moved to Augusta, Western Australia, just prior to Christmas 1980.

17. The mother was born in Western Australia on 18 March 1955 (32 years of age). She is the fourth of six children in her family. On completing final year High School in 1972 she spent a year in the United States of America as an exchange student. On her return she embarked upon and completed a Diploma course in training the intellectually handicapped. She then did some extensive travelling around Australia in the course of which she worked as a psychiatric nurse, child care assistant, clinical therapist with the Australian Centre for Brain Damaged Children, Melbourne, and as the manager of a health food shop. She met the father of the children one month after her arrival in Canberra. She told the social workers who prepared the report on behalf of the Director of Welfare, which was in evidence, that her relationship with the father was the first significant intimate relationship of her life outside her family.

18. The home in which the father lives is a three bedroom Government house at 8 Hawdon Street, Ainslie, in the Australian Capital Territory, of which he obtained the tenancy on 5 June 1986. He has no significant earnings and is in receipt of a supporting parent's benefit of approximately $290 per fortnight. He described himself in evidence as "technically unemployed". As a pensioner he receives rebates on his electricity, telephone, car registration and rent. The house is adequately furnished. The children share a bedroom which is comfortable and pleasant. Apart from the children he is involved in composing and arranging music and playing in a band. He and the band have had some recent success with one particular song but it is fair to say that that has been his only real achievement in the musical field. It is plain that the father has assumed the role of a full-time parent and he has no intention of taking any full-time employment at least until the children are at high school. He last worked full-time in December 1980. He wants to make his name as a music arranger and composer. As I have already indicated he has had only very modest success in this field of endeavour. The evidence establishes that it is a particularly competitive industry in which it is difficult to achieve any sort of reasonable earnings. He is a member of a band which practises once a week, mostly at his home and otherwise at the home of the Wotton family. Mrs Wotton is a member of the band. When he is not engaged in full-time caring for the children, such as during the off week when they are in the care of the mother pursuant to the interim consent orders made on 20 June 1986, the father occupies himself with his domestic chores and music.

19. The mother shares a four bedroom house with two other women at 13 Eloura Street, Braddon, in the Australian Capital Territory. The other women are Kim Ellis, a single woman aged 23 years and Meredith Regan, a single woman aged 25 years. Kim Ellis works at a local radio station and Meredith Regan works with the mother at the Toora Single Women's Refuge, O'Connor. The three women obtained the lease of the house in August 1987. They had previously lived together in a house in O'Connor for over 12 months. They are very close friends and mutually supportive in all affairs. The mother is employed at the women's shelter as a drug and alcohol counsellor on shift work and she intends to continue that work. Her working arrangements are very flexible. I am satisfied that she is able to arrange her shifts so that she can spend most of her time with the children but otherwise the children would be with the other occupants of the Braddon house. They know and trust Miss Ellis and Miss Regan well. The evidence satisfies me that Miss Ellis and Miss Regan are very suitable and responsible people to have the care of the children when they are not in the care of the mother. The welfare report states that the children's bedroom in the mother's house is brightly furnished and comfortable for their needs.

20. In my opinion there is much force in the mother's contention that she is more financially equipped and more domestically competent to care for the two children. I was not impressed with the father's dependence upon the welfare system for such a long time, particularly in view of his obvious attributes and tertiary education. In addition it is difficult to unravel how he managed to procure a government house except that I am satisfied that there was some misleading information provided by him to the housing authorities concerning his custody of the children. The documentary evidence from the housing authority is inconsistent with a truthful disclosure of his circumstances at the time when he applied for housing accommodation and when the accommodation was allocated to him.

21. He has adopted his full-time parenting role because of his overwhelming determination to provide a home for the children and be the dominant parent in their lives. In so doing he has applied fairly rigid views about education and medical care. On the one hand this attitude may appear commendable, but to focus all one's life upon one's children and in effect to make their upbringing a career is not, in my opinion, in the best interests of the children and must inevitably place undue pressure upon the children themselves. This consequence is referred to in the second Welfare Report, where the authors state that in Saul's case there are indications of "hyper-loyalty - that he possesses an empathic nature and holds concern about his parents' feelings regarding his custody and it is supposed that he is burdened to some extent by the desire to maintain a strong and equal presence in both his parents' homes". In my opinion the children are more likely to be burdened by their father's emotional dependance than by that of the mother.

22. Another example of the father's obsession with the parenting role has been his involvement in school activities at the Ainslie Primary School, particularly during Saul's first year at the school in 1986. His very high anxiety about Saul's first year at school had drawn comment from teachers, although the latest Welfare Report discloses that he has taken a more appropriate backseat approach regarding Saul's education this year.

23. I am in no doubt that the mother has the more flexible and balanced attitude to sharing the children. In other words, I think that she can be more reliably depended upon not to create difficulties over the father's access to the children. It was the mother who resolved to leave Western Australia, where other members of her family reside, and to obtain suitable accommodation and employment in Canberra thus eliminating travelling across Australia, which apparently the father had been prepared to continue so that he could have extended periods of primary care of the children. In my opinion she is more likely to be concerned to allow appropriate access and to continue to recognise the importance to the children of maintaining their relationship with their father in their developing years. This is also reflected in her proposals for the father's access to the children, to which I shall return.

24. An impressive factor in the father's case for custody is that his mother, stepfather and sister live at Potato Point, which is on the south coast of New South Wales and is only about three hours drive from Canberra. The advantages of children having contact, even guidance, from grandparents and family are well accepted and recognised. I was impressed with those three members of the father's family, particularly his mother and sister, as being lovingly concerned about the welfare of the children and desirous of making a contribution to their upbringing. It appears on the evidence, however, that the father has not made a lot of effort to encourage that contact.

25. If the mother is granted custody the children will have some contact with their maternal grandparents and other family on the mother's side by way of holidays in Western Australia or visits by those members of the family to Canberra.

26. The respective claims of the parents are, in my opinion, not finely balanced. I am in no doubt that the mother is to be preferred as the parent who should have primary care of the two children. Notwithstanding some serious errors of judgment in the past, such as taking the children to peace rallies and demonstrations, she emerges as the parent who is more emotionally mature, more stable, more flexible and sensitive to the children's demands and tantrums. The father has coped well but in my judgment he cannot match her quality of care. That is not to say that the father does not qualify in the fullest sense as a fit and proper parent. He should be given the right to play a full role in the children's upbringing consistent with the mother's right to custody of the children. For the purposes of access I shall implement the mother's proposal.

27. I order that until further order the mother have custody of the two children Saul and Abiona, and that the father have access to those children every second weekend from Friday evening to Sunday evening, half all school holidays and at such other times as may be agreed between the parties.

28. I was informed during the course of the hearing that both parties are legally aided. In the circumstances it is inappropriate to make any order for costs.