Gronow v Gronow, was a decision of the High Court of Australia.
It is an important case in Australian Family Law for two main propositions. The first is that there is no presumption at law that children are better off in their mother's custody. The second is that custody is a discretionary decision, and as such, is only to be overturned by an appellate court if there existed an error of law.
Background
The case involved a custody dispute. Under the relevant act, in determining the custody of the children, the court was to regard the interests of the children as the paramount consideration.
Previous High Court authority upon similar provisions in similar acts contained varying comments about the role of a mother in raising children, that on balance appeared to favour the granting of custody to mothers. However it was unclear as to whether this presumption was at law, or was merely an expression of the courts about the tendencies of factual findings. Some judgements, such as that of Glass JA of the NSW Court of Appeal clearly embraced a presumption of mothers winning custody. In one judgement he wrote: 'if the parents have separated, they are better off with their mother'.
This expressed idea of the 'preferred role of the mother' was criticized by other lower courts. Watson J, Fogarty and Lindenmayer JJ held that "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.
Facts
The Gronows were married in March 1972 and had a daughter in 1974. The marriage broke down for multiple reasons, including the mother's consumption of alcohol. The couple 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. 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. 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.
Arguments
The father was granted special leave to appeal to the High Court, who argued that a decision on custody was a discretionary judgement, 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. 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.
Judgment
Custody and the preferred role of the mother
The majority judgment is that of Mason & Wilson JJ, with whom Aickin J relevantly agreed. The judgement is critical of the views expressed by Glass JA in Epperson v Dampney, 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, describing it as apparently based on sociological and psychological perceptions that could not be demonstrated to be true and on which expert opinion fluctuated. The majority endorsed the middle ground in Ludlow v Hobbs, that the mother's role was an important factor to be taken into account in the exercise of the Family Court's discretion.