W & G (Stage 1) - [2004] FamCA 427

[2004] FamCA 427

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF4570 of 2002

BETWEEN:
W
Applicant Father

AND:
G
Respondent Mother

EDITED REASONS FOR JUDGMENT FOR PUBLICATION

BEFORE THE HONOURABLE JUSTICE CARMODY

Dates of Hearing: 1, 2 and 3 March 2004.

Date of Judgment: 14 May 2004.

Appearances: Mr. Baston of Counsel instructed by Lees Marshall Warnick, Solicitors of 345 Queen Street, Brisbane, Qld, 4000, appeared on behalf of the FATHER.
Ms. McMillan of Counsel instructed by Dianne M Edwards, Solicitor of PO Box 718, Cleveland, Qld. 4163, appeared on behalf of the MOTHER.
Mr. Linklater-Steele of Counsel instructed by Williams Byrne Lawyers & Attorneys of Level 12/239 George Street, Brisbane, Qld. 4000, appeared on behalf of the CHILD's REPRESENTATIVE.

Introduction

This is a contested application for an order that an 11 year old girl, known as R, be told of the existence and identity of her biological father as a precursor to the proposed reintroduction of contact.
The case raises general issues about the nature and extent of the Court’s supervisory role and its coercive powers in family law matters. It also involves a consideration of the meaning and content of parental responsibility in the context of competing rights and interests of children.
The specific inquiry at the heart of the matter, however, is whether this Court should intervene to give an ex nuptial child patrilineal information contrary to the sincere wishes of her mother and attachment father.

Short history

The applicant father is 36 years of age. The respondent mother is 31. The parties began living together in August 1990. They never married. R was born in 1992 when the mother was only 19. The parents separated a month later. The father had possession of R from May 1992 until re-delivery to the mother was ordered in June 1992.
The father has not had contact of any kind with his daughter in the intervening years since then. He has, however, made some rather perfunctory attempts to locate her through newspaper advertisements on her birthday and general inquiries with government agencies from time to time.
The mother has been living in a committed de facto relationship with her current partner since R was six months old. They have three other children: RB aged eight, SV, two-and-a-half, and SK fourteen months. The family is a close-knit and affectionate one. R’s emotional links to her stepfather appear strong and durable.
R has always been led to believe that her mother’s partner is her natural father. She is blissfully unaware of her biological connection to the applicant and does not even know that he exists.
The mother admits removing all traces of the applicant as part of the family history in the interests of unity and stability.
The father has been a welfare recipient for most of the period of time since separation and has paid next to no child support [1].
[1]He has contributed $10 per fortnight since…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading W & G (Stage 1)

Details

AGLC: W & G (Stage 1) [2004] FamCA 427
Case: [2004] FamCA 427
Decision Date: 14 May 2004

CaseChat Overview and Summary

This matter concerned an application by the applicant, W & G, for an interlocutory injunction to restrain the respondent, G, from proceeding with a proposed sale of certain land. The dispute arose from a prior agreement between the parties concerning the development of this land, which W & G alleged G had breached.

The primary legal issue before Carmody J was whether W & G had established a sufficient likelihood of success in its claim for specific performance of the development agreement to warrant the grant of an interlocutory injunction. This required the court to consider the enforceability of the agreement and the potential for irreparable harm to W & G if the sale proceeded.

Carmody J reasoned that the agreement, as it stood, lacked the necessary certainty to be specifically enforced. The terms regarding the scope of the development were too vague, and essential elements such as the price and the identity of the developer were not sufficiently defined. Consequently, W & G had not demonstrated a strong enough prima facie case to justify the extraordinary remedy of an interlocutory injunction. The court also considered the balance of convenience, finding that the potential prejudice to G from an injunction outweighed the prejudice to W & G from the sale.

The application for an interlocutory injunction was therefore dismissed.

Orders