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 2000 via deductions from Social Security benefits by the Child Support Agency.
He has a lengthy criminal history. In addition to post-separation periods in custody for drug and firearm related offences he was sentenced to 4½ years imprisonment in 1989 for assault and robbery. He was released on parole in 1990. He was convicted conjointly with the mother of fraudulent use of a stolen cheque in 1991 and sentenced to 12 months' imprisonment[2].
[2]The mother happened to be pregnant with R at the time and was released without conviction.
The father also has a long history of illicit drug use, mainly marijuana and amphetamines, dating back to his late teens. Between November 1997 and the end of 1999 the father was a protected police witness in connection with the trial of a prominent drug dealer.
Furthermore, the applicant is a practising homosexual. He was diagnosed with hepatitis C in 1998 and as suffering from the HIV virus in August 2001. The medical evidence is that the HIV infection is chronic but manageable. It is no longer life endangering and cannot be transmitted by normal social contact. His life expectancy is uncertain but his doctors measure it in decades rather than years. His treating physicians regard him as well informed and responsible about risk behaviour and minimisation in relation to his condition. He no longer has any hepatitis C symptoms.
The father is currently living normally in the community. He maintains a home in N, is a volunteer counsellor with an AIDS awareness organisation, does not have a current partner and is gainfully employed at a hospital. Save for the regular medicinal use of marijuana, he claims to have been drug free since mid-1997.
The father filed an application for final contact orders on 18 July 2002. He first sought a disclosure order in an amended Form 3 filed on 16 February 2004. Procedural directions were given at a pre-trial conference for the proceedings to be divided into three stages: the first to consider the question of disclosure as a preliminary issue, the second to decide what the terms of such an order, if any, should be, and the third to hear and determine the fate of the father's principal application for contact.
The mother and the stepfather are united in strenuously resisting both disclosure and contact. They claim that a more appropriate age at which to inform R of the father’s existence is 17 or 18 when she has the maturity and understanding to cope with the news but submit, in the alternative, that if the child is to be told then the mother should be the one to do it on the basis of the belief that being told by anybody else will inevitably and irretrievably undermine the mother-daughter bond.
The particulars on R’s birth certificate record her family name as that of the father’s and identify the applicant as her father. The consensus of Counsel for the parties was that these details cannot be altered under relevant state laws without the father’s consent. Somewhat surprisingly, however, no concurrent application is made by the mother for an order dispensing with that requirement [3].
[3]Consequently, whether there is even power to make a valid order deleting correct particulars in an entry in the New South Wales Register was not canvassed : cf. secs. 18-20 Births, Deaths and Marriages Act (1995) (NSW).
A separate representative was appointed on 18 September 2002 to assist the court in grappling with this conundrum.
On 20 June 2003 a family counsellor furnished a report recommending that the child be informed of the applicant’s existence by an independent professional. An updated family report reaffirming that recommendation was filed on 7 November 2003.
No other expert evidence was adduced by the parties.

Issues

The fate of the father's application for a disclosure order hinges, in my opinion, on the following questions:
(i)Does R deserve to know the truth about her heritage?
(ii)If so, when should she be told – now or later?
(iii)Who should do the telling?
(iv)If it is to be the mother can (or should) she be forced to do so against her will?
My short answers to these questions are:
(i)Yes, in common with all children, R is entitled as of right to know the biology of her personality and her genetic identity. That basic right is guaranteed by international instruments and recognised in Australian family law. It arose at birth and will be extinguished on reaching adulthood. Though fundamental, the right is not an absolute one. Rather, it is qualified by a range of competing considerations, including, but not limited to, the child's best interests and overall welfare.
Both parents share the parental authority and duty to give R correct information about her heritage and the circumstances of her birth. However, the primary responsibility for this rests on the mother's shoulders as the resident parent.
(ii)The right of the child to know, and the corresponding parental obligation to tell, are co-extensive. The appropriate time for honouring the child's right and discharging the parent's duty depends on the circumstances of each case. There is no fixed rule or age limit but it should ordinarily be "as soon as practicable" having regard to the probability of the truth emerging in the foreseeable future despite efforts to conceal it, the child's age and maturity, as well as the practical consequences. In this case that time has arrived.
(iii)Which of the parents should do the telling in a given case is informed and determined by the best interests of the child and other relevant considerations. The mother is the most suitable person in this case to perform that function probably with professional help and support.
(iv)The mother can and will be compelled by a mandatory order to discharge her parental responsibilities for the sake of the child.
Accordingly, for the reasons which I now publish, I propose to grant the husband's application.

Do I have jurisdiction?

There was no challenge to the jurisdiction of this Court to determine the husband’s application for the disclosure order as a preliminary point. The Full Court found or assumed jurisdiction to make orders compelling disclosure of ancestry in Re C and V[4]. However, jurisdiction is conferred by law and not acquired either by assumption or consensus of the parties[5].
[4] (1983) FLC 91-333.
[5] Ridley v Whipp (1916) 22 CLR 381 at 386.
In a legal context the term "jurisdiction" means "authority to decide” [6]. It is to be distinguished from the various powers a court has in the exercise of its jurisdiction [7].
[6] Baxter v. Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142.
[7] Harris v Caladine (1991) 172 CLR 84 at 136.
The effect of s 77 of the Constitution is that the Family Court, as a superior federal court of record, may only be invested with jurisdiction by Parliament with respect to one of the "matters" mentioned in s 75 or s 76 of the Constitution.
The word "matter" in these provisions has been held to refer to "the subject matter for determination in a legal proceeding [8].
[8] In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
A majority of the High Court recently decided that :
"There can be no 'matter' for the purpose of ss 75, 76 and 77 of the Constitution unless the relevant legislation identifies - expressly or inferentially - some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person" [9].
[9]Minister for Immigration and Multicultural and Indigenous Affairs v. B (2004) 206 ALR 130 at 134.
Thus, the question is whether a federal law made under s 77 authorises the Family Court - expressly or by implication - to determine the substantive rights, privileges, duties or liabilities between the parties to this dispute.
This depends on a number of factors, including the nature of available remedies [10].
[10]R v. Commonwealth Court of Conciliation and Arbitration; ex parte Barrett v Opitz (1945) 70 CLR 141.
The Family Court is created by the Family Law Act 1975 ("the Act"). The source of its jurisdiction is to be found in the text of the statute as amended by the Family Law Reform Act 1995 (“the 1995 Act”).
Section 31(1)(a) confers jurisdiction on the Family Court with respect to "matters arising under this Act". Section 31(1)(d) invests the court with jurisdiction in relation to matters in respect of which proceedings may be instituted in the court. Section 33 confers jurisdiction on the court in respect of matters associated with matters in which the jurisdiction of the court may be invoked.
Part VII deals with the subject of children. Jurisdiction is conferred by s 69H(1) in Div. 12 of the Act on the Family Court "in relation to matters arising under Pt. VII". That expression includes proceedings for orders in relation to children and under the injunction provisions of Div. 9, including s68B [11]. Section 69M makes it clear that the jurisdiction conferred by s 69H is in addition to the jurisdiction invested in the court elsewhere in the Act. Section 69H(1), however, is not of itself a conferral of jurisdiction [12]. The source of jurisdiction must be found in other provisions of Pt. VII dealing with one of the "matters" mentioned in s 76 of the Constitution.
[11] ss 65B; 65D.
[12]Minister for Immigration and Multicultural and Indigenous Affairs v. B (2004) 206 ALR 130 at 134.
The main object of Pt. VII is to :
"(e) ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children".
Division 2 of Pt. VII is concerned with the notion of "parental responsibility". This concept is defined by s 61B to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children".
Section 64B(2) appears in Div. 5. It explains the orders that may be made in relation to various aspects of parental responsibility for a child.
Section 65C identifies the persons who may apply for such an order.
Division 8 deals with other matters relating to children and contains s67ZC, a key provision in this case, which relevantly provides :
"(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children".
Despite the express use of the word "jurisdiction" this section has been found by the High Court not to invest the court with jurisdiction in a constitutional sense because it does not refer to any substantive rights, privileges, duties or liabilities, or the persons who can apply for or be made subject of an order under the section [13].
[13] Minister for Immigration and Multicultural and Indigenous Affairs v. B (2004) 206 ALR 130.
Division 9 is concerned with the institution of proceedings for injunctions or mandatory orders in relation to children.
Subdivision F is concerned with the application of Pt. VII to the States. Section 69ZE(1) extends the operation of Pt. VII to the State that either adopts its provisions or refers the matters of parental responsibility for children and/or the welfare of children "or matters that include, or are included in, those matters" [14] to the Parliament of the Commonwealth.
[14] s 69ZE (3).
Queensland referred the majority of its legislative powers with respect to children to the Federal Parliament in 1990 [15].
[15] Commonwealth Powers (Family Law - Children) Act 1990.
Section 69ZF, empowers the Governor-General by proclamation to "declare that all the child welfare law provisions of this Part extend to a specified State"[16]. Such a declaration was made in respect of Queensland two weeks before this matter was heard [17].
[16] s 69ZF(1).
[17] Proclamation GN 6, 11 February 2004.
Accordingly, s 69ZH extends the operation of the welfare "jurisdiction" in s 67ZC beyond the parental responsibilities of parties to a marriage for a child of a marriage to all children in Queensland, whether nuptial or ex-nuptial, and to all parents, regardless of whether they are married, separated, have never married or even lived together.
Thus, in conformity with the High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v. B, the relevant source of jurisdiction in this case is to be found not in Div. 8 (s 67ZC) or Div. 9 (s 68B) of Pt. VII (ss 69H(1) and 69M), but in a combination of Divisions 2 (s 61B), 5 (s64B)(2)), 8 (s 67ZC) and 12(ss 69H(1), 69M, 69ZE(1) and 69ZH).
Whether my analysis of the legislation is entirely correct or not, the parental responsibility provisions of Pt. VII, particularly ss 60B, 61B and 61C, provide ample authority for me to decide an application by a parent of an ex-nuptial child resident in Queensland for an order under s64B, s 67ZC[18], or s 68B.
[18]Minister for Immigration and Multicultural and Indigenous Affairs v. B (2004) 206 ALR 130 at 144.

Do I have the power to make the order sought?

It is sometimes said that exercising jurisdiction is a matter of discretion. However, this statement is apt to mislead. Ordinarily, courts should exercise jurisdiction conferred on them by legislation unless there is a good reason for not doing so. One recognised ground for declining to exercise jurisdiction is the lack of power to make the orders sought [19].
[19] cf. Harris v. Caladine (1991) 172 CLR 84 at 136; Warby v. Warby (2002) FLC 93-091 at 88,791.

What type of order is being sought and is there power to make it?

Part VII provides for two main types of orders: parenting and welfare orders.
A parenting order may deal with issues of residence, contact and “any other aspect of parental responsibility for a child”[20]. The term “parental responsibility”, in relation to a child, means all the duties, powers, responsibility and authority which, by law, each parent has in relation to children [21]. Apart from the primary duty to maintain and the authority to make decisions relating to the care, welfare and development of the child, the precise scope of parental responsibility is undefined.
[20] S64B(2).
[21] S61B.
In proceedings for a parenting order the court may, subject to Division 6, make such order as it thinks proper [22].
[22] S.65D(1).
A parenting order confers parental responsibility for a child on a person only to the extent expressly provided for or necessary to give effect to the order [23].
[23] S.61D(1)(2).
Counsel for the parties submitted that the order sought by the father qualifies as a parenting order within s 64B(a) because it deals with an aspect of parental responsibility for a child [24]. This is known as a specific issues order.
[24] S.64B(2)(d).
However, subsections (7) and (8) of s 64B and the definition in s 60D make it plain that a parenting order can only be “made in favour” of the person on whom, in the case of a specific issues order, it confers duties, powers, responsibilities or authority in relation to the child concerned. This implies that the person must be willing to accept and presumably discharge the duties, powers, responsibilities or authority conferred on him or her by the order [25].
[25] cf. Faulkner v McPherson (1995) FLC 92-630 at 82,320-82,321; In Re CP (1997) FLC 92-741
at 83,991.
A specific issues order can also be “made in favour” of a non-party to the proceedings [26].
[26] Fountain v Alexander (1982) 150 CLR 615 at 634-635.
In making a parenting order a judge may require compliance with its terms and conditions to be supervised by a family or child counsellor or welfare officer[27] or provide for a party to be given any necessary assistance to comply [28].
[27] S 65L(1)(a).
[28] S 65L(1)(b).
Thus, subject to the best interests principle, a specific issues order could (theoretically, at least) be “made in favour” of the father or a court counsellor, for the purpose of conferring on them the responsibility for disclosing the applicant’s biological relationship with her.
Alternatively, if the interests of the child called for it[29], the court may choose to perform the relevant parental responsibility or duty itself [30].
[29] In the Marriage of Fragomeli (1993) FLC 92-393; In the Marriage of Talbot (1993) FLC
92-397at 80,050.
[30] cf. In the Marriage of Chapman & Palmer (1978) FLC 90-510.
However, I evidently do not have power to make a coercive specific issues order compelling the mother to make a disclosure against her will. Thus, if I decided that R should be told and that the best time to tell her was now and the best person to tell her was her mother, then my power, if any, to compel the mother to make the disclosure must come from elsewhere in Part VII.

As mentioned already, s 67ZC invests the court with the auxiliary power to make orders relating to the welfare of children. In Marion’s Case[31] the High Court considered this statutory welfare jurisdiction to be similar to the old parens patriae jurisdiction exercised by the Court of Chancery.
[31] Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218.
The welfare power is very wide and allows for orders to be made requiring a parent to do an act necessary for the welfare of a child [32].
[32] In the Marriage of L and T (1999) FLC 92-875 at 86,392.
The protective element of this power probably allows for orders to be made of the kind applied for here if, and only if, compulsory disclosure was seen as being for the overall benefit of the child [33].
[33] cf. Re Marion (1992) 175 CLR 218.
In addition to its power to make parenting and welfare orders this Court is authorised by sections 68B and 114 to make orders or grant injunctions in relation to children (including ex-nuptial children) in aid or instead of other forms of relief.
Section 114(3) is confined to the granting of “injunctions”. It says nothing about the making of “orders”. The distinction between an "order" and an "injunction" generally and the grant of power to make disclosure type orders in the interests of a child in custody proceedings was considered R v Bell; ex parte Lees.[34] In that case the High Court confirmed the power of a judge of this court to make orders compelling a person, even a third party, to disclose information relating to the address of a party in its inherent jurisdiction (per Gibbs J) or by virtue of s 70(6)[35] of the Family Law Act1975 (per Stephen J) and pursuant to s 114(3) of the Act (per Aicken and Wilson JJ).
[34] (1980) 146 CLR 141.
[35] cf. ss 65AA, 65DA, 65LA, 70NB to 70NR, especially 70NG.
There is also a power of uncertain width granted in s 34(1) of the Act “in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the court considers appropriate”[36].
[36] cf. Finlayson v Finlayson & Gillam (2002) FLC 93-121 at 89,248.
As well as the powers expressly or impliedly conferred upon it by legislation, the court has authority to do "whatever is incidental and necessary to the exercise of (its) jurisdiction and proper exercise of any powers conferred by legislation" [37].
[37] Harris v. Caladine (1991) 172 CLR 84 at 136.
The duty to protect the rights of the child imposes a positive duty on the court to watch over and safeguard the interests of the child even if the parents themselves are not pressing those rights[38]. This would include a power to issue a mandatory injunction for the protection of the child or, semble, the vindication of her rights[39].
[38] In the Marriage of Warne (1977) FLC 90-241.
[39] K v Minister for Youth and Community Services (1982) 1 NSWLR 311 at 326-327.
By necessary implication, the Family Court has power to make an order binding on one or other of the parents of the subject child.
The orders sought here are concerned with the relationship between the parents of a child. In effect, they seek to enforce an alleged aspect of parental responsibility through mandatory orders requiring the mother or some other appropriate person to take positive action in respect of the child. Division 12 of Pt. VII supports the making of such an order or orders.
Accordingly, I find that I have both the authority and power to make a specific issues order "in favour of" the father or some other appropriate person entitling them to inform R of her birth circumstances. There is no suggestion, however, even from the father himself that he is the best person to impart the relevant information to R. The reasons are obvious. The child has no knowledge of or attachment to him.
The only other candidates for an order under s 64B are a court-appointed counsellor or welfare officer.
Alternatively, the obligation could be discharged by the court itself in substitution for the parents.
I find also that power exists to make a mandatory order or issue an injunction "against" the mother under either the welfare jurisdiction in s 67ZC or incidental to the wider jurisdiction conferred in Div. 12.
I propose to exercise the jurisdiction and to make appropriate orders in the application.

What principles govern my determination of the issues?

There is no onus of proof as such. It is for me to balance all relevant factors for and against and exercise my discretion accordingly.
In Re C and V, the Full Court observed in this regard :
“[T]o make an order compelling disclosure, there would need to be evidence and material which clearly showed that it was necessary to protect (the child’s) welfare”[40].
[40] (1983) FLC 91-333.
This means that I must have more than a belief in truth or in the need or right of children to know their origins. I would need to be firmly satisfied on clear and convincing evidence that a disclosure order was in R’s best interests and otherwise appropriate[41].
[41] cf. In Re Marion (No. 2) (1994) FLC 92-448.
The best interests of the child must be regarded as the paramount consideration in deciding whether to make a particular parenting order (other than a child maintenance order) by virtue of s 65E. There is a corresponding provision in s 67ZC(2) with respect to welfare orders as well as those requiring a family and child counsellor or a welfare officer to supervise or to assist a party in complying with a child related order [42].
[42] s 65L(2).
However, the so-called best interests or paramountcy principle operates only to decisions to which the Act expressly says it applies[43].
[43] B v B (Re Jurisdiction) (2003) FLC 93-136 at 78,270
The Full Court was divided in Flanaghan and Hancock [44] on the question whether the paramountcy principle applied to the auxiliary use of the s 68B power in connection with child welfare type issues, but unanimously agreed that whether it was a decisive factor or not it was certainly a relevant and important one in determining such matters.
[44] (2001) FLC 93-074.
In The Marriage of Bennett [45] the Full Court said at 88-950 :
" . . . the current power in s 68B to grant an injunction in relation to a child is not subject to the express legislative requirement that the court must regard 'the best interests of the child as a paramount consideration', and in this regard is to be contrasted with the powers, for example in s 65E to make a parenting order, or in s 67ZC to make an order in relation to the welfare of a child"
[45] (2001) FLC 93-088.
The true nature of the present application suggests to me that it should, in the main, be governed by a combination of s 67ZC (which provides the general power of the court to make orders relating to the welfare of children) and s 68B(1) (which authorises the making of injunctions or mandatory orders for the welfare of the child), rather than s 64B (concerning parenting orders) or s65D (a generally expressed provision concerning children's orders) and s 114(3) (a wide power to grant injunctions and mandatory orders).
Thus, in my opinion, the overriding principle is that the welfare of the child is the paramount - but not the sole - consideration.
In its application to particular children the best interests principle must presumably refer to their welfare throughout their whole lives, as distinct from merely some part of it. A step providing short-lived advantages but enduring disadvantages for a child should not be taken if, overall, the cost outweighs the benefits. Conversely, short term pain for long term gain may justify the taking of a difficult step.
Here, the mother's right to parent as she sees fit and her interests in doing things her way within the limits of her perception of R’s best interests are also relevant - even powerful and highly influential - factors but in the final analysis do not prevail over the child's interests.

Parental powers and responsibilities

Australian family law focuses attention ". . .away from any idea that parents have rights over their children and towards the principle that parents first and foremost have responsibilities in relation to them” [46].
[46] Dickey A, Family Law, 4^th Ed, Lawbook Co, Sydney, 2002 at 328.
The policy of Pt. VII is to ensure that children receive adequate and proper parenting to help them achieve their full potential and that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
The definition of parental responsibility deliberately omits any reference to rights in order to discourage any perception the parents own, or have some form of property in, their children.
The aim of parental responsibility is not simply to allow a child to safely make it to adulthood but to enable the child to achieve his or her full potential as a person. This is made clear by the express objects of Part VII which is set out in s 60B(1).
The principles underlying those objects are also important. They are that, except when it is or would be contrary to the child’s best interests, children have a right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together; children have a right of contact on a regular basis with both their parents and, finally, parenting is a shared responsibility[47].
[47] s 60B(2).
In B and B: Family Law Reform Act 1995[48] the Full Court held that the objects and principles stated in s 60B should be taken into account by the Court in a general way, but should be read subject to the fundamental principle that the best interests of the child are the paramount consideration in proceedings to which that principle expressly applies.
[48] (1997) FLC 92-755 at 84,220
The Act does not provide a list of parental powers, duties, responsibilities and authority that fall within the scope of the broad notion of parental responsibility. However, it is clear from other provisions of the Act that parental responsibility gives a parent the power (or authority) to make decisions relating to their long term or day to day care welfare and development of their children. Otherwise, apart from the main duty of parents to maintain their children, the practical content of the concept of parental responsibility is unstated.
The legislation makes it perfectly plain that parental responsibility for children remains unaffected by parental separation, their current marital status or the child’s current living arrangements[49].
[49] s 61C.
In the eyes of the law the parent who has less time with the child is no less important in his or her life.
Consequently, on its own, residence (whether by court order, agreement or even in default) does not give a resident parent sole decision making power for day to day matters [50] nor does it take away any aspect of the non-resident parent’s responsibility for the long term welfare of the child [51].
[50] s 64B(3).
[51] s 61C.
Thus, in the modern world, the father of an ex-nuptial child is treated no differently from the father of a child born in wedlock and the child's statutory right of regular contact with each parent under the 1995 amendment suggests a strong legislative assumption that contact between a child and both its parents will ordinarily be regarded as being in the child's best interests.
Nonetheless :
". . . while the fact of parenthood is an important and significant factor in considering which of the proposals best advance a child's welfare (now best interests), the fact of parenthood does not establish a presumption in favour of a natural parent nor generate a preferential position in favour of that parent from which the court commences the decision making process"[52].
[52] Re Evelyn (1998) FLC 92-807 at 85,106.
In welfare (or parenting) cases where there are no contra-indications, the rights of the child and the s 60B principles may be decisive because, apart from anything else, they are likely to accord with what is in the best interests of the children in such a case.
Each case must, however, be decided entirely on its own merits.

The rights of children and their significance

The legislation recognises and confers significant rights on children.
Sections 60B and 65E of the Act are generally regarded as representing Australia’s obligations under the United Nations Convention on the Rights of Children which was ratified by Australia in 1991 and have been held to give rise to a legitimate expectation that those rights would be considered by decision makers in matters affecting children[53].
[53] Minister for Immigration and Ethnic Affairs v. Teoh (1994-1995) 183 CLR 273.
Furthermore, s 43(c) specifically requires all courts exercising any jurisdiction under the Act to keep in mind the need to protect the rights of children in promoting their welfare. Thus, on any view of the law as it operates in Australia it is appropriate if not essential to have regard to the Convention provisions and to similar human rights instruments ratified by Australia when interpreting the Act so as to avoid arriving at inconsistent interpretations [54].
[54] cf. Al Masri v Minister for Immigration [2002] FCA 1009.
Article 3 of the Convention relevantly provides that in Court actions concerning children the best interests of the child shall be a primary consideration.
Article 7 recognises a child's right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
Article 8 requires signatories to the Convention to respect the right of the child to preserve his or her legal identity, including nationality, name and family relations without unlawful interference.
Article 9 acknowledges the right of children separated from one or both parents to maintain personal relations and direct contact with that parent on a regular basis except if it is contrary to the child’s best interests.
Article 18 obliges ratifying countries to use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
According to Article 2, the Convention rights are to be respected …without discrimination of any kind irrespective of the status, activities, expressed opinions or beliefs of the child’s parents.
Former Victorian Equal Opportunity Commissioner, Moira Rayner, makes the pertinent observation that:
“Children’s rights include the right to information about, and contact with and acknowledgment of, their biological parents, while they are children. This lack can never be made up for when they are adult. Damages are no compensation for a childhood spent without a sense of place. The underlying purpose is explained in article 9 of the Convention, which requires that a child not be separated from his or her parents without “their” - the child’s, as much as the parents - consent. Governments can only allow this to be interfered with when the child’s best interests make it necessary; and then only by judicially reviewable administrative decision in which all parties - not just the parents, not just the State, but the child as well - participate" [55].
[55]Rayner M, ‘In the Child’s Best Interests? Contact and Children’s Rights’ (1997) 12(1) Australian Family Lawyer 1 at 4.
The law relating to children in this country now unequivocally and unapologetically treats children as active shapers of their own lives and able to make decisions independently of adults. In this view parents and the court have responsibilities and duties toward children to help them make appropriate decisions about their own lives. This strongly suggests that the welfare of a child, at least as a general proposition, is likely to be promoted if he or she has an enforceable right to know about their birth parentage, provided that the benefits of knowing this information are not outweighed by the disadvantages to, or infringements on the rights of, others.
Honouring children’s rights involves informing them of and consulting them about issues directly affecting their rights, interests or legitimate expectations. The importance in family law of children’s wishes with respect to their own best interests is expressly recognised in s 68F(2)(a). Thus, not only does R have a legally recognised right to know the identity of her biological father but, even more importantly, she is entitled to participate in the decision-making process involved in determining whether and how her right to develop an independent relationship with him is to be treated in the future. She cannot currently do that because of her mother's deception.
As Ms Rainer correctly points out [56] :
"If we are to acknowledge that children have rights, they have to be enforceable. If they are as important as adult rights, children’s rights have to be more effectively monitored and enforced than any other human rights because children cannot articulate their claims for themselves".
[56] Ibid at 1.
Parental responsibility is about much more than exercising parental rights or power over children. It encompasses protecting and respecting the child’s rights even where they collide with their parents’ contrary views or conflicting interests.
Furthermore, parental authority over a child wanes as he or she grows older and marches inexorably towards majority.
In Gillick v West Norfolk and Wisbech Area Health Authority[57] Lord Scarman succinctly stated the current common law position :
“Parental right yields to the child’s right to make its own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
[57] (1986) AC 112.
In Re W (a minor)[58] Lord Donaldson MR observed that a decision by a child who has sufficient capacity to come to a conclusion on a particular matter affecting him or herself must be respected by a child's parent whether they agree with it or not even if it is irrational or unreasonable.
[58] (1993) Fam LR 64.
These principles were unanimously adopted in this country by the High Court in Secretary, Department of Health and Community Services v JWB and SMB[59] (Marion’s case).
[59] (1992) 175 CLR 218.
Accordingly, subject to the best interest principle and the court's supervisory jurisdiction, a child may choose who to have contact with, notwithstanding parental opposition, wherever he or she has sufficient maturity, understanding and intelligence to make a decision on that matter.
Without their parents or the courts children have no effective means of enforcing any of their rights. Logically it must follow, therefore, that one of the “responsibilities” and “duties” of parents is to provide, in a manner consistent with the rights and evolving capacities of the child, the information, direction and guidance needed to express relevant wishes or make appropriate choices.
In my view, R has a right to be informed of her heritage and, as resident parent, her mother has a prima facie obligation to give her that information as soon as practicable. It was in everybody's interests for this child to have been told the truth years ago. This costly and protracted proceeding itself is one of the unfortunate consequences of the mother's previous failure to discharge that parental responsibility.
When parents cannot or will not impartially and voluntarily discharge their duties with respect to their children then the court must intervene in its supervisory and protective role and exercise its coercive powers if necessary to compel them to act in the child’s best interests.
But that does not necessarily mean that R’s welfare or the balance of other relevant considerations requires positive intervention by the court to ensure that she is told the truth now rather than later.

The supervisory role of the Family Court and parental autonomy

While there is a very wide area of discretion, it is nonetheless evident from the scheme of the current legislation that it is not the proper role or function of the court to regulate every matter in issue between separated parents and their children and judicial interference in the performance of an aspect of parental responsibility should occur only as a last resort.
In VR and RR [60], the Full Court relevantly acknowledged that:
"29.. . . [A]ny intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made.
30.In our view, it is not the role of the court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires it.
36.In our view there is much to be said for extending that parental autonomy principle to disputes between separated parents. We think it is a sound principle that the court, when determining issues of parental responsibility, should avoid unnecessary interference with the powers delegated to each of the parents".
[60] (2002) FLC 93-099

The rival contentions of the parties

The first advantage of immediate disclosure advanced by the father is based on the assumption that accidental discovery is inevitable, mainly, but not only, because of the likelihood that R will access her original birth records in the foreseeable future. This, it is submitted, is a highly undesirable and emotionally detrimental way for R to find out and that telling her now in an appropriate way with support will reduce the adverse reaction to the discovery. The argument is a compelling one. R probably cannot be effectively protected forever from discovering the truth unless, of course, the birth certificate was somehow suppressed or altered so as to obliterate any reference to the applicant father.
Telling her also has the benefit of showing respect for her right to know where she comes from.
An obvious disadvantage is that R may even feel anger and resentment towards her mother and her stepfather however or whenever she is told and she may cope with this better when she is older.
There is the added risk of transference of the mother’s negative views about the father. This might not necessarily be intentional.
The mother’s primary position, as expressed to the family report writer, is that the need to protect R currently outweighs her right to know.
The mother deposed (at paragraph 45) that in her view …It is impossible to separate the issue of informing [R] of the existence of a biological father, without also informing [R] of [the father’s] criminal history, drug use, medical status as well as his homosexuality.
She expresses an additional worry that exposure to the father’s extended family may have a negative influence on R.
The mother and the stepfather also argue that the father effectively abandoned R 11 years ago and is not genuinely committed to re-establishing emotional bonds with her now. This, they believe, justifies a complete and permanent severance of the biological and emotional links between them. The mother relies on the decision in Lister & Lister [61] where a delay of seven years was used as a basis to refuse renewed contact in the child’s best interests and submits that there is no point in informing R of her parentage if, in the final analysis, an order allowing contact is unlikely.
[61] (1967) 11 FLR 93.
No doubt the mother’s desire to keep R away from what she regards as the undesirable influence of her father and his extended family provides strong motivation for hiding the truth. While it is true that the court could sometimes treat the father as a virtual stranger and conclude that it would not be in the best interests of the child for the father to have contact with him or her: cf. N and H [62], the contact issue is an entirely separate question involving different considerations to be determined on another day.
[62] (1982) FLC 91-267.
There is no basis for saying that the father is automatically disqualified from re-establishing contact with his long lost daughter simply because he is a non-parent. R’s wishes will be an important factor when this question is finally being determined. At that time the inquiry must be – is there any beneficial way in which R’s right to have contact with each parent can be achieved.
The likely outcome of the contact application provides no basis at all for saying that R should not be told who her biological father is.
Although not specifically provided for in the legislation, it is strongly arguable I think that the child should not be deprived of the knowledge of the father merely because he has personal characteristics which the mother disapproves of. The father's basic human rights would be denied if he was not given equal treatment on account of his sexuality.
The mother particularly wants to avoid the stigma that would be associated with what she views as the shameful and embarrassing sexuality and social delinquency of the birth father. Concealment is also seen as a way of giving R the benefit of the status of legitimacy as a member of a "normal" family.
R attends a religious school and is a regular church goer. Her friends are predominantly religious. She is said to have high moral standards which, the mother claims, would become conflicted if she was told about her parentage. The fear appears to be that R may place pressure on herself to hide her father’s lifestyle from her friends for fear of ostracization or alternatively risk social alienation or rejection by those she tells.
While it may be the case that, notwithstanding equality and anti-discrimination reforms and the enlightened attitudes of our more tolerant and permissive modern society to illegitimacy and homosexuality, residual feelings of prejudice can still be found alive and well in some sections of the community there is no reason to think that merely being told the truth about her heritage will result in R being shunned or avoided
Anyway, the higher degree of candour about sexuality and related issues these days considerably reduce pre-existing levels of community disapproval in such matters and, in turn, the real (as opposed to the perceived) need to maintain the pretence that the stepfather is her biological father.
The mother is also against disclosure on the grounds that R currently believes that the stepfather is her natural father. She claims that shattering this belief, especially now, will do more harm than good. R is bordering on adolescence and at a delicate stage of her development. Telling her at this stage, it is argued, would be emotionally distressing and could reflect in poor schooling performance and an adverse reaction at home.
R, according to the mother and the stepfather, is too young to be able to comprehend and understand the motivation for the mother’s subterfuge, and awareness that her siblings do not have the same blood line would strain their relationship and throw her self esteem into disarray.
R’s position within the mother and stepfather’s family and her own self-image may (but is not likely to) be destroyed or adversely affected by telling her of her birth status or giving her generalised information about her father.

The family report

The family reporter made the following observations in her initial report:
"[R’s] position could be considered to children who have been adopted. The difference is that she has a birth certificate providing [the father’s] name and that [the father] is formally seeking contact through the Court process.
The first issue is whether the position can be maintained. Eventually, [R] will have to know about her parent paternity. At some stage, [R] will have access to her birth certificate (eg If she requires a passport, when she requires a driver’s licence.) [The father’s] name is listed as father. There is also the possibility for an accidental disclosure of the information (eg That some member of the extended family could mention [R’s] paternity. Both extended families have links in [W]. [The father] is aware of [the mother’s] home address.) [63]. The stress associated with this Court dispute must be impacting on [the mother] and [the stepfather]. It is an added stress to have to hide the reason for the dispute. Overall there seems to be a layer of stress added to [R’s] life and that of the [mother and stepfather’s] household by not telling her about her paternity".
[63] The mother has subsequently relocated and not informed the father of her whereabouts.
The report goes on to analyse the possible reactions that R may have to being told. The family reporter, however, notes that not telling R now may :
“buy some interim peace, but would exact a heavy price on [R] when she does discover the information. [The mother] and [the stepfather] have the opportunity now to manage the process and work with [R] to help her come to terms with the situation. The alternative is that they could be faced at age 17/18 with an angry young woman.”
The report writer continues:
"Not telling her also opens at least three other scenarios. [R] has lost the opportunity to have a childhood relationship with [the father]. Secondly, if something happens to [the father] in the interim and [R] never has the chance to get to know him, she could well resent [the mother] and [the stepfather] for having denied her that opportunity. Thirdly, not telling her also excludes her from any contact with her father’s extended family.”
The report writer is of the opinion that the parents would need the assistance of a counsellor or social worker in talking to R about her biological father. She says that the telling can be seen as a process rather than a single event and that the counsellor would also work individually with R. An appropriate person could be selected by the children’s representative.
The family reporter suggests that the most appropriate time has long since passed. However, she says further delay would only aggravate the situation. The sooner the child finds out the more time she has to come to terms with the information. Telling her now before she reaches the turbulence of adolescence and grappling with other important teenage issues would be better overall.
Regarding the issue of the father’s HIV status homosexuality and criminal record the report writer noted that R should be gradually informed of those circumstances as being told the entire story initially would be likely to be too distressing for her.
I have been warned by Counsel against giving too much credence to the opinions of the family reporter in the absence of reliable or relevant empirical data. I accept the cautionary note they sound but I have little else to guide me other than the opinions she expresses and what small amount of judicial knowledge I can bring to bear on this difficult question. Importantly, the family reporter’s evidence was uncontradicted. I found it valuable. It helped to identify the cost/benefit issues involved and give some insight into the parties, their attitudes and relationship with R and her own capacity to understand and cope with such dramatic information.

The section 68F(2) considerations

The salient s 68F(2) factors guiding the determination of the best interests of the child in this case in a general way are the likely effect of the information, the child's age and level of maturity as well as other personal characteristics such as emotional security and strength; the need to protect the child from potential psychological harm, the parents’ attitude and their approach to the responsibilities of parenthood.
The most influential consideration appears to me to be the short and long term consequences of disclosure.
Paragraph (l) of s 68F(2) extends the inquiry beyond the specified matters to "any other fact or circumstances that the court thinks is relevant". There is, therefore, by express provision of the legislation no limit to the circumstances that may be considered in determining what is in the best interests of the children [64].
[64] B v. B (Re jurisdiction) (2004) 31 Fam LR 7 at 17.
Additional matters to be taken account of under paragraph (l) include :
(a) the recognised rights of the child;
(b) the attitude and genuine concerns of the stepfather;
(c)the father's past connection with the child and his future intentions.
The father's "right" in having information about his daughter's development during her childhood years is also material. So too are the interests of R’s half-sisters.
R cannot currently express any wishes because she does not have relevant information. Her relationship with her mother and stepfather is loving and close. She has no relationship at all with the applicant. There is no question that her mother and her stepfather have the full capacity to provide for the child’s emotional and intellectual needs subject, of course, to their refusal to accept the proposition that, as a general rule, children should know the identity of, and have contact with both their "real" parents.
There is no reason to suspect that the father’s application is motivated by ulterior motives, such as the promotion of so-called gay rights. He says, and I have no ground for doubting, that whether he was lax in the past or not he now wants to develop a meaningful relationship with his daughter. There is no evidence of any morose or morbid purpose stemming from feelings of guilt or the fear of mortality. There are no health, moral or other grounds for saying that R should not know her natural father or have any dealings with him during childhood.
One thing is certain: R has a right to parentage information. At the moment she thinks she has that information. The truth is she doesn’t. The right is not a meaningful one unless she can exercise or enforce it. Her current misapprehension encouraged and induced by her mother is a barrier to her freedom of choice in exercising that right. The bar has to be lifted high enough at least for her to decide whether or not she wants to exercise the right. Her choice has to be a fully informed one or it is really no choice at all.
Moreover, as I have already mentioned, one of the most important duties parents owe their children is to protect and give practical expression to their basic rights. A lie - irrespective of how well intentioned - will rarely be compatible with the discharge of that responsibility.
Thus, in my opinion, this case is about when, not if, R should be told.
Whenever it occurs, disclosing the existence and identity of her natural father is likely to have a profound (but not necessarily wholly negative) emotional and psychological effect on the child. It may change her attitudes and attachments to her family members and place a strain on their future relationships. It could lead to further revelations, emotions, and reactions that will not be necessarily easy to manage and may have unpredictable effects on existing family relationships.
The mother and the stepfather ought to be in the best position to form a view about how R will take the news but they provide me with little practical help because, believing that R can be shielded from the truth forever, they steadfastly refuse to acknowledge such a possibility. In this they are deluding themselves. It is most unlikely that they could secure a formal adoption without the father’s consent, which he is unlikely to give, and they have not even applied for an order authorising the deletion of his name from the birth certificate.
However, I am satisfied, on the basis of the family reporter’s assessment, that R will adjust after a short period and that any emotional psychological harm will be temporary, any damage to her relationship with her mother and the rest of her family will repair over – hopefully a short period – of time. Although the family reporter only saw R briefly during a pretext visit the information she gave and assessment she made in her report is sufficient to satisfy me that she is mature and emotionally strong enough to receive information about the circumstances of her birth now without any lasting detriment. Her ability to cope will obviously depend on a number of unknown factors but the reasons for not telling her, in my opinion, diminish with each passing year.
While she might be more tranquil if she never had to find out there is no practical way, as things presently stand, of hiding this secret from her for ever. If there was, the result might be different. But I can only make the decisions I am asked to based on the information I've got.
The decisive issue in a case such as this from the court's point of view is whether the risk of accidental discovery in the immediate future is so high that R should be exposed to the pain and distress of the truth, perhaps by the mother acting under compulsion, to avoid perhaps even greater potential trauma involved in inadvertent or unregulated self-discovery.
I have to ask myself what are the chances, realistically, of R finding out about her biological history by accident in the near future.
The birth certificate represents a real risk of that happening. The older she gets the more likely chance discovery becomes. In my opinion, she will probably find out before she reaches majority. It's a wonder she hasn't done so already. Under-age (?) sporting fixtures, international travel and an assortment of other routine activities for a girl in secondary school, for example, applying for a part-time job or a learners' permit, all represent an opportunity for accidental discovery. The emotional and psychological harm she will suffer then will probably be worse than it would be now whether her mother tells her or she finds out accidentally.
While the secret about R’s conception and birth may have provided valuable security for the mother and the stepfather while she was young it will increasingly lead to difficulties later on as she matures and questions of identity arise.
The only relevant reported Full Court decision on this issue is Re C and V[65]. In that case a fifteen-year-old boy wrongly believed his mother’s second husband was his natural father.
[65] Re C and V (1983) FLC 91-333.
All the expert witnesses agreed that the boy ought to have been told the truth years before and that some care should be taken to the manner of telling the boy to minimise the trauma and upheaval in his life. They were divided on the issue of when was the best time to tell him the truth.
A psychologist thought the Court should arrange supervised disclosure immediately. A psychiatrist saw no advantage in telling the child straight away but preferred to reassess him at 17 or so and to use the assistance of the Court to ensure that he was told appropriately rather than discovering the truth inadvertently. Another psychologist thought that unless a child was told when he was very young the matter should be deferred until late teens or adulthood when the revelation would be less disruptive and traumatic. He also thought that the particular child would react badly because of his hyperactivity condition.
The mother gave evidence that the child was difficult to manage and prone to sudden outbursts of temper.
Although holding that it would have been desirable in the child’s interest to have told him who his real father was years before and that it would be appropriate for the mother to take this step on her own initiative in the near future at some appropriate time, the Court refused an order compelling disclosure because it was not satisfied that it was necessary to protect the child’s welfare.

In considering the best interests of the boy the Court “gave great weight” to the views of the mother and stepfather and agreed with the finding of the trial judge that the risk of accidental discovery in the immediate future was not so high that the mother should be forced to tell the child the truth. The Court’s approach was based on the absence of any evidence of positive advantages for the child to set against the trauma which he would inevitably suffer through forced disclosure.
I have reached the opposite conclusion in this case because, without any evidence of any dissenting professional opinion, I have no reason to reject the family reporter's opinions or recommendations which I found to be objective, well-informed, coherent and cogent. Moreover, unlike the boy in Re C and V, R has no health or emotional condition justifying a further postponement of the revelation. The risk of accidental discovery is also higher here than it was there.
There is no way of knowing for sure whether the benefits of telling R the truth now will outweigh potential detriments over the longer term but there is no objective evidence that R is so emotionally fragile that the consequences of the truth might be so traumatic as to be contrary to her best interests. Indeed, what scant independent evidence there is suggests that R is a remarkably self-reliant and self-assured young lady who is likely to cope with the burden of this information at this stage of her development.
Overall, I am as satisfied as I can be that the failure to provide the relevant information to R now as opposed to some later time creates an unacceptable risk of inadvertent discovery and a possible worse emotional and psychological reaction. The advantages of telling her in a managed way perhaps with expert assistance outweigh the disadvantages for her of being told the truth at this point in her life. Mismanagement of the timing or imparting of the information could lead to catastrophic consequences for the child and her future relationships.
The alternative is to leave the timing and method of imparting the information to the mother or to chance. I am not willing to leave it to chance as I have serious reservations about whether the mother will ever willingly broach the subject if she can avoid it and even if she does whether she will – or even can – do it properly.
I, therefore, hold that immediate disclosure of the circumstances of R conception and birth under controlled conditions with proper professional support is in her best interests.
If I thought that the mother would voluntarily disclose all material information about the father to R in an unbiased and balanced way before the risk of accidental discovery became even more unacceptable I would stay my hand.
However, my clear impression of the mother and the stepfather was that they would not voluntarily expose their daughter to what they see as needless pain and disruption whatever the experts may think. They are genuine and well meaning but on this aspect of parenting they are seriously misguided. The relevant views and attitudes of the mother and the stepfather are coloured by prejudice and fear. Their protective instincts have become disordered by their bias against the father to the point that they are now unable to promote R’s overall best interests over their own.
Accordingly, I propose to make an order in the form of a mandatory injunction requiring the mother to inform the child of her birth history and (after further argument) to give ancillary directions as to how that should most appropriately be done.
There is an interim injunction currently in place restraining the father from making any contact with R and from informing her or causing her to be informed that he, and not the stepfather, is her natural father. Although the Full Court in Re: C and V expressed a different opinion, it seems to me, with respect, that appropriate safeguards should be put in place to protect R's interests until the father's application for contact orders is finally determined. Despite my tentative assessment that the father is a sensitive and understanding human being who is likely to act honourably in the child’s best interests, the injunctions restraining him from making contact with R should remain as a precaution measure.
The matter will be set down at 10.00 am on 6 August 2004 for further hearing and determination of the form and precise terms of the disclosure order and consequential directions. In the meantime no party should disclose or knowingly allow anyone else to inform R of the identity of her biological father.
I certify that the preceding 182 paragraphs
are a true copy of the Reasons for Judgment and Orders herein of the Honourable Justice Carmody.

………………………………….
Associate

Date: 14 May 2004.