Walter and Brady
[2007] FamCA 78
•16 February 2007
FAMILY COURT OF AUSTRALIA
| WALTER & BRADY | [2007] FamCA 78 |
| FAMILY LAW – APPEAL FROM FAMILY COURT JUDGE – CHILDREN –Whether the child should be advised as to her parentage – Whether the child should have contact with the biological father – Evidence of the child’s medical and psychological condition - Best interests of the child – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
Bennett & Bennett (1991) FLC 92-191
CDJ & VAJ (1998) 197 CLR 172
Re C & V (1983) FLC 91-333
W & G Part 1 [2004] FamCA 427
| APPELLANT: | WALTER |
| FIRST RESPONDENT: | BRADY |
SECOND RESPONDENT: | BRADY |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL AID (QLD) |
| FILE NUMBER: | TVF | 1294 | of | 2002 |
| APPEAL NUMBER: | NA | 6 | of | 2006 |
DATE DELIVERED: | 16 February 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | FINN, MAY & CARMODY JJ |
| HEARING DATE: | 15 August 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 December 2005 |
| LOWER COURT MNC: | [2005] FamCA 1337 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Demack |
| SOLICITOR FOR THE APPELLANT: | Anne Murray & Co |
| COUNSEL FOR THE FIRST RESPONDENT: | Dr Sayers |
SOLICITOR FOR THE FIRST RESPONDENT: | JM Madden & Associates |
| SOLICITOR FOR THE SECOND RESPONDENT: | Second respondent appeared in person |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: | Mr Kent |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid (Qld) |
Orders
That the appeal be dismissed.
That there be no order as to costs.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 6 of 2006
File Number: TVF 1294 of 2002
| WALTER |
Appellant
And
| BRADY |
First Respondent
And
BRADY
Second Respondent
REASONS FOR JUDGMENT
FINN J:
The order which is the subject of this appeal will be most conveniently explained after the factual background to the making of the order is explained.
The case before the trial judge, Bell J, concerned a child, Nina, who was born in December 1993 to Mrs Brady, who was at the time married to Mr Brady. However, Nina’s biological father was not Mr Brady, rather it was Mr Walter. In January 1992 Mrs Brady had had a child, Sarah, who was Mr Brady’s child. Subsequently in May 1995 Mrs Brady had another child, Cara, who was also the biological child of Mr Brady.
Mr and Mrs Brady separated in 1999 with the three children remaining living with their mother, but having regular contact with Mr Brady with whom all three children, particularly Nina, have a close relationship. In early 2000, the mother informed Mr Brady that he was not the father of Nina.
On 8 July 2002 an application was filed by Mr Walter that he have contact with Nina. That application came on for hearing before Bell J in June-July 2004.
It apparently became clear during that hearing in mid-2004 that there was a preliminary issue as to whether and how the child should be informed that Mr Walter was in fact her biological father. The hearing was therefore adjourned apparently for the preparation of expert reports and for counselling for Mr and Mrs Brady.
On 8 September 2005 Mr Walter filed an amended application seeking orders that Nina be informed he was her biological father, and that for this purpose there be detailed orders for professional assistance for the child and for other parties involved in the case.
The matter came on for further hearing on 21 November 2005.
On 16 December 2005, Bell J delivered reasons for judgment and made an order that “(t)he application filed by Mr Walter be hereby dismissed.”
Mr Walter now brings this appeal against that order. Broadly summarised, his grounds of appeal are that his Honour erred in his application of principle, in the adequacy of the reasons which he provided for his decision, and in the weight which he attached, or did not attach, to certain matters. The grounds of appeal are set out in full in the joint judgment of May and Carmody JJ which I have read in draft form.
The appeal is resisted by the mother, Mrs Brady. Mr Brady, who appeared at the hearing of the appeal, informed us that he did not wish to be heard on the appeal.
The Independent Children’s Lawyer also resisted the appeal, having at trial adopted the position that it was not in Nina’s best interests, given her emotional frailties, to be informed of her parentage without the co-operation and support of Mr Brady and Mrs Brady.
The Adequacy of the Reasoning of the Trial Judge
Because one of the challenges to Bell J’s order is that he failed to give sufficient reasons for his decision (Ground 7), it is necessary to set out at some length the following salient passages of his reasons; these passages commence after his Honour had provided a brief factual background, and explained the proceedings which had been before him:
3.[Nina] is unfortunately not emotionally well. She has been diagnosed suffering from Asperger's syndrome, level 5, and she does have some emotional difficulties, particularly in schooling. …
4.There is a general consensus between the experts, [Nina’s doctors] and […] a social worker, as well as […], a psychologist, that [Nina] should be told and if it had not have been for [Nina's] emotional fragility, it would have been absolutely essential that she be so told. Both [the doctor] and [the psychologist] are of the opinion, however, that it is absolutely essential in this matter before it is broached before [Nina], that there be tremendous support from what she considers to have been her biological parents, that is, Mr and Mrs [Brady], and in particular [Mr Brady]. [The doctor] was of the opinion that she may benefit from the learning of her parentage because [Nina] has been complaining of some differences between herself and her sisters…. It could provide some resolution of her concerns and maybe some relief of her symptoms as she gains acceptance of her situation.
5.… The period between last year and this year was taken up with informal… counselling of Mr [Brady] and Mrs [Brady]. The reason for this is, as [the doctor] opined, and she is supported by [the psychologist], that notwithstanding it is preferable for [Nina] to know and to know sooner rather than later of the fact that Mr [Walter] is her biological father, it would not be successful unless there was total support and commitment from the [Bradys]. At that stage, that is, last year, the [Bradys] were opposed to telling [Nina] of that fact… because of her emotional fragility. Counselling took place during that period and for a while there appeared to be some movement, particularly from Mr [Brady], towards supporting [the doctor]; in other words, supporting [Nina] in what will be quite a traumatic… revelation to her. However, [Nina's] emotional condition deteriorated in the beginning of this year and she became extremely difficult not only at home but at school, and this has hardened Mr [Brady's] attitude towards revealing to [Nina] the name of her biological father.
6.Mr [Brady] has a close… and loving relationship with his daughter. He impressed me tremendously as a man who has thought deeply about this, who looks upon [Nina] as his daughter and treats her as such and loves her as such. He is only endeavouring to do what he considered to be the best by her, and that is to protect her from this knowledge until he believes she is sufficiently emotionally mature enough to be able to accept what will be… an earth‑shattering revelation to her…. Mrs [Brady]… did not give me the impression that she was as committed to [Nina]'s welfare as perhaps to her own self - I think [the psychologist] also was of that belief….
7.The problem, and it is a large problem, is that all the medical and professional witnesses are of the opinion that it would be more devastating to [Nina] to find out by the grapevine…. Numerous people now know that Mr [Walter] is in fact the biological father of [Nina].... There is a danger that she will be informed either accidentally or by some vindictive person….
…
9.… [T]he attitude of Mr and Mrs [Brady] towards telling the child and supporting her in this revelation has changed remarkably as a result of the extreme deterioration in [Nina's] functioning. …It appears from some other reports, particularly an affidavit of [the psychiatrist]… that perhaps her ability to cope has improved a bit. …
10.Nevertheless, the deterioration in the function of [Nina] in the early part of this year has caused the [Bradys] a great deal of concern. I recognise that it is better for the child to know, but I must confess that I support the opinion of, I think, [the doctor] and in particular [the psychologist] that at this stage it is too early for [Nina] to be informed. I encourage all people who know of the real facts concerning [Nina's] father, that they be extremely careful and they do not be the one who exposes [Nina] to this knowledge. At a later stage Mr [Brady] is… of the opinion that she should be able to be told at a later stage when she is more emotionally mature. With that I agree and consequently I dismiss the applications of the applicant. [EMPHASIS ADDED].
His Honour’s reasons for concluding that the child should not at this stage be told the truth regarding her paternity, and that therefore Mr Walter’s applications for her to be told the truth and for him to have contact with her should be dismissed, are clear to me as a member of this appeal court.
Put shortly his Honour’s reasons were that the consensus of expert opinion was that were it not for the child’s emotional fragility, it would be essential that she be told the truth about her parentage; however, two of the experts were of the opinion that it would also be essential that there be support from Mr and Mrs Brady for the child being told; there was no such support; and therefore his Honour concluded that she should not be told.
Therefore, the test for the adequacy of reasons approved by the Full Court in Bennet v Bennet (1991) FLC 191 is satisfied, and thus the ground of appeal which asserts an inadequacy of reasons on the part of his Honour has not, in my opinion, been established.
The Alleged Failure on the Part of the Trial Judge to Apply Relevant Legal Principles
The same ground of appeal (Ground 7) which challenges the adequacy of his Honour’s reasoning also challenges his application of “relevant legal principles”. Indeed it may well be that the real point of the appellant’s attack on his Honour’s reasons is that no principle is referred to in those reasons.
Similar complaints alleging a failure on the part of his Honour to have applied “relevant legal principles” are contained in a number of other grounds of appeal, being grounds 2, 3 and 5.
It would seem from the precise terms of Grounds 2 and 3, and also from the submissions of Counsel for the appellant, that the relevant legal principles which his Honour is alleged to have failed to apply are those contained in Part 7 of the Family Law Act 1975 (“the Act”), as it then stood, and in particular the principle of the best interests of the child together with the matters contained in the former s68F(2) which were to be considered by a court when deciding a child’s best interests.
For my part I have some difficulty in understanding how the matters contained in the former s 68F(2) could have had any relevance in the preliminary determination which his Honour had to make as to whether, on the evidence before him, the child should be told the truth about her paternity. But to be fair to Counsel for the appellant, the only one of the s 68F(2) matters which she emphasised in her submissions was that (contained in paragraph (h)) which concerned the attitude to the child and to the responsibilities of parenthood demonstrated in this case by Mr Brady and Mrs Brady by their refusal to support the proposal that the child be told the truth about her paternity.
That particular s 68F(2) matter was in fact the subject of a separate ground of appeal (Ground 4), being that his Honour had “erred in failing to ensure” that Mr Brady and Mrs Brady “were required to meet their responsibilities towards the child in line with the expert opinion as to the best interests of the child”.
It should also be noted in this context that two further grounds of appeal assert error on the part of his Honour first, in the significant weight which he accorded to the Brady’s “inability to agree to being involved in the proper and safe telling to the child of her parentage” (Ground 11) and second, in his conclusion that this “inability to agree to be involved meant that they could not be so...” (Ground 12).
It is true that his Honour placed significant, indeed decisive, weight on the opposition of Mr Brady and Mrs Brady to the child being told the truth about her paternity. It is also true that he does not appear to have considered the possibility that they could be compelled by court order to do so, or that there might be other ways of informing the child apart from the involvement of Mr and Mrs Brady.
However the expert evidence of a doctor (psychiatrist) and the psychologist, as recorded by his Honour, was :
“that it is absolutely essential in this matter before it is broached before [Nina], that there be tremendous support from what she considers to have been her biological parents, that is, Mr and Mrs [Brady], and in particular [Mr Brady].”
and
“that notwithstanding it is preferable for [Nina] to know and to know sooner rather than later of the fact that Mr Walter is her biological father, it would not be successful unless there was total support and commitment from the [Bradys].”
The accuracy of his Honour’s recording of the evidence of these two experts was not challenged on the appeal. Given this expert evidence, it is hardly surprising that his honour put the weight which he did on the attitude of Mr Brady and Mrs Brady. In my opinion, his Honour was not wrong in the weight which he attached to this expert evidence and to the matter of the Bradys’ opposition to the child being informed about her true paternity.
Similarly, in my view, his Honour could not be said to be wrong in having failed to consider an order requiring the Bradys to cooperate in, and support the child, in the process of telling her the truth. Again, as his Honour recorded in paragraph 5 of his reasons, there had been counselling of Mr and Mrs Brady for over a year, and while there had been some softening in their opposition, ultimately their attitudes had hardened because of the child’s increased emotional difficulties. As was submitted by the Independent Children’s Lawyer, his Honour accepted “the reality” that Mr and Mrs Brady “were not able to support Nina being told” at the time of the trial.
Furthermore and with respect to the submissions of Counsel for the appellant, to have another person inform Nina of the truth and then to have that person endeavour to support her in coping with that truth, would, in my view, be of little assistance to the child, if the person with whom she lived, being Mrs Brady, and the person with whom she spent substantial time, being Mr Brady, remained (as they did despite extensive counselling) opposed to her being told the truth and unable to totally support her.
In relation to his Honour’s alleged failure to apply relevant legal principles, it is instructive to have regard to what was said by the Full Court in Re C and V (1983) FLC 91-333 at 78 where similar issues arose as arise in the present case:
In our view it would have been desirable, indeed almost essential, in this child’s interests to tell him the truth years ago. In our view it would also be proper for the mother to take this step very soon voluntarily, and at a time which seems most appropriate to her. If she were able to do so, however reluctantly, she may well be sparing D. from the shock of discovery through other means and she may well be able to ensure that he be spared the worst trauma by the support and care of his family.
It does not follow that we consider that her Honour erred in declining to order the mother to tell D. The welfare of D himself is paramount, and what is in his best interests depends on his own circumstances and cannot necessarily be determined by resorting to general principle. [EMPHASIS ADDED]
It is true that in the present case his Honour did not expressly refer to any legal principle, nor indeed does he seem to have even used in the course of his reasons the expression “best interests” of the subject child. However, even a cursory reading of his reasons reveals that his focus was clearly on the best interests of the child and that he gave serious consideration to all the competing arguments. I have certainly not been persuaded that the very difficult exercise of discretion, which his Honour had to undertake in this case, could be said to have miscarried on the basis of any error of principle on his part, or of his failure to refer in his reasons to any particular principle.
Other Matters of Weight
I have considered in the context of the grounds of appeal already discussed, some of the complaints raised by the appellant in relation to the weight accorded by his Honour to certain matters.
As to the remaining grounds of appeal which are directed to matters of weight, and bearing in mind the difficulties that any challenge to a discretionary judgment based on matters of weight must face, I consider that there is no substance in the complaint contained in Ground 8 that his Honour did not have regard to the risk that the child should learn about her parentage from other sources and that this would be contrary to her best interests. His Honour was clearly conscious of, concerned about, and warned against this circumstance occurring in paragraphs 7 and 10 of his reasons which are earlier set out.
The risk that the child might find out the truth in an uncontrolled way was, as his Honour said, “a large problem”. But his Honour clearly weighed this risk or problem against the competing considerations of the attitude of Mr and Mrs Brady and the child’s present emotional state. Another judge might have reached a different conclusion. But that consideration does not, of course, justify interference with his Honour’s decision.
I have some difficulty in understanding the complaint contained in Ground 9 concerning the weight given to “speculated difficulties said to potentially arise from the child being advised of her parentage”. His Honour had before him a great deal of expert evidence (as referred to in the judgment of May and Carmody JJ), much of which obviously had, because of its subject matter, to be of a speculative nature. I have not been persuaded that he erred in the weight given to any particular matter.
As to the complaint contained in Ground 6 concerning the favourable conclusions which his Honour reached regarding Mr Brady, I agree with what is said by May and Carmody JJ in their joint judgment about this matter.
Conclusion
It must be borne in mind that this was of course, a discretionary judgment made in a very difficult and sensitive case. Against the background of the well established principles governing appellate interference with such a judgment, I have not been persuaded that his Honour’s judgment should be disturbed on the basis of the matters raised by the appellant.
I would therefore dismiss the appeal. I am not persuaded that the circumstances justify the making of any order in relation to costs.
MAY & CARMODY JJ:
Mr Walter, who is the father of a child, Nina, appeals against orders made by Bell J on 16 December 2005 where his application about that child was dismissed. The hearing took place over three days, 7 June and 14 July 2004 and 21 November 2005.
The central issue for his Honour’s determination was whether the child, Nina, born 23 December 1993, should have contact with her biological father, Mr Walter. If so, it was understood that this would necessitate the child being told of her parentage including the fact that Mr Brady is not her “natural” father.
At the time Nina was born her mother was married to Mr Brady. They had been married for some years, since 1991. There are two other children, Sarah, born 26 January 1992 and Cara, born 29 May 1995. They are the children of Mr and Mrs Brady. Mr and Mrs Brady separated in 1999. Mr Brady became aware of the fact that he is not Nina’s father during Easter 2002 when told by the mother.
The Judgment
At the outset his Honour said (paragraph 2):
“2.…[Nina's] biological father is Mr [Walter]. [Nina] at this stage does not know of the fact that her biological father is Mr [Walter]. She has a close, warm and loving relationship with Mr [Brady] and it is regrettable that this matter has ever arisen. It is a most sensitive matter. Mr [Brady] has regular contact with his children. As I said, they have a close and warm relationship with him, particularly [Nina].
And at paragraph 7:
7.The problem, and it is a large problem, is that all the medical and professional witnesses are of the opinion that it would be more devastating to [Nina] to find out by the grapevine, if I can put it that way, rather than being confronted by her - as she recognises, father Mr [Brady] and supporting her in this revelation. Numerous people now know that Mr [Walter] is in fact the biological father of [Nina], and I refer to the report of [the psychologist] exhibited to her affidavit filed 18 May 2005, particularly at paragraph 11. There is a danger that she will be informed either accidentally or by some vindictive person, and I would be absolutely staggered if any person was of such a nature that he or she would go out of their way to inform this child or have the child informed without necessary safeguards.”
And later in the concluding paragraph of the judgment in paragraph 10:
“10.Nevertheless, the deterioration in the function of [Nina] in the early part of this year has caused the [Bradys] a great deal of concern. I recognise that it is better for the child to know, but I must confess that I support the opinion of, I think, [the doctor] and in particular [the psychologist] that at this stage it is too early for [Nina] to be informed. I encourage all people who know of the real facts concerning [Nina's] father, that they be extremely careful and they do not be the one who expose [Nina] to this knowledge. At a later stage Mr [Brady] is of the opinion - as I said, I was very impressed with Mr [Brady]. He obviously is putting the child's welfare in his opinion first. Mr [Brady] is of the opinion that she should be able to be told at a later stage when she is more emotionally mature. With that I agree and consequently I dismiss the applications of the applicant.”
Notice of Appeal
The grounds of appeal in the Notice filed 13 January 2006 contained the following:
(1)His Honour erred in dismissing the application of the applicant.
(2)His Honour erred in the application of the relevant legal principles relating to the best interests of the child.
(3)His Honour erred in the application of the relevant legal principles relating to the rights of the child and the responsibilities of the parents.
(4)His Honour erred in failing to ensure that the respondents to the application were required to meet their responsibilities towards the child in line with the expert opinion as to the best interests of the child.
(5)His Honour failed to apply the relevant legal principles as relevant or at all.
(6)His Honour erred in his application of the evidence in the matter and in particular in his conclusion about the second respondent who did not give oral evidence.
(7)His Honour failed to give sufficient reasons in his Honour’s judgment as to the matters upon which he relied and the application of the relevant legal principles.
(8)His Honour failed to give appropriate weight to the evidence that the child would learn of her parentage through other means and in a way that did not provide her with proper support and that situation would be grossly contrary to her best interests.
(9)His Honour erred in apportioning significant undue weight to the speculated difficulties said to potentially arise from the child being advised as to her parentage.
(10)His Honour erred in failing to recognise that benefits may flow from the child being advised as to her parentage.
(11)His Honour erred in apportioning significant weight to the respondents’ inability to agree to being involved in the proper and safe telling to the child of her parentage.
(12)His Honour erred in concluding that the respondents’ inability to agree to be involved meant that they could not be so ordered.
The amended application asked for the following orders:
(1)That the child Nina Brady be properly informed that her biological father is Mr Walter.
(2)That the Child’s Representative arrange and brief (with all necessary documents) an appropriately trained and skilled clinical psychologist to:
(a)Establish a therapeutic relationship with Nina
(b)Establish whether either or both of Mr Brady and Mrs Brady should be involved in the process and if so, to what extent
(c)Inform the child of her parentage, or to properly support Mr Brady and/or Mrs Brady in the proper telling of the child of her parentage
It is noted that the focus of the intervention by parties is the proper and safe telling of Nina of her parentage and not the counselling of either Mr Brady or Mrs Brady.
It is noted that the progress of the therapeutic relationship and the telling of Nina of her parentage is to be done at a pace according to the professional judgment of the psychologist.
That the psychologist be at liberty to discuss the process of the counselling sessions with Nina with:
(a) the child’s representative; and
(b)any therapist the Mother has engaged for the purposes of supporting herself through the process, provided that the therapist’s details have been provided to the child’s representative.
That the psychologist report on the sessions, in writing, to the child’s representative and that the child’s representative cause copies of the reports to be provided to the legal representative for Mr Walter.
In the event that the child expresses a wish to see or meet Mr Walter, or the psychologist assesses that it would be proper and desirable in the therapeutic process or counselling for the child to see or meet Mr Walter, then the psychologist is to:
(a) contact the Child’s Representative and advise her of that; and
(b)contact Mr Walter and make mutually agreeable arrangements.
Mr Walter is to follow all directions given by the psychologist as to his level of participation in such arrangements. The psychologist is at liberty, based on the psychologist’s professional judgment, to terminate any such session if required in the best interests of Nina.
(3)That Mrs Brady provide to Mr Walter:
(a)Photographs (at least 6) of the child every three months and a copy of the child’s school photo when same issues
(b)Copies of the child’s school reports as and when same issue
(c)An update of Nina’s Mental Health progress every 3 months.
Facts
Nina has lived all her life with her mother and sisters. Although her mother and Mr Brady separated in 1999, she, together with her sisters, have regular contact with Mr Brady. Her sisters are unaware that Nina’s father is not the same as theirs.
There is no dispute that Nina has substantial learning and behavioural difficulties, which his Honour referred to as “emotional fragility”.
The expert evidence about the child is very important in this case. It formed the basis of his Honour’s assessment of the child’s capacity and those around her to deal with the information about her parentage. The evidence came from a number of people including the consultant paediatrician, the psychiatrist from the district Mental Health Service, Nina’s special education teacher, the child and family psychiatrist and Nina’s psychiatrist. In addition, the Independent Children’s Lawyer obtained an expert report from Nina’s psychologist. The earlier expert evidence was from the Family Report writer. The report is dated 7 April 2003 and was more directed to the question of whether the child should be told.
The report of the consultant paediatrician dated 20 February 2003 described the occasions on which the doctor saw the child commencing in December 1999. At this time she saw Nina for a respiratory condition. A referral from the general practitioner asked that Nina be seen again by the consultant paediatrician in 2002 because at age 6 the child was presenting with some personality and behavioural difficulties. The doctor’s opinion was that the child had high anxiety levels and “some features of a high functioning Autistic Spectrum Disorder”. When the doctor saw her again in May 2002 there were concerns of high anxiety levels. The doctor reported:
“a lot of aggression at home
…
Further history taken at this time suggested to me that [Nina] did have features of an Autistic Spectrum Disorder and at that stage I wrote to the school, and to get some extra support applied for a Carer’s Allowance and some occupational therapy assessment and input with the anxiety”
In October 2002 the doctor prescribed medication for the child’s anxiety which seemed to lead to some improvements. An urgent assessment by the Child and Youth Mental Health Service was requested.
The child was seen on 12 March 2004 by a visiting child psychiatrist. His report is annexed to his affidavit and recorded that the child continued to have follow up management. The doctor’s notes recorded that there had been episodes of Nina being found lying on the road saying that she wanted to die. (AB p179)
A report was obtained from another child and family psychiatrist. It is attached to his affidavit; the report is dated 18 February 2004. The psychiatrist explains his role and qualifications. He interviewed Nina and her mother in July 2003 and Mr Walter on the same date. In his report he refers to all the reports which were made available to him. On the last page of his report the doctor stated:
“I make a diagnosis of Anxiety Disorder for [Nina]. She has some symptoms at times of separation anxiety from her mother, but not sufficient in duration to diagnose Separation Anxiety Disorder.
…
I conclude that she does not have pathological depression.
I disconfirm [Nina’s] diagnosis of Autistic Spectrum Disorder. I confirm her diagnosis of Anxiety Disorder. I confirm her symptom of psychosis (auditory hallucinations), noting this has little diagnostic importance and no prognostic significance. I disconfirm her diagnosis of depression.
My conclusion is that [Nina] would have the psychological stamina to withstand a disclosure that would reveal the truth about her parentage, as long as this were done sensitively and positively, to prevent a recurrence of anxiety that could have serious negative effects on [Nina].
I am persuaded by the Affidavit [evidence] that the approach [adopted] recommends for such disclosure, and that [the psychologist] indicates she could undertake therapeutically would be a safe enough and effective way to proceed to disclosure, as long as all relevant adults cooperate with it. I recommend that course of action, and suggest that relevant adults be encouraged to cooperate. If they do not, [Nina] may well suffer worse anxiety from tension among the adults in the process towards disclosure or from unplanned disclosure.”
The Independent Children’s Lawyer referred the child for assessment together with Mr and Mrs Brady and Mr Walter. The psychiatrist provided a report dated 2 July 2004 in relation to her interviews of the adults and the child in June, 2004. After an interview with the child and her mother the psychiatrist formed the view that she:
“…does appear to have features of Asperger’s syndrome.
It is my view that [Nina] does exhibit the diagnostic criteria for Asperger’s disorder in that she demonstrates a qualitative impairment in social interaction as manifested by failure to develop peer relationships appropriate to her developmental level and a lack of spontaneous seeking to share enjoyment interests or achievements with other people and a lack of social and emotional reciprocity. In addition she exhibits restricted patterns of behaviour and interests in that she has a persistent occupation with objects such as lip gloss and has an inflexible adherence to non functional routines or rituals (her rituals prior to going to sleep). She does exhibit anxiety in addition and her current behaviours are creating significant problems for her family and jeopardising her school performance.”
Under the heading “Discussion” (AB 152) the psychiatrist said:
“[Nina] does present, in my view, with the features of Asperger’s syndrome. However, it is possible that her feeling that she is different may stem from the initial failure of bonding with her mother and also an awareness of difference between her and her siblings, which may be genetic in origin. She does appear to exhibit a significant disability at present, which has the potential to limit her educational and social opportunities.”
The psychiatrist answered the specific questions raised by the Independent Children’s Lawyer:
“1.It is my opinion that [Nina] should be informed of her biological father. I believe that there may be some resolution in her mind of concern about her differences, that she has an intrinsic right to know of her origins and it is possible that there may be some relief of her symptoms once acceptance is accomplished. As regards the appropriate process it is my view that it should be done within a therapeutic setting and that if they can manage it the appropriate people to tell her would be [Mr and Mrs Brady]. Possible counselling for Mr and Mrs [Brady] could help them to undertake this enormously difficult task for them. I have no knowledge of [the psychologist] but it may be possible that she may be able to undertake the preparation for the family. It is my view that the process should happen sooner rather than later although obviously the optimal time has passed. However, I feel that to wait until puberty or after would create very significant problems for the child. Adolescence is about establishing one’s own identity and to tell [Nina] after puberty would impose an enormous burden on her.
2.The risks of harm and likelihood of harm involved in revealing the information to the child: [Nina] is a concrete thinker who may very well have difficulty in understanding the importance of the information being relayed to her. It is of interest that Mr [Brady] comments that she has believed that divorce would mean that he no longer was her father. In addition she has shown that she has catastrophic reactions to change, that she likes routine and order. I consider therefore that there are some dangers to her in a revelation of such magnitude. I believe that she should be very carefully monitored by a therapist and that any crisis situation may necessitate hospitalisation. I don’t believe that her absorption of the information will be an easy period and I consider that there are some risks to the child but in my view the risks of not informing her are greater. Over time it would become obvious to her that the man she has regarded as her father retains his love and interest in her and this should facilitate the absorption of the information. As regards her siblings my comments are speculative because I have not met them but there are indications that the disclosure of the information would also cause them emotional difficulty. There is a risk that there may be some deterioration in their relationship with [Nina] and also with their mother. However, I believe that there is a very strong likelihood that if the information is not imparted to the child and her family in a controlled way an accidental disclosure will be made and the situation will be very much worse.
3.I have considered the reports [containing the medical evidence]. Obviously all parties have given very considerable thought to the difficult situation. I note that the two who were required to express opinions […] have expressed the view that the child should be informed of her origins and I agree with them.
4.Advice on matters relevant to the issues including the effect of family attachments and relations within the [Brady] family: This is difficult for me to speculate upon in view of the limited nature of my engagement with the family. However, I accept that there is a possibility that the older daughter, [Sarah], may be censorious of her mother, that there may be a rift between the siblings. It appears highly improbable that there will be a rift between [Nina] and Mr [Brady] and if he maintains his interest in the child I think that it is almost certain that her attachment to him will continue. Again I think that the risk of accidental disclosure would result in an increased likelihood of a rift between the mother and her daughters than would her taking the initiative and making the disclosure to them.”
As a result of these recommendations, the psychologist was engaged by the Independent Children’s Lawyer to undertake counselling with Mr and Mrs Brady concerning the possible disclosure to Nina of her parentage and subsequent contact arrangements. She saw them in October and December 2004 and January and April 2005. Her report is dated 11 April 2005. The psychologist is the only person who saw the child and Mr and Mrs Brady close to the final hearing. After the last joint session the psychologist described the position of Mr and Mrs Brady as:
“16. …Mr and Mrs [Brady] described an extreme deterioration in [Nina’s] functioning. She was unable to attend school because of incontinence, violent and aggressive behaviour, and the need to change medication. Mrs [Brady] had taken three months unpaid leave and Mr [Brady] was considering also taking extended leave and moving into [the area] to support the family. As a consequence of this decompensation in her coping, Mr [Brady] was adamant that [Nina] should not be told the truth. He said that she was unstable and unable to cope with the ordinary demands of life at present, and he was fearful of how this new information would affect her.”
Of Mrs Brady the psychologist said at paragraph 19:
“19.Mrs [Brady] said that she was concerned about the effect of learning of her biological father on [Nina]. She also thought that there would be implications for the relationships between [Nina] and her sisters. However, there was a strong sense that Mrs [Brady] was apprehensive of the judgements that would be made by [Nina], her two remaining daughters, and other people on her, and how this would affect their relationships with her.”
Under the heading “Discussion and recommendations” the psychologist provided the following views:
“26.Mr and Mrs [Brady] have also raised the concern about how [Nina] will be affected by the disclosure of her parentage. Despite the disagreement about her diagnosis, it is fairly clear that [Nina] experiences significant psychological distress. There has been a recent escalation in her difficult behaviour in late February/early March. However, prior to this, there had been a period of at least six months where [Nina] had been settled and coping well.
27.The major concern in this issue is that [Nina] will accidentally find out that Mr [Walter] is her biological father. While this was always possible in the future (for example, if [Nina] is named as a beneficiary of Mr [Walter’s] will), the chances of this occurring have escalated with the number of people who know, and with Mrs [Brady] claiming and receiving child support from Mr [Walter].
28.At present, Mr and Mrs [Brady] remain adamant that it is not in [Nina] or the family’s best interests for her relationship with Mr [Walter] to be disclosed. They were also not prepared to commit to any time in the future. Mr [Brady] stated that it was his understanding that they were not able to be forced to do this.
29.The cooperation of Mr and Mrs [Brady] is fundamental to the process of assisting [Nina] to an understanding and acceptance of her situation. It is very clear that this cooperation does not exist, and is unlikely to change in the future. Counselling will not necessarily change this position.
30.This is a very difficult situation. At present, [Nina] is psychologically distressed and to disclose such information would not be helpful. While it is fairly clear that the disclosure of her parentage will have an effect on [Nina], this situation could be handled in a supportive and sensitive manner at a time when [Nina] is more settled, However, the chances of accidental disclosure have increased significantly due to the behaviour of Mrs [Brady]. Finding out by accident will be much more damaging for [Nina].
31.The nature of the relationship between Mrs [Brady] and [Nina] is of concern. While it is understandable that Mrs [Brady] should be concerned about the effect of the truth on her relationship, she does not seem able to separate out her own needs and motivations from that of her daughter. While at face value Mrs [Brady] is concerned about the effect on [Nina], she appears to remain in denial about the potential consequences of this situation. In addition, there seems to be an emerging pattern that any potential situation where disclosure to [Nina] seems more possible, there is a deterioration in [Nina’s] functioning.
32.Despite his reluctance to disclose to [Nina] that Mr [Walter] is her biological father, Mr [Brady] has begun to consider a number of contingency plans. He has had discussions with [a] Counsellor [at] Centacare, for her involvement as a support person for the family. He has also considered how he would handle a situation in which the information about Mr [Walter] was accidentally given to [Nina].
…
34.At this point in time, it is not recommended that [Nina] be told that Mr [Walter] is her biological father. At present, it does not seem that [Nina] will be able to cope with any added pressure.
35.Due to the lack of cooperation by her parents, for both valid and self protective factors, it is not possible to give any time frame for future disclosure. However, major concerns remain that [Nina] will inadvertently find out of her relationship with Mr [Walter] and that the high possibility of it being insensitively and uncontrolled will have negative consequences for her coping.
36.While Mr [Brady] appeared to have gained some assistance in determining ways of managing accidental disclosure, neither Mr nor Mrs [Brady] appear receptive to further counselling.”
The other evidence relied upon by the Independent Children’s Lawyer, who submitted at trial that the application should be dismissed was the evidence of Nina’s Special Education Unit teacher. This included her oral evidence about the child becoming very anxious about seemingly innocuous events, Nina running away from school, the daily “struggle” to get Nina to class, Nina’s difficulties with friendships and an inability to work in a group and obsessiveness and finally, Nina’s desire to be with Mr Brady rather than attending school.
The other aspect of the expert evidence was in relation to how the child could be told if the Court made that decision. After expressing a number of concerns about the child being informed, the Family Report writer for the Independent Child’s Lawyer advanced a scenario in his report which he thought could work “…but only given good will and a sense of positive encouragement on the part of all those concerned.” (Para 147). At paragraph 148 of his report he says:
“148.In the case of the mother and the father, I have to say that I do not consider that they will be able or willing to put a positive complexion on any regime which is going to lead to Mr [Walter] having any part to play in the child’s life, unless they both respond positively to a regime of counselling.”
The ideal that he suggested was that they have a regime of family therapy which would include Nina.
Likewise, the psychiatrist’s conclusions in his report as to how Nina could be told was founded on Mr and Mrs Brady’s ability to support the process. This is contained in the last two paragraphs of his report to which we have already referred.
In the psychiatrist’s oral evidence despite her general support for the idea that the child should be told she said “it is a significant stumbling block”, that Mr and Mrs Brady did not support the child being told and later:
“…I think it is a very difficult decision and I can’t say absolutely that this isn’t going to be very harmful for her, but I think on the information we have it is less likely that it will be harmful to her if she is told in controlled circumstances by people who are concerned about her and if her relationship with them continues.”
The psychiatrist advocated a counselling process be undertaken which the Independent Children’s Lawyer arranged with the child’s psychologist. However, the psychologist viewed the cooperation by the Brady’s as fundamental to the process and recommended against disclosure absent that cooperation. The psychologist reiterated that in oral evidence. The psychologist could not envisage Nina being informed in a therapeutic session without the support of the respondents.
In view of all this evidence it is not surprising that the Independent Children’s Lawyer adopted the position that it was not in Nina’s best interests, given her emotional frailties, to be informed of her parentage without the cooperation and support of the respondent’s.
Further evidence of the Mother
At the commencement of these proceedings we were asked to add to the documents for the appeal book an affidavit of the mother sworn 21 November 2005. In essence this affidavit provided information that the child’s behaviour had deteriorated further and that she had been the subject of a sexual assault. As this affidavit apparently was before the trial Judge it should be included in the material.
Principles
It was not suggested at trial, or on appeal, that there was any doubt that the trial Judge had the jurisdiction to make orders which would have the effect of the child being told about her biological father. We were referred to Re C & V (1983) FLC 91-333 and W & G Part 1 [2004] FamCA 427.
This appeal is against a discretionary judgment. It involves various grounds as argued by counsel for the appellant.
In CDJ & VAJ (1998) 197 CLR 172 at 231 Kirby J touched upon the features applicable to the exercise of discretion in the Family Court. He said:
“186.1. …The reference to ‘plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction”.
And in the judgment by McHugh, Gummow and Callinan JJ:
“140.…
Another judge with different perceptions might make a different order on the same evidence as was before Baker J. The evidence in residency cases is often such that the same body of evidence may produce opposite but reasonable conclusions.
…
152. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G, Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
Appellants’ Submissions
It is appropriate to group the submissions in the order they were argued.
Grounds one to five
Grounds one to five can for convenience be dealt with together. It was submitted that in failing to mention specifically any of the section 68F(2) factors as they then were, his Honour fell into error. Reference was particularly made to paragraph four of the judgment where his Honour remarked “…and if it had not have been for [Nina’s] emotional fragility…” and further in that paragraph:
“…Both [the psychiatrist] and [the psychologist] are of the opinion, however, that it is absolutely essential in this matter before it is broached before [Nina], that there be tremendous support from what she considers to have been her biological parents, that is, Mr and Mrs [Brady], and in particular Mr [Brady]. [The psychiatrist] was of the opinion that she may benefit from the learning of her parentage because [Nina] has been complaining of some differences between herself and her sisters; in particular I refer in passing to the freckles incident. It could provide some resolution of her concerns and maybe some relief of her symptoms as she gains acceptance of her situation.”
In the written submissions it was asserted that:
”9.His Honour has not required Mr and Mrs [Brady] to face up to their responsibilities of parenthood. They have obligations that they are not assuming.
10.Mrs [Brady] has failed to assume her responsibilities, in part, due to factors which are not child-focussed.
As counsel for the respondent correctly submitted, any failure to address the statutory responsibility of the parents is to be read subject to the best interests of the child, which clearly was the focus of his Honour’s attention.
In relation to ground four it was submitted that:
“11.His Honour found, wrongly, it is submitted, that because the[sic] Mrs and Mr [Brady] would not willingly participate in the required process then the outcome should be to halt the process. With respect, that it [sic] not an outcome that takes into account the expert view that the child should be told and with some urgency. There are other means of telling the child.”
In relation to ground five, that his Honour failed to apply the relevant legal principles as relevant or at all, counsel for the appellant referred to Re C & B and W & G (supra). It is difficult to understand this part of the argument. As we have already noted there was no issue as to the Court’s jurisdiction to make such orders and no argument during the hearing about matters of principle.
Ground Six
Ground six asserts that his Honour erred in his application of the evidence in the matter and in particular in his conclusions about the second respondent. It is correct that Mr Brady did not give oral evidence and was not cross examined.
The argument in this respect is that his Honour appeared to place a great deal of weight on his impression of Mr Brady. Reference was made to paragraphs six and ten of the judgment. The argument in relation to this is somewhat obscure. It commences with reference to the fact that on the first day of the final hearing, 7 June 2004, Mr Brady was represented by counsel who was the same person who appeared for the mother. Again, he was represented by the same counsel on 14 July 2004. The hearing was adjourned so that Mr and Mrs Brady could commence counselling in an attempt to see if they would change their opinion about supporting Nina being told about her biological father. The matter returned to Court on 21 November 2005. Mr Brady was not then represented but was present in the Court. He made some brief submissions at the end of the hearing. It was submitted that apart from Mr Brady’s affidavit of 27 February 2004, there was little upon which his Honour could base these conclusions.
In our view that is not correct. His Honour had the expert evidence to which we have already referred which included interviews of Mr Brady and statements made by various experts which supported the conclusions of the trial Judge. The trial Judge also listened to his submissions and was entitled to make conclusions based on those submissions together with the affidavit of Mr Brady.
The other grounds
Whilst it is correct that his Honour did not refer to any legal principles in his decision it must be understood that there was no doubt about the appropriate legal principles to be applied. There was no argument that his Honour could not make the orders as sought.
It is submitted that his Honour should have addressed the legal responsibilities of the parents and the factors to be considered in determining the best interests of the child in terms of the Family Law Act. In addition, it was submitted that his Honour should have referred to the child’s right to know her parents, or to have a relationship with her parents as these are matters contained in the Family Law Act.
Apart from the lack of controversy in relation to legal principles to be applied in this case, it is clear from the judgment that his Honour acknowledged that ideally the child should know about her father’s identity. He discussed at length the attitude of Mr and Mrs Brady and the difficulty they had in dealing with this problem especially in the light of Nina’s serious medical conditions.
Whilst acknowledging that his Honour’s reasons were not lengthy, it could not be said that he failed to give sufficient reasons in the sense that it is not possible to understand how his Honour came to a conclusion.(See Bennett & Bennett (1991) FLC 92-191)
His Honour clearly weighed up the danger on one hand of the child becoming aware of this information by accident as opposed to the clear evidence that despite the fact that it is better for the child to know, it is not possible at this time (because of her health, especially) in view of the lack of support of Mr and Mrs Brady such a step.
It was submitted by counsel for the appellant in the written submissions:
“29.…that the failure by the [Bradys] to willingly accept involvement in the therapeutic process aiming towards the safe and proper telling to the subject child of the parentage, should not have outweighed the interests of the child being served by the knowledge being given to her, not only sooner rather than later, but also in a safe and deliberately therapeutic environment.
…
32.It is the Appellant’s position that the Trial Judge erred in allowing Mr. [Brady] and Mrs. [Brady] to not participate in a process which if done properly, would have resulted in the best interest of the child being served by her being told of her parentage.”
Further, it was submitted that the Court should have made an order which was binding on the parents despite their strongly expressed opinions and that of the expert evidence.
The Independent Children’s Lawyer submitted that it was “within the discretion of the trial Judge to reach the conclusions which he did and no appellable error is demonstrated”. At paragraph 1 of the written submissions reference was made to the reasons and the following summary was provided.
“1.The learned Trial Judge:
(a) acknowledged that the consensus of expert opinion was that [Nina] should be told of her paternity;
(b)found that but for [Nina’s] emotional fragility it would be “absolutely essential” that she be told;
(c)accepted expert evidence, given [Nina’s] emotional fragility, that an essential element was the support of the Respondents to [Nina] being told;
(d)accepted the reality that the Respondents were not able to support [Nina] being told as at the date of Order (Reasons paras 3,4,6 & 10 AB pp.6-9)
We are unable to find that any of the grounds of appeal are sustainable and thus would dismiss the appeal.
Costs
Counsel for the appellant asked that if the appeal is dismissed there be no order for costs because the motivation of the appeal was entirely one of good faith and based on many expert views that this child should be told about Mr Walter being her biological father. The appellant was not legally aided.
Counsel for the mother submitted that as the mother is legally aided an order for costs should be made. The Independent Children’s Lawyer did not ask for an order as to costs.
The Family Law Act provides that subject to a number of provisions each party shall bear his or her own costs. In this case, considering the nature of the appeal and the weight of the expert evidence which, but for the particular difficulties of this child and the stance taken by Mr and Mrs Brady the appellant may have been successful in obtaining the orders that he sought it would not be appropriate to make an order for costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 16 February 2007
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