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…
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- Walter and Brady [2007] FamCA 78
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CaseChat Overview and Summary
The central legal issues before the Full Court were whether the trial judge had provided sufficient reasons for his decision, and whether he had correctly applied relevant legal principles, particularly those concerning the best interests of the child under the *Family Law Act 1975*. The appeal also raised questions about the weight the trial judge accorded to the opposition of Mr and Mrs Brady to Nina being informed of her paternity, and whether he had erred in failing to consider compelling them to participate or explore alternative methods of informing Nina.
The Full Court found that the trial judge’s reasons were adequate, clearly articulating his decision that Nina should not be informed of her paternity at that stage. This conclusion was based on expert evidence indicating that while it was preferable for Nina to know, her emotional fragility and the lack of support from Mr and Mrs Brady made such a revelation potentially devastating. The court held that the trial judge was entitled to give significant weight to the Bradys’ opposition, given the expert opinions that their support was essential for the process to be successful. The court also agreed that the trial judge was not wrong in failing to consider compelling the Bradys to cooperate, as he had accepted the reality that they were unable to provide the necessary support at that time. The court noted that the trial judge’s focus was clearly on Nina’s best interests, even if not explicitly stated, and that his discretionary judgment was not vitiated by any error of principle.
The appeal was dismissed. The court made no order as to costs.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
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:
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
The matter came on for further hearing on 21 November 2005.
8.
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.”
9.
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.
10.
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.
11.
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
12.
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].
13.
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.
14.
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.
15.
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
16.
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.
17.
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.
18.
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.
19.
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.
20.
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”.
21.
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).
22.
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.
23.
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].”
24.
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.
25.
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.
26.
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.
27.
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]
28.
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
29.
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.
30.
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.
31.
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.
32.
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.
33.
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
34.
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.
35.
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:
36.
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.
37.
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.
38.
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
39.
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
40.
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.
41.
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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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