Family Law

Family Lawyers Our Family Lawyers Family Law Useful Links Family Law FAQs Family Law Services Divorce & Separation Defacto Relationships Property & Financial Settlements Domestic Violence and AVOs Custody & Parental Contact Family Court Representation Family Law Articles Financial Disclosure in Family Law Matters New De facto Laws Child Support Act Child Maintenance Trusts Family Law Newsletters Watson and Watson Corporate Homepage Legal Practice Areas Our Motto Our People Contact Watson and Watson

On 16 February 2007, the Full Court of the Family Court of Australia considered the sensitive question of whether a child should be advised as to her true parentage.  The case related to an application by Mr. Walter to have contact with his biological daughter, Nina.  Nina was the second of three children born to Mrs. Brady who was married to Mr. Brady at the time of the birth of all three children.

Mr. and Mrs. Brady separated in 1999.  The three children, aged seven, six and four years, lived with Mrs. Brady following the separation.  Mr. Brady had regular contact with the children and had a particularly close relationship with Nina.   In 2000 Mrs. Brady informed Mr. Brady that he was not Ninas father.

In 2002, Mr. Walter applied to have contact with Nina.  The trial judge acknowledged that it was "better for the child to know the truth" as to her parentage.  However, he nevertheless found that Nina should not be told the truth until she was older and more emotionally mature.

The trial judge based his decision on the fact that Nina had substantial learning and behavioural difficulties, had been diagnosed with an anxiety disorder, and had exhibited features of Asperger's syndrome.  Medical and psychological experts agreed that it was essential for the issue of Nina's parentage to be broached with her, in part because Nina had been complaining of differences between herself and her sisters.   However, there was also psychological evidence that revealing Nina's parentage would be traumatic without proper support and cooperation from Mr. and Mrs. Brady, which support was not forthcoming.  Experts also agreed that it would be even more devastating for Nina to find out the truth accidentally or in an uncontrolled environment.

Ultimately, the trial judge dismissed Mr. Walter's application and Mr. Walter appealed to the Full Court of the Family.  On appeal, Mr. Walter asked that Nina be properly informed that he was her biological father and that Nina be permitted to meet him if she expressed a wish to do so.  He further requested that he be provided regular photographs and school reports on an ongoing basis.

On appeal, Mr. Walter submitted that the trial judge failed to apply the relevant legal principles.  The relevant legal principles were those contained in Part 7 of the Family Law Act 1975 (Cth), in particular the principle that the court must determine the best interests of the child by considering the best interests of the child together with the parents' attitudes to the child and to the responsibilities of parenthood.  Mr. Walter suggested the court should have given more weight to the Bradys' refusal to support the proposal that Nina be told the truth about her paternity contrary to expert opinion that a controlled revelation of the truth was in Ninas best interests.

Mr. Walter also submitted that the trial judge, in his written decision, should have expressly referred to a child's right to know his or her parents and to have a relationship with both parents.

The Full Court found that it was clear from the trial judge's reasons that he applied the correct legal principles to the case.  The trial judge acknowledged that ideally Nina should know her father's identify and had weighed the danger of Nina becoming aware of this information by accident.  Ultimately the trial judge concluded that because of Ninas health and the lack of support of Mr. and Mrs. Brady, Nina should not be told at the present time.

The Full Court found that trial judges decision was discretionary in nature and concluded that none of Mr. Walter's grounds of appeal could be sustained.

The Full Court speculated that but for Nina's particular psychological difficulties and the stance taken by Mr. and Mrs. Brady, Mr. Walter likely would have been successful in his application.

The case highlights challenges associated with implementing important family law principles on a case by case basis.  Section 60B(2) of the Family Law Act 1975 (Cth) clearly states that "children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together".  The legislation is intended to safeguard the best interests of children by ensuring that both parents have a meaningful involvement in their children's lives.  In the present case, the trial judge found that due to Nina's psychological health, it was not in her immediate best interests to be told who her father was or to have him involved in her life in a meaningful way.