Heath and Hemming

[2011] FamCA 689

FAMILY COURT OF AUSTRALIA

HEATH & HEMMING [2011] FamCA 689

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the Mother seeks an adjournment of six months – Where time child currently spends with Mother is limited and supervised – Purpose of adjournment – Little prospect adjournment would aid the Court’s future determination of relationship between Mother and child – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Heath

RESPONDENT: Mr Hemming

FILE NUMBER: BRC 11091 of 2008

DATE DELIVERED: 15 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 15 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele of Counsel

SOLICITOR FOR THE APPLICANT: DK Law

COUNSEL FOR THE RESPONDENT: Mr Selfridge of Counsel

SOLICITOR FOR THE RESPONDENT: Wrightway Legal

Orders

1. The application for an adjournment is refused.

IT IS NOTED that publication of this judgment under the pseudonym Heath & Hemming is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11091 of 2008

Ms Heath

Applicant

And

Mr Hemming

Respondent

REASONS FOR JUDGMENT

1. The application before me is an application by the mother that the trial of these proceedings be adjourned for a period in the order of six months.  The essential basis of that application is by reference to two expert reports that are before the court, one of Dr W attached to his affidavit filed 14 April 2011, and also based upon the report of the Family Consultant in an affidavit filed 5 May 2011.  Dr W at the conclusion of his report sets out some considerations which in his opinion are relevant to the question of whether the mother be allowed unsupervised time spent with J, born … July 2004, who is the child the subject of these proceedings.

2. The mother’s counsel, Mr Linklater-Steele, points to the father’s own proposal in respect of the outcome of this trial, and in particular, at paragraph 3.3 of that proposal, which contemplates a period of the mother satisfying a range of conditions as it is described in that document, for a period of 12 months from any orders, and at the end of that 12-month period, for a further report to be obtained from Dr W or a like psychiatrist confirming that J would not be exposed to any relevant risk of harm from unsupervised time.  Mr Linklater-Steele relies on that feature to show that even on the father’s case, this case is at a stage where, by reference to the mother’s relationship with J, there is some question about whether further time would assist in terms of better establishing that relationship before the substantive trial proceedings are determined.

3. Mr Linklater-Steele also points to the features that on the evidence before me, there is no apparently pressing urgency for the proposed relocation in terms of the trial now to allow J to be relocated to New Zealand on the basis essentially that the father has been, and on the evidence, will continue to receive financial support from his own mother.  She has a residence here, so that essentially, it said that in J’s best interests, weighed in the balance, it would be better for the trial to be put off for a period of six months to allow further time to occur and to analyse the issue in particular of the mother’s relationship, meaningful or otherwise, with J at the end of that six month period.

4. For the father’s part, the application for an adjournment is opposed.  The essence of the opposition is by reference to features such as how long the proceedings have been on foot, and the timing of affidavits, and the fact that the trial has been set since some three months ago.  It seems to me the essential question, though, is whether, weighed in the balance, J’s best interests are served by having the trial now as opposed to in a period of six months, and more accurately stated, the benefits or potential benefits of the trial proceedings being delayed for six months.  Parties who bring parenting proceedings and regularly invoke the jurisdiction of the court are entitled to have those proceedings heard and determined, but of course in circumstances where the paramount consideration ultimately of such proceedings is the subject child, obviously in determining an application for an adjournment, the legitimate rights and expectations of the parties must give way where necessary to serving the ultimate aim of having orders made at the conclusion of the trial that are in the best interests of that child.

5. My concern so far as granting an adjournment is concerned, against this background, is the actual purpose that adjournment would serve.  At the moment, and for some time, J has been having alternate weekend time with her mother at a contact centre, and therefore supervised, for only some two hours, plus telephone communication.  I understand that to have been the position now for a significant period of time.  In the six month adjournment period, it is postulated that that would essentially continue.  In the family consultant’s report at paragraph 50 – and by no means do I by referring to these expert reports indicate that I have accepted the opinions, because they are yet to be tested – but on the face of it, on these opinions, at paragraph 50, the family report writer expresses the opinion:

   I do not believe that [J’s] current relationship with her mother could be classified as meaningful.

6. The report writer goes on to express the reasons for holding that opinion.  It seems to me that a substantial risk of simply adjourning this trial for six months would mean that the court is in no better position.  It may well be that the mother establishes a further six months of compliance with the matters referred to by Dr W in his report, but it does not seem to me that there is powerful evidence to suggest that in six months time, the court is going to be in any substantially better position to gauge the meaningful relationship between J and her mother, and the preservation of that relationship in the face of the father’s proposal for her relocation, or that the court is going to be in any better position.

7. It seems to me that the adjournment ought be refused on that basis, and I will refuse it.  However, that is not to say that the orders made at the conclusion of the trial – I may well be persuaded that it is better to make interim orders with a view to reviewing the matter in six months time or some other further period, depending upon the evidence before me.  I can indicate at this stage that I would have obvious reluctance about orders such as those proposed in paragraph 3.3 of the father’s proposal, which would appear on their face to ask the court to confer on Dr W or some other expert its obligations or jurisdiction to make final orders in parenting proceedings.  So at this stage, I simply indicate that I will refuse the adjournment, but that is not to say that upon hearing all the evidence – and in particular, the evidence of Dr W – about arrangements, that it may well be orders framed on an interim basis might serve J’s best interests better than final orders at this stage.  But I am undecided on that point, absent the hearing of the evidence in the case.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 August 2011.

Associate:

Date:  15 August 2011