McConaghy & Brace & Anor

[2011] FamCA 758

FAMILY COURT OF AUSTRALIA

MCCONAGHY & BRACE AND ANOR [2011] FamCA 758

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment – issue of whether the trial should be adjourned – where Families SA were undertaking further investigations in relation to the welfare of the children – where the Court needs to have before it all relevant and current information – best interests of the children – orders that the trial be vacated and relisted to commence at a later date.

FAMILY LAW – INJUNCTION – application by the maternal aunt seeking the discharge of an injunction preventing her from relocating with the child – best interests – where it is not in the best interests of the child to permit relocation at the current stage of the proceedings – application declined.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr McConaghy

1st RESPONDENT: Ms X Brace

2nd RESPONDENT: Ms Y Brace

INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

FILE NUMBER: ADC 4196 of 2009

DATE DELIVERED: 29 August 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kovacs

SOLICITOR FOR THE APPLICANT: Rhonda Sheehy & Associates

COUNSEL FOR THE 1ST RESPONDENT: Mr Eid

SOLICITOR FOR THE 1ST RESPONDENT: Wendy Botting

COUNSEL FOR THE 2ND RESPONDENT: Mr Tredrea

SOLICITOR FOR THE 2ND RESPONDENT: Condon Charles Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

Orders

UPON NOTING that the father indicates that he will be paying all arrears outstanding in relation to child support.

BY CONSENT IT IS ORDERED THAT

1. The parties’ solicitors and counsel have access to the information in the Department for Families and Communities – Families SA records on the condition that the father not have access to any information disclosing the mother’s residential address or that of the two children D and E such information not to be disclosed to the father SAVE AND EXCEPT upon further order of the Court on condition that the mother keep the Independent Children’s Lawyer notified of any change of residential address within 48 hours of such change.

IT IS FURTHER ORDERED THAT

1. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the infant children E McConaghy born … February 2005 and J Brace born … December 2005 be independently represented UPON NOTING that the Independent Children’s Lawyer already appointed (Nicola Atchison) is extended to cover the children E and J.

1. The trial is vacated for week commencing 29 August 2011 and relisted to 16 February 2012 at 10.00 am for seven days before the Honourable Justice Dawe.

1. Mr H to provide an updated family assessment to be released to the parties and the Court by 18 January 2012 (on the understanding that the Independent Children’s Lawyer will ensure that Mr H has the appropriate information concerning the results of the Department’s investigations).

1. By 16 December 2011 each of the parties to file an updated affidavit of themselves or any witnesses they seek to rely upon.

1. The orders of 2 March 2011 are amended to provide that for the approaching October school holidays the father will pay the sum of FOUR HUNDRED DOLLARS [$400.00] to the mother towards her travel expenses such payment to be made to the mother by 23 September 2011 UPON NOTING that the father will undertake his travel to Adelaide for the December/January 2012 school holiday time spent.

1. During the period of the adjournment the interim orders are continued to the trial.

1. The Court does not grant an application to discharge the injunction restraining the maternal aunt from removing the child J’s residence from her home in Queensland to Adelaide at this stage.

1. Until further order the child J Brace born on … December 2005 live with the maternal aunt Ms Y Brace.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 4196 of 2009

Mr McConaghy

Applicant

And

Ms X Brace

First Respondent

And

Ms Y Brace

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The issue relates to the adjournment of the trial which was listed to commence before me this morning and continue for the five days of this week.  The matter was raised, appropriately, by the counsel for the Independent Children’s Lawyer following upon the affidavit and application in a case filed by the Independent Children’s Lawyer in the middle of August this year.  That affidavit filed on 15 August 2011 sets out information received from a social worker of Families SA in the Limestone Coast office indicating that the Department were undertaking further investigations in relation to the welfare of the children currently in the care of the mother.  That affidavit indicated that the Independent Children’s Lawyer was advised that the investigation would “take some time to complete”, as the Department had only just interviewed the children D and E.

2. I am told from the bar table by counsel for the Independent Children’s Lawyer this morning that a meeting between the Department and the parties, which was at one time proposed to take place tomorrow, will now not take place at least until some time later in September.  Information from counsel also is that the Department are investigating allegations concerning the appropriate care of the children in the mother’s household, involving issues of neglect, the state of the home in which those two children reside, issues in relation to head lice, that there is an allegation that the two children have been smacked by the mother and her current partner and other issues concerning the state of the household, including poor financial management, and the non-payment of significant bills, such as services to the home, and the possible eviction of the family from the Housing Trust accommodation together with issues of the mother’s use of marijuana.

3. Whilst these are all issues which to a certain extent have been the sort of issues that are already before the Court, these are fresh allegations which are actually being investigated by the Department. 

4. At the prompting from the Court this morning, father’s counsel indicated the father consented to be identified as one of the notifiers of some of the concerns.  However, there was a possibility that a care worker who may have been someone who raised issues and who had been interviewed or was to be interviewed by the Department concerning the issues of neglect and the welfare of the children in the mother’s household.

5. Before me this morning, therefore, the Independent Children’s Lawyer’s counsel and counsel for the mother and father did not oppose the adjournment.  Indeed they supported the adjournment, whereas counsel for the aunt who has the care of the child, J, did oppose the adjournment. 

6. The request for the adjournment is based upon the need to consider the outcome of any likely investigation by the Department.  I accept the submissions of counsel for the Independent Children’s Lawyer that the likely outcome is in a wide range between simply “no outcome” and no action being taken by the Department, ranging through to the Department taking steps to remove the children from the mother’s care.

7. This Court is not now in a position to ascertain the likelihood of the outcomes because of the limited amount of information currently before the Court which forms the basis of the investigation.  If it is simply a complaint made to the Department upon which they will not act, then any delay in concluding this trial in this jurisdiction would not be of benefit to the children.  However, there the Court needs to have before it all relevant and current information concerning matters which deal directly with what is in the best interests of all of the children.

8. It appears, therefore, that it is highly likely that matters being investigated by the Department, including interviews with the children, may have considerable influence upon the matters to be determined by the Court in ascertaining what placements for the three children would be in the best interests of those children.

9. I have given careful consideration to the appropriate submissions made by counsel for the aunt in opposition to the adjournment.  I accept that there are significant differences in some of the issues in relation to the child J (in particular in relation to whether the child J resides with the aunt or with the father) and that many of the issues in relation to the mother’s household would not directly relate to that decision.  However, the decision will relate to all three children.  I am concerned that it would not be appropriate to attempt to split some of the issues dealing with what is in the best interests of the child J from those issues which relate to the best interests of the other two children and, indeed, the issues which relate to what is in the best interests of all three children.

10. I am concerned for the expense and inconvenience suffered by the aunt and her supporting family in travelling to South Australia for a trial which was listed for this week and the difficulties which would be incurred in relation to postponing the trial.  However, the Court needs to weigh up all of the factors, and although an adjournment may not be considered to be a parenting order, one of the significant matters which have to be considered is what is in the best interests of the children.

11. The primary factor that influences me is the need for the Court to be aware of all relevant information and for the relevant information and factual material to be put to the experts before they can assist the Court in giving their expert opinion as to the various factors which relate to the best interests of the children.  

12. Therefore, taking into account all of the factors, I regret that it is my view that the investigation by the Families and Community Services Department into the significant issues referred to by counsel for the Independent Children’s Lawyer should be concluded and that material put before the experts.  Indeed that material should be before each of the witnesses and in particular, the parties, before the trial could be completed.  It would not be appropriate to commence the trial whilst many of the issues to be determined by the investigation of the Department remain unresolved.

13. I therefore propose to adjourn the trial to the next available date, which I regret is not until February 2012.  In view of the matters which have been raised today, I am inclined to give the matter more than the five days which has currently been allocated to it.

14. I am asked to give further consideration to the application by the maternal aunt to discharge the injunction made in March this year which prevents her from relocating with the child J from Queensland to Adelaide.  The factors which were taken into account in March have, of course, changed slightly, particularly to the extent that the Court now has available to it Dr N’s report, which is annexed to the affidavit of the Independent Children’s Lawyer and filed on 4 August 2011. 

15. The factors, however, to be taken into account in relation to this order are those factors which would require the Court to consider what is in the best interests of the child J and include those matters which are also in the best interests of the other children.

16. The child J has been residing with, and in the care of, the maternal aunt, whom she understands to be her mother, for most of her life.  J was born in late 2005.  She has commenced school.  There are issues raised in the second respondent maternal aunt’s affidavit in relation to the child J concerning a possible diagnosis of a serious condition and significant health issues.

17. The Court is required to take into account, to the best of its ability, those factors which are acknowledged and are accepted and give some weight to those matters which are still contested, bearing in mind the evidence which is before the Court. 

18. The significant factors which the Court must determine are set out in section 60CC of the Family Law Act being the factors which relate to the best interests of the child.

19. I accept the submissions on behalf of the maternal aunt that the delay in any ability to relocate to South Australia may well be having a significant effect upon her, her extended family and indirectly, therefore, the child J herself.  There are, however, significant issues to be determined in relation to the matters concerning J’s welfare.  The balancing factor is consistent with the submissions of the counsel for the Independent Children’s Lawyer.

20. I am satisfied that there is sufficient basis for a concern that a change of such significance at this stage for J to move home and school from her current residence to a new residence in Adelaide is likely to be a disruptive one.  Bearing in mind the other factors are yet to be determined, it is not possible to say that it is in the best interests of J to permit the relocation to South Australia at this time. 

21. I therefore do not grant the application to discharge the injunction restraining the maternal aunt from moving J’s residence from her home in Queensland at this stage.  These factors, of course, will be fully reconsidered when all of the material is before the Court and has been appropriately tested.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 August 2011.

Associate: 

Date:  7 September 2011