MCKINLEY & NORMAN

[2011] FamCA 439

FAMILY COURT OF AUSTRALIA

MCKINLEY & NORMAN [2011] FamCA 439

FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – application by the mother seeking that the trial be adjourned – where the mother says she has had insufficient time to consider the issues raised in an expert report – where the matter is otherwise ready to proceed with trial – consideration of the history of the matter – whether refusing an adjournment would result in a denial of procedural fairness – where the issues arising from the report were previously raised and known to the mother – where it is in the best interests of the child for litigation to be concluded as soon as possible – application refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr McKinley

RESPONDENT: Ms Norman

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: SYC 8702 of 2007

DATE DELIVERED: 6 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Dawe J

HEARING DATE: 6 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Millie Whyte Solicitor

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Pigdon Norgate Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

Orders

1. The Court refuses to grant the adjournment sought by the mother

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 8702 of 2007

Mr McKinley

Applicant

And

Ms Norman

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the first day of the trial which has been listed for eight days before me.  As a Judge visiting from another Registry, I have not been involved in the case management or procedural orders made leading up to the commencement of the trial.  The proceedings commenced in 2009.  Various steps have been taken with a view to preparing the matter for conclusion.  The application by the father relates to the welfare of the child, J, who is 12, nearly 13.  The parties have been separated for many years in the context of J’s life.  The proceedings have been outstanding in this Court for approximately two years.

2. Steps were made to list the matter for trial.  I am informed that Justice Ryan heard an application by the mother recently for the matter not to be listed in this sitting but to be held over for various reasons. 

3. Most of those reasons relate to matters that arise from the report of Dr Q which was recently released to the parties.  Although the report was available, it was specifically ordered by Justice Ryan not to be released to the parties until 16 May 2011.  Submissions on behalf of the mother are, therefore, that she has not had sufficient time to consider the report and prepare for the trial due to the short time that has passed between the release of the report and this actual trial.

4. The mother has, however, following the orders of the Court, filed her affidavit and those affidavits of her witnesses.  The other parties have prepared the matter for conclusion before me this week and next week. 

5. The main issue, therefore, is whether the significant argument of the mother about the late receipt of Dr Q’s report is such a strong indicator that would require procedural fairness to dominate and for the mother to have the benefit of an adjournment. 

6. That application by the mother needs to be seen in the context of the history of the matter.  The application for the adjournment is opposed both by the father and the Independent Children’s Lawyer.

7. The question of the mother’s procedural fairness is a significant factor.  Any trial Judge needs to take into account the factors which will permit a party to be in an appropriate position to present their case, particularly where issues relate to what is in the best interests of the child. 

8. One of the significant factors which have been alleged in the background to this matter is that the mother has in the past refused to allow the father to spend time with the child (other than supervised by her) and the issue arising as a result of the mother’s concern that the child had been abused by the father. 

9. In response, the father has alleged that it is the mother’s mental health which brings about the difficulties.  He now denies the allegations of any abuse of J.

10. A significant factor is the Magellan Report which was released in February 2010 which referred to the concern raised about the mother’s mental health.  The report raises the concern as to whether the mother is delusional.  In particular, the last paragraph of the Magellan report released in February 2010 says:

    “Based on the information available, Community Services is of the view that the mother may still be suffering from delusions with these having a negative impact upon her capacity to provide an appropriate environment for [J].”

11. That report and the subsequent, only recently released report of Dr Q, also need to be considered in the context of the mother herself being a qualified health professional. 

12. Having considered all of the factors, the issue needs to be determined as to whether the Court will be in a position to determine, on the evidence which will be available to it in these proceedings, what is in the best interests of the child or whether the mother’s claim to require procedural fairness to grant the adjournment is soundly based.

13. In the mother’s affidavit she has addressed significantly the issues raised by Dr Q.  She has also seen a further psychiatrist Dr H recently and has requested information from him.  Dr H has apparently seen the mother on two occasions.  I am told he is an experienced qualified psychiatrist.  If the mother then chooses to rely upon the evidence of Dr H, the Court would seriously consider such an application and my preliminary view would be that such an application would be hard to resist in view of the information contained in Dr Q’s report.

14. I accept that the pressures for the matter to be heard are also significant;  it being clearly in the child’s best interests that litigation between the parents be concluded as soon as possible, provided that the conclusion of the litigation is done in a manner which ensures that the Court has before it all appropriate information concerning those factors which have to be determined and, in particular, matters relating to the allegations of abuse of the child by the father and allegations of the mother’s mental health.

15. In summary, therefore, I am satisfied that the issue of the mother’s mental health and the question of her suffering from possible delusions is not a matter that first appears in the report of Dr Q but was an issue that was clearly before the Court before that report was released and the mother clearly had been, in the past, aware of those allegations. 

16. Having made some remarks as a preliminary view about the evidence of Dr H, taking into account the matter may well continue into and is likely to continue into next week, I consider it is not appropriate to grant the adjournment and that it is in the best interests of the child and, indeed, the parties that the matter proceed to a conclusion before me this week and next week.  I, therefore, refuse to grant the adjournment sought by the mother.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 June 2011.

Associate: 

Date:  15 June 2011