Enmore v Smoothe - [2015] HCASL 70

ENMORE
v
SMOOTHE
[2015] HCASL 70
B45/2014; B47/2014

The applicant applies for special leave to appeal from the orders of the Full Court of the Family Court of Australia (May, Thackray and Aldridge JJ) made on 23 July 2014 dismissing appeals against an interim parenting order made by the Federal Circuit Court of Australia (Judge Demack) (B45/2014) and orders made in the Family Court (Bell J) arising out of the applicant's contravention of interim parenting orders (B47/2014).
The applicant requires an enlargement of time in which to file each application[1]. The delay is not satisfactorily explained in the rambling affidavit material filed in support of each application. In any event, for the reasons to be given, there is no utility in making orders dispensing with the requirement of the Rules as to time.
[1]High Court Rules 2004 (Cth), r 41.02.1.
In neither application does the applicant identify a question of law suitable for the grant of special leave. Her proposed grounds of appeal in each application are not proper grounds. As the summary of argument makes clear in each case, the essence of the intended challenge is to factual findings. There is no utility in an appeal against the interim parenting order since the trial of the parenting application in the Family Court (Forrest J) has now taken place. Forrest J's final orders will provide the parenting arrangements for the child. The interests of the administration of justice are not engaged by either application.
The applications are dismissed.
The applicant was legally represented at the time the applications were filed. She has since filed a notice of intention to act in person in both matters. The respondent refers to the history of the proceedings in his summary of argument and seeks a special costs order in each matter. The foundation for the orders sought is not established.
Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal orders dismissing each application with costs.

V.M. Bell
6 May 2015
S.J. Gageler

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 70
Decision Date

CaseChat Overview and Summary

In the matter of Enmore v Smoothe, the applicant sought special leave to appeal from the orders of the Full Court of the Family Court of Australia. The appeal arose from two cases, one involving an interim parenting order made by the Federal Circuit Court of Australia and the other concerning the applicant's contravention of interim parenting orders in the Family Court. The primary issues before the court were whether to grant the applicant special leave to appeal, considering the delays in filing the applications and the applicant's failure to identify a suitable question of law. Additionally, the court had to assess whether there was any utility in the appeal given the subsequent trial of the parenting application.

The High Court found that the applications did not meet the criteria for special leave to appeal. The delays in filing the applications were not adequately explained, and the proposed grounds of appeal were not proper grounds as they were primarily factual findings. The court also noted that there was no utility in appealing the interim parenting order since the parenting application had already been tried and the final orders had been made by Forrest J. Consequently, the applications were dismissed. The court further observed that the interests of the administration of justice were not engaged by the appeals, and therefore, there was no merit in granting special leave.

The High Court dismissed both applications and directed the Registrar to draw up, sign, and seal orders dismissing each application with costs. The applicant had initially been legally represented but later filed a notice of intention to act in person in both matters. The respondent, referring to the history of the proceedings, sought a special costs order, but the court found that the foundation for such orders was not established. This decision underscores the importance of timely filings and the identification of proper legal grounds in applications for special leave to appeal in family law matters.

Orders