MacDuff and Seaward
[2014] FCCA 1268
•15 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACDUFF & SEAWARD | [2014] FCCA 1268 |
| Catchwords: FAMILY LAW – Children – parenting orders – practice and procedure – adjournment. |
| Rice & Asplund (1979) FLC 90-725. Seaward & MacDuff [2013] FamCA 485. |
| Applicant: | MS MACDUFF |
| Respondent: | MR SEAWARD |
| File Number: | SYC 2177 of 2011 |
| Judgment of: | Judge Monahan |
| Hearing date: | 15 May 2014 |
| Date of Last Submission: | 15 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | In person |
ORDERS
The Respondent’s application for an adjournment of the hearing of the Applicant’s Initiating Application be refused.
IT IS NOTED that publication of this judgment under the pseudonym MacDuff & Seaward is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2177 of 2011
| MS MACDUFF |
Applicant
And
| MR SEAWARD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and can be settled when time allows or if specifically requested.
The substantive proceedings before me is an application by MS MACDUFF (“the mother”) born [omitted] 1972 against
MR SEAWARD (“the father”) born [omitted] 1967. The proceedings relate to a request by the mother for orders that would enable her to obtain a passport for the relevant children of the relationship and to enable the children to travel with her and her partner to Bali, Indonesia in late June and early July 2014.
The relevant children are [Y] born [in] 2004, [Z] born [in] 2005 and the oldest daughter, [X] born [in] 1998 (known collectively as “the children”).
A preliminary issue has arisen this afternoon in that the father seeks an adjournment of the mother’s application. This adjournment request is opposed by the mother. I allowed each of the parties to provide oral submissions in respect of the adjournment request this afternoon.
Relevant Law
Prior to the parties’ submissions, I outlined to them the relevant law, noting that the Court has the implied power to adjourn proceedings where it is necessary to do justice between the parties.
The Court has a wide discretion in determining adjournment requests. While a fundamental consideration is to do justice between the parties, the relevant authorities would suggest that the Court should take into account:
· firstly, the reasons for the adjournment;
· secondly, any period of delay in making the application (which I note is not applicable in this case as it is the first return date).
· thirdly, the capacity of the Court to re-list the matter; and
· lastly, any prejudice or disadvantage to the other party which cannot be compensated by way of costs. (In this respect I note both parties are self-represented).
Submissions
The father seeks an adjournment for the reasons that follow.
Firstly, he asserts that he only became aware of the Initiating Application when he collected it from his mail box in the week commencing 5 May 2014 – that’s about 10 days ago.
Secondly, he is proposing to file a parenting Application seeking various parenting Orders and restraints.
In summary, the father proposes to file an Application seeking a change of residence for the children so that they come into his care. He informed that Court that he is proposing an Application seeking some 26 orders including restraints on the children coming into the care of the step-father, that’s the wife’s partner (who is her current husband) and the maternal grandmother. He also proposes to request that the proposed Application be listed urgently and is confident that his Application would withstand a decision of the Court in respect of Rice v Asplund reasons.[1] At this stage, I simply note that the matter had the benefit of a contested judgment of her Honour, Ryan J, and orders flowing therefrom on 19 June 2013.[2]
[1] Rice & Asplund (1979) FLC 90-725.
[2] Seaward & MacDuff [2013] FamCA 485.
Thirdly, the father asserts that he understood that the Court would only deal with the matter today by way of directions and would not proceed to hear the application. In support he referred to the wording on the particular Initiating Application.
The mother, as stated, opposes the adjournment request. Firstly, she argued that she has done everything in her power to bring the Application before the Court at the earliest opportunity and, as she does not know the residential address of the father, was required to effect service by post at his known post office box address which is an address that he has had before the Court on previous applications. The father’s post office box is not a residential address.
The mother further relies on the affidavit of service which I granted her leave to file in Court today and a ‘track item’ receipt received from Australia Post which I allowed her to tender in evidence today (and become Exhibit “A1”), which suggests that the documents were posted and available for the father to collect on from 24 April last. She also argued that the evidence would suggest that the father has been aware of her request to seek a passport for the children since March of this year.
Secondly, the mother asks the Court to accept that any adjournment will prejudice her proposed trip, given its proximity. She asks the Court to consider her application today but if the Court was against her on that for the Court to consider it at the earliest opportunity and otherwise enable the obtaining of passports and for the Court to entertain and make a decision in respect of the proposed travel prior to the proposed travel dates which is at the end of June and early July 2014.
Thirdly, as to hardship, the mother argues that the proposed trip has been paid for.
DISCUSSION
While the Court accepts that there may always be some merit in allowing time for both parties to be properly prepared for any hearing of an application, the Court is satisfied that the benefits in this case of allowing an adjournment are outweighed by the prejudice of delay. The Court would simply not be in a position to hear any adjourned application until mid-August at this stage and that would be after the proposed trip.
Noting that a Registrar of this Court made a decision determining to list the matter as an urgent matter before me today and noting the proximity of the trip and the reality that the issue of consent to passports is then a live issue for some two months, I have formed the view that I should hear the application this afternoon.
Therefore, the father’s Application for an adjournment of the hearing of the mother’s Initiating Application is refused.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 17 June 2014
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