MacDuff and Seaward

[2014] FCCA 1268

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

1. 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

1. These reasons are being delivered orally and can be settled when time allows or if specifically requested.

2. 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. 

3. 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”). 

4. 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 

1. 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. 

2. 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

1. The father seeks an adjournment for the reasons that follow.   

2. 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.

3. Secondly, he is proposing to…