SEYMOUR & SEYMOUR
[2010] FamCAFC 114
•12 May 2010
FAMILY COURT OF AUSTRALIA
| SEYMOUR & SEYMOUR | [2010] FamCAFC 114 |
| FAMILY LAW - APPEAL – Practice and procedure – application for adjournment – where the respondent raised for the first time in his summary of argument that the original application before the Federal Magistrate was misconceived and should have been summarily dismissed – where the proposed approach of the respondent is inappropriate – adjournment granted for the respondent to file appropriate documentation. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Seymour |
| RESPONDENT: | Mr Seymour |
| FILE NUMBER: | LNC | 71 | of | 2008 |
| APPEAL NUMBER: | SA | 85 | of | 2009 |
| DATE DELIVERED: | 12 May 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide (via video link to Launceston) |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 13 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 846 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson |
| SOLICITOR FOR THE APPELLANT: | G. A Richardson |
| COUNSEL FOR THE RESPONDENT: | Ms Trezise |
| SOLICITOR FOR THE RESPONDENT: | Andrea Trezise |
Orders
That the hearing of this appeal be adjourned for mention to 9.30am (AEST) on 2 June 2010.
That leave be given to the parties and their legal representatives to attend that hearing by way of telephone link.
IT IS NOTED that publication of this judgment under the pseudonym Seymour & Seymour is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 85 of 2009
File Number: LNC 71 of 2008
| Ms Seymour |
Appellant
And
| Mr Seymour |
Respondent
EX TEMPORE REASONS
This matter was listed for hearing today on an application for leave to appeal and if leave was granted to hear the appeal itself. However, I challenged Mr Richardson, for the respondent, as to his proposal set out in his summary of argument to deal with a matter that he has raised for the first time in that summary of argument, namely Mr Richardson’s submission that “the Applicant’s original application was misconceived and should have been summarily dismissed.”
What Mr Richardson is suggesting is that leave to appeal should not be granted because the applicant’s rights have not be significantly affected because the application was misconceived, should not have been heard and should have been dismissed by the Federal Magistrate and no order made as a result.
I will not go into the detail of what I have raised with Mr Richardson, but the long and the short of it is that I have indicated to him that how he proposed to deal with this today is inappropriate and if he wishes to pursue it he either has to file an application seeking an extension of time to file a Cross Appeal or more appropriately file a Notice of Contention.
Mr Richardson says that he wishes to pursue this matter and thus he makes an application to adjourn today’s hearing to consider which of those two options he will advise his client to take and then to file the appropriate documentation. He says that can be done within a matter of three weeks.
That application to adjourn is opposed. Ms Trezise says that she is here, ready, willing and able to argue the appeal. She also says that she has an argument prepared in relation to this issue that Mr Richardson is raising about the validity of the initial application.
I suggested to counsel that it is possible this morning to at least deal with that issue if counsel are able to. I was prepared to waive the procedural requirements to allow that to occur, but of course there would still need to be an adjournment because I would still need to set aside some time to hear the appeal if it proceeded after that argument.
In any event, counsel are not able to proceed with that matter today and thus Mr Richardson has again made his application to adjourn this hearing and Ms Trezise has responded in terms that she opposes that.
Mr Richardson filed his submissions raising this issue on 20 April 2010. Apparently it was served upon Ms Trezise not long thereafter. Mr Richardson has indicated, and Ms Trezise has confirmed, that there was nothing put back to Mr Richardson in relation to this issue to indicate that the wife was not prepared to deal with this issue in the way that Mr Richardson was proposing to deal with it on the day. Thus Mr Richardson says that he assumed there was no issue about dealing with it in this way and he came to the hearing today on that basis. However given my comments he now needs to apply for an adjournment.
It seems to me that in those circumstances an adjournment should be granted. This is a matter that should have been raised in the sense of Ms Trezise indicating her position to Mr Richardson so that it could have been brought on before me earlier. In an ideal world what should have happened is that once this issue was known the matter should have been raised with me on a directions hearing. That has not happened.
In any application to adjourn, I have to balance the interests of both parties. I am obviously frustrated that we cannot have this hearing today. I am concerned that there will now be a further delay in finalising this matter.
On the other hand, Mr Richardson says, and we have not had argument about it, that his client’s position would be severely prejudiced if he is not able to pursue this issue. I have said he cannot pursue it in the way he proposes to, and thus he has no alternative but to seek an adjournment.
To repeat, balancing the interests of the parties, I propose to grant an adjournment.
What I have discussed with counsel is to adjourn it for a period of three weeks to enable Mr Richardson to file his documents and then to have a telephone mention to determine where the matter goes from there. Obviously, Ms Trezise can tell me how long she needs to respond and we can work out whether the next hearing thereafter can be one hearing or whether we need to have a two step approach.
I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 May 2010.
Associate
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