Smith and Smith

[2009] FamCA 422

FAMILY COURT OF AUSTRALIA

SMITH & SMITH [2009] FamCA 422

FAMILY LAW – PROCEDURAL – Interim hearing

APPLICANT: Mr Smith

RESPONDENT: Ms Smith

FILE NUMBER: ADC 3585 of 2007

DATE DELIVERED: 9 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 9 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Berman

SOLICITOR FOR THE APPLICANT: Caldicott and Co

COUNSEL FOR THE RESPONDENT: Mr B McQuade

SOLICITOR FOR THE RESPONDENT: David Fidler and Co

Orders

1. By consent in terms of the minutes of order this day signed by me.

2. That the Application in a Case filed on 3 April 2009 be dismissed and removed from the active pending cases list.

3. That paragraph 3 of the Application in a Case filed by the wife on 31 March 2009 be dismissed.

4. That paragraphs 1 & 2 of the Application in a Case filed by the wife on 31 March 2009 be adjourned to 2:15pm on 1 May 2009.

5. That by 4:00pm on 21 April 2009 the wife file and serve further affidavit material upon which she intends to rely for the purpose of the orders sought in her application.

6. That further consideration of the Application in a Case filed by the husband on 2 April 2009 be adjourned to 2:15pm on 1 May 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3585 of 2007

MR SMITH

Applicant

And

MS SMITH

Respondent

EX TEMPORE REASONS

1. In this matter there are three applications before me today.  Firstly, an Application in a Case filed by the wife on 31 March 2009, secondly, an Application in a Case filed by the husband on 2 April 2009, and thirdly an Application in a Case filed by the husband on 3 April 2009.

2. In relation to the latter application, wherein the husband sought orders in relation to spending time with the children, N and Y, I am pleased to record that there has been agreement reached about that, and I have been provided with a minute of order which finalises that application.

3. Turning to the application of the wife filed on 31 March 2009, that sought a number of orders.  In respect of paragraph 3 of the orders sought, I indicated that in the circumstances of this case and given the trial is listed on 11 May 2009 that I was not prepared to make that order.  The order sought the sale of certain items of property or personalty, and I understand that they are items that the husband wants to retain as part of his property settlement entitlement.  In those circumstances, and given the closeness of the trial, to repeat, I am not prepared to make an order for their sale.

4. That leaves paragraphs 1 and 2, and in relation to those paragraphs there has been a lot of discussion but, at the end of the day, it is apparent that the wife needs to file further affidavit material in support of the orders sought in those paragraphs.  Thus I propose to adjourn paragraphs 1 and 2.

5. The next application is the husband's of 2 April 2009.  In that application the husband seeks an order pursuant to rule 15.49 of the Family Law Rules giving leave to adduce adversarial evidence from Mr B. 

6. I have commenced to hear argument in relation to that application.  Unfortunately we have run out of time to complete that argument today and thus I propose to adjourn further consideration of that application as well.

I certify that the preceding 6 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 April 2009.

Associate