Smoothe and Enmore (No 3) - [2014] FamCA 1194

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE (NO 3)

[2014] FamCA 1194

FAMILY LAW – PROCEDURAL – Where the mother seeks an adjournment of the parenting trial pending the determination of her applications for special leave to appeal to the High Court of Australia in relation to interlocutory matters – application dismissed.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Jennings Construction Limited & Burgundy Royale Investments (1986) 161 CLR 681
LC & TC (1998) FLC 92-803
Marconi’s Wireless Telegraph Co. Ltd. v The Commonwealth [No. 3] (1913) 16 CLR 384
Sullivan & Tyler (No. 2) [2013] FamCAFC 136

APPLICANT:

Mr Smoothe

RESPONDENT:

Ms Enmore

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

4709

2012

DATE DELIVERED:

25 November 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

25 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele of Counsel

SOLICITOR FOR THE APPLICANT:

Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Merkin of Counsel

SOLICITOR FOR THE RESPONDENT:

Crana Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Frizelle of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

The applicant mother’s Application in a Case filed 18 November 2014 for an adjournment of the trial is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smoothe & Enmore (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

REASONS FOR JUDGMENT

Listed before me at 10 o'clock this morning for a five-day trial are competing applications of the parents of a now five and a half year old girl, R. The competing substantive applications for parenting orders have been pending in the family law courts, being both the Federal Circuit Court of Australia and this Court since, as I understand it, sometime in 2012. Around the middle of 2012 is when the proceedings were first commenced by the applicant father, the parents of this little girl having separated sometime in or around the first quarter, I think February or March, of 2011.
The proceedings have a somewhat unusual history when compared with many of the parenting orders disputes that come before these courts in that they have been before the courts on several occasions in respect of matters pertaining to the interim parenting arrangements that were to apply in respect of the child in the lead-up to the final trial that which is listed before me for hearing today.
As I understand the matters of factual history, the father's Initiating Application was filed in the Federal Circuit Court on 28 May 2012 and was listed into Judge Demack’s docket. It came before her Honour, on the first occasion, on 7 August 2012 and some orders were made that day that provided for the…

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: [2014] FamCA 1194
Decision Date: 25 November 2014

CaseChat Overview and Summary

In the matter of *Smoothe and Enmore (No 3)*, Forrest J of the Federal Circuit Court of Australia considered an application by the applicant mother for an adjournment of the trial. The dispute concerned parenting arrangements for the child of the marriage.

The primary legal issue before the court was whether the applicant mother's application for an adjournment of the trial should be granted. This required the court to consider the principles governing adjournments in family law proceedings, including the need for a fair trial and the potential prejudice to the parties and the child.

Forrest J dismissed the mother's application for an adjournment. The court applied the established principles for granting adjournments, which generally require a compelling reason and consideration of the impact on the child and the other party. The judge found that the grounds presented by the mother did not meet the threshold for an adjournment, indicating that the matter should proceed to trial as scheduled.

The court ordered that the applicant mother’s Application in a Case filed 18 November 2014 for an adjournment of the trial be dismissed.

Orders

Orders of the court

The applicant mother’s Application in a Case filed 18 November 2014 for an adjournment of the trial is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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