Feranti and Connor (No. 2)

[2008] FamCA 338

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 2) [2008] FamCA 338

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: MR FERANTI

RESPONDENT: MS CONNOR

INDEPENDENT CHILDREN’S LAWYER: MS N.L. ATCHISON

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 18 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Murphy J

HEARING DATE: 18 April 2008

REPRESENTATION

SOLICITOR FOR THE RESPONDENT:

Mr Peter Falconer

Peter Falconer and Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr J.M. Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms Nicola Atchison

Orders

IT IS ORDERED THAT

1. The Case Application filed by the father on 14 April 2008 (containing 8 paragraphs) be dismissed.

1. Paragraphs 1 to 7, and 9 to 13 of the Case Application filed by the father on 14 April 2008, (containing 13 typed paragraphs and a handwritten 14^th paragraph) be dismissed.

1. Paragraph 8 of the said 14 paragraph Case Application filed by the father on 14 April 2008 be adjourned to a date to be fixed, for the hearing of an application by the father for leave to file a contravention application in respect of the child allegedly failing to spend time with him in the April 2008 school holidays.

IT IS DIRECTED THAT

1. The father formally serve the other parties with sealed copies of the documents relied upon by him today.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 10368  of 1994

MR FERANTI

Applicant

And

MS CONNOR

Respondent

EX TEMPORE

REASONS FOR JUDGMENT[1]

[1]As will be clear from these perfected Reasons, this matter was determined in two parts. First, a decision was made in the face of applications for adjournment to allow the father’s application to proceed on a limited basis. After argument, judgment was delivered on the substantive application. The Reasons in each have been consolidated for publication purposes.

1. It seems to me that there are competing considerations in this case as to whether I should embark upon any hearing of the father's application in the face of an application for adjournment by both the mother and the Independent Children’s Lawyer (“ICL”). 

2. There is an existing order that would see the child of this relationship, who is slightly more than 13 years of age, spend time with her father.  It appears to be common ground that the child did not spend time with her father in accordance with that order in the first week of the current South Australian school holidays.  An application is brought urgently by the father which, relevantly, seeks to ensure that time between he and the child occurs in the second week of those holidays.  That time would commence tomorrow.

3. Material was filed in circumstances where the father indicates there were some difficulties in filing it on Monday of this week.  It seems that the solicitor for the mother and the ICL were both served with unsealed copies of the material late on Wednesday night, today being Friday. 

4. Mr Falconer, who appears on behalf of the mother, tells the Court that he has not had the opportunity to receive instructions from his client in the time available.  Mr Falconer practises in regional Victoria and informs the court that he was engaged in court in Melbourne until yesterday.

5. In a similar vein, Mr Bowler, who appears on behalf of the ICL, tells me that the ICL had spoken to the child in about January of this year but has not had the opportunity to speak to her since this application has been filed. 

6. I am informed that, consistent with an order made by her Honour Dawe J on 14 February 2008, a family assessment is in train, but it is not yet possible to say when the report from that assessment will be available.

7. The material before me filed by the father includes Reasons for Judgment of Watt J in Melbourne in respect of contravention applications, over 30 in number, filed by the father.  Included in his Honour's reasons is a transcript of a conversation which formed an exhibit to an affidavit by the mother and which, as I said during the course of argument, I found poignant and disturbing. 

8. The child was clearly distressed during that telephone conversation.  His Honour Watt J says in respect of that conversation:

   The real iniquity of the father's attitude to the court orders and his breaching of them is the conflict he creates for the child by his actions and his statements.

9. I also have evidence before me from the father himself that, during a contact period which included Christmas Eve last year, and which was due to conclude on 5 or 6 January 2008, the child, who was then 13, disappeared. 

10. It seems to be common ground that she was returned to the mother through the agency of the police. 

11. Undoubtedly the facts and circumstances surrounding that incident are likely to be the subject of controversy and I make no findings about them save to the extent that it seems common ground that they occurred in the manner in which I have indicated, which I have attempted to express as neutrally as possible.

12. Against that background, the father applies for the order that I have indicated.  I need to balance, then, whether the application should proceed against that factual background with what Mr Falconer, and to a lesser extent, perhaps Mr Bowler, each assert constitutes an unfairness for their respective clients because of their inability to obtain instructions and to put material before the court from them.

13. With that in mind I propose to balance those competing issues by confining my consideration of the matter today to the question of whether I should proceed to hear the matter prior to the receipt of the family assessment report, included in which will undoubtedly be important evidence about the wishes of a child who is now about 13 and a half.

1. These reasons are in addition to those given earlier today in which I indicated that I could not and would not deal with 13 separate orders sought in one of the two Applications in a Case filed on 14 April 2008. 

2. The application before me is, in reality, that which is contained in paragraph 4 of the second of the Applications in a Case filed on 14 April 2008 - in effect, should, as ordered, the father spend time with his now 13 and a half year old daughter, for the second half of the current school holidays commencing tomorrow.

3. These are child-related proceedings heard on an urgent interim basis.  For reasons given earlier, there has been no reasonable opportunity for each of the mother and the ICL to respond to the applications either by way of Response, Cross-Application or the filing of affidavits. 

4. Accordingly, there is a need to balance whether, in the best interests of the child, the application before me should proceed, notwithstanding the fact that both Mr Bowler who appears for the ICL, and Mr Falconer who appears for the mother, tell me that there are matters relating to the child’s best interests that from their respective positions, they would seek to put before the court to allow the court to make a determination of that very issue. 

5. The strictures within which an interim parenting application are heard are well known.  They are particularly acute with respect to urgent interim applications. 

6. Recently in the Full Court decision in Goode v Goode the court affirmed that the principles enunciated in the earlier decision of C v C with respect to the restrictions inherent in the procedures within which interim child-related proceedings are dealt with, remain in the light of the Reform Act. 

7. The comments of the Full Court in Goode and the earlier Full Court in C v C have particular resonance in this case in which I sit as a visiting judge in the Adelaide Registry, and where this case started its life in this court 13 years ago.

8. Put simply, the parties have been litigating over their child, born in March 1995, since May 1996; that is almost as long as the child has been alive.  In reasons for judgment delivered on 14 February 2008 Dawe J pointed out that there had been at that time 498 documents filed in this matter.  Of course, with the current application that number now exceeds 500. 

9. I am cognisant of the provisions of section 69ZX of the act, and in particular section 69ZX(3).  I consider they have a particular role to play in interim applications with a long and tortuous history such as this one.

10. I will pay particular regard to evidence before, and findings made by Watt J, who heard an application involving over 30 alleged contraventions brought by the husband. 

11. His Honour made a number of orders, including an order that the husband be required to seek leave before instituting any further applications for contravention.  At paragraph 134 of his Honour's reasons for judgment his Honour said this - and I should add here that this is a paragraph to which the father submitted I should pay particular attention - his Honour said:

    Having regard to the matters that I have set out above, I have to accept Mr Wood's submission that the mother's perseverance with contact in the face of the father's attitude to her, his failure to contribute to [the child’s] support in any meaningful way, and his distortion of the truth in his discussions with [the child] about the court order, is a matter of enormous credit to her.  If I had found that any of the allegations of contravention were made with the necessary intent and that there was no reasonable excuse put forward by the wife, I would certainly not have recorded any conviction (or finding of contravention) against her in all the circumstances.

12. His Honour also - as I have already mentioned in the earlier reasons this morning – referred to cross‑examination of the husband by counsel in the proceedings before him. At paragraph 125 of the reasons, his Honour sets out this part of the cross‑examination:

    You regard my client as being beneath contempt, don't you?---Yes, I do.  Yes, I do.

    Absolutely worthless as a mother.  Is that right?---They're your words, but I won't disagree with them.

13. Later in those reasons, at paragraph 132, his Honour sets out at length the transcript of a telephone conversation between the father and the child, a portion of which I have earlier referred to.  I incorporate the whole of that quoted telephone conversation into these reasons. 

14. The father asks me to take account of his account of telephone conversations which are annexed to his affidavit.  I have read that account of those telephone conversations and I do take them into account. 

15. I take them into account in the context of the history of this matter and the matters referred to by Watt J.  I respectfully adopt his Honour's findings within the meaning of section 69ZX(3) of the Act.  I note that at the time of the conversation referred to by his Honour, the child was about 10. 

16. An application by the father came before Dawe J on 14 February 2008.  Her Honour ordered, among other things, that the father be given leave to institute a contravention application in respect of a specified contravention. 

17. Her Honour also further directed that the father file and serve a statement of financial circumstances within seven days of the date of that order, that is by 21 February 2008; which such statement should provide, "All information concerning his financial circumstances so the question of the payment of the costs of the family assessment can be determined."  It was previously ordered that the costs of the family assessment be shared between the parties.

18. The father has failed to file that statement of financial circumstances.  He told me today that he had failed to do so because he intends to appeal the decision by Dawe J and/or to seek that Dawe J's decision be set aside. 

19. In her Honour's extempore reasons for judgment given on 14 February 2008 her Honour said at paragraph 16 and 17 of the reasons:

    The allegations that the father makes therefore fall within the conditions placed by Watt J.  It is appropriate to give the father leave to start a contravention application in relation to the allegations that he makes concerning failure to comply with the order of Brown J in relation to telephone communication between the child and the father on 28 November 2007, 12 December 2007, 31 January 2008, and 6 and 13 February 2008 -

    I interpose here that I emphasise this part of her Honour's reasons:

    provided that the father understands that the granting of leave to file such an application for contravention does not in itself in any way act as any encouragement by the court for him to make such an application.  He should take proper independent legal advice about the circumstances surrounding the relationship he has with the child and the wisdom of bringing contravention applications, bearing in mind the risk he might face in relation to orders concerning the costs of the wife's need to deal with same.

20. At paragraph 17 her Honour said:

    Leave is granted, but it must not be seen to be an encouragement to bring further proceedings of that nature in this court.  To the contrary.  The court is concerned -

    and again, with respect, I emphasise these words of her Honour -

    concerned that the welfare of [the child] would seem to suggest that what needs to be done is for the matter to be heard promptly and appropriately so that final orders can be made, bringing an end to the ongoing proceedings in this court for the benefit of the child.

21. Of immediate interest and concern in the current context is the order made by her Honour at paragraph 3 of the orders.  Her Honour there ordered that paragraphs 3, 4, 5 and 6 of the Application in a Case filed by the father on 28 December be adjourned to a date to be advised after the receipt of the family assessment report. 

22. Those paragraphs of the Application, expressed in broad terms, dealt with the provision of, and the use of a mobile telephone by, the child.  Her Honour indicated that this was but one of the issues relating to the complexity of the issues that might ultimately sound in findings about the child’s best interests.  Her Honour determined that it was appropriate that it be considered in the context of the family assessment report which had been ordered.  I respectfully agree.

23. It is common ground, I gather, that scheduled time with the father in December 2007/January 2008 came to an end on or about 24 December 2007 rather than 5 or 6 January 2008.  The reason for that occurring is, as might be expected in a case where over 500 documents have been filed over more than 10 years, a matter of significant controversy. 

24. However, it is plain and uncontroversial, it seems, that on that occasion the child was returned to her mother's care via the agency of the police.  The father swears in respect of that, at paragraphs 7 and 8 of his affidavit in support of the current application, as follows:

    As a result of an argument on Christmas Eve 2007 during the summer school holiday contact period [the child] disappeared, and I subsequently learned that she had been taken to the [G] police, who contacted the mother, who then arranged for someone from [B], some 80 kilometres from [G], to collect [the child] from the police station.  At no time before, during or after the incident was I contacted by the mother or anyone else to be informed of [the child’s] whereabouts or that she was safe.  I and several friends searched for [the child] for some hours without success before attending to the police station to report her as missing.

25. It is clear that, even on the father's case, as a result of an argument, the child took it upon herself to leave his care.  At paragraph 8 the father swears:

    The mother has used this incident to further her aim of denying, frustrating and refusing contact between [the child] and myself and to further her goal of alienating [the child] from me.  [The child] has previously stated that the mother has refused to allow her to call me.  A specific example is relating to Father's Day in 2004.  [The child] repeatedly asked her mother if she could call me and the mother refused each time.

26. I am aware of the provisions of Division 12A of the Act.  With those provisions in mind, I asked Mr Bowler to give me from the Bar table his instructions from the ICL with respect to any conversations had by the ICL with this nearly 13‑and-a-half year old child. 

27. Mr Bowler informed me that the last occasion upon which the ICL had had an opportunity to speak to the child was in about January of this year.  On that occasion the child had indicated what might be described in broad terms as some reluctance to spend time with the father.

28. In her Honour Dawe J's reasons her Honour said of the incident just described at paragraphs 11 and 12:

    That of course does not deal with the completely separate issue of any question of the child taking steps herself to bring about an end to the period of time she was spending with the father on 24 December, when the period of time she was spending with the father came to an end on that date rather than on 5 January or 6 January as the father was requesting.

29. In paragraph 12 her Honour said:

    The events of 24 December are set out in the father's affidavit filed on 28 December 2007 commencing in paragraph 4.  In relation to that the mother has not filed any affidavit dealing with the events or any knowledge that she may have as a result of conversations with the child or dealings with the police, but it is conceded that the period of time [the child] spent with the father came to a conclusion on 24 December.  It appears that the shopping centre made arrangements for [the child] to come into the supervision of the local police and was subsequently collected by her mother and returned to South Australia.

30. I am told by Mr Bowler that an additional difficulty in this case is that the mother may be suffering a recurrence of cancer. 

31. I asked the father why, prior to deciding the instant issue, the court ought not receive the already ordered independent report in respect, particularly, of the wishes of a child who is now 13 and a half, particularly in light of the incident which occurred on about 24 December 2007. The father responded that the report would not be independent and would be biased. 

32. Part of the reason, apparently, that it would not be independent and biased is because Mr Bowler is biased.  The father unsuccessfully sought to make an application to have Mr Bowler removed.  That application was dismissed by Dawe J.  I am told by Mr Falconer that applications have been made by the father to discharge three earlier child representatives. 

33. The father asserts, secondly, that there is urgency in respect of the application, and that is a reason it should be heard and determined prior to the receipt of any assessment report, the urgency being, of course, that the second half of the school holidays starts tomorrow.  There is little doubt there is urgency in that sense. However, the primary concern is the child’s best interests.

34. The father thirdly submits that there is an existing court order providing that he have that time.  That is undoubtedly true.  That order, however, was made on 2 February 2004.  It seems to me significant to note that at the time the order was made the child was barely nine; she is now about 13 and a half.

35. Furthermore, since that order was made, there have been numerous applications for contravention made by the father, dealt with by Watt J and dismissed by him.

36. I also must have regard to the troubling incident which occurred on or about 24 December 2007 to which I have referred. 

37. The father submits that I should take account of the child’s wishes by reference to the telephone calls that are annexed to his affidavit. The father refers to annexure TF5 to his affidavit in which are enumerated conversations by reference to what the father describes as “lapsed time”. They include comments by the child (who according to the transcript is crying) such as: "No, I want to go live with you.  I don't want to be here any more. I just want to go live down with you."  She says also, "I don't want to be here any more."  The father then says to her – in a comment which I suspect will interest the family assessment writer- "Well, I don't want you to be there either."  The child says, "I don't want to be here right now. I want to leave.  I don't want to stay here another second. I want to go." 

1. The fifth matter that the father raises in support of the application proceeding today in the absence of the family assessment report is that the mother has according to him contravened orders, "Time and time and time again," and he has filed a Notice of Child Abuse in Form 4.  In the former respect, I repeat my reliance upon the finding made by Watt J.

2. It is trite to say, but nevertheless bears saying, that, in a case where parties have been warring over their child for virtually the whole of her life and where there have now been 500 documents filed in this court, the issue of what might be in the best interests of a 13 and a half year old child will be a complex one. 

3. I am not prepared to rely upon the evidence contained in the annexure to the father’s affidavit which, he says, is reflective of the true wishes of the child, in circumstances where I know as a fact that she voluntarily left his care in rather dramatic circumstances after an argument as recently as December 2007 and where she has indicated contrary wishes, apparently, to the ICL in January 2008.

4. Notwithstanding the fact that Mr Falconer advises me that there have been three prior family assessment reports made in this matter, if ever a matter cried out for a family assessment report in order to determine the issues in and the resolution of the child’s best interests, this is one of them. 

5. I am accordingly not prepared to make any orders in respect of what might be described as contact or time with the father prior to receiving a family assessment report. 

6. In balancing the respective considerations raised by the parties in respect of whether the matter ought be determined today, uppermost in my mind is not making such a determination in the absence of the views of the child that will undoubtedly form part of the upcoming family assessment report. 

7. As Mr Bowler correctly says, there is an existing order in place.  The father of course has his remedies, and the Act provides for a number of different remedies should he be successful in pursuing the relevant application, including of course what might be described as compensatory time.  For those reasons the application in paragraph 4 is dismissed.

8. The father has filed two Applications in a Case on the same day. Some orders sought in one are repeated in the other. The filed version of one has a handwritten paragraph 14 that is, apparently, not on the unsealed copy served on the other parties.

9. So that the record clearly reflects what I have done with the respective applications, I will first identify the page 3 sheets on the Application as the one containing typed paragraphs 1 through 13, and on which the filed copy has added to it a handwritten 14: "I seek that the matter be expedited as a matter of urgency."  In respect of that application, I dismiss paragraphs 1, 2, 3 and 4 as being incompetent.  I dismiss paragraph 6 as not disclosing a cause of action. 

10. I also dismiss paragraph 5. Again, so the record is clear my reasons for doing so is that his Honour Watt J made an order transferring this matter from the Melbourne Registry to the Adelaide Registry.  Nothing has been put before me which indicates anything other than that the order was regularly entered. No material whatsoever has been put before me to indicate any new circumstances that would suggest that I should hear the application a fresh. To the extent that any objection is taken to the order made by Watt J, that is a matter for appeal should the father be so minded.

11. I also dismiss paragraph 7.  I could dismiss paragraph 8 because it is in broad general terms and incapable of comprehension in its current form, but I will take it as being an application for leave to file a contravention application in respect of the alleged contravention of an order relating to school holiday contact in April 2008.  Expressed in that form, then, I will adjourn the hearing of the application for leave to bring that contravention application to a date to be advised by the registry. 

12. I will dismiss paragraph 9 of that order as being an order related solely to any prospective contravention application.  Paragraphs 10, 11, 12 and 13, (which mirror paragraphs 5, 6, 7, and 8 of the other application filed on 14 April 2008) are dismissed on the basis that they have previously been made the subject of orders by Dawe J.

13. In respect of what I will call the second Application filed on that date, which, so that the record is clear, is the Application that contains typed orders 1 through 8, I dismiss paragraph 1 because no order that I have been pointed to requires the father to obtain leave to file this application, given that I have dealt with it as an application, in effect, for directions with respect to contact orders. 

14. I will dismiss paragraph 2 for the reasons earlier indicated.  Paragraphs 3 and 4 are also dismissed.  As I indicated earlier, paragraphs 5, 6, 7 and 8 are dismissed on the basis they already form the basis of orders made by Dawe J.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  9 May 2008