Feranti and Connor (No 3)

[2009] FamCA 1226

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 3) [2009] FamCA 1226

FAMILY LAW – PRACTICE AND PROCEDURE – application by the father seeking orders pursuant to s 69ZW of the Family Law Act 1975 (Cth) – where the Initiating Application was filed before 1 July 2006 – whether the Shared Parental Responsibility amendments which created s 69ZW and commenced on 1 July 2006 apply to these proceedings – whether the proceedings before the Court were commenced by an application filed on or after 1 July 2006 – provisions of s 69ZW do not apply to these proceedings – where the Court would not exercise its discretion under s 69ZW in any event on the basis of the matters alleged by the father

Family Law Act 1975 (Cth) s 69ZW
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Item 8, Part 2, Schedule 3

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 1 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person (by telephone)

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Peter Falconer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Atchison (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Nicola Atchison

Orders

1. Paragraphs 1 and 3 of the Application in a Case filed by the father on 16 October 2009 are adjourned to a date to be fixed before a Judge at first instance in the Adelaide Registry following upon the delivery of the Full Court judgment in the matter of Feranti & Connor being the Appeal against the Orders of the 20 February 2009 (refer Appeal No SA21 of 2009), such listing to be made giving the parties at least fourteen [14] days notice.

2. The parties are given leave to attend by telephone link provided they confirm the landline telephone number with the Adelaide Registry at least 48 hours before the commencement of the hearing.

3. Paragraph 2 of the Application in a Case filed by the father on 16 October 2009 is dismissed.

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. This is an application filed by the father, being an application in a case filed on 16 October 2009, paragraph 2 of which seeks orders that pursuant to section 69ZW(2) of the Family Law Act 1975 (Cth) there be an order made:

   “…directing Families S.A Division, Department for Families and Communities in South Australia, to provide any documents, recordings or information in its possession regarding the child, […], born […] March 1995 and known as [T] or [TA],, for the period March 2004 to October 2009 inclusive and in particular:

   a)any notifications to the agency of suspected abuse of the child or of suspected family violence affecting the child

   b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations

   c)any reports commissioned by the agency in the course of investigating a notification.”

2. The father has filed, in support of that application, an affidavit also filed on 16 October 2009. He has, at my request, highlighted that the paragraphs based upon which he seeks the orders in relation to section 69ZW are paragraphs 23, 24 and 25 of his affidavit:

   “23. In relation to the second order that I seek in my application, there have been numerous instances where [the child] has telephoned me very late at night or in the early hours of the morning, in a distressed and fearful state.  She spoke of instances of abuse by both the mother and the male residing with her.  This abuse was of a physical, mental and emotional nature.  I refer to and rely on the Notice of Child Abuse filed by me on 26 October 2007 and its supporting Affidavit.

   24.    On occasion, [the child] stated that she had spoken with the principal of her school after her teacher noticed [the child] in a distressed state upon arriving to school one morning and suggested to [the child] that she speak to and convey her fears to the principal.  This was confirmed to me by the school principal during a telephone conversation on 14 August 2007.  The instances of abuse were over a long period of time and included the time after the mother had relocated from Melbourne to […], South Australia.  The mother currently resides in [M] in South Australia.

   25.  [The child] has also been called [TA] by some of her teachers in South Australia.”

3. He refers in that part of his affidavit to the Notice of Child Abuse, which was filed on 26 October 2007, and its supporting affidavit.  Those matters relate to the concerns he has expressed.  Specifically the paragraphs also relate to discussions the father has also had with the child about her discussions with school teachers.  He summarises the matter in paragraph 24 when he says:

   “The instances of abuse were over a long period of time and included the time after the mother had relocated from Melbourne to […], South Australia.”

4. The matter comes on before me as part of proceedings which have been outstanding before this Court for a considerable period of time. The application initiating the proceedings was an application filed by the mother on 28 June 2006. That date is significant because Justice Strickland had already referred the father to the amendments to the Act which created section 69ZW which came into force on 1 July 2006. The amending Act specifically states that the amendments made that created section 69ZW apply:

   “(a)to proceedings commenced by an application filed on or after 1 July 2006; and

   (b)to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave.”

5. In relation to the latter part of that note, being paragraph (b), there is no indication that the parties have consented, or that the Court has granted leave. The decision, therefore, has to be made whether the proceedings before me in which the husband brings his application under section 69ZW are proceedings which “commenced by an application filed on or after 1 July 2006”. 

6. The proceedings before the Court were commenced by an application initiating these proceedings filed by the mother on 28 June 2006.  Those proceedings have not been determined as yet.  The matter was, at one stage, in the Melbourne Registry and was transferred from the Melbourne Registry to the Adelaide Registry by order of Justice Watt.  The father appealed that decision.  The Full Court has only recently delivered their reasons dismissing the father's appeal from that decision. 

7. The father has also filed contravention applications and contempt proceedings which were required to be heard before the specific proceedings to determine the final orders to be made in the best interests of the child in these proceedings.

8. The question therefore remains whether the proceedings before the Court in which the father seeks the section 69ZW order are proceedings to which that section applies. Paragraphs 23 to 25 of the father’s supporting affidavit are matters which would relate to the determination of the final orders and what is in the best interests of the child known as T.

9. The interpretation of the provisions introducing section 69ZW require the order to be sought only in relation to any application for final orders filed on or after 1 July 2006.

10. The father’s application is an application for an order in relation to section 69ZW but is in proceedings which were commenced by an application filed on 28 June 2006 and therefore does not fall within the definition of section 69ZW.

11. The father has also referred to his contravention proceedings, but they are specific interim applications, or applications in relation to interim orders that have been made since the commencement of the proceedings.  It is not possible to say that simply by starting an application for contravention after the initiating proceedings have been commenced and before they have concluded, that that would bring the proceedings as such, within the definition of the amending Act being “proceedings commenced by an application filed on or after 1 July 2006”.

12. In my view that would leave open the capacity for anyone to simply file an application, such as an application for an order under section 69ZW in proceedings which have been commenced years before the amending applicable date of 1 July 2006, and ask the Court to make an order on that basis. The correct interpretation of the application of the provisions must be one which is practical and makes sense. Therefore, considering the application of Part 2 of Schedule 3 of the Family Law Amendment (Shared Parental Responsibility) Act 2006, item 8 (which is the provisions of the amended Act which sets out when the provisions of section 69ZW apply) I am satisfied that the provisions of section 69ZW do not apply in this case to the application by the father.

13. If I am wrong in relation to the interim and interim contravention applications, then the Court needs to consider the basis upon which the father is seeking the order under section 69ZW. Section 69ZW provides the Court with a discretion to make an order in child related proceedings, requiring a state agency to provide the Court with documents or information specified in the order. Section 69ZW(2) says that the documents in the order must be documents recording, or information about, one or more of the items set out in section 69ZW(2)(a) to (c) in relation to notifications of suspected abuse.

14. The affidavit of the father filed in support of the application in this instance, referring to the matters in paragraphs 23 to 24 mentions occasions when the father says the child telephoned him and was “in a distressed and fearful state”.  He draws conclusions.  He also refers to information he has about the child discussing matters with a teacher who noticed she was in a distressed state.

15. The information before the Court, therefore, does not establish that there would necessarily be any notifications or assessments or reports obtained by the state agency. 

16. Taking into account the overall history of this matter and on the basis that there is an Independent Children’s Lawyer appointed by the Court and the matter has been before the Court for a considerable period of time, I am therefore not satisfied that the Court would, in any event, properly exercise its discretion under section 69ZW on the basis of the matters alleged by the father in his affidavit material before the Court on this occasion and on other occasions.

17. I therefore dismiss paragraph 2 of the application in a case filed by the father on 16 October 2009.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  11 December 2009