Feranti and Connor (No. 3)

[2007] FamCA 1708

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 3) [2007] FamCA 1708

FAMILY LAW – COSTS – Contravention proceedings – Costs sought by mother on two bases – Party and party basis (as to part of application) and on an indemnity basis (as to balance of application)

Family Law Act 1975 (Cth)

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 13 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr C.P. Arnold

SOLICITOR FOR THE RESPONDENT: Peter Falconer & Associates

Orders

1. The father pay the mother's costs of and incidental to the father's Application -  contravention filed 14 February 2005 as amended on 26 April 2005 (the father's application:

   (a)as to the contraventions alleged in paragraphs (1)-(3) of Part D of the father's application on a party and party basis;

   (b)as to the contraventions alleged in paragraphs (4)-(8) of Part D of the father's application on an indemnity basis.

2. Save for any proceedings between the parties in relation to taxation of costs all proceedings currently pending in this Registry being:

   (a)the father’s form 2 application in a case filed 4 February 2005 and amended 26 April 2005;

   (b)       The mother’s form 2 application in a case filed 28 June 2005;

   (c)       The mother’s form 1 final application filed 28 June 2006;

   (d)       The father’s form 1A response filed 26 July 2005;

   (e)       The father’s form 2A response filed 26 July 2005;

   (f)       The mother’s form 2 application in a case filed 8 September 2005;

   (g)The father’s notice of child abuse or risk of family violence filed 26 October 2007;

   (h)       The father’s application in a case filed 26 October 2007;

   (i)The mother’s response to an application in a case filed 9 November 2007

   be transferred to the South Australian Registry of this court, and, subject to any order of Burr J, be listed for mention only at 9.45am (South Australian time) on 21 November 2007 before Burr J.

3. I direct that a copy of the letter received by this Registry from the Department of Families and Community Affairs (South Australia) dated 12 November 2007 remain on the court file (noting that copies were provided to the parties on 12 November 2007).

4. The Court requests that consideration be given to appointing an independent children's lawyer as soon as practicable, and that if considered appropriate, the independent children's lawyer be based in South Australia’s south east coast area.

5. The Court requests the Registry Manager, Melbourne to establish a separate file with respect to taxation of costs and retain same in the Melbourne registry when transferring this matter to South Australia in accordance with my order, with the intention that any pending and further taxation proceedings will be dealt with in the Melbourne registry.

6. The father be and is hereby restrained from filing or commencing an application without the court's permission alleging contravention of a parenting order or an injunction or condition attached to a parenting order in circumstances where: 

   (a)there has been substantial compliance with the parenting order, injunction or condition; and

   (b)the father's time spent with the child and opportunities to communicate with the child has  not been significantly compromised

   and I direct that any application to start a case brought by the father pursuant to this order is to have annexed to the affidavit in support a copy of my reasons delivered 26 October 2007.

7. By 4 pm on 20 November 2007, the father provide to the solicitor for the mother a CD or CDs on which is/are recorded any recordings that the father has made of the conversations with the child referred to in his affidavit sworn 26 October 2007, together with a transcript of any such conversation or part of a conversation on which he will seek to rely at the hearing of his application in a case filed 26 October 2007, noting that Mr Arnold has stated on behalf of the mother that the mother reserves her right to object to the tender of any such recording or transcription or both.

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 MELBOURNE

FILE NUMBER: MLF 10368 of 1994

MR FERANTI  

Applicant

And

MS CONNOR  

Respondent

REASONS FOR JUDGMENT

1. On 12 November 2007 I ordered the dismissal of the father's contravention application filed 14 February 2005 in this matter, and following that dismissal, an application for costs was made by Mr Arnold on behalf of the mother. The costs application was made on two different bases.  Firstly, as to the allegations of contravention set out in paragraphs 1 to 3 of part D of the mother's application, costs were sought on a party-party basis.

2. As to paragraphs 4 to 8 of the allegations, costs were sought on an indemnity basis which involves the payment of all costs incurred by the party in whose favour the order is made.

3. In the course of submissions, reference was made to subsections 117(1), (2) and (2A) of the Family Law Act 1975, and I will set those out now:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under sub-section (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, direction to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court consider relevant.

4. Matters that arise under section 117(2A) that Mr Arnold relied on in support of the mother’s application for her costs of paragraphs 1 to 3 of the contraventions were primarily the fact that the father was wholly unsuccessful in the proceedings, and there were various other aspects of the case to which he made reference under subparagraph (g), but that was the primary thrust of his submissions, and he referred to my reasons for judgment published on 26 October 2007 as a basis for identifying the grounds on which the father had been wholly unsuccessful.

5. Mr Arnold also referred to the mother's financial circumstances, stating that she was a professional earning about $80,000 per annum, and has one item of real estate only that she owns. I have no details of either party's financial circumstances before me, however, and it is therefore very difficult to place any reliance on those matters, and any disparity that they might show.

6. The father informed me that he had been made bankrupt by the solicitor for the mother in some earlier proceedings over costs, but had succeeded in having that bankruptcy annulled. He stated that there were still ongoing disputes about the costs of the trustee. I have no evidence about these matters on which I could make any finding that might operate in respect of my decisions now about costs under section 117(2A)(a).

7. As to subparagraph 117(2A)(b) - and I might say these matters were referred to generally by the father in defending both of the mother’s costs applications - whether any party to the proceedings is in receipt of assistance by way of legal aid, and if so, the terms of the grant of that assistance to that party.  Under that subparagraph, the father made reference to the fact that the mother's solicitor has apparently been - and perhaps some of the counsel who have appeared for her have been acting on a fee declined or a fee-deferred basis. 

8. I am in no position to make any finding about that.  I have heard the words "pro bono" used in respect of her representation on occasions, and it may well be that what has happened is that the solicitor and counsel have agreed not to render accounts during the pendency of the proceedings.  But I will not go further into that. Neither party was in receipt of legal aid as far as I am aware, and so that matter is not relevant.

9. Subparagraph (c), the conduct of the parties to the proceedings in relation to the proceedings – the father made some submissions under that subparagraph about the mother's conduct in not complying with orders, notwithstanding that I made findings that, where there was a noncompliance, there was a reasonable excuse or, in all the circumstances, I should not make a finding because of the absence of the relevant intent. 

10. Subparagraph (c) has no bearing on the outcome as far as the mother's conduct was concerned.  There was no particular aspect of that subparagraph that Mr Arnold relied on, and it was very much a case of him relying on the wholly unsuccessful nature of the father's application. 

11. Under subparagraph (f), whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer, the father did drawn my attention to four letters, two of which are annexed to his affidavit sworn 15 April 2005, and two of which he tendered without objection, being letters dated 13 March 2006 and 13 May 2006.  In fact, the letters that were annexed to the affidavit are simple proposals for variation of orders which, if acceded to, would have avoided further foreshadowed proceedings.

12. However, they do not in any way bear upon an offer to compromise the contravention proceedings which indeed at the time of the first of those letters did not exist, and although there are threats to issue contravention proceedings in those letters, that is not to the point.  The fact is that once the proceedings were on foot, none of the letters to which the father made reference contains an offer that, having regard to my judgment, I could say the mother should have accepted or attempted to negotiate on. The offers made after the commencement of the proceedings all had to do with the child coming to live with her father, and the father then being prepared to do certain things or agree to certain new arrangements once the child had moved to him.  They do not fall for consideration in the sense of subparagraph 117(2)(f) or (g) for that matter. 

13. The nub, as I say, of the application in relation to paragraphs 1, 2 and 3 is the wholly unsuccessful aspect of subsection 117(2)(a)(e).  The high point of the father’s defence to those was that many of the contraventions that he alleged in paragraphs (1) to (3) were in fact admitted, but reasonable excuse was put forward and accepted by me, and in that context, the father referred me to a decision of Benjamin J of this court, referred to as Peter & Elspeth (Contravention) [2007] FamCA 96, and in particular paragraph 6 at page 2 where Benjamin J sets out what I might describe as the traditional approach to contraventions, that an order is an order, and it is incumbent upon the person who is subject to it to ensure compliance with it. That principle is not in doubt.

14. This case, however, raised a wholly different scenario, and I consider that the application and my judgment on it should be looked at in toto.  By that I mean in respect of paragraphs 2 and 3 which related to telephone communications, paragraph 2(a) and (b) should never in my view have been brought after the hearing before Brown J on 16 February.  I am paraphrasing the judgment I have already give in respect of those matters.

15. Secondly, the mother gave evidence of difficulties with the child in ensuring that she, the mother, complies with the order, and paragraph 27 of my judgment of 26 October 2007 deals with this.  I accepted that evidence.  I accepted the mother's creditworthiness in paragraph 28.  As to subparagraph (2)(c), the … March allegation, the father turned up at school in South Australia, which also happened to be the child's birthday. There was no arrangement for this to occur.  It was outside the order, and the child said the next day that she did not want to call because she had seen him on the previous day, and I accepted that.

16. There is a strong element of the father's own noncompliance with the terms of the order which were quite specific as to when contact was to take place in that particular allegation, and I certainly found that it was a reasonable excuse in those circumstances.

17. So paragraph (d), 7 April, it was alleged there was no call.  This was agreed, but it was asserted that on 6 April, the day before, a call of 45 to 46 minutes took place.  In those circumstances, there was what I would refer to as very substantial compliance with the order; that is a call of significant duration has taken place in reasonable proximity to the date when it should have taken place.

18. Paragraph 33 of my judgment identifies an occasion, subparagraph (e) of paragraph 3, where the father's records were inaccurate, and he ultimately agreed that they were, and that should not have been alleged at any stage as a contravention.  Subparagraph (f) in relation to 26 May, and subparagraph (p) are in the same category.  Subparagraph (g), 21 July, is a less clear example of reasonable excuse, but the child in fact explained to the father why the call had not taken place on the due date.

19. Again in paragraph (h) there was an additional call made outside the timetable, with an explanation by the child to the father why the call had not taken place within the time frame.  In paragraph 40 of my judgment, I deal with subparagraph (i) of the allegations, and that was something that the father acknowledged was not a proper basis for an allegation of contravention; that is, that the call had only lasted for 36 or 37 minutes.  He initially adopted the view that they should all last an hour, but ultimately he accepted that in fact the call simply had to be of some reasonably substantial duration, and that that breach also should not have been alleged.

20. There were others that were not so clear cut, that is, that they should not have been alleged. I accepted reasonable excuse where the child refused and make‑up calls took place or where the mother's records were missing.  In paragraph 74, I identified that the record of calls being made, notwithstanding that they were outside the time or on the wrong day, clearly negated the presence of an intent or an indifference to performance or compliance with the order, and although in paragraph (3) of the application, the father did establish that on 11 occasions, calls were outside the relevant time band - I refer there to paragraphs 98, 99 and 100 of my judgment - the evidence clearly established that the father has had the benefit of communicating with his daughter, and she the benefit of communicating with him, and the mother has encouraged the child in this regard.

21. The father demonstrated no detriment or prejudice to his relationship with his daughter because of out-of-time calls, and these contraventions should not, in my view, have been the subject of a trial in such circumstances.

22. In paragraph 102 I commence my consideration of the breaches alleged under paragraph 1.  They were the holiday notice breaches.  They related to March 2004, June 2004, and March 2005.  I again accepted the mother's evidence in respect of the March 2004 breach or alleged contravention, she did not take the technical defence that was available to her that the father had not alleged the date for the commencement of the holiday period, and she gave evidence that satisfied me that notice was in fact given.  I refer there to paragraphs 103 to 112 of my first judgment.

23. The June 2004 allegation, I accepted the mother's evidence, and again that established that the notice was posted in good time. I refer there to paragraphs 113 to 117 of my judgment.  I note, however, that in that particular instance - June 2004 - the father may well not have received the initial notice that the mother sent, but I accept that if that happened, it was for some reason extraneous to any failure on behalf of the mother, and the father was given the information in time to ensure that the relevant contact took place.

24. March 2005, there was a two-day lateness in the arrival of the notice, but again, having regard to the mother's evidence, I simply did not find the necessary intent present, and of course there was the overriding fact that the contact all took place as it should have in accordance with the orders, and there has not to my recollection been any occasion established in the proceedings before me where face-to-face contact did not take place.

25. Other matters that were relevant to my consideration of paragraphs 1 to 3 are set out in paragraphs 125 to 133, and I am quite satisfied that the father's allegations in paragraphs 1, 2 and 3 are made in circumstances where the mother has in difficult circumstances ensured that there has been substantial compliance with the orders.  In my view, the father, in alleging these contraventions which the mother has had to defend, has put the mother to unnecessary trouble and expense.  He has been wholly unsuccessful.  He should pay the mother's costs on a party-party basis as sought by the mother.

26. I now turn to the second group of allegations, being paragraphs 4 to 8 of part D of the father's application.  Paragraph 4 dealt with allegations of a breach of an order made by Hayes J over 10 years ago.  That order I found in paragraphs 12 to 20 of my judgment is no longer in operation.  Previous hearings have raised the same issue, and I do not propose to identify them all, but particularly before Wilczek J, and I identified those in paragraphs 21 to 26 of my judgment. 

27. Paragraphs 27 to 28 show that leave to appeal was refused, and I made it clear in my judgment that the husband should have sought an ongoing injunction at the hearing before Guest J.  He did not do so.  Subsequent attempts to raise contraventions of that order are an abuse, are vexatious and are lacking in bona fides.  The same is true of paragraph 4 as appears from paragraphs 34 to 48 of my judgment.

28. As appears from paragraphs 49 to 63 of my judgment, I made the same or similar findings in respect of allegation number 6. 7 and 8 are in a slightly different category in that they are both misconceived; that is, they allege breaches of an order in circumstances where the facts alleged, even if true, did not amount to a breach of an order.  The failure to provide dental care I found clearly, while possibly true, it is not a breach of any legal standard that the Family Law Act 1975 imposes, and as far as paragraph (8) is concerned, that was a misreading of an order, and the father’s application to vary the order – that is, the order about medical procedures and getting notice of them, and being provided with information, his further application to vary that order shows an awareness of this deficit in that order.  I refer to paragraph 68 of my judgment.

1. So the father in respect of paragraphs 4 to 8 is not only wholly unsuccessful in relation to these allegations, but his raising of them has been found to be an abuse of process in circumstances which warrant in my view careful consideration of the exercise of discretion given under rule 19(1)(b) which clearly authorises the making of the order sought by the mother. 

2. As to guidance as to the exercise that discretion, I will refer to a judgment of the Federal Court -  Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225. Sheppard J in that case said:

   The ordinary rule is that where the court orders the costs of one party to the litigation to be paid by another, the order is for payment of those costs on the party and party basis.

3. His Honour continues and says that there are exceptions that have been identified in certain cases to which his Honour makes reference, and most significantly in (a):

   Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success, in such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.

4. The fact that the father has appeared throughout this proceeding before me as a self-represented litigant and was self-represented at the time that he commenced these proceedings does not in my view provide any basis for distinguishing that particular dictum.  The fact is that the father chooses to be self-represented, and if properly advised, he might have behaved differently.  That is not a matter that should impact on a decision to make an order for indemnity costs where this is otherwise appropriate.

5. Having regard to the judgment to which I have referred of Sheppard J - and there are other aspects of it which are also relevant, I am quite satisfied that in the circumstances set out in my reasons delivered on 12 November 2007 in relation to the summary dismissal application, I am quite satisfied that it is appropriate to make the order sought by the mother for the payment by the father of her costs on an indemnity basis.

6. On 26 October 2007 when I delivered my reasons for judgment in relation to paragraphs 1 to 3 of the allegations, I indicated to the father that when the matter came back before me on 12 and 13 November, I would give consideration to imposing of my own volition a restraint on the issue of further proceedings alleging contraventions of the kind dealt with in my judgment of 26 October, that is paragraphs 1 to 3 of the alleged contraventions.

7. At the hearing on 12 November, I asked the father if he had had a chance to consider this, and he responded to the effect that he had, and submitted that I would simply be giving the mother permission to ignore the orders if I did such a thing.  This is not so.  My judgment of 26 October 2007 shows that there was substantial compliance with the orders by the mother, and that the child through her wilful behaviour can make complete compliance difficult or impossible.

8. I also found that the father had not suffered any detriment or significant loss of time or opportunity to communicate with the child arising from the contravention allegations, and it therefore seemed appropriate to consider the matter on my own volition. Mr Arnold, not surprisingly, supported this approach, although he made no particular application on behalf of his client.  I considered it particularly appropriate to consider this issue because the father had informed me in the course of the hearings that gave rise to my judgments in this matter that there were many further similar examples of contraventions that he intended to raise at a later time.

9. The relevant rule under which the court may act is rule 11.04 which provides in subparagraph (1):

   If the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:  (a) dismiss the applicant's application, and; (b) order that the applicant may not, without the court's permission, file or continue an application.

10. The rule goes on to provide in subparagraph (2):

    The court may make an order under subrule (1):  (a) on its own initiative, or; (b) on the application of a party.

11. Rule 11.04(3) provides:

    The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.

12. I consider that requirement has been satisfied in the way that I described earlier in this judgment. I have dismissed the contents of paragraphs 4 to 8 of the alleged contraventions as an abuse of process, and I consider that it is desirable that I should at least require that the father obtain the court's leave before proceeding with any application alleging contravention similar in kind to those alleged in his application.

13. I have already said that I will order costs on a solicitor-client basis for paragraphs 1 to 3, indemnity basis for paragraphs 4 to 8.

Transfer of proceedings

1. I will now turn to a matter that I raised with the parties yesterday, and had in fact raised with them at an earlier stage of proceedings.  That is the possibility of transferring the matter to the registry of the Family Court of Australia in Adelaide. I should mention at this stage that it is common ground that the mother and the child have lived in South Australia since early 2004, in more recent times - I am not aware of the date - she has moved to the south east coast, in South Australia, close to an area which the Family Court used to go on circuit. Whether that is still the case, I am not sure, but that is not a relevant matter.  The fact is that there is a Family Court registry in Adelaide.

2. This is a slightly unusual consideration of this order, because neither party is actually seeking it.  I will identify the pending applications in this case and a short summary of what they involve.   

3. Firstly, there is the father's application in a case filed 4 February 2005 and amended 26 April 2005.  That has to do with parenting issues basically.  Secondly, the mother's form 2 application in a case filed 28 June 2006 seeking a suspension of the father's contact as an interim order and a further family report or update.  Thirdly, the mother's form 1 application for final orders filed 28 June 2005 seeking that the orders pertaining to the father's contact with the child be discharged. 

4. Fourthly, the father's form 1A response filed 26 July 2005 seeking the discharge or setting aside of the orders of Brown and Guest JJ, that the child reside with him, that the mother have contact for alternate weekends and half school holidays, and various other orders in relation to the child, including notification of any medical or other emergency with the child.  Fifthly, the father's 2A response filed 26 July 2005 seeking that the father be allowed to attend any function or activity of the child, the father be allowed to attend the child's school and participate in any activity and event that the parents are normally able to, and various other orders relating to spending time with the child or involvement in the child's education, and telephone communication.  I will not specify the orders sought in detail, that is not necessary.

5. Sixth, the mother's form 2 application in a case filed 8 September 2005.  That seeks the reinstatement of a form 63 and a form 46 summons filed on 18 March 2003 which were struck out by Brown J in February 2004 with a right of reinstatement.  That application also seeks an order that the father pay the mother's and the child representative's costs with respect to the hearing before Brown J which were reserved pursuant to paragraph 9 of her Honour's orders made 2 February 2004.  That is also contained in that application in a case filed on 8 September 2005, and that has not been disposed of in any way.

6. Seventh, the father's notice of child abuse filed 26 October 2007.  Eighth, the father's application in a case filed 26 October 2007 basically seeking that Brown J's orders of 2 and 16 February be set aside and that the child reside with the father, that he have sole responsibility for her both on a day‑to‑day and long‑term basis; next, that the child have telephone contact with the mother at the child's discretion, and  some orders are sought in respect of a person who is said to be living with the mother, Mr G, and that is responded to by the mother in an application in a case filed on 9 November 2007 seeking dismissal of that application.  However, the affidavit in support makes it clear that Mr Falconer, the mother's solicitor, has not been in a position to obtain full instructions in relation to that particular application.

7. I will just interpose at this stage that in accordance with the usual practices of this court, when a notice of abuse is received and allegations of harm to a child are made in material filed in the court, the relevant notice of abuse was forwarded to the government of South Australia's Department for Families and Communities. On 12 November 2007, a letter was received by facsimile at this registry which indicated that at this stage, the complaint or information was not being investigated on the basis that this was "due to more urgent matters with younger and more vulnerable children requiring our attention." 

8. It can not on any view therefore be said that these allegations raised by the father, which include some quite serious allegations, have been investigated and disposed of to the satisfaction of the department, and in my view, that points to a certain level of urgency about ensuring that the matter is heard at least in respect of that particular application in a case and notice of child abuse as soon as reasonably practicable.  Such a hearing would in my view have to involve the child being separately represented by an independent children's lawyer, and that takes me now to the issue of transfer to another court or registry pursuant to rule 11.17.

9. The recently filed application in a case, affidavit and notice of abuse essentially include allegations that the child has been telephoning the father in the early hours of the morning stating a strong wish to live with him and complaining about various aspects of her treatment at the hands of particularly the mother's alleged partner to whom I have made reference, and that the mother has been at least standing by, if not complicit in this.

10. The matters that I have to have regard to in deciding whether to transfer a matter to another registry include these.  Rule 11.18(1) states that:

    The court may consider: (a) the public interest; (b) whether the case if transferred or removed is likely to be dealt with (i) at less cost to the parties, (ii) at more convenience to the parties, or (iii) earlier; (c) the availability of a judicial officer specialising in the type of case to which the application relates; (d) the availability of particular procedures appropriate to the case; (e) the financial value of the claim; (f) the complexity of the facts, legal issues, remedies and procedures involved; (g) the adequacy of the available facility having regard to any disability of a party or witness, and; (h) the wishes of the parties.

11. I should start at the end and say that both parties have made it clear that they wish the proceedings to remain in Melbourne. The mother sees her geographical position as being midway between Adelaide and Melbourne, and travel is equally inconvenient in each direction.  She also has another reason that has been articulated to me quite clearly, and that is that her solicitor Mr Falconer, who has acted for her for over 10 years now, is based in Victoria, and she has had the benefit of his services, as I say, for many years now.

12. Of course she has been living in South Australia for over two years now.  So obviously she and he have had to cope with the inconvenience of the interstate factor for some considerable time now.  It was I think implicit in the mother's submissions, however, that it may be much more difficult for Mr Falconer to arrange for the involvement of counsel with whom he is not familiar in South Australia in the proceedings on the same basis that he has been prepared to approach the matter, and that may be a very real difficulty.

13. However, underlying these proceedings and all of these considerations is the welfare of the child. The fact is that where allegations are made of particular kinds, section 60K(1) of the Family Law Act 1975 provides that the court should look carefully and quickly at those allegations, and that in my view amounts to a public interest ground within the meaning of subparagraph (a) of rule 11.17.

14. The child is now a girl of 12.  She is capable of expressing herself very articulately and clearly, and her statements and perceptions of her situation are perhaps the primary factor that ought to be before the court that further considers the applications, both those that have been held in abeyance pending determination of the contravention proceedings, and those recently instituted by the father.  Obviously the latter have an element of urgency that is greater than the other applications because of the allegations of abuse or ill treatment of the child, and her alleged strong statements of her views.

15. The second factor is less cost to the parties.  I am not in a position to say that the costs to the mother will be less or more if the case is heard in South Australia or Victoria.  For the father it will be clearly more expensive because he will have to travel to South Australia.  However, in the evidence before me at the hearing of the contravention applications, he demonstrated the capacity to travel to South Australia on a fairly regular basis, namely at the commencement and conclusion of each of the child's contact periods with him.  That sort of travel is not out of his normal range of operations. 

16. Whilst I am in no sense speaking approvingly or encouragingly of that particular form of travel, because it clearly falls outside the terms of the order made by Brown J in February 2004, it is something he has been able to manage in the past.  There is no question that it is not more convenient to the father for the case to be in South Australia.  It seems to be a matter of equal inconvenience to the mother whether it is South Australia or Melbourne.

17. As to whether it can be heard earlier, I will deal with that together with certain other matters shortly.  The other matters are the availability of a judicial officer specialising in the type of case, whether there are particular procedures appropriate to the case available.  Those three really I propose to consider together. 

18. There are particular features of this case that in my view bear consideration at this point.  Firstly many judges in this registry have already been involved in the proceedings; two of the more recent appointments appeared as counsel for one of the parties, so they could not hear the proceedings.  Some of the judges who have conducted earlier contested hearings have made findings as I have of credit adverse to the father, and could well be the subject of an objection by him if the case was listed before any of the judges in that category. The father has foreshadowed that such objections would be raised in respect of all judges who have heard contested proceedings involving him and the mother.

19. From discussion with counsel and the father yesterday, there appear to be two possible judges in this registry who would clearly be untrammelled by prior involvement in this case. I made inquiries of the listing judge yesterday as to their availability. Neither would be available to take on any matter of substance before April next year.  Adelaide may not be in a much better position, I have to say, but I am satisfied that the Adelaide registry will be able to look at the matter quickly and make appropriate arrangements for an interim hearing with an independent children’s lawyer for the child.

20. Much more important, however, in my view, is the issue of the appointment of an independent children's lawyer for the child in South Australia who would usually be funded by the Legal Aid Commission of South Australia.  Mr Arnold submitted that there may well be circumstances in which Legal Aid Victoria would be prepared to fund an independent children's lawyer in South Australia.  I am not so confident that that is right. 

21. I am not doubting his word that it may have happened, but my experience of sitting on circuit at Albury, which of course has both New South Wales and Victorian cases come before it, is that generally Legal Aid New South Wales funds the child representative where the child is in New South Wales, and Victoria where the child is in Victoria.  There may have been exceptions to that that have come before me, I do not now recall.  But I do not accept that as a matter of course it would be possible for an independent children’s lawyer for this child to be funded by Victoria Legal Aid.

22. There are other benefits in transferring the case to South Australia in that it obviates interim disputes of which I am well aware.  In the course of the proceedings before me, the father made it very clear that when the parenting issues do come before the court, he does not want and would object to the counsellor who prepared the report that was before Brown J, and the independent children's lawyer who was representing the child's best interests before Brown J being involved part of the new proceedings in respect of parenting orders.

23. The mother on the other hand made it very clear that she would very specifically want the same counsellor and independent children's lawyer to continue.  Those were issues that could defer consideration of the real issues in the case, could give rise to further appellate proceedings or applications for leave to appeal, and could simply stand in the way of the child's best interests being advanced. 

24. My view is that the appointment of a new independent children's lawyer in South Australia and the commissioning of a report by someone in South Australia who has not previously been involved in the case is the most expeditious way for this child's best interests to be determined in the relatively near future.  That factor dominates my consideration of this issue, that notwithstanding the opposition of the parties, it would be appropriate to transfer the proceedings to South Australia.

25. I will mention that on an earlier occasion when this consideration was discussed between the bench and the bar table, Mr Wood (who then appeared for the mother) indicated that there either are or may in future be taxation of costs issues pending in this court, and that neither the father nor the mother or her solicitor would be served by transferring those to South Australia, and I think that that is a valid qualification to insert into my considerations.

26. Just returning to the transfer issue, however.  At her age, the child's wishes will be very important.  Equally it will be very important for the independent children's lawyer to have access to the child in person to form a view as to what appropriate experts are needed to put the child's wishes and experiences before the court, and to perform all the other functions of an independent children's lawyer representing the best interests of a 12‑year‑old.  In the circumstances, I consider the case should be transferred to the Adelaide registry of this court, and that is the order that I propose to make.

27. I have mentioned the judicial availability issue.  I have identified other difficulties with the matter proceeding in this registry, and notwithstanding the various matters raised by the parties, I consider it the most appropriate course to adopt, and in doing so I rely on rule 1.10(1) which provides:

    Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

28. Before I turn to the orders that I will make (that I have not already pronounced) I should mention that yesterday, I made an order restraining the father from recording proceedings in court.  This had arisen on an earlier occasion when the father had indicated to the court quite frankly that he was making a tape‑recording or a digital recording, I am now not sure which it was, of the proceedings, and at that point I have to say neither Mr Wood nor I was able to point to any reason for saying that he should not, contained in any law, and indeed I was given the benefit thereafter of an opinion about the relevant State and Federal Listening Devices Act which suggested that there was no breach of them involved in that conduct.

1. However, neither Mr Wood nor I had in front of us or in the front of our minds rule 1.19 of the Family Law Rules which provides very specifically in relation to recording proceedings in court:

   A person must not photograph or record by electronic or mechanical means any court event.

2. Quite specific, quite clear, and in my view, unambiguous.  I pointed out this to the father yesterday, and he indicated that he would comply with any order I made pursuant to that rule.  In the circumstances, I therefore made an order restraining him from recording the proceedings. I wanted to make it clear in my reasons however that this did not arise in circumstances where he was doing anything improper as far as I had previously considered the issue, and that the order was only made because I became aware of the rule that changed the situation from how I had seen it earlier. 

3. In the proceedings before me in respect of which I have already given judgment, it became apparent that the father records all his conversations with the child, and he was in possession of recordings of those conversations.  He sought to rely on them in the proceedings.  Mr Wood on behalf of the mother did not raise any objection, as long as he or his client were provided with recordings of those conversations.  He was provided with recordings.  He did not subsequently object to them being used in evidence, and indeed a transcript of one such recorded conversation was annexed to an affidavit filed by the mother in those proceedings before me.

4. Yesterday at the hearing before me, on 12 November, the question arose as to whether the father had recordings of the conversations that he refers to in his recent affidavit, that is the conversations with the child, which appear to give the case a degree of urgency. The father told me that he had those digital recordings on his computer with him in court, and was keen to play them to me.

5. Mr Arnold wanted to keep his client's position reserved until he was aware of the contents or she was aware of the contents of these recordings and, very much in keeping with the previous order that I made, I propose to make an additional order that by 4.00pm on 20 November 2007 the father provide to the solicitor for the mother a CD or CD’s on which is/are recorded any recordings that the father has made of the conversations with the child referred to in his affidavit sworn 26 October 2007 together with a transcript of any such conversation or part of a conversation on which he will seek to rely at the hearing of his application filed 26 October 207 noting that Mr Arnold has stated on behalf of the mother that she reserves the right to object to the tender of any such recording or transcription or both.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate

Date:  2 May 2008