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

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

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.
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.
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).
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.
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.
The father be and is hereby restrained from filing or commencing an application without the court's permission alleging contravention of a parenting…

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.

Keep reading for free

Create a free CaseChat account to read Feranti and Connor (No. 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FamCA 1708
Decision Date: 13 November 2007

CaseChat Overview and Summary

In *Feranti and Connor (No. 3)*, Watt J of the Federal Circuit Court of Australia considered a dispute between a father and mother concerning parenting orders and contravention applications. The proceedings involved numerous applications filed by both parties, including contravention allegations by the father and various responses and applications by the mother.

The court was required to determine the appropriate costs orders for the father's contravention application, the transfer of all pending proceedings to a different registry, and whether to impose restrictions on the father's ability to file future contravention applications. Additionally, the court considered the appointment of an independent children's lawyer and the provision of recordings and transcripts by the father.

Watt J ordered that the father pay the mother's costs of his contravention application, with costs to be assessed on a party and party basis for some allegations and on an indemnity basis for others. The court further ordered the transfer of all pending proceedings to the South Australian Registry for mention before Burr J, with a direction that a specific letter from the Department of Families and Community Affairs be retained on the court file. The court requested consideration be given to appointing an independent children's lawyer based in South Australia's south east coast area. Crucially, the father was restrained from filing further contravention applications without court permission if there had been substantial compliance with parenting orders and his time with the child had not been significantly compromised. Finally, the father was ordered to provide recordings and transcripts of conversations with the child to the mother's solicitor by a specified date.

Orders

Orders of the court

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.

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;

(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.

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).

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.

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.

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.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.