Feranti and Connor (No 4)

[2009] FamCA 1339

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 4) [2009] FamCA 1339

FAMILY LAW – CHILDREN – Application to adjourn by mother due to terminal illness – application opposed by father – adjournment granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 18 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Falconer

SOLICITOR FOR THE RESPONDENT: Peter Falconer & Associates

Orders

1. That the applications alleging contravention filed by the father on 6 August 2009, 16 October 2009 and 18 December 2009 be adjourned for mention to 9:00am on 27 January 2010.

2. That the listing on 2 February 2010 of the application alleging contravention filed by the father on 18 December 2009 be vacated.

3. That both parties have leave to file and serve any further affidavit material on which they intend to rely, such affidavit material to be filed and served by close of business on 22 January 2010.

4. That both parties and their legal representatives have leave to attend the adjourned hearing by telephone.

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

1. I called this matter on for directions because although I made orders on 27 October 2009 consolidating the two applications alleging contravention that were before the Court at that time, and I made an order for the mother if so advised to file responding documents within 14 days, nothing has happened. Just to explain that a bit further, of course because of the nature of the application, the mother does not need to file and cannot be obliged to file affidavits, but clearly the Court needed to know and also the father needed to know whether the mother was opposing his applications or not.  Thus at the very least, what was intended by that order was that there would be a response filed by the mother. 

2. That has not happened, although there has been some confusion in relation to a response filed by the mother on 17 November 2009.  The confusion relates to the fact that there are, in effect, two judges hearing matters in this case.  Dawe J is the docket judge, and her Honour is to hear all substantive matters, and I am the judge hearing any contravention applications, because they cannot be heard by Dawe J.  At the same time, there was an application filed by the father which was before Dawe J.  Thus the confusion was as to which set of proceedings this response related.  This morning I have clarified that with Mr Falconer, and we have proceeded on the basis that that response was a response to the application before Dawe J and not in relation to the contravention applications.

3. Thus although I have needed to record all that, at the end of the day the long and the short of it is there has not been a formal response filed by the mother to the contravention applications.  And, as I say, that was the point of me listing the matter this morning to find out what the mother’s position was. In that regard, Mr Falconer, the mother’s solicitor, has filed two affidavits. He has provided unsealed copies to the father because of the timing issue. One is an affidavit of a Dr K as to the mother’s current medical condition and the other is an affidavit of Mr Falconer himself, in respect of which, he tells me that because of the mother’s medical condition he has been unable to obtain direct instructions from her as to not only the applications before me but the matter generally.

4. On that basis, the mother’s solicitor makes an oral application to adjourn this matter for mention to await the outcome of the treatment that the mother is currently receiving to see if he can then obtain instructions about these particular applications. I should add that there has now been a further application alleging contravention filed by the father. Unfortunately, it has not reached me today but I would be prepared to deal with it, in a general sense, because an unsealed copy has been sent to Mr Falconer so he is aware of it.  His position though is he has not been able to obtain his client’s instructions about that application.  Thus his oral application, in a sense, relates to that as well.

5. As far as the father’s position is concerned he is not seeing his daughter and he is anxious for all matters currently before the court to proceed as expeditiously as possible including the applications alleging contravention that are listed before me. As I say, there are matters before Dawe J and, indeed, an application, apparently, that the father lodged earlier this week seeking, as he says, a recovery order but that is a matter that will be listed before Dawe J in due course.  He opposes any outcome which would delay the finalisation of the matter. He has – and this is my word but this is my impression of his submission – some suspicions about what is happening with the mother at the moment. He does not necessarily accept what is being put to me about the mother’s current position and that is, obviously, something that is the basis of his submission to me about what should happen to this case.

6. The choice for me today is to list the contravention applications for hearing on the basis that – and this is an assumption – that the mother will oppose those applications and I need to list them for hearing at the first available opportunity for say a two or maybe three day hearing given that there is a further application alleging contravention or adjourn the matter to a date late in January just for mention to ascertain the position of the mother as to whether she can give instructions to her solicitor as to these matters and, subject to that, look at then listing the contravention applications for hearing at some date in the future.

7. I am concerned that there are outstanding applications that have not been dealt with and, I must say, one issue about that is that I am reserved in relation to earlier applications alleging contravention filed by the father. I have not yet completed that judgment and one of the reasons, not the reason, but a reason for that is these further applications. It seemed to me that these matters should be finalised, hopefully, once and for all rather than having several hearings and several judgments over a period of time.

8. The mother’s position previously has been that she has had a reasonable excuse for not complying with orders of this Court.  Of course, I do not know what her position is in relation to these most recent contravention applications because Mr Falconer has not been able to take instructions. Thus, on the one hand, I am as anxious as anybody, including the father, to have these matters finalised and drawn to a conclusion but I cannot ignore the mother’s medical condition as it is put to me in the affidavit material.  It is an extremely sad situation where – and I have been aware of this through the previous proceedings – the mother has a serious condition and it seems that that condition is deteriorating and no one has said yet where that will end but the prognosis is not good in terms of how long she will live.  That is not only a complicating factor in this case but, perhaps, the most significant issue in this.  I cannot ignore that and I am not prepared to proceed with these applications until I know what, if any part, the mother can play in these proceedings. It may reach a point where the mother cannot play any part in these proceedings. Now, that may mean that the father moves to another scenario in terms of proceedings that he brings because, obviously, if the mother is so incapacitated that she cannot give instructions and cannot deal with matters in this court then that might flow on to other issues in relation to her arrangements for the child.

9. The father needs to take a step back and think about that as well as to what he might want to do. I make no comment about what he should do or what he needs to do but it seems to me an obvious comment to make in the current scenario and it is a concerning scenario. Thus, that said, as I say, I am not prepared to proceed to list this matter for hearing yet. A consideration in the overall scheme of things – not the highest consideration but still a consideration – is the scarce dates that are available for the listing of matters like this. I would not want to list this and then find that the matter cannot proceed and those days are lost in terms of hearing times for other matters. That is not a matter of concern for the father or the mother but it is a matter of concern in running the business of this Court and is a serious consideration for this Court.

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 18 December 2009.

Associate