FERANTI & CONNOR - [2010] FamCA 71

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR

[2010] FamCA 71

FAMILY LAW – JURISDICTION – Children – whether ongoing proceedings between the mother and father have abated upon the death of the mother

FAMILY LAW – COURTS AND JUDGES – Disqualification – the father makes an oral application seeking that the Judge disqualify herself from the matter – held it is not appropriate for any Judge to disqualify himself or herself from hearing a matter which has abated and is no longer in existence – application dismissed

Family Law Act 1975 (Cth) s 65K
Judiciary Act 1903 (Cth) s 80

Vitzdamm-Jones v Vitzdamm-Jones (1981) FLC 91-012
Williams v Williams (1951) VLR 362
Kemp v Pearce (1972) VR 805
King v King (1973) 24 FLR 269; (1974) Qd R 253

APPLICANT:

Mr Feranti

RESPONDENT:

Ms Connor [deceased]

INDEPENDENT CHILDREN’S LAWYER:

Ms N.L. Atchison

FILE NUMBER:

MLF

10368

1994

DATE DELIVERED:

5 February 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

5 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr P. Falconer

SOLICITOR FOR THE RESPONDENT:

Peter Falconer & Associates

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER

Ms N.L. Atchison

SOLICTOR FOR INDEPENDENT CHILDREN’S LAWYER

Nicola Atchison

Orders

Upon the filing of a certified copy of the death certificate of the mother all the proceedings in this file concerning the child T born … March 1995 are concluded.
The Court formally dismisses any Application in a Case by the father which is allegedly still pending and any oral application by the father on the basis that there are no proceedings in which those matters can be considered.

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 [DECEASED]

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

These are proceedings which have been on foot before the Family Court of Australia a superior Court of record, for a considerable period of time. The proceedings involved what was an application by the mother in relation to the child, T. A response seeking significant orders was filed by the father. The proceedings were commenced in the Melbourne Registry and some time ago transferred to the Adelaide Registry. In those proceedings there have been numerous Applications in a Case. Procedural orders and interim orders have been made, including matters heard on appeal. There have also been numerous contravention proceedings.
The Court has been informed by the solicitor for the mother that the mother died in December 2009. The solicitor has provided to the Court an undertaking to file a certified copy of the mother’s death certificate when that becomes available.
Applications in a Case commenced by the father were listed before me for hearing this morning. I am the Docket Judge that would have been hearing the procedural…

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.

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Details

AGLC: FERANTI & CONNOR [2010] FamCA 71
Case: [2010] FamCA 71
Decision Date: 5 February 2010

CaseChat Overview and Summary

In the matter of *Feranti & Connor*, Dawe J of the Family Court of Australia considered the impact of the mother's death on ongoing family law proceedings concerning their child. The father had made an oral application seeking the disqualification of the presiding judge.

The primary legal issue before the court was whether the proceedings had abated upon the mother's death. A secondary issue arose from the father's application for the judge's disqualification.

Dawe J reasoned that once a party to proceedings dies, those proceedings generally abate, meaning they cease to exist and can no longer be heard. Consequently, the court held that it was inappropriate for any judge to disqualify themselves from hearing a matter that had abated and was no longer in existence. The father's application for disqualification was therefore dismissed on this basis.

The court ordered that upon the filing of a certified copy of the mother's death certificate, all proceedings concerning the child would be concluded. The court formally dismissed any pending applications by the father, including his oral application, on the grounds that there were no longer any proceedings in which those matters could be considered.

Orders

Orders of the court

Upon the filing of a certified copy of the death certificate of the mother all the proceedings in this file concerning the child T born … March 1995 are concluded.

The Court formally dismisses any Application in a Case by the father which is allegedly still pending and any oral application by the father on the basis that there are no proceedings in which those matters can be considered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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