FERANTI & CONNOR
[2010] FamCA 71
•5 February 2010
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 | of | 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 orders to prepare the final orders applications for final hearing.
Before me this morning I have asked each of the parties appearing for their submissions. The father appears in person by telephone unrepresented. The Independent Children’s Lawyer appears by telephone and the former solicitor for the mother, Mr Falconer, appears by telephone as a courtesy to the Court.
The Court has read out most of the provision of section 65K for the benefit of the father, indicating that he should get some legal advice in relation to the matters relating to section 65K.
In relation to the proceedings between the mother and the father the common law clearly indicates that the proceedings in relation to the child abate upon the death of the mother. Therefore there are no proceedings in which an Application in a Case could be heard, nor in which any final orders could be made.
The father makes an oral application today that I disqualify myself from further hearing of the matter. In fact that is also one of the orders he sought in his Application in a Case which was listed before me this morning. It is not appropriate for any Judge to disqualify himself or herself from hearing this matter as this matter has now abated and therefore does not exist as a matter which can be heard. The common law clearly indicates that the proceedings between the mother and the father (who were the only parties to the proceedings) abate upon the death of the mother.
The Independent Children’s Lawyer is not a party to the proceedings but is treated as if she were a party to the proceedings pursuant to the provisions of the Family Law Act 1975 (Cth).
The case law also clearly confirms that proceedings between the parties abate on the death of one of the parties. The cases recognise that there is a doctrine of abatement in what was once called matrimonial causes and now called Family Law cases. This relates to proceedings in relation to children. The cases clearly indicate that the proceedings come to an end with the death of one of the parties.
In particular I refer to the High Court of Australia decision of Vitzdamm‑Jones v Vitzdamm‑Jones (1981) FLC 91-012, in which a distinct majority of the High Court of Australia (being Barwick CJ, Gibbs, Stephen, Mason, Aickin and Wilson JJ) expressed the clear opinion in that matter that the proceedings abated on the death of the father. The principles discussed in that case clearly apply to this case. In particular at page 76,161 of that case His Honour Gibbs J (as he then was) said:
“I return to the particular cases before the Court in the matter of Vitzdamm-Jones v Vitzdamm-Jones, the proceedings in which the applicant seeks to obtain custody of and access to a child of the marriage are brought by a stranger to the relevant marriage against the surviving party to the marriage. It follows from what I have said that the Family Court had jurisdiction to entertain the proceedings. However, Wendy’s application to intervene in the proceedings that were formerly pending between Bronwen and Alfred must be refused. Those proceedings abated on Alfred’s death.” (Emphasis added)
His Honour then refers to various authorities such as Williams v Williams (1951) VLR 362; Kemp v Pearce (1972) VR 805 and King v King (1973) 24 FLR 269; (1974) Qd R 253.
The provisions of the Judiciary Act 1903 (Cth) clearly indicate, in particular by section 80, that the provisions of common law continue to apply to jurisdictions such as the Family Court of Australia.
The material therefore before the Court should be treated as an application that has now been concluded on the death of the mother.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 9 February 2010
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