Feranti & Connor

[2009] FamCA 140

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR [2009] FamCA 140

FAMILY LAW – PRACTICE AND PROCEDURE – where orders were made on previous occasion for father to serve other parties with sealed copies of his applications – where father has failed to complied with order with respect to one of his applications seeking a recovery order – where father did not appear and unable to be contacted by telephone – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – application by father seeking transfer of matter to the Melbourne registry – where father alleges ongoing delays in hearing of matter – where there is a pending appeal of the order transferring the matter to the Adelaide registry – application dismissed

FAMILY LAW – CHILDREN – application by father seeking the removal of the Independent Children’s Lawyer – where issues and allegations previously raised by the father and dealt with by the Court – where previous order is the subject of a pending appeal – application dismissed

FAMILY LAW – CHILDREN – application by father seeking that the child be interviewed by a judge – no evidence that would be appropriate or in the child’s best interests – where the child is represented by an Independent Children’s Lawyer and has had the opportunity to speak with a Family Consultant – application dismissed

FAMILY LAW – COSTS – where the father has been wholly unsuccessful – where the father failed to attend – where little merit in applications – father to pay costs of the wife and Independent Children’s Lawyer

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

INDEPENDENT CHILDREN’S LAWYER: Ms N. L. Atchison

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 20 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr M.A. Boehm

SOLICITOR FOR THE RESPONDENT: Peter Falconer and Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr J.M. Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Nicola Atchison

Orders

1. The husband’s Application in a Case filed on the 22 December 2008 is dismissed.

2. The husband’s Application in a Case filed on the 19 January 2009 is dismissed.

3. The husband pay the costs of and incidental to both applications dismissed for both the wife and the Independent Children’s Lawyer such costs to be taxed in accordance with the Family Law scale.

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 FOR JUDGMENT

1. This is an interim hearing on applications in a case in a matter which has been outstanding before the Court for many years.  There is a complex background to the current applications.

2. The matter came on before me on 27 January 2009, when the parties appeared by telephone link.  I made certain orders in relation to outstanding applications.

3. Paragraph 2 of the orders that I made on 27 January related to the need for the parties to be served with sealed copies of applications brought by the father, there being much discussion at that time as to the need for service of sealed copies.  The order specifically said that the Application in a Case (being document 530) filed on 22 December 2008 and the new Application in a Case filed on 19 January 2009, were to be sealed.  The applications were adjourned to today's date; namely, 20 February at 10.00 am before me.

4. The father was specifically ordered to file and serve sealed copies of the documents on the solicitors for the mother and the Independent Children’s Lawyer.  Directions were to be made for the latter of those documents;  namely, those that were sworn on 15 January 2009 to be sealed by the Court and returned to the father to enable him to serve those documents upon the mother's solicitors and the Independent Children’s Lawyer.

5. There is no affidavit of service indicating that the order has been obeyed; in particular service of the sealed application (document 530) filed on 22 December 2008.  Counsel for the Independent Children’s Lawyer and the mother both indicate that their clients have not been served with the necessary sealed copies.

6. That application sought in particular that a recovery order be issued in relation to the child for her to be immediately delivered to the father, and the costs of that delivery.  In the alternative it sought that the child be recovered by a state authority and be immediately delivered to the father at the mother's expense; orders for costs and expenses of the father's application and a previous application;  and that the mother be placed on a $400,000 bond to ensure her compliance with all current and future orders of this Court.

7. The material filed in support of that application raised significant issues as to the appropriateness of any of those orders sought.  The father is not present today.  He has not complied with the previous orders in relation to service of sealed copies of the documents.  I dismiss the Application in a Case filed on 22 December 2008; namely, document 530.

8. The other application which was listed for hearing before me today is the application of the father, being the Application in a Case filed on 19 January 2009.  Both counsel indicate that their clients have been served with sealed copies of the Application in a Case filed on 19 January 2009.  That application seeks:  (1) that the matters be transferred to the Melbourne registry; (2) that the current child representative be removed from these proceedings; and (3) that the child be interviewed by a Judge as part of the final determination of existing applications and responses between the parties.

9. The father has been called in the precincts of the Court several times.  It is now nearly 10.30 am and there is no appearance by him or on his behalf.  The Court officer has also attempted to telephone the mobile telephone number, being the number available to the Court Officer, without success.  There appears to be no current application before the Court for permission to appear today by telephone link, but the Court Officer was directed by me to take that step as a precautionary measure.  Nonetheless, there is no appearance for or on behalf of the father.

10. I will deal with the matters briefly, to indicate why it is appropriate at this stage to dismiss the proceedings.  The first application is that the matter be transferred to the Melbourne Registry.  The only material in the affidavit of the father filed in support of that application which could be described as fresh material is the allegation that there has been ongoing delay in the hearing of the proceedings in this registry.  That ongoing delay in listing the final matters concerning the child appears quite clearly, on the face of the documents, to be due entirely to matters undertaken by the father; namely, his ongoing insistence on the hearing of matters by way of appeal or contravention, which has specifically prevented the listing of the matters to be determined on a final basis concerning the child.

11. The other matters raised by the father are comment and do not have any substance whatsoever.  It is also important to note that the father's appeal from the orders of the Melbourne Registry, transferring the matter to this registry, are currently awaiting determination and, I understand, are listed for hearing in early March this year.  Therefore, it is unlikely that the father would have been successful in that application. 

12. His second application was to remove the Independent Children’s Lawyer from the proceedings.  In the affidavit in support, the father repeats allegations previously made concerning the Independent Children’s Lawyer but does not provide any information which would be of a convincing nature to bring about the termination of the Independent Children’s Lawyer's appointment.  Rather, it again raises issues and allegations, in a general sense, similar to those which have been previously raised and which are previously dealt with in an earlier determination in March 2008.  That order is also the subject of appeal to the Full Court and likely to be dealt with in the early sittings in March of this year.

13. The other application is that the child be interviewed by a Judge.  There is the possibility in the Rules for that to take place.  There is nothing in the affidavit of the father which would convince me that such a step would be appropriate or in the best interests of the child.  Rather, I accept that the child needs to be given the opportunity to lead her life as free as possible from the ongoing continual dispute between her parents about matters relating to her welfare; in particular, in the circumstances where the mother's health is a matter of serious concern. 

14. I believe it is in the best interests of the child that she participate as little as possible in these proceedings.  I also accept that she has an Independent Children’s Lawyer appointed, who is to follow the Independent Children’s Lawyer's guidelines which require not that the Independent Children’s Lawyer follow the directions of the child but act in the child's best interests.

15. It is also apparent that the child has had, and will have where appropriate, an opportunity to speak to a suitably qualified Family Consultant, one more qualified than a Judge of this registry to interview a child in these circumstances and to draw appropriate conclusions, based upon their professional expertise, about the best interests of the child.  That application therefore also stood little chance of success.  I am now aware that that was also the subject of an appeal and had been previously dealt with. 

16. I dismiss the Application in a Case, document 535.

17. Contravention matters are currently before his Honour Justice Strickland and the listing of the final applications awaits the outcome of the contravention applications brought by the father and the appeal process instigated by the father.

18. In relation to the question of costs, both the mother and the Independent Children’s Lawyer have incurred costs in attendance today and in responding to the Application in a Case. I consider the provisions of section 117 and, in particular, that in the usual course of events each party would bear their own costs. However, the provisions of section 117(2) and (2A) are highly relevant in this matter. Not only has the father been wholly unsuccessful in these proceedings, he has failed to attend, and, as my judgment indicates, there was little merit in either of the applications brought by the father.

19. I take into account the financial circumstances of the parties, but the most significant factor is not the financial circumstances of the parties but the fact that the father has been wholly unsuccessful in these proceedings, and the comments I have made concerning the merit of his applications.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date: