Feranti & Connor

[2008] FamCA 137

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR [2008] FamCA 137

FAMILY LAW – CONTRAVENTION – long running proceedings – father restrained from filing contravention application without Court’s permission where substantial compliance and father’s time or opportunity to communicate not significantly compromised – orders subject of appeal – father seeks leave to file contravention application – whether alleged contraventions fall within conditions imposed by order – allegation regarding telephone communication within condition of order – father granted leave to file contravention application.
FAMILY LAW – CHILDREN – with whom a child communicates – father seeks telephone communication – concerns regarding relationship between father and child and child’s emotional wellbeing – inappropriate to make order until child’s views ascertained.
FAMILY LAW – CHILDREN – Independent Children’s Lawyer – father seeks removal – nothing to support allegation of inappropriate behaviour by ICL – matter requires input of ICL – application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – father seeks judicial interview with child be conducted in place of family assessment report – not appropriate in circumstances – interests of justice require family report be prepared by qualified person – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: MS CONNOR

RESPONDENT: MR FERANTI

INDEPENDENT CHILDREN’S LAWYER: NICOLA ATCHISON

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 14 February 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Falconer

SOLICITOR FOR THE APPLICANT: Peter Falconer and Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S COUNSEL: Mr J.M. Bowler

INDEPENDENT CHILDREN'S SOLICITOR: Ms N.L. Atchison

Orders

1. Leave is given to the father to file a Contravention Application in relation to allegations of breach of orders concerning telephone communication which are alleged to have occurred on 28 November 2007; 12 December 2007;  30 January 2008; 6 February 2008 and 13 February 2008.

1. Paragraph 2 of the father’s Application in a Case filed on the 28 December 2007 is adjourned to 18 March 2008 at 9.30 am before the Honourable Justice Dawe.

1. Further consideration of paragraphs 3, 4, 5 and 6 of the father’s Application in a Case filed on the 28 December 2007 is adjourned to a date to be advised after the receipt of the Family Assessment report.

1. Paragraphs 7, 8 and 9 of the father’s Application in a Case filed on the 28 December 2007 are dismissed.

1. The previously ordered Family Assessment be prepared as soon as possible.

1. The question of the father’s immediate payment of the share of the Family Assessment is adjourned to the date of 18 March 2008 at 9.30 am before the Honourable Justice Dawe.

AND IT IS FURTHER DIRECTED

1. The father to file and serve within seven [7] days a full Statement of Financial Circumstances providing all information concerning his financial circumstances so the question of the payment of the costs of the family assessment can be determined.

1. The Appeals Registrar provide copies of the Notice of Appeal to the Independent Children’s Lawyer.

1. Leave is given to the father and the mother to attend by telephone link provided they notify the Court of the telephone numbers from which they can be reached at least forty-eight [48] hours prior to the adjourned date.

IT IS NOTED that publication of this judgment under the pseudonym Feranti v 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

MS CONNOR

Applicant

And

MR FERANTI

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which was transferred from the Melbourne registry to the Adelaide Registry and has come on for hearing on several occasions since then before Judicial Officers sitting in Adelaide; namely, myself and Justice Burr.  Various orders have been made, including Justice Burr's order for the appointment of an Independent Children’s Lawyer.

2. The proceedings concern the welfare of the daughter of the parties who was born in March 1995. The child will be 13 in a few weeks' time; in this coming March.

3. Proceedings have been ongoing in this Court for many, many years and it is of concern, particularly as it bears upon the parties' capacities to act as responsible parents, that there are now 498 documents on the Court file, most of them relating to proceedings concerning the welfare of the child.

4. The orders that were made transferring this matter to the Adelaide registry were made by Justice Watt on 13 November 2007.  I understand that all of the orders made by Justice Watt on that date are the subject of an appeal by the father which is yet to be heard.  The orders of that date provide:

   “That the father be restrained from filing or commencing an application without the Court's permission alleging contravention of a parenting order, or an injunction or condition attaching to a parenting order, in circumstances where: 

   (a) there has been substantial compliance with a parenting order, injunction or condition;

   (b)the father's time spent with opportunities to communicate with the child have not been significantly compromised.”

5. Justice Burr directed:

   “That any application to start a case for contravention, brought by the father, is to have annexed to the affidavit in support a copy of Justice Watt's reasons delivered on 26 October 2007.”

6. On the day before that date, namely, 12 November 2007, Justice Watt dismissed an application for contravention filed on 4 February 2005, as amended by the contravention of 26 April 2005.  The father has filed proceedings in Court on 8 December 2007, seeking leave to file a contravention or contempt application.  His actual application reads:

   “That the father be granted leave to file a contravention or contempt application in relation to the mother's ongoing disregard and breaches of currently-existing Court orders.  Also that leave be granted to file an application seeking the above orders.”

7. In relation to the application for leave to file a further contravention application, there is some material relevant to that application in the affidavit filed by the father on 28 December 2007 and in his affidavit which I received this morning.

8. In relation to the affidavit of 28 December 2007, that sets out some details in paragraphs 38 and onwards concerning correspondence between the father and the mother's solicitors concerning arrangements to be made for the child to spend time with the father in the December-January school holidays.

9. It is conceded by the mother that the child was, in accordance with the orders, meant to travel on the Saturday but travelled on the Sunday.  The correspondence indicated that the father agreed to that.  His understanding was that the child would then spend an extra day with him at the end of the period of spending time with but that the mother had arranged for the child to return on the day that the order provided.

10. In this sense those arrangements and the delay in making the notification of the arrangements in my view do not fall within the condition imposed by Justice Watt in his order of 13 November in that the actual behaviour by the mother on that occasion did not have the effect referred to in the orders of Justice Watt; namely, a question of substantial compliance with the parenting order, injunction or condition, in that the father's time with and opportunities to communicate with the child have not been significantly compromised by that failure of the mother in relation to the notification or arrangements for the period of time spent. 

11. That of course does not deal with the completely separate issue of any question of the child taking steps herself, to bring about an end to the period of time she was spending with the father on 24 December when the period of time she was spending with the father came to an end on that date rather than on 5 January or 6 January, as the father was requesting.

12. The events of 24 December are set out in the father's affidavit filed on 28 December 2007 and commencing in paragraph 4.  In relation to that the mother has not filed any affidavit dealing with the events or any knowledge that she may have as a result of conversations with the child or dealings with the police, but it is conceded that the period of time the child spent with the father came to a conclusion on 24 December.  It appears that the shopping centre made arrangements for the child to come into the supervision of the local police, and was subsequently collected by her mother and returned to South Australia.

13. There is no specific application in relation to a contravention which the father is alleging occurred as a result of that event.  If that were the case, I would need to know the specifics of the allegations of contravention.

14. The father has also referred to, in his most recent affidavit filed today, the fact that he has not been having telephone communication with the child in accordance with the orders of Justice Brown, which are still in force.  In his affidavit he refers to four dates, ranging from November 2007 to 6 February 2008, when he did not have telephone communication with the child.  In Court this morning the father has also put on notice the fact that he did not have the telephone communication with the child on 13 January, in accordance with the order.

15. There has been no material filed by the mother, nor has there been any explanation, as I understand it, given to the father, prior to today, as to why the orders of Justice Brown in relation to telephone contact have not been obeyed. 

16. The allegations that the father makes therefore fall within the conditions placed by Justice Watt.  It is appropriate to give the father leave to start a contravention application in relation to the allegations that he makes concerning failure to comply with the order of Justice Brown in relation to telephone communication between the child and the father on 28 November 2007, 12 December 2007, 30 January 2008 and 6 and 13 February 2008, provided that the father understands that the granting of leave to file such an application for contravention does not in itself, in any way, act as any encouragement by the Court for him to make such an application.  He should take proper, independent legal advice about the circumstances surrounding the relationship he has with the child and the wisdom of bringing contravention applications, bearing in mind the risk he might face in relation to orders concerning the costs of the wife's need to deal with the same. 

17. Leave is granted but it must not be seen to be an encouragement to bring further proceedings of that nature in this Court;  to the contrary.  The Court is concerned that the welfare of the child would seem to suggest that what needs to be done is for the matter to be heard promptly and appropriately, so that final orders can be made, bringing an end to the ongoing proceedings in this Court for the benefit of the child.

18. I do not grant leave to the father to bring any contravention proceedings in relation to the notice given in relation to the arrangements made for time spent between the father and the child in December-January, nor the late arrival of the child at the commencement of that December period of time spent.

19. In relation to the question of whether there should be any make-up time provided to the father in relation to the time lost in the school holidays, that is a matter which would be appropriately determined, either after the receipt of the family assessment report and if there is any further consideration of that matter during any contravention proceedings. 

20. I therefore propose to adjourn paragraph 2 to a further date which I will provide at the end of my reasons.

21. In relation to paragraph 3, the order sought by the father is:

    “That the mother provide immediate telephone contact between the child and the father.”

22. There is already in existence the order of Justice Brown in relation to such telephone contact. In relation to the submissions of counsel for the Independent Children’s Lawyer, it appears there are serious concerns about the nature of the relationship and the impact on the emotional wellbeing of the child concerning the relationship between the child and the father, and the father alleges between the child and the mother.  In my view it is therefore not appropriate to make any further specific order in relation to telephone contact until such time as the wishes of the child and the attitude of the child have been ascertained.

23. The father seeks an order that he be allowed to provide the child with a mobile phone and seeks certain conditions in relation to the use of that telephone.  Again the question of the provision of a telephone for the purposes of telephone communication is a matter which relates to the emotional wellbeing and the relationship between the father and the child and must await the input of the child in relation to her wishes and an assessment of her emotional and psychological wellbeing.

24. The father also seeks an order that the appointed Independent Children’s Lawyer be removed "from involvement in this matter".  In his affidavit he refers to the fact that he has not been satisfied by the behaviour of previous Independent Children’s Lawyers and has, in his submissions to me, asserted that he had absolutely no confidence in their independence.  His affidavit also refers to conversations and dealings he has had with counsel who appeared on the last occasion and appears this morning for the Independent Children’s Lawyer.

25. The affidavit material before me and the submissions of the father do not support any allegation of inappropriate behaviour by the Independent Children’s Lawyer Ms Atchison.  Thus the matter is one which cries out for input from an appropriately qualified Independent Children’s Lawyer.  On the face of it, Ms Atchison appears to be carrying out that role in accordance with the Independent Children’s Lawyer's guidelines.  I dismiss the application of the father to have the Independent Children’s Lawyer removed.

26. The father also seeks that, in place of the family report that has been ordered, there be a judicial interview conducted with the child, to ascertain her wishes and desires in relation to the issue of residence.  This matter is not one in which it is appropriate for a judge to interview the child.  A private interview between the judge and the child would not provide the same sort of professional qualified information which can be obtained by a family assessor suitably qualified and trained in interviewing children.  The interests of justice require that a judge not interview the child but that a family report be prepared, taking into account the assessment of the child by a suitably qualified person and taking into account an assessment of the relationship between each of the parties and the child.

27. I therefore dismiss the father's application for a judicial interview and maintain the order that a family assessment be prepared as soon as possible.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  6 March 2008