Feranti & Connor - [2008] FamCAFC 192

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR

[2008] FamCAFC 192

FAMILY LAW – APPEAL – From decision of Family Court Judge – Allegation of bias against trial Judge – Whether trial Judge had prejudged the father’s case – Whether the trial Judge had ensured the self-represented litigant understood the process and had an opportunity to be heard – Importance that questioning by trial judges ensures self-represented litigants feel they can oppose the proposed process if they wish

FAMILY LAW - APPEAL – From decision of Family Court Judge – Application to “set aside” orders pending appeal - Trial Judge considered that the application in substance was seeking appeal from the orders – Trial Judge dismissed the application as incompetent – Whether trial Judge should have enquired of the self-represented litigant if in fact he sought a stay of the orders – Consideration of eighth and ninth guidelines in Re F: Litigants in person Guidelines (2001) FLC 93-072 – In any re-exercise of discretion the application for stay would be refused – Application to change venue of litigation – No merit in appeal against trial Judge’s dismissal of application to reconsider venue question

FAMILY LAW - APPEAL – From decision of Family Court Judge –Whether trial Judge erred in making no parenting orders pending receipt of the Family Report –Whether trial Judge applied the correct approach to interim applications – On this narrow interim application the trial Judge determined that the evidence should not be assessed until the further Family Report was released – Decision within the discretion of the trial Judge – Trial Judge need not express reasons at each stage of the structured approach – Before the trial Judge the appellant sought an order that the hearing of a Notice of Abuse be expedited and leave be given to file a contravention application – Notice of Abuse does not constitute a separate cause of action – application to expedite is meaningless – Trial Judge adjourned leave to file contravention – Respondent Mother and Independent Child’s Lawyer not in a position to proceed without disadvantage – Adjourned pending Family Report – Trial Judge did not err in this adjournment – Appeal dismissed

Family Law Rules 2004, r 22.12(3)

Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345
Carlin & Carlin (1977) FLC 90-320
Goode v Goode (2006) FLC 93-286
Kelly & Kelly (1981) FLC 91-007
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178
Re: FLitigants in person guidelines (2001) FLC 93-072, at 88,279

APPELLANT:

MR FERANTI

RESPONDENT:

MS CONNOR

APPEAL NUMBER:

2008

FILE NUMBER:

MLF

10368

1994

DATE DELIVERED:

31 October 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Warnick, May and Boland JJ

HEARING DATE:

16 October 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2008

LOWER COURT MNC:

[2008] FamCA 338

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Feranti in person

COUNSEL FOR THE RESPONDENT:

Not participating in…

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.

Keep reading for free

Create a free CaseChat account to read Feranti & Connor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FamCAFC 192
Decision Date: 31 October 2008

CaseChat Overview and Summary

The appeal in this case concerns a family law matter where the father, Feranti, sought to appeal various decisions made by Murphy J in the Family Court. Feranti alleged bias and prejudgment against the trial Judge, questioned whether the self-represented litigant was properly heard, and challenged the trial Judge's handling of interim applications and requests for a change of venue. The mother, represented by counsel, opposed the appeal. The father also sought to set aside orders pending appeal, change the venue of the litigation, and make certain parenting orders pending the receipt of a Family Report. Murphy J dismissed the father's applications and the appeal against those dismissals.

The legal issues before the court included whether Murphy J had prejudged the father’s case, whether the trial Judge had ensured the self-represented litigant understood the process and had an opportunity to be heard, and whether the trial Judge erred in making no parenting orders pending receipt of the Family Report. Additionally, the court considered whether Murphy J applied the correct approach to interim applications and whether the trial Judge should have enquired if Feranti sought a stay of the orders.

In addressing the appeal, the court found that the transcript indicated the father was given ample opportunity to respond to the Judge’s reasons for dismissing the bulk of his applications. The court observed that the father chose to add numerous applications to the matter concerning the school holiday time, which he could have raised earlier. The court found no evidence of bias or prejudgment by Murphy J. It was determined that the questioning by the trial Judge ensured the self-represented litigant felt he could oppose the proposed process if he wished, aligning with the eighth and ninth guidelines in Re F: Litigants in Person Guidelines. The court held that the trial Judge's decision not to assess the evidence until the Family Report was released was within his discretion. The appeal to expedite the hearing of the Notice of Abuse and to file a contravention application was found to be without merit as the Notice of Abuse did not constitute a separate cause of action. The adjournment pending the Family Report was also deemed appropriate.

The appeal was dismissed, and the orders made by Murphy J were upheld. The application to set aside orders pending appeal and to change the venue of the litigation was found to have no merit. The court also found no error in the trial Judge’s handling of interim applications and the adjournment pending the Family Report.

Orders

Orders of the court

That the appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The transcript discloses that after hearing from the Independent Child’s Lawyer about the last time his instructor had communicated with the child (January 2008), his Honour delivered judgment. From the overall context, we assume that what his Honour addressed were his reasons for dismissing the bulk of the father’s applications. The transcript discloses the following exchange, apparently during the process of his Honour stating his reasons:JUDGMENT DELIVERED 10.16am[MR FERANTI]: Sir, excuse my interruption.HIS HONOUR: Mm.[MR FERANTI]: Am I able to respond to some of the comments that were made?HIS HONOUR: You can in a minute.[MR FERANTI]: Thank you.JUDGMENT DELIVERED 10.17am His Honour then said:HIS HONOUR: [Mr Feranti] what I propose to do then is to give consideration to whether I should hear your application and make orders that you seek prior to there being any family report assessment received. What do you have to say about that? Mr Feranti then addressed the Judge, who asked questions or commented from time to time. The father argued that a Family Report was not required before his application for substituted holiday time was heard. Later in this discussion, the father sought that Murphy J hear a recording of telephone conversations between himself and the child, transcripts of which were before Murphy J. The Judge declined. After a considerable exchange, Murphy J asked the father whether there were any other submissions he wanted to make in support of the application and he said not. However, after the mother’s lawyer, Mr Falconer and the Independent Child’s Representative, Mr Bowler made submissions, Mr Feranti indicated that he wished to make a short reply, which he then did. During that reply, Murphy J indicated there was no need to address him on particular matters. Mr Feranti indicated that he would like to speak “one sentence” about one such matter which he then did and on another occasion, notwithstanding Murphy J’s indication that it was unnecessary for him to make any submission on the point, he said what he (apparently) wanted to say in any event. A judgment was then delivered, we assume in respect of the application about the school holiday time. Having done so, his Honour enquired of the father whether he intended to bring an application for contravention in respect of the holiday period and upon the father replying affirmatively, indicated that he would adjourn that application for leave. After making orders, Murphy J asked the father if there was “anything else”. Mr Feranti raised another matter relating to the child’s alleged wish to be provided with a telephone and the hearing concluded. In turning to consider the father’s assertions of bias and/or prejudgment, we observe that an apparent need for urgency arose in respect of the issue over the school holiday time between the father and child, but that the father chose to add to an application about that, numerous applications in respect of matters that he could have raised (and in some case had raised) well beforehand.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.