Feranti & Connor
[2008] FamCAFC 192
•31 October 2008
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: | SA | 41 | of | 2008 |
| FILE NUMBER: | MLF | 10368 | of | 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 the appeal |
| SOLICITOR FOR THE RESPONDENT: | Not participating in the appeal |
| COUNSEL FOR THE INDEPENDENT CHILD LAWYER: | Mr Bowler |
| SOLICITOR FOR THE INDEPENDENT CHILD LAWYER: | Nicola Atchison |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Feranti & Connor is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA41 of 2008
File Number: MLF 10368 of 1994
| MR FERANTI |
Appellant
And
| MS CONNOR |
Respondent
REASONS FOR JUDGMENT
The mother and father have a child, T, born in March 1995, now about 13½ years of age. T lives with her mother. Over a long period of time the parties have litigated issues relating to the parenting of their daughter and litigation, including a number of appeals, continues. The particular appeal with which these reasons deal is that of the father against orders of Murphy J made on 18 April 2008.
On that day, his Honour had before him two applications filed by the father a few days beforehand, between them seeking 22 orders. Some orders sought related to setting aside previous orders pending the determination of appeals by the father against those orders; others to the disqualification of a named judge from “participating in this matter”, to the expedition for hearing as a matter of urgency of a Notice of Child Abuse, to the provision of a telephone for the child and to perhaps the most significant and urgent issue, arrangements for the father to spend time with the child in the school holiday period current at the time the father filed his applications. An existing order made provision in that regard.
Murphy J dismissed all but one of the applications for orders. He adjourned an application that the father be granted leave to file either a contempt or contravention application against the mother, in respect of the failure of the child to spend time with him in the first part of the April 2008 school holidays.
In his Notice of Appeal, the father sought orders from the Full Court in accordance with the two applications with which Murphy J dealt. However, in his Summary of Argument, he recognised that time and events subsequent to April 2008 had rendered some orders initially sought, inappropriate. Further, during oral submissions before us, the father acknowledged that in some instances, on its face, his appeal extended to orders which, however, he did not actually wish to challenge.
In the circumstances, we propose to group discussion into topics derived from the Notice of Appeal, the father’s summary and the hearing before us, as follows:
(i)Bias/Conduct of the hearing by Murphy J;
(ii)The application to “set aside” orders pending determination of appeals against them;
(iii)Venue for the litigation between the parties;
(iv)Applications for Parenting Orders; and
(v)The adjournment of the father’s application for leave to file contravention /contempt proceedings.
Bias/Conduct of the hearing by Murphy J
When the matter commenced before Murphy J his Honour indicated that he had read the material. His Honour then discussed with the parties whether they had the material that he had read and it was established that both the mother’s representative and the Independent Child’s Lawyer did not have all of the material. They did not have any exhibits to an affidavit relied on by the father. They had, at best, received such material as they did have, just a few days beforehand.
His Honour immediately turned to the father’s applications, one of which his Honour described as having 13 typewritten orders and a 14th handwritten one. He said:
14 simply says, “I seek that this matter be expedited as a matter of urgency”.
Now I can tell all of you that I don’t propose to deal with that, all right.
His Honour then went through each of the orders sought by the father in each of the applications, giving brief reasons for rejecting or declining to deal with almost all, and concluding:
What that all comes down to is that it seems to me that if there’s to be an application before me, its an application that the child spend the second half of the current school holidays with the father. Does that make sense [Mr Feranti]?
[MR FERANTI]: Absolutely, sir, yes.
Murphy J then asked the mother’s legal representative if, on that basis, he was disadvantaged in having that question determined that day. He said that he was disadvantaged, as he had not had a chance to obtain instructions. The Independent Child’s Lawyer said that he would want to see the mother’s answering documents before considering his position.
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.
While the process brought to bear on the hearing of any application must be judicial, a robust and firm approach may well be appropriate in circumstances such as presented to Murphy J here.
One of the bases of the father’s allegations of bias is that Murphy J had prejudged the merits of the application. We will say more of the merits of the various applications later, but for present purposes simply note that, in an application brought on urgently in which 22 orders are sought and in respect of which the judge has read the material, as his Honour here said he had done, the indication of a preliminary view is not inappropriate and certainly does not of itself indicate bias.
However, his Honour probably went further than expressing a preliminary or tentative view of most of the applications. His Honour expressed himself conclusively in what he said of the father’s applications. Moreover, though after expressing his views about the applications, he did ask the father if that made “sense”, to which Mr Feranti responded positively, we think that, particularly with an unrepresented litigant, a judge should be particularly careful in ensuring that the litigant understands what the judge proposes and has an opportunity to be heard. A better question might have been “Do you want to make any submissions to the contrary of the views that I have expressed?”, rather than “Does that make sense?”. A litigant in person might feel that a negative answer to the actual question asked would be impertinent, though that litigant might wish to argue strenuously against what is proposed.
Nonetheless, a too robust approach is also not of itself an instance of bias. However, it may constitute an instance of procedural unfairness. Though that question was not directly argued, as the father is unrepresented, we have considered it in relation to the conduct of the hearing up until the delivery of the first judgment, which, as seen, dismissed most of the father’s applications.
In the end, we doubt that any actual unfairness arose, and, to the extent that any may have, we later address the merit of those aspects of the father’s application which might have been better treated differently.
The father also suggested that Murphy J erred (and thus demonstrated bias) in either misreading or deliberately not comprehending the applications before him and in not reading the father’s affidavit in support of the two applications or in misdirecting himself as to the contents. The father pointed to a remark by Murphy J that the father had not appealed a particular order when in fact he had. The father also asserted that the trial Judge failed to properly deal with the applications that were before him and made errors of fact and as to evidence that was before him. He allegedly erred in not allowing the father to present evidence that he wished to present, and in not permitting the father to make submissions that the father wished to make, and in not allowing the father to respond to statements made by the mother’s representative.
As indicated, we have examined the transcript. For any refusal to receive evidence, Murphy J gave sufficient reasons. There is no cause to think that, given the extent of the applications before him and the nature of the hearing, any misunderstanding of the Judge of whether a particular order was appealed or not, or like misunderstanding, indicated bias. The father’s submission in this regard is offensive.
Otherwise, aside from the uncertainty of what the father understood when Murphy J asked if his proposals to dismiss or not deal with the bulk of the applications, made “sense”, we do not discern that the father was denied an opportunity to make submissions before an issue was determined.
The applications to “set aside” orders pending determination of appeals against them
The three applications concerned were expressed as follows:
The orders of Watt J of 12 and 13 November 2007 be set aside pending the determination of the father’s appeal of those orders
The orders of Dawe J of 14 February 2008 be set aside pending the determination of the father’s appeal of those orders
The orders of Dawe J of 17 March 2008 be set aside pending the determination of the father’s appeal of those orders
Murphy J expressed the view that each of these applications was really an attempt to appeal the nominated orders. His Honour dismissed the paragraphs as incompetent.
We discussed with the father the effect of a stay pending appeal, of those orders which had dismissed applications by him. Accepting that the effect would merely be to restore the applications, pending appeal, the father did not pursue argument before us in respect of a stay of such orders. For this and other reasons, the father accepted that the only orders the stay of which he really sought were in respect of the change of venue aspect and costs.
In Re: FLitigants in person guidelines (2001) FLC 93-072, the eighth and ninth guidelines formulated by the Full Court as to the approach of the court to an unrepresented litigant were (at 88,279):
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9.Where the interests of justice and the circumstances of the case require it, a judge may:
·…
·…
·identify applications or submissions which ought to be put to the Court;
·suggest procedural steps that may be taken by a party;
·clarify the particulars of the orders sought by a litigant in person, or the bases for such orders.
We think it at least arguable that Murphy J should have enquired of the father whether what he was really seeking in the applications set out was a stay. However, we do not think we need to finally determine the argument. Firstly, had Murphy J treated the applications as stay applications, applying the relevant principles, briefly discussed later, the applications almost certainly would have failed.
In any event, we would refuse them on any re-exercise of discretion.
We deal with the question of the change of venue as a separate heading because, apart from the application for a “stay”, another order sought by the father before Murphy J was for reconsideration of the order of Watt J changing the venue of litigation to the South Australian Registry.
As to the father’s request for “stay” of costs orders, the pertinent orders were that of Watt J of 13 November 2007, that the father pay the mother’s costs of and incidental to the father’s application for contravention, and that of Dawe J of 17 March 2008 that the parties share equally the costs of the family assessment and report that had been ordered.
We note that, had Murphy J treated the applications as requests for stays of orders, he might nonetheless have declined to deal with them because of the provisions of rule 22.12(3) of the Family Law Rules 2004, which are:
(3)An application for a stay must be made to the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Although an application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable, there is nothing to indicate that that applied in any of the instances here, save for the application that Dawe J not “participate” in the matter.
Matters which a court might take into account on a stay application, the decision on which is discretionary, include the important question of whether, if a stay is not granted, the appeals will be rendered nugatory. Also included are factors such as the balance of convenience, the comparison of hardship caused one way or the other, the grounds of and merits of the pending appeal, any undue delay in bringing the application for stay, the bona fides of the applicant for stay and the time remaining until the likely hearing of the appeal (see Kelly & Kelly (1981) FLC 91-007, Carlin & Carlin (1977) FLC 90-320, and authorities cited therein).
Refusal of a stay will not render the father’s appeal on the issues in question nugatory.
The orders, stay of which was sought, were of varying dates but, in respect of an application for stay of many of them, there had been considerable delay. This was unexplained before Murphy J and remains so before us.
The Notices of Appeal were not apparently read before Murphy J. Some reference is made by the father in his affidavit filed with the applications to the bases for his appeal against the orders of Dawe J and they seem to be essentially along the lines of bias and prejudice.
In relation to the order that the father pay half the costs of the Family Report, the father advises that he has not paid those costs. The Report however has issued. There was nothing put before us to indicate hardship if that order was not stayed.
In relation to the costs of the father’s contravention application ordered by Watt J on 13 November 2007, the father says that unless a stay was granted, money would possibly be wasted (depending on the outcome of the ultimate appeal) on the assessment of costs process. There is nothing before us to show that assessment will be pressed, pending the appeal.
As we advised the father at the hearing of the appeal, his other appeals are likely to be heard in the first sittings in 2009 in February or March.
In any re-exercise of discretion by us, we would refuse the father’s applications for stays of the orders referred to in the heading to this section.
Venue for the litigation between the parties
As seen, before Murphy J the father sought a “stay” of Watt J’s order transferring the then current litigation to the South Australian Registry. The father also sought the following order:
All proceedings in this matter be transferred back to the Melbourne Registry
Of this application, Murphy J said:
There seems to me to be a regularly entered order of Watt J transferring the matter to this registry. I’m not aware of whether there is an appeal against that order, or not. It seems not. In any event, the only way to challenge that order it seems to me is to appeal it. There’s certainly no material before me which would indicate any change of circumstances or any new circumstances which would suggest that I should deal with that matter afresh.
In so far as the husband appeals the dismissal by Murphy J of a fresh application about the venue for the litigation, the father argues firstly, that Murphy J was wrong in thinking that there was no appeal against Watt J’s order transferring the matter from Melbourne to Adelaide. This is so, but it is an error without negative consequence to the prospects of success of the father’s application, because the existence of an appeal would, in our view, be more likely to encourage a judge to decline to reconsider the order appealed, than to encourage that reconsideration.
The father also argues that Murphy J was wrong in concluding that there was no material relating to any change of circumstance since the order of Watt J transferring the litigation to Adelaide. The father points to two paragraphs in his affidavit in support of his applications before Murphy J. However, these paragraphs merely indicate that the change of venue to South Australia had caused him expense and inconvenience. These are not new or unanticipated circumstances. We have before us the reasons for judgment of Watt J relating to the transfer of proceedings and his Honour clearly considered these questions, in paragraph 56 and 57. In our view, there is no merit in the appeal against Murphy J’s dismissal of the application for a reconsideration of the venue question.
In so far as Murphy J’s refusal to entertain an application of the father for a “stay” of Watt J’s order, we repeat what we have earlier said in relation to his approach. Moreover, the substantive application in this matter is, we are advised, listed for mention on 1 December 2008 for the purpose of consideration for trial dates. As stated, the Family Report is now available.
If we were to re-exercise the discretion, we would not transfer the litigation to Melbourne.
Applications for parenting orders
In the applications before Murphy J, the father sought the following parenting orders:
9. All contact time lost between the child and the father be added to future periods of contact in 2008
10. The mother provide immediate telephone contact between the child and the father
11. The father be allowed to provide the child with a mobile phone for her exclusive use
12. Any charges relating to telephone use originating from the telephone provided to the child by the father, made to telephone numbers or services not agreed to by the father in writing in advance, be paid promptly by the mother at her expense before the due date shown on any bill, or copy of a bill, provided by the telephone service provider
13. The mother, or any relative, agent or other person, be restrained from confiscating, interfering with, manipulating or using the telephone provided by the father to the child
…
3. The mother deliver or arrange for the transportation of [the child] to the father in accordance with the orders of Brown J of 2 February 2004.
4. Alternately the orders of Brown J be altered so that the child spend the second half of the current school term holidays with the father.
…
6. The Form 4 Notice of Child Abuse filed by the father on 26 October 2007 be expedited for hearing as a matter of urgency.
Murphy J gave specific reasons for rejecting each of these applications. In respect of the application that contact time lost between the child and father be added to future periods of contact, his Honour described it as an application for compensatory contact, such as might be ordered upon a finding of contravention. His Honour therefore saw it as a premature application and one wrongly disembodied from contravention proceedings.
As to the application to expedite the hearing of the Notice of Child Abuse, his Honour noted that the Notice of Child Abuse was not of itself “a cause of action” and the application was meaningless.
As to the various orders relating to the provision of a telephone for the child and telephone contact, his Honour remarked that those applications seemed to be the precise matters that Dawe J had dealt with and had adjourned for further hearing.
The father argued that the subject matter of the Notice of Child Abuse could be the subject of an investigation independent from any other enquiry. This submission is wrong. While such a Notice might initiate investigation by State welfare authorities or others, in the context of the exercise by the Family Court of its jurisdiction in relation to children, an issue of such a Notice is a step taken in proceedings seeking parenting orders. The matter with which such a notice deals will be assessed with all other matters that must be addressed before making a parenting order.
The father also argued that his applications relating to telephone contact with the child and the provision of a telephone to the child differed from those with which Dawe J had earlier dealt because he had recently been denied telephone contact. We do not think that in the context of parenting issues raised before Murphy J, that recent failure of telephone contact added a further dimension for his Honour’s consideration.
We discern no error in his Honour’s reasoning in respect of these matters but moreover, they are all aspects of parenting arrangements in respect of which it was, in our view, well open to his Honour to conclude that no orders should be made in respect of them pending the receipt of the Family Report, which was the same approach as his Honour took in respect of the application in relation to the then current school holiday period.
As to that application, Murphy J essentially decided that, given the history, particularly the recent history of some difficulty in relation to the father spending time with the child, decisions should not be made until a Family Report was obtained. Such a decision is discretionary. Of that discretion the following has been said.
In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
The father also argued that Murphy J, despite referring to the decision of the Full Court in Goode v Goode (2006) FLC 93-286, failed to follow what was said in that case of the correct approach to interim applications. This was not an interim application about with whom a child should live or what ongoing periodic time a child should spend with a parent. This application concerned narrow points. If, on such application, a judge forms the view that the evidence should not be assessed until some other step occurs, then by necessary implication, though the approach required by statute is mandatory, we do not consider that the judge must express reasons in respect of each stage of that approach.
Murphy J said:
12.Against that background, the father applies for the order that I have indicated. I need to balance, then, whether the application should proceed against that factual background with what Mr Falconer, and to a lesser extent, perhaps Mr Bowler, each assert constitutes an unfairness for their respective clients because of their inability to obtain instructions and to put material before the court from them.
13.With that in mind I propose to balance those competing issues by confining my consideration of the matter today to the question of whether I should proceed to hear the matter prior to the receipt of the family assessment report, included in which will undoubtedly be important evidence about the wishes of a child who is now about 13 and a half.
…
16.These are child-related proceedings heard on an urgent interim basis. For reasons given earlier, there has been no reasonable opportunity for each of the mother and the ICL to respond to the applications either by way of Response, Cross-Application or the filing of affidavits.
17.Accordingly, there is a need to balance whether, in the best interests of [the child], the application before me should proceed, notwithstanding the fact that both Mr Bowler who appears for the ICL, and Mr Falconer who appears for the mother, tell me that there are matters relating to [the child’s] best interests that from their respective positions, they would seek to put before the court to allow the court to make a determination of that very issue.
18.The strictures within which an interim parenting application are heard are well known. They are particularly acute with respect to urgent interim applications.
19.Recently in the Full Court decision in Goode v Goode the court affirmed that the principles enunciated in the earlier decision of C v C with respect to the restrictions inherent in the procedures within which interim child-related proceedings are dealt with, remain in the light of the Reform Act.
His Honour then, over some 36 paragraphs, addressed material, including previous reasons for orders made, and the parties’ respective submissions. He then said:
56.In balancing the respective considerations raised by the parties in respect of whether the matter ought be determined today, uppermost in my mind is not making such a determination in the absence of the views of [the child] that will undoubtedly form part of the upcoming family assessment report.
We are satisfied that his Honour did not err in the approach he took to the issue he identified.
The father’s application for leave to file contravention/contempt proceedings
In his applications before Murphy J, the father had asked for leave to file either a contempt or contravention application against the mother “…for her continual breaching and disregarding the orders of Brown J …” Murphy J said that the application in that form could not be comprehended, but he took it as an application for leave to file a contravention application in respect of the alleged contravention of the order providing for time to be spent by the father with the child in the April 2008 school holidays. He adjourned the hearing of that application. The father appeals that adjournment on the basis that Murphy J could, and should have, proceeded to hear it.
We firstly observe that the father may not have a right of appeal against such an order (nor for that matter against some of the other orders that he appealed) and may need to apply for leave to appeal. However, this point was not argued before us and in those circumstances, we choose to pass on.
Secondly, we observe that the appeal seems to serve no useful purpose. If we were satisfied that Murphy J was wrong in granting the adjournment, then the application would still await hearing, as we presume it does now.
In any event, we are quite satisfied that, although an application for leave would normally be heard ex parte, in the circumstances where the mother’s legal representative had appeared in response to the application, as had the Independent Child’s Lawyer, neither of whom was in a position to proceed on the day without disadvantage, that an adjournment was well within Murphy J’s discretion.
The father argued that the mother and the Independent Child’s Lawyer had ample opportunity in respect of previous applications to file material, but had not. He said that had they filed that material, it could have been used in respect of the applications before Murphy J. Whether or not those contentions are correct does little, if anything, to change the position which presented to Murphy J. The anticipated Family Report might also have been expected to offer comment relevant to the adjourned application for leave and thus awaiting its completion could have been an added relevant factor in support of the adjournment.
We are not satisfied that in adjourning the father’s application for leave, Murphy J erred.
Conclusion
We see no reason to interfere with any of the orders made by Murphy J. In these circumstances the appeal will be dismissed. No issue of costs arises.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 31 October 2008
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