FERANTI & CONNOR (CONTRAVENTION APPEAL)

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (CONTRAVENTION APPEAL) [2009] FamCAFC 178

FAMILY LAW – APPEAL – PARENTING ORDERS – CONTRAVENTION APPLICATION – Whether the trial Judge erred in accepting the mother’s evidence – Whether the trial Judge erred in finding reasonable excuse for contraventions – Where the trial Judge found the mother to be a witness of truth – Where the trial Judge was entitled to accept the evidence of the mother – Where significant weight was given to the fact that the mother’s actions did not demonstrate the necessary intent not to comply or failure to attempt to comply with parenting orders required by the Family Law Act 1975 (Cth) – No error by the trial Judge

FAMILY LAW – APPEAL – PARENTING ORDERS – CONTRAVENTION APPLICATION – BIAS – NATURAL JUSTICE – Where the father alleged bias against him by the trial Judge and denial of natural justice – Actual or apprehended bias by the trial Judge not established – Whether the father was denied procedural fairness or natural justice as a result of the extended duration of the hearing – Where the delay in the final determination of the application was substantially due to the mother’s serious ill health – Assertion of denial of natural justice not established – Whether the father was denied procedural fairness as a result of delay in delivery of reasons – Complaint without substance

FAMILY LAW – APPEAL – TRANSFER OF PROCEEDINGS – Whether the father was denied natural justice by the trial Judge transferring part of the proceedings without notice – Where each party was apprised of the trial Judge’s consideration of the issue and had the opportunity to make submissions – Claim without foundation – Where the trial Judge had power to make the transfer order under s 27A Family Law Act 1975 (Cth) – Whether the trial Judge erred in the exercise of his discretion by finding the father had the ability to travel – No appealable error established

FAMILY LAW – APPEAL – COSTS ORDER – Whether the trial Judge erred in relation to the parties’ financial circumstances – Where neither party had filed a Financial Statement – Where the trial Judge made it clear that he could give no weight to that factor – Where the father did not seek to file a Financial Statement or make submissions about his financial position – No merit to this challenge – Whether the trial Judge was in error in making an order on an indemnity costs basis in the absence of evidence of the basis on which the mother’s legal fees were charged – Where the cost agreement between the mother and her solicitors was not available to the trial Judge – Appealable error

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where material was contentious and/or irrelevant – Application dismissed

FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – COSTS – Where it is appropriate that the Full Court should re-exercise the discretion –…