FERANTI & CONNOR (INTERIM HEARING APPEAL) - [2009] FamCAFC 208

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (INTERIM HEARING APPEAL)

[2009] FamCAFC 208

FAMILY LAW - APPEAL – LEAVE TO APPEAL – INTERLOCUTORY ORDERS – Applications for leave to appeal – Where the trial Judge did not err in principle – Where failure to grant leave will not work a substantial injustice – Applications dismissed.

FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge failed to afford the father procedural fairness – Whether the trial Judge showed bias or prejudice towards the father – Where the trial Judge had regard to the material and evidence before her – Where no bias or prejudice towards the father was demonstrated – Where the trial Judge gave the father a proper opportunity to outline his application – Where the trial Judge provided procedural fairness to the father and followed the guidelines referred to in Re F: Litigants in Person Guidelines.

FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge failed to properly address the applications and evidence before her – Where the trial Judge clearly understood the issues before her – Complaints lack merit.

FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge erred in refusing leave to bring contravention proceedings – Whether the trial Judge erred in adjourning the father’s interlocutory applications – Whether the trial judge erred in dismissing the father’s application that a judge interview the child – No error of principle established.

FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge erred in ordering the father to pay half the costs of the Family Assessment Report – No error of principle established.

FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge erred in refusing to stay orders pending the determination of an appeal – Where the trial Judge considered the merits of the grounds of appeal – Where the father was in breach of an order to file a Financial Statement – No merit to complaint.

FAMILY LAW - APPEAL – Notice of Child Abuse – Whether the trial Judge erred in concluding that it was not appropriate to deal with the Notice until a Family Assessment Report had been provided – Notice of Child Abuse does not constitute a separate cause of action – No error established.

FAMILY LAW - APPEAL – Application to adduce further evidence – Where the application was opposed by the independent children’s lawyer – Where the material relied upon was contentious – Application dismissed.

Family Law Act 1975 (Cth) – s 68LE(6), s 68LA(7), s 93A(2), s 94AA
Family Law Regulations 1984 (Cth) – reg 15A
Family Law Rules – r 15.47

CDJ v VAJ (1998) 197 CLR 172
Feranti & Connor [2008] FamCAFC 192
Feranti & Connor (Contravention Appeal) [2009] FamCAFC 178
Maviglia v Maviglia [1999] NSWCA 188
Potter v Byrne (2009) 40 Fam LR 644
Re F: Litigants in Person Guidelines (2001) FLC 93-072

APPELLANT:

Mr Feranti

RESPONDENT:

Ms Connor

INDEPENDENT CHILDREN’S LAWYER:

Nicola…

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.

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Details

Case: [2009] FamCAFC 208
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case involves an appeal by the father against various interlocutory orders made by the Family Court, including decisions about procedural fairness, the handling of evidence, and the costs of a Family Assessment Report. The father contested several orders made by Justice Dawe, including the refusal to allow him to bring contravention proceedings, the dismissal of his application for a judge to interview the child, and the order that he pay half the costs of the Family Assessment Report. The father also sought leave to adduce further evidence and to stay the orders pending the determination of an appeal. The Family Court of Australia considered these appeals and dismissed them.

The primary legal issues before the court were whether the trial judge had erred in principle in making the contested decisions, whether procedural fairness was afforded to the father, and whether the father had demonstrated any bias or prejudice on the part of the trial judge. Additionally, the court had to consider whether the refusal to allow contravention proceedings, the adjournment of the father's interlocutory applications, and the refusal to stay orders pending appeal were appropriate.

The court found that the trial judge did not err in principle and that the father had not demonstrated any bias or prejudice on the part of the trial judge. The court held that the trial judge had given the father a proper opportunity to outline his application and had followed the guidelines referred to in Re F: Litigants in Person Guidelines. The court also found that the trial judge had clearly understood the issues before her and that the father's complaints about the handling of evidence and costs lacked merit. Furthermore, the court concluded that the trial judge had considered the merits of the grounds of appeal in deciding not to stay the orders pending the determination of an appeal.

The father's applications for leave to appeal and his notice of appeal were dismissed. Additionally, the father's application to adduce further evidence was dismissed, as the material relied upon was contentious and opposed by the independent children's lawyer. The court also found no error in the trial judge's decision to wait for a Family Assessment Report before dealing with the Notice of Child Abuse.

Orders

Orders of the court

The father’s application for leave to appeal the Orders 2 to 8 of the Honourable Justice Dawe of 14 February 2008 is dismissed.

The father’s Notice of Appeal (No SA 7 of 2008) is dismissed.

The father’s application for leave to appeal the orders of the Honourable Justice Dawe of 17 March 2008 is dismissed.

The father’s Notice of Appeal (No SA 32 of 2008) is dismissed.

The father’s application to adduce further evidence is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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