Feranti & Connor (No. 3)

[2008] FamCA 1224

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 3) [2008] FamCA 1224

FAMILY LAW – ORDERS – stay – where notice of appeal filed – where father has not complied with order to file documents concerning his financial circumstances – oral application by father for stay of order – stay refused

FAMILY LAW – PRACTICE AND PROCEDURE – Family Assessment Report – parties to share cost of report equally

FAMILY LAW – CHILDREN – not appropriate to deal with outstanding matters before the preparation of a Family Assessment Report – applications adjourned

Family Law Act 1975 (Cth)

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

INDEPENDENT CHILDREN’S LAWYER: Ms N. L. Atchison

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 17 March 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr P. Falconer

SOLICITOR FOR THE RESPONDENT: Peter Falconer and Associates

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

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Ms N L Atchison

Order

1. The parties share equally the cost of the family assessment to be prepared and that the payment by the father be made within seven [7] days of the conclusion of the appeal proceedings filed by him on the 12 March 2008.

2. All applications in a case by the father adjourned to a date to be advised after the receipt of the family assessment report.

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

MR FERANTI

Applicant

And

MS CONNOR

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The proceedings relate to numerous matters concerning the welfare of the child.  In particular today, the matter comes back before me pursuant to the orders I made on 14 February 2008.

2. One of those orders is that the father file and serve within seven 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.

3. He has not complied with that order.  He has filed a Notice of Appeal from that order, as well as other orders I made on 14 February.  He has not sought any application by way of a stay, in the sense that he has not filed any documents.  He appears to make an oral application for a stay of that order before me this morning.

4. The questions of the consideration of a stay arise.  In this case the Notice of Appeal sets out what purport to be some 19 grounds, none of which on the face of it would appear to be likely to be successful in relation to the procedural order that I made in relation to the question of the costs of the preparation of the family assessment.  I am not satisfied that it is appropriate, taking into account the usual authorities, to stay that order.

5. The question of the immediate payment of the share of the assessment is not perhaps as difficult as it once was, as I am informed by counsel for the Independent Children’s Lawyer that the Legal Services Commission will initially pay for the report so that it can be prepared in a timely fashion, and that they will then expect to recover from the father his appropriate share of the costs.  This also impacts on the question of the stay.

6. In relation to the other matters which are outstanding, which include the application in a case in relation to make-up time for the child and the matter again raised by the father this morning about a prompt hearing of the notice of child abuse or family violence which is of itself of course connected to the application in a case, I am satisfied that in the unusual circumstances of this matter it is not appropriate to deal with the same prior to the Family Assessment report being prepared.

7. The father asserts in his submissions that the alleged abuse is clear on the face of the documents.  However, the notice of abuse itself is in some paragraphs in particularly general terms, and I am not satisfied that those matters should be separately determined aside from the question of determining generally what is in the best interests of the child in these proceedings; noting as I do that the child turned 13 yesterday.

8. I, therefore, leave all the matters adjourned in the father's application in a case, filed on 28 December 2007, to a date to be advised after the receipt of the Family Assessment report.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  12 March 2009