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

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

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.
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

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.
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.
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.
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…

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: [2008] FamCA 1224
Decision Date: 17 March 2008

CaseChat Overview and Summary

This matter concerned an application by the father for a stay of an order requiring him to file documents concerning his financial circumstances, following the filing of a notice of appeal. The mother sought to have outstanding matters dealt with.

The primary legal issue before the Court was whether to grant the father's oral application for a stay of the financial disclosure order. The Court also considered the appropriate course for dealing with outstanding matters concerning the children, in light of the need for a Family Assessment Report.

Dawe J refused the father's application for a stay, noting that the father had not complied with the order to file the relevant financial documents. His Honour also determined that it was not appropriate to deal with the outstanding matters concerning the children until the Family Assessment Report had been prepared. The parties were ordered to share the cost of this report equally.

Orders