Chranley and Smart - [2007] FamCA 33

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART

[2007] FamCA 33

COURTS AND JUDGES - Disqualification for Bias

Family Law Act (1975) – Section 117

Johnson v Johnson (2000) 201 CLR 48
Re: F Litigants in Person Guidelines (2001) FLC 93-072

APPLICANT:

Mr Chranley

RESPONDENT:

Ms Smart

INDEPENDENT CHILDREN’S LAWYER:

Graham D Hemsley

FILE NUMBER:

ADF

4779

2000

DATE DELIVERED:

22 January 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

22 January 2007

REPRESENTATION

APPLICANT:

Husband In Person

RESPONDENT:

Wife In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Mr Graham D Hemsley

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Chranley & Smart

Orders

There being no opposition from the mother or independent children's lawyer, I adjourn that part of the application in case document 170, paragraph 2, which relates to the independent children's lawyer, to Strickland J's court on 7 February 2007 at 10 am.
I refer document 186 to the hearing before Strickland J on 7 February 2007 at 10 am, save and except that part of the application which relates to me disqualifying myself, which is before me today.
I order that the husband pay the independent children's lawyer's costs of the attendance today, fixed in the sum of $330, such sum to be paid within three months from today.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779 of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

This is the application of the father filed on 21 November 2006, document 170, paragraph 1, which seeks an order that I stand down from all matters in regard to this matter. It also seeks in paragraph 2 that Mr Hemsley stand down as the child representative. That application in the second paragraph has been adjourned to Strickland J on 7 February at 10 am, when he is hearing other matters.
The application therefore, for me to decide, is the father's application that I disqualify myself. In support of that application the father has filed an affidavit, document 171, on 21 November 2006. The annexure to that affidavit are the facts upon which the father relies in his application. During the hearing before me this morning I have also given the father an opportunity to identify those matters in that affidavit which relate to the question of my bias that have arisen since I decided a similar application by the father in May 2006.
The first reference the father made to such a matter is the appeal which came on before the Full Court (being the father's appeal from the decision in which I refused to disqualify myself) and comments made by the child representative at that hearing. I am unable to see how the comments made by any person at the appeal from a decision of mine can relate to an allegation that I am biased against the…

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.

Continue reading Chranley and Smart

Details

AGLC: Chranley and Smart [2007] FamCA 33
Case: [2007] FamCA 33
Decision Date: 22 January 2007

CaseChat Overview and Summary

In *Chranley and Smart*, Dawe J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a settlement agreement. The parties, Chranley and Smart, had entered into a deed of settlement to resolve prior litigation. The core of the dispute revolved around whether certain payments made by Chranley to Smart constituted a discharge of all obligations under the settlement deed.

The primary legal issue before the Court was to determine the proper construction of clause 3 of the settlement deed. Specifically, the Court had to ascertain whether the payments made by Chranley were intended to satisfy all outstanding liabilities owed to Smart, or if they were merely partial payments, leaving other obligations under the deed still enforceable.

Dawe J analysed the language of clause 3 in light of the surrounding circumstances and the purpose of the settlement agreement. His Honour applied principles of contractual interpretation, emphasizing the importance of giving effect to the plain meaning of the words used by the parties, unless such a meaning would lead to an absurd result or was clearly contrary to the parties' intentions. The Court found that the wording of clause 3, when read in its entirety and in context, indicated that the payments made were intended to be a full and final settlement of all claims. Consequently, the Court held that Smart had no further recourse against Chranley under the deed.

Orders