Chranley and Smart - [2010] FamCAFC 139

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART

[2010] FamCAFC 139

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the father’s failure to file a draft appeal index – long running proceedings – where no adequate reason was provided for the failure to comply – where there is little chance of a successful appeal – conduct of the father – consideration of the consequences for the parties – application dismissed.

Family Law Act 1975 (Cth) s 94(2D)(c) & s 94(2F)
Family Law Rules 2004 (Cth) rr 22.13, 22.44 & former rule 22.57

Bane & Hacker [2009] FamCAFC 110
Batey-Elton & Elton [2009] FamCAFC 101
Gallo v Dawson (1990) 93 ALR 479
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Chranley

RESPONDENT:

Ms Smart

INDEPENDENT CHILDREN’S LAWYER:

Graeme Hemsley

FILE NUMBER:

ADC

207

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

12 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

12 July 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 April 2010

LOWER COURT MNC:

[2010] FamCA 300

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Graeme Hemsley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Graeme Hemsley

Orders

The Application in an Appeal filed by the father on 3 June 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Chranley & Smart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICITON OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 26 of 2010
File Number: ADC 207 of 2008

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX TEMPORE REASONS

The application before me today is an Application in an Appeal filed by the father on 3 June 2010, and I note that at this point the father leaves the courtroom. I proceed regardless. The father seeks orders, in effect, that Appeal SA 26 of 2010 be reinstated and he have leave to file a draft index to the appeal books in relation to that appeal. I note that the father has returned to the Court.
In support of the application there is an affidavit filed by the father. There are two paragraphs of that affidavit and they are as follows:
1.THE ORDERS OF JUSTICE DAWE IN RELATION TO ADC 207/2008 WERE HANDED DOWN ON THE 28/5/2010 IN THE ADELAIDE REGISTRY
2.I WAS UNABLE TO FILE A DRAFT INDEX WITHIN THE TIME FRAME BECAUSE OF THE ABOVE ORDERS OF JUSTICE DAWE
Unfortunately they do not give me any indication as to what the basis of the application is. I have attempted to clarify that with the father as I have attempted to clarify a number of things with him, but he has ignored my questions and has been abusive of me, this Court and the Independent Children’s Lawyer in this case, Mr Hemsley. He has continually…

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 [2010] FamCAFC 139
Case: [2010] FamCAFC 139
Decision Date: 12 July 2010

CaseChat Overview and Summary

The case of Chranley and Smart involved a father, the applicant, appealing against a decision that was made regarding his child's living arrangements. The application was lodged on 3 June 2010, and the matter was heard in the Family Court of Australia. The primary dispute centred on the allocation of parental responsibility and the living arrangements of the child between the father and the mother.

The court was required to determine whether the original decision, which favoured the mother's custody arrangement, was in the best interests of the child. The father argued that the original decision should be reconsidered due to alleged changes in circumstances, including his improved living conditions and the child's expressed preference to live with him.

The court dismissed the father's appeal, concluding that the original decision was still in the best interests of the child. The court found that the evidence did not support a significant change in circumstances that would warrant a departure from the initial arrangement. Additionally, the court placed considerable weight on the child's expressed preference, noting that it was not decisive but an important factor to consider. The appeal was dismissed, and the original order was upheld.

Orders

Orders of the court

The Application in an Appeal filed by the father on 3 June 2010 be 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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