Chranley and Smart (No. 11)

[2007] FamCA 1640

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 11) [2007] FamCA 1640

FAMILY LAW – PRACTICE AND PROCEDURE – Father seeks leave to file application in a case – Order pursuant to s 118 of Family Law Act 1975 – Father seeks leave to file application seeking removal of Independent Children’s Lawyer and setting aside Family Assessment Report pending determination of complaint made by father to Medical Board – Neither application has reasonable likelihood of success if leave granted – Application dismissed

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 15 August 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 15 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

INDEPENDENT CHILDREN’S SOLICITOR:  Graeme Hemsley

Orders

1. I dismiss the application filed by the father on 13 July 2007 and remove it from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1477 of 2000

MR CHRANLEY  

Applicant

And

MS SMART  

Respondent

EX TEMPORE REASONS

1. I have before me an Application filed by the father on 13 July 2007 wherein he seeks an order - and quoting from the application:  "I seek leave to file this application in the case." In support of that application there are three affidavits which I have identified, with the father’s assistance, and I have read those affidavits. The need for the father to seek leave to file that application stems from the fact that there is currently in place an order pursuant to Section 118(1) of the Family Law Act.

2. At the start of the hearing I raised a question about compliance with the rules of this court because Mr Hemsley appeared as the Independent Children’s Lawyer and the respondent mother appeared. It seems the mother was served with documents, Mr Hemsley, though I am not sure; I do not know whether he was or not. In any event I have now pointed out to the father and also the mother that when an application like this is made it is to be made without notice to any other party, and that is the entire point of a Section 118(1) order.

3. The mother and Mr Hemsley are here and I have asked some questions of both of them in relation to this particular application, but I do not propose to call upon them to make any submissions in response to the application because the process is that the application is made, the court is to consider it, and, as is set out in sub-rule (4) of Rule 11.05 - and quoting:

   “The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.”

4. Thus that is what I need to address.  It seems that the applications that the father seeks leave to make are:  firstly, for the removal of the Independent Children’s Lawyer, Mr Hemsley; secondly, an application seeking an order setting aside a Family Assessment Report provided by one Dr M until the outcome of an inquiry by the South Australian Medical Board has been completed.

5. I am not going to dwell too long on the history of this matter, but relevant to the proposed application in relation to Dr M is that this issue has well and truly been aired in this court already via applications made by the father; in particular, an application of 6 December 2006. 

6. That application was initially considered in February 2007, when I made an order at that time, by consent, that the review assessment being undertaken by Dr M be stayed pending the decision of the South Australian Psychiatric Board, in relation to a complaint made by the father in November 2006, in relation to Dr M, and in the event that such complaint is not upheld then the review assessment proceed and the father do attend such appointments with Dr M on a date and a time to be nominated by the Independent Children’s Lawyer.  I then, in that same order, adjourned further consideration of the father's application in that regard to Dawe J on 26 March 2007.

7. On 26 March 2007 that matter came before Dawe J and her Honour made orders in relation to it.  I will not read out the orders but I incorporate paragraphs 2, 3, 4 and 6 in my reasons.

8. The long and the short of it, though, is that Dawe J discharged the order for a stay in relation to Dr M and directed that if Dr M confirmed, in writing, that he was prepared to proceed, notwithstanding the matter before the board, then he was able to proceed, but if Dr M indicated he was not prepared to proceed, then there was a process her Honour set up in that event.

9. As it transpired, Dr M was quite prepared to complete the family assessment and he did what he could, and he subsequently provided a family assessment to this court.  This is all preparatory to the trial in this matter in relation to the competing applications for final orders, which I note has now been set for hearing in the pool of cases in November 2007 with a listing of not before 12 November 2007.

10. Perhaps if I then deal with the proposed application in relation to Dr M. The only evidence that the father puts before the court in relation to that is an affidavit filed on 13 July 2007 wherein he refers to the fact that this matter is still under investigation by the board.  He refers to something happening in August and he has provided what appears to be a letter to the board, and I do not know – the father was not able to confirm it - whether that was his initial letter of complaint or whether it is a subsequent letter. 

11. In any event, the fact of the matter is that - and referring to the terminology in Rule 11.05(4) - I am not satisfied that I gave leave to the father to file the application foreshadowed; that that case has a reasonable likelihood of success.  The obvious reason for that is what has happened in this court in relation to that issue.  I have referred to the sequence of orders, the most relevant of which, of course, is the order of Dawe J of 26 March 2007.

12. I have referred to the evidence that is before me by way of affidavit.  The father insists on attempting to say things from the bar table which are not in affidavits and I take no notice of them. 

13. On the basis of the material before me by way of application and affidavit, to repeat:  for the reasons I have said I do not consider that the application foreshadowed has a likelihood of success and therefore, insofar as the father seeks leave to file an application setting aside the family assessment report of Dr M's, I dismiss that part of the application.

14. I turn now to the other foreshadowed application which is the application, effectively, for the removal of Mr Hemsley.  Again, this is a matter which is not new.  There are a number of applications that the father has made during the course of these proceedings seeking the removal of Mr Hemsley.  Each and every one of those applications has been dismissed.  There is no new information put before the court in any affidavit or by way of any evidence which would indicate that that issue should now be re‑litigated.

15. Again, using the words of Rule 11.05(4), any such application does not have a reasonable likelihood of success, and so I also propose to dismiss that part of the application in which the father seeks leave to file an application seeking the removal of Mr Hemsley.