Chranley and Smart (No. 13)

[2007] FamCA 1643

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 13) [2007] FamCA 1643

FAMILY LAW – PRACTICE AND PROCEDURE – Father seeks leave to file two applications in a case – Father repeating orders previously sought and dismissed by the court – Father also seeks order that mother be held in contempt of court for perverting the course of justice – no particulars of application – Interim order pursuant to s 118 of Family Law Act 1975 previously made by consent pending determination of appeal by father – Appeal not proceeded with – Appropriate to revisit issue of s 118 order – Case in trial pool for current month – If reached father’s application irrelevant – Order: adjourn father’s application to trial – In event trial not reached then application to be listed before judge

Family Law Act 1975 (Cth)

APPLICANT: Mr Chranley

RESPONDENT:	Ms Smart
INDEPENDENT CHILDREN’S LAWYER:	Mr Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 19 November 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S COUNSEL: Mr Hemsley

INDEPENDENT CHILDREN’S SOLICITOR: Graeme Hemsley

Orders

1. That the Application in a Case filed by the father on 26 October 2007 be adjourned to the trial in this matter which is currently listed in the pool of cases for this month.

2. That in the event that the trial in this matter is not reached this month then the said Application in a Case be listed before the Honourable Justice Strickland not before 11.30am on Friday 30 November 2007.

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 4779 of 2000

MR CHRANLEY  

Applicant

And

MS SMART  

Respondent

EX TEMPORE REASONS

1. This is an Application in a Case filed on 26 October 2007 wherein the father seeks leave to file two applications. Both of the proposed applications are annexed to the application seeking leave and there is an affidavit filed in support of the application which simply refers the court to an earlier affidavit of the father's, namely, his affidavit filed on 30 April 2007.

2. I want to revisit this morning why the father needs leave to file these applications but first I will just make some preliminary comments. 

3. In those two applications the father seeks a series of orders.  Save and except in relation to one of the orders sought, they are simply a repeat of previous orders sought by the father, each application in respect of which has been dismissed. 

4. The one that is different to those that have been the subject of applications dismissed before, although the nature of it is the same, is paragraph 3 of one of the annexed applications in which the father seeks an order that the respondent mother be held in contempt of court for knowingly perverting the natural course of justice. 

5. There are no particulars.  There is nothing in the supporting affidavit to identify what the father is on about.  Thus there is no basis to grant leave for the father to simply put in that application.  The father can perhaps tell me whether he is relying on, or looking at, some other factual scenario beyond the issue of the respondent mother, he says, filing false affidavits, which indeed is the subject of paragraph 4 of that same application. 

6. The father has made submissions to me from the bar table, none of which address my question, and I am none the wiser as to the basis of the application that is contained in the application.

7. I am minded to simply dismiss the father's application for a number of reasons, one of which, of course, is that there is no factual material before the court on which the Court could grant leave, but, more importantly and more significantly, each of the applications in respect of which the father seeks leave are applications that have been made before and each one has been dismissed previously. 

8. However, as I said at the start, I want to revisit - it may not necessarily be today - the issue of the Section 118(1) order that was made by consent on 30 April 2007.

9. At that time the father had filed a Notice of Appeal against an order that I had made on 4 April 2007 and the father put to me that the determination of all matters that were then before the court should really be held until the Full Court had heard the appeal.

10. The submission was also made that it may be appropriate, in the circumstances of the appeal and given the nature of it and the order that was being appealed against, for there to be an interim order in the terms of the orders sought by the Independent Children's Lawyer, namely, orders in the alternative, either pursuant to Section 118(1) of the Family Law Act 1975 or pursuant to the relevant rule of court, with such interim injunction continuing until not only after the decision of the Full Court had been delivered but until the matter came back before me after that event, depending of course on what the Full Court decided.  The father indicated that he was prepared to consent to such an order, and that was supported by the Independent Children's Lawyer and the mother.

11. What has happened, and indeed I think I was told on the last occasion the matter was before me, is that that appeal was not proceeded with and it has been deemed abandoned. In those circumstances it is appropriate to revisit the issue of the Section 118(1) order, given that effectively the application about that had been adjourned pending the decision of the Full Court, which of course is not going to happen now because the appeal is not being proceeded with.

12. At the current time the trial in relation to the final orders sought in this matter is in the pool of cases for this month.  It has not yet been reached, and I do not know whether it will be reached or indeed when it will be reached.  Obviously if it is reached in the next week or two then this issue, namely the application the father makes today, will become irrelevant and me raising this issue as well will become irrelevant.  However, it may be otherwise if the trial is not able to be listed. 

13. What I propose to do is to await the outcome of whether the trial is reached or not and, depending upon that, then deal with the father's application that is before me today, but more importantly deal with the issue of the Section 118(1) order given the circumstances in which that order was made. It would then be up to the Independent Children's Lawyer whose application it is to determine whether to proceed or not.

14. The mother also had an application before the court seeking similar orders.  The father, presumably, would want that application dismissed as well because the appeal has not been proceeded with.  However, to repeat, those matters will only become relevant in the event that the trial is not reached.

15. It is unfortunate that Mr Hemsley is not here today.  I note the mother is here.  She has not appeared and she is in the back of the court.  As I have explained to her previously, she does not have to appear on a leave application.  It is only if I granted leave that the application would then be served on her.

16. In any event, let me look at the calendar and see what the timeframe is for the trial. The date today is 19 November and then next week is the week commencing 26 November, so there is this week and next week when the trial can be heard. Fortuitously, I have some time on what will be the last day of the month to further address this issue and that is convenient because of course by then we will know whether the trial has been heard or not. If it has not been, obviously, as I say, and to repeat, we can revisit this issue of the Section 118(1) order and deal with the father's leave application.

17. It may be that the father, as a result of that, does not need leave any more.  I hasten to add that regardless of that, on the evidence before me, there is simply no basis for leave to be granted, nor even if leave was granted, would there be any basis for the applications to proceed. 

18. In these circumstances what I propose to do is adjourn the application that is before me today initially to the Trial Judge, because of course those matters would need to be dealt with at the trial if they are to be relevant.  In the event that the trial is not reached though they will be listed before me on 30 November.

I certify that the preceding 18 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

19 November 2007.