Chranley and Smart (No 2)

[2010] FamCA 301

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 2) [2010] FamCA 301

FAMILY LAW – CHILDREN – interim orders pending judgment reserved – undefended proceedings – best interests – consideration of the views of the child – serious concerns about the father’s capacity to parent – orders made suspending father’s time with the child

Family Law Act 1975 (Cth) ss 65DAA & 60CC

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

IINDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 6 April 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Graeme D Hemsley

Orders

UPON NOTING:

1. The Initiating Application filed on 26 June 2009 by the Applicant Father MR CHRANLEY and discontinued by the Applicant Father upon the filing of a Notice of Discontinuance on 5 January 2010 the matter proceeded on an undefended basis on the Response to the Initiating Application filed by the Respondent Mother MS SMART on 22 October 2009.

2. The Applicant Father withdrew from the matter.

3. Judgment is reserved before The Honourable Justice Dawe

4. The Court will notify the parties at least 24-48 hours of the intention to deliver further reasons and judgment on the basis of final orders.

Pending Delivery of Judgment it is Ordered that

1. The order made on 4 December 2007 which provided for the child S born on … March 1997 to spend time with the Applicant Father MR CHRANLEY is suspended and any other order which makes provision for the Applicant Father to spend time with the child S.

2. The contravention/contempt applications are listed for hearing on 9 August 2010 for five [5] days before the Honourable Justice Dawe (being all of the outstanding contravention and contempt applications on file to 5 April 2010).

3. The Independent Children’s Lawyer to inform the Applicant Father and Respondent Mother by 2 July 2010 whether Counsel for the Independent Children’s Lawyer is going to participate at the contravention/contempt hearing which is now fixed for 9 August 2010 for five [5] days.

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)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 207 of 2008

MR CHRANLEY

Applicant

And

MS SMART

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter before the Court concerns the child S who was born in March 1997 and is therefore aged 13.  There have been proceedings before the Court for years and many reports prepared and determinations made by the Court at first instance and the Full Court. 

2. The matter currently before me today is the application of the mother seeking orders in her Response filed on 22 October 2009.  In view of the history of the matter I propose to reserve my decision and deliver reasons in writing in due course.  It is appropriate, however, in view of the material before me today to make orders pending the delivery of my judgment and, for that reason, I propose to make a few remarks. 

3. The orders that currently apply by way of final orders are orders made by consent before me on 4 December 2007.  Since then, however, there have been significant proceedings commencing in January 2008 with contempt proceedings filed by the father in the Federal Magistrates Court.  The father has since filed numerous contempt and contravention applications. 

4. In Court today he yelled out that there were 110 such applications. 

5. The father discontinued his applications for final orders.  The Court has listed before me today the undefended application of the mother for final orders.  One of the orders that she seeks in her application for final orders is that the time spent between the applicant and the child S be at the desire and determination of the said child. 

6. I have before me the report of Dr A of 16 December 2009.  I will not read out all of the material in the report but I have considered carefully the material in the report and take into account the particular items under the heading, starting at the bottom of page 1 “The Child” and starting at the bottom of page 2, “The Parents’ Understanding of Children’s Needs” together with material dealing with in particular, the top of page 5, the behaviour of the father being:

   “…the increased negative impact of continued unpredictable and damaging behaviours by the father, for example, denigrating [the mother] and informing [S] of his veiled threats to [the mother], may strongly impact [S’s] wellbeing through her adolescent years.”

   That is just one part of the report which I highlight. 

7. However, when considering the interim orders I propose to take into account the provisions of Part VII of the Family Law Act, some 230 sections with which I am familiar, and, in particular, the provisions of section 65DAA which require the Court to consider whether spending equal time or substantial and significant time is in the child’s best interests. I take those sections into account.

8. I am satisfied, taking into account the matters required in section 60CC (by which the Court determines what is in the child’s best interests) that the significant factors are (by way of interim order) in section 60CC(2)(b), the need to protect the child from the physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence and, in particular, the psychological harm that is referred to in the report.

9. I also consider, of course, the provisions of section 60CC(2)(a) which requires the Court to consider as a primary consideration the benefit to the child of having a meaningful relationship with both of the child’s parents.  In that regard, I emphasise the existence of the word meaningful. 

10. I have also taken into account as a substantial matter in relation to section 60CC(3)(a) the views expressed by the child and her age and maturity as discussed in Dr A’s report and the capacity of each of the parties to provide for the needs of the child including the emotional and intellectual needs, it being my significant concern that the report of Dr A discloses serious doubts about the father’s capacity. 

11. By way of interim orders therefore I propose to suspend forthwith the provisions of paragraphs 4 and 5 of the order of 4 December 2007 and any other order which requires the mother to provide the child S at any contact centre, suspending any other order which makes provision for the father to spend time with the child S. 

12. I reserve my judgment on the final orders which I will make.  I will give notice to the parties of at least 24 hours, 48 hours if possible, of my intention to deliver my further reasons and judgment on final orders.

I certify that the preceding (twelve) (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  22 April 2010