Chranley and Smart (No. 2)

[2007] FamCA 334

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 2) [2007] FamCA 334

FAMILY LAW - CHILDREN – Family Assessment – Judicial Bias

Family Law Act 1975 (Cth)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 26 March 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: N/A

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Bowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Graeme 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 and smart no 2

Orders

1. The disqualification of the Honourable Justice Dawe is refused.

1. The father’s application of the 6 December 2006 is dismissed.

1. IT IS DIRECTED that if Dr M confirms in writing to the Independent Children’s Lawyer within fourteen [14] days from today that he is prepared to continue with the preparation of a family assessment in relation to this family notwithstanding the ongoing proceedings before the Psychologists Board then it is ordered:

(a)the father attend upon Dr M at the earliest available opportunity thereafter for the purpose of completion of the family assessment;

(b)in the event that the father does not attend upon Dr M that Dr M complete his report without any further input from the father.

1. If Dr M is not prepared to continue with the Family Assessment in view of the outstanding proceedings with the Psychologists Board it is ordered:

(a)the Independent Children’s Lawyer inform both the mother and father as soon as possible of that decision;

(b)within fourteen [14] days of receiving such letter the mother and father are to file and serve an affidavit providing three [3] names of independent psychologists who they propose conduct the assessment;

(c)the Independent Children’s Lawyer is then to provide an affidavit with three [3] names of proposed independent psychologists to conduct the family assessment;

(d)if no agreement is reached between the Independent Children’s Lawyer and the mother and father the Independent Children’s Lawyer is to request a listing of the matter in the Judicial Duty List for Judicial decision.

1. This matter should not require a listing of more than five [5] days, it is therefore proposed to leave the Trial Notice Listing fixed for April 2007 before a Registrar on the basis that any special consideration can be made the subject of any further application.

1. Any stay of the order in relation to Dr M is discharged.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779  of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

REASONS FOR JUDGMENT

1. This is an interim application that comes on before me today, certain matters having been adjourned to me for consideration this morning by Strickland J in the orders that he made on 7 February 2007.

2. The material concerned is the father's form 2 application filed in December 2006, document 179, wherein the father sought an order that “[Mr M] and his family assessment be set aside until the outcome of the formal investigation by the South Australian Psychological Board into his conduct in relation to this case.”

3. The father has made a complaint to the Psychologists Board about Mr M.  I understand from the information given to me from the bar table today that it was heard and determined and that the father is now seeking a review by the Psychologists Board of their finding.

4. The matter that is also before me today is the amended form 2 of the Independent Children's Lawyer; that is document 205, which amends document 186.  Document 205 is an application by the Independent Children's Lawyer seeking orders that the father attend upon Dr M at the earliest available opportunity for the purpose of completion of the family assessment, and, in the event that the father does not so attend, that Dr M complete his report without further input from the father, and that this matter be referred to the next available pre-trial conference.

5. The father opposes those orders in relation to Dr M and seeks that he not prepare any further reports, that the report he has prepared be disregarded and that there be further appointments made for a further independent family assessment to be carried out.

6. The father appears before me in person today.  When he commenced making submissions before me this morning he asked me to stand down or disqualify myself because of the bias he alleged I showed towards him.  He made references to my accepting misleading information from the independent children's lawyer and the independent children's lawyer's counsel, and referring to the mother's misleading affidavit.  He then told the court that the respondent the mother is facing perjury charges.  He referred to an earlier decision I had made in interim proceedings in this matter as a “disgraceful order” and “reckless”.  He described me as being unjust and contemptuous and said that my decisions were of a highly offensive nature.

7. He then went on to deal with Dr M's assessment in this matter and said that Dr M had not completed the assessment and no-one had stopped him.  I understand that the application before the court today, by the Independent Children's Lawyer, is that the father attend upon Dr M to enable Dr M to obtain information from him which would assist Dr M in completing his report.  The father also referred to the hearing before the Psychologists Board and asserted that Dr M had given false evidence to the Board. 

8. This matter concerns the welfare of the child of the parties, a daughter, and has been before the court on many occasions on interim hearings. 

9. The steps being sought to provide a family assessment are significant steps in preparing the matter for final hearing.  I am concerned, however, that the steps being taken by the father, if not intended, have certainly had the effect of, delaying the final hearing which will allow the court to determine, on properly tested evidence, what final orders would be in the best interests of the child.

10. I am told that Dr M has conducted recent interviews, last year or early this year, of the children, the child and her sister, the mother and her partner. All that remains to be done for Dr M to complete his updated assessment is for the father to attend upon him for the purposes of completing the report.

11. I take into account that the father is proceeding with some form of review or disciplinary proceedings in relation to Dr M, in the Psychologists Board, but in my view, if Dr M is prepared to complete his assessment whilst those proceedings remain unresolved, then it is in the best interests of the child and the parties that this matter be progressed so that the report can be prepared and the matter prepared for final hearing, so that the true nature of the evidence can be tested and proper orders made based on the correct factual material, in the best interests of the child.

12. As far as the father's allegations of bias are concerned, he raises no new matters other than those which he has previously raised in relation to applications that I disqualify myself.  For the reasons I have previously given, I do not consider that I have shown any bias against the father, nor have I conducted myself in any way which would lead a reasonable person to consider that I would not bring a fair and impartial mind to the matters before the court.

13. I therefore refuse to disqualify myself.

14. As far as the applications actually before me today, I dismiss the father's application of 6 December 2006 and direct that if Dr M confirms, in writing, to the independent children's lawyer, within 14 days from today, that he is prepared to continue with the preparation of a family assessment in relation to this family, notwithstanding the ongoing proceedings before the Psychologists Board, then I order that the father attend upon Dr M at the earliest available opportunity thereafter for the purpose of completion of the family assessment.  In the event that the father does not so attend upon Dr M that Dr M complete his report forthwith, without any further input from the father. 

15. If Dr M is not prepared to continue with the preparation of the family assessment, in view of the outstanding proceedings with the Psychologists Board, I order that the Independent Children's Lawyer inform both parties, as soon as possible, of that decision within 14 days of receiving any such letter. 

16. The mother and father are each to file and serve an affidavit in court providing three names of independent psychologists whom they propose conduct the assessment.  The Independent Children's Lawyer is then to provide an affidavit with three names of proposed independent psychologists to conduct the family assessment. 

17. If no agreement is reached between the Independent Children's Lawyer and the mother and father, the Independent Children's Lawyer is to list the matter in a Judicial Duty List for a judicial decision.

18. I note that the matter currently has a trial notice listing which would prepare the matter for trial.  In my view this matter should not require a listing of more than five days.  I therefore propose to leave the trial notice listing fixed for April, before a registrar, on the basis that any special consideration could be made the subject of any further application.

19. By implication, any stay of the order in relation to Dr M is discharged.  That deals with paragraphs 6, 7 and 8 of the Independent Children's Lawyer's application, document 205.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 April 2007