Chranley and Smart (No. 4)

[2010] FamCA 683

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 4) [2010] FamCA 683

FAMILY LAW – STAY – application for stay of orders pending an appeal to the Full Court – consideration of the strength of the appeal – best interests of the child – inappropriate in the circumstances to grant a stay of the orders – application dismissed

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Carlin & Carlin (1977) FLC 90-320
D & D [1999] FamCA 2121
EJK & TSL (No. 4) [2006] FamCA 1022
Kelly & Kelly (1981) FLC 91-007
Molier & Van Wyck No. 2 (1981) FLC 91-001

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 4 August 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Graeme D Hemsley

Orders

1. The father’s Application in a Case filed on 12 July 2010 is 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)

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. This is an application filed by the father on 12 July 2010 seeking what I have interpreted to be a stay of the orders that are the subject of the appeal. The application in a case filed by the father on 12 July 2010 says in the orders that he is seeking: 

   (1)      This matter be listed as urgent.

   (2)I seek that the orders of Justice Dawe, delivered on 28 May 2010, be set aside until the outcome on an appeal, SA 39 of 2010, filed in the appeals. 

2. At the same time as filing that application in a case, the father filed an affidavit.  That affidavit merely refers to “see attached annexure A”, and annexure A is another affidavit to a copy of which is annexed a letter addressed to Chief Justice, Post Office Box 9991, Melbourne, Victoria, 3001.  On the second page, it appears to be signed by Mr Chranley. The original letter was dated 15 April 2010. 

3. In that letter to the Chief Justice, the father refers to the contempt and contravention applications which he has filed in these proceedings and which remain outstanding but are listed for hearing before me next week.  I have taken into account the material in the affidavit of the father. 

4. This is an application for a stay of the orders that I made on 28 May 2010. 

5. The mother appears unrepresented and Mr Hemsley appears as the Independent Children’s Lawyer before me this morning. 

6. The orders that were made on 28 May 2010 were orders made in a hearing in which the mother’s application proceeded on an undefended basis pursuant to orders which were previously made on 6 April 2010 for reasons which I then delivered.  In the letter to the Chief Justice (annexed to his affidavit filed on 12 July 2010) the father’s complaint is that the Court proceeded to hear the final orders application on an undefended basis before hearing a large number of contempt and contravention applications which were outstanding before the Court. 

7. As Mr Hemsley points out, that appears to be complaining about the decision made on 6 April and not the decision made on 28 May 2010. 

8. Notwithstanding that technicality, I have proceeded this morning to hear the submissions of the father and will assume that he is indeed purporting to appeal against the orders of 28 May 2010, which was the order of substance which on a final basis discharged the orders which were then in existence in relation to him spending time with the party’s daughter, S. 

9. This is a matter which concerns the welfare of the child of the parties, S, who was born in March 1997.  The current proceedings were commenced in 2008, but there were previously longer proceedings between the parties concerning the children’s orders.  Final orders were made by consent in those earlier proceedings in December 2007. 

10. Subsequently, the matter returned to the Court and orders were continued which made arrangements for the child to spend time with the father.  However, it is clear from the material on the Court file that the child has not spent any time with the father for a considerable period of time.  I refer to the background material set out in my previous judgments, including the judgment of 28 May 2010. 

11. An application for a stay (which is how I interpret the father’s application before the Court) needs to be considered in accordance with the principles which the Court is required to apply.  The rules set out that a Notice of Appeal does not operate as a stay of the order.  The principles which apply in relation to the granting of the stay are set out in Carlin & Carlin (1977) FLC 90-320, Kelly & Kelly (1981) FLC 91-007 and Molier & Van Wyck No. 2. (1981) FLC 91-001.

12. In Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 the Full Court recently considered the principles to be applied in determining an application for a stay, particularly in relation to parenting matters. The onus is on the applicant for the stay to establish a proper basis for the stay but there is no requirement for special or exceptional circumstances. As a general principle a person who has obtained a judgment is entitled to the benefit of that judgment.

13. One of the factors that has to be considered is some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case. 

14. I take into account that the father is unrepresented in the proceedings and is unrepresented in the appeal process.  The Notice of Appeal which was filed by the father on 25 June 2010 states in the section referring to his grounds of appeal:

    “Justice Dawe failed to act within the guidelines and has perverted the natural course of justice.  Justice Dawe failed in her duty of care.  Justice Dawe failed to act within the guidelines in relation to contempts and contraventions.  Justice Dawe refused to hear any argument from me in relation to the final orders.”

15. The material before the Court and the letter annexed to the father’s recent affidavit do not take the matter much further.  It is difficult to ascertain from these documents whether the father indeed has an arguable case.  In his submissions before the Court this morning he has referred to the Court and myself as being contemptuous and corrupt.  He has indicated that he intends to proceed with the appeal based on what he asserts was the refusal to hear the contempt and contravention applications before hearing final orders notwithstanding that he had discontinued his proceedings in relation to final orders. 

16. Another factor to be taken into account is the desirability of limiting the frequency of any change in the child’s living arrangements, however that factor is not significant in this matter. 

17. In the Full Court decision of Aldridge & Keaton (Stay Appeal), (Supra) the Full Court referred to the best interests of the child as being a significant consideration. 

18. Cases such as D & D [1999] FamCA 2121 and the decision of Chisholm J in EJK & TSL (No. 4) [2006] FamCA 1022 have emphasised that the child’s best interests, even if not the paramount consideration when considering the stay of an order pending an appeal, are a significant consideration. The order which the father seeks to have stayed is an order, which discharged on a final basis the previously existing orders, for the child to spend time with him. The orders provided for the child to live with the mother and gave her sole parental responsibility.

19. If that order was stayed, this would bring about a situation in which the previous orders providing for the child to spend time with the father would be revived.  In order to assess the impact of that type of stay upon the child, I refer to the most recent material before the Court and in particular the report of the Family Consultant which was before the Court and referred to by the Independent Children’s Lawyer. 

20. Dr A’s report was before the Court on 6 April 2010.  The evidence before the Court on that occasion was that the father had refused to accept a copy of the report. 

21. (The father interrupted whilst these reasons were being delivered.  I therefore confirmed that the contempt and contraventions will be proceeding on the basis that the mother claims she has a reasonable excuse).

22. I return to my reasons for judgment in this matter notwithstanding the loud yelling and interruptions by the father. 

23. The assessment of the family consultant, Dr A, was before the Court on 6 April 2010 and 28 May 2010.  In that report, Dr A specifically refers to the child’s welfare and in particular under the heading of “future directions”, the report concludes that it would not be in the child’s best interests for the Court to continue an order which required the mother to provide the child to spend time with the father.  In her report, Dr A refers to the child describing feelings of emotional pain, frustrations, fear and anger:

    “[The child] adamantly stated that she would not be seeing her father or speaking to him on the phone because of her feelings towards him that have, she said, evolved directly from his negative attitudes and behaviours.  [The child] expressed her wish not to suffer depression and other negative outcomes as she perceives her sister has through having to spend time with her father.  She described the impact of the ongoing litigation and mentioned sadly that her mother had not been able to attend her sports day at school because she was required to attend.”

24. In the report of Dr A, there are other matters of serious concern.  Notwithstanding the interjection of the father (the father is shouting at the Court that he doesn’t know of Dr A’s report), these quotes to which I have referred were also quoted in the judgment which I delivered on 28 May 2010, which is the judgment which is the subject of the father’s appeal, so it is difficult for me to ascertain how the father would be appealing from a judgment and yet at the same claiming he has not read the judgment. 

25. Weighing all of the factors in relation to this matter, in particular the material concerning the child’s best interests which are significant in this matter, the preliminary assessment of the strength of the proposed appeal the stay is inappropriate.

26. I therefore refuse to grant a stay of the orders and dismiss the father’s application in the case filed on 12 July 2010. 

27. The contempt and contravention applications remain listed for final determination commencing next Monday.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  6 August 2010