Chranley and Smart (No. 5)

[2007] FamCA 427

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 5) [2007] FamCA 427

FAMILY LAW - PRACTICE AND PROCEDURE - Application for Independent Children’s Lawyer be removed

Family Law Act 1975 (Cth)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Graeme Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 27 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self Represented

INDEPENDENT CHILDREN’S LAWYER COUNSEL: N/A

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr 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 & Smart No 5

Orders

1. Father’s application filed on the 30 March 2007 (document 213) is dismissed.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779  of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

REASONS FOR JUDGMENT

1. I have before me today the application of the father (being document 213) filed on 30 March 2007, in which the father seeks an order that Mr Hemsley be removed as the Independent Children’s Lawyer.  The father relies on his affidavit (document 222) filed on 20 April 2007, and the oral submissions he has put to me today.  The application is opposed by the mother who appears in person and by the Independent Children’s Lawyer Mr Hemsley who appears before me today.

2. The role of the Independent Children’s Lawyer is an important role and there are guidelines which direct a lawyer acting in that role.  It is important that the guidelines are observed.  The father's oral submissions put to me allege that Mr Hemsley has not followed the guidelines, but neither his oral submissions nor the material in his affidavit provide me with a factual basis upon which to make any finding in that regard. 

3. The oral submissions of the father refer frequently to allegations that Mr Hemsley has behaved in an unethical manner and has taken steps to harm the father and endanger the children.  He has submitted that the behaviour of Mr Hemsley has been contemptuous, unprofessional and biased.  He has asserted that the Independent Children’s Lawyer has behaved in a reckless fashion and that he has been malicious and attempted to defame the father.  He has asserted that the Independent Children’s Lawyer has taken steps to make financial gain. 

4. The factual submissions referred to in the affidavit and the oral submissions (that I can ascertain from the submissions and the affidavit) first relate to the provision of a transcript of an appeal hearing which the father says was misleading and deliberately misleading because it was irrelevant.  The affidavit (document 199) filed by the Independent Children’s Lawyer, annexes to it the transcript of the hearing before the Full Court on 26 September 2006.  The father says in oral submissions that this was irrelevant because this was not the transcript of the day on which the father alleges counsel for the Independent Children’s Lawyer made a false assertion to the Full Court - namely, the day before, Monday, 25 September 2006. 

5. The assertion of the father before me today was that, by filing the transcript of the subsequent day (26 September 2006) this proves that Mr Hemsley was misleading the Court or behaving in an inappropriate way, such that his position as Independent Children’s Lawyer should be terminated.  The father has not filed the transcript of the day before which he says is relevant to some issues before the Court.  When I asked him whether he had done so, the father  said he had not done so because he could not afford it.  He then sought an adjournment of the matter before me so that he could obtain the transcript and file it.

6. The Independent Children’s Lawyer, Mr Hemsley, clearly indicated to the Court that he was not present in the Courtroom when the Full Court had any discussion with his counsel on the 25 September 2006, nor did he at any time give instructions to his counsel to inform the Full Court that I had indicated that I would stand down from hearing the matter in general.  (That appeal before the Full Court in September 2006 was an appeal from a decision by me not to disqualify myself and also from a decision by me in relation to interim orders relating to the time S should spend with the father).

7. The father insists that Mr Hemsley was present before the Full Court and that he gave instructions to Mr Bowler of Counsel, that I had indicated I would stand down from the matter. 

8. In the circumstances of this case and taking into account those factors, I decline to adjourn the hearing in relation to the application for the Independent Children’s Lawyer to stand down, on the basis that the transcript of the hearing of 25 September would indicate what Counsel for the Independent Children’s Lawyer informed the Full Court and in my view does not substantiate a basis upon which Mr Hemsley as the Independent Children’s Lawyer himself should be dismissed.

9. The other significant matter asserted by the father as justifying the dismissal of Mr Hemsley as the Independent Children’s Lawyer is an allegation that Mr Hemsley told the father that, if he continued in the manner that he was then continuing, he would never see his children again.  Before me today, Mr Hemsley vehemently denies any such statement to the father. 

10. Mr Hemsley, appropriately, puts the matters that are in dispute as issues which need to be determined at the trial.  He has responded by saying that he does not necessarily accept the factual view put by either of the parties.  That is a correct approach for the Independent Children’s Lawyer to take in this matter and in many other matters. 

11. The father complains that Mr Hemsley has failed to support the father’s applications before the Court and has supported the mother's applications.  The fact that an Independent Children’s Lawyer takes a particular attitude towards interim applications before the Court does not indicate a ground of bias or inappropriate behaviour by the Independent Children’s Lawyer.

12. The other matters raised by the father in relation to the basis for disqualification fall very much within the category of matters which were previously dealt with by me in the previous hearing of the father’s application that Mr Hemsley be disqualified, in which I delivered judgment on 6 March 2006 and which was the subject, I understand, of unsuccessful appeal by the father.

13. In summary, the allegations made by the father in this matter in relation to the behaviour of Mr Hemsley are either matters which have been dealt with before in the previous judgment or are matters which are not sufficiently proven to establish any breach of the guidelines.  In particular, the specific allegations of threats being made to the father and false statements being made to the Full Court are not established sufficiently in my view to bring about a sufficient factual basis to form a basis for the disqualification of Mr Hemsley as the Independent Children’s Lawyer.

14. The other matters alleged in the submissions by the father and in his affidavit are opinions and argument not appropriately supported by factual material.  I therefore dismiss the father's application (document 213).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  14 May 2007