Chranley & Smart - [2012] FamCAFC 87

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART

[2012] FamCAFC 87

FAMILY LAW – APPEAL – procedural fairness – mother’s application to vary parenting orders heard on an undefended basis, as father discontinued his own application – father given opportunity to make submissions, but did not avail himself of it – held on appeal that proceeding undefended was appropriate – appeal dismissed.

FAMILY LAW – APPEAL – procedure – r 21.05 of Family Law Rules 2004 (Cth) – hearing date for contempt and contravention proceedings to be set as near as practicable to 14 days after date of filing – over 110 contempt and contravention applications – held that contempt and contravention matters must be listed at a time when all the issues can be aired – listing date timely in the circumstances.

FAMILY LAW – APPEAL – procedure – when to decide contempt and contravention applications – held that first instance judge was justified in deciding mother’s substantive application first and holding over father’s numerous contempt and contravention applications – no requirement for oral evidence in the substantive matter as hearing undefended – prompt resolution of substantive matter in child’s best interests.

Family Law Act 1975 (Cth) ss 61DA, 65DAA, 60CC
Family Law Rules 2004 (Cth) r 21.05

Neil v Nott (1994) 68 ALJR 509

APPELLANT:

Mr Chranley

RESPONDENT:

Ms Smart

INDEPENDENT CHILDREN’S LAWYER:

Denise M Rieniets

FILE NUMBER:

ADC

207

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

22 June 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Bryant CJ, Finn and Thackray JJ

HEARING DATE:

26 July 2011

(last written submissions 16 August 2011)

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 May 2010

LOWER COURT MNC:

[2010] FamCA 416

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

THE INDEPENDENT CHILDREN’S LAWYER:

Denise M Rieniets & Associates (no appearance)

Orders

The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by the Court under the pseudonym Chranley & Smart is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 39 of 2010

File Number: ADC 207 of 2008

Mr Chranley

Appellant

And

Ms Smart

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Background

By Notice of Appeal filed 25 June 2010, the appellant (“the father”) has appealed orders made by Dawe J on 28 May 2010. The orders made by her Honour varied certain parenting orders for the parties’ child, then aged 13 years, which had been made by consent on 4 December 2007.
On 6 April 2010, when the matter was heard, her Honour had to deal with three issues. The first was whether to proceed with the mother’s Application to vary the parenting orders on an undefended basis. Her Honour determined to do so.
The second was whether to proceed with the hearing of that Application, or to adjourn that hearing until she had heard the father’s numerous Applications for contravention and contempt alleging breaches by the mother of the original parenting orders. Her Honour determined to proceed with the hearing of the mother’s Application for final parenting orders on an undefended basis and to adjourn the numerous contempt and contravention proceedings filed by the father to be heard at a later date. Her Honour gave brief ex tempore reasons and made orders to that effect on 6 April 2010.
Having decided to proceed, her Honour then had to deal with the third issue, which was whether, and if so how, to vary the parenting orders made on

4 December 2007.
The result was that in a judgment delivered on 28 May 2010, her Honour discharged an order which provided for the mother and the father to have joint parental responsibility for the child and replaced it with an order providing for the mother to have sole parental responsibility for her. In addition, and importantly, orders that provided for the father to spend time with the child were discharged.
The father’s Notice of Appeal seeks only the discharge of orders made on

28 May 2010 (the substantive orders) and does not include the orders made on

6 April 2010 (dealing with the undefended nature of the proceedings and the decision to adjourn the contravention/contempt proceedings), yet he complains in his grounds and submissions about the decision to proceed undefended with the parenting application and to adjourn the contempt and contravention proceedings. Notwithstanding this failure, we intend to address the grounds which go to the order of 6 April 2010.
We do so because the decision to proceed with the hearing of the mother’s Application, and to do so on an undefended basis, underpins the decision reached by her Honour and the orders made on 28 May 2010. Further, the father’s grounds of appeal address all issues, as did his oral submissions, without objection from the mother. Finally, if the father is successful and the orders made on 28 May 2010 are set aside, the orders of 6 April 2010 are rendered otiose.
As the decision to proceed on an undefended basis is controversial, it is convenient to set out a chronology taken from the judgment of Dawe J handed down on 28 May 2010:
3.Although the current file in the Family Law Courts was opened in 2008 and now has 112 documents on file, there were long previous proceedings between the parties which commenced in the year 2000.
4.Final orders were made by consent on 4 December 2007. These consent orders provided that the father and mother have joint parental responsibility for [the child], that [the child] live with the mother and that the father spend time with [the child] each alternate weekend and other specific orders.
5.Shortly after the consent orders were made in December 2007, the father commenced proceedings for Contempt and has subsequently filed numerous applications in relation to contempt and contravention.
6.By Initiating Application filed in the Federal Magistrates Court of Australia on 26 June 2009, the father sought final orders: “[The child] to spend alternate weeks of school holidays with her father”. The interim orders he sought in that Initiating Application were the same.
7.On 25 September 2009, Federal Magistrate Lindsay made orders listing certain contravention applications filed by the father for trial before himself in December 2009. Also on that day Federal Magistrate Lindsay made an order for the appointment of an Independent Children’s Lawyer for [the child] and transferred the father’s Initiating Application filed on 26 June 2009 and his Application in a Case filed on 21 September 2009 to the Family Court of Australia.
8.After that date the father filed further numerous applications for contravention and some contempt applications.
9.On 22 October 2009 the mother filed a Response to the Initiating Application in which she sought … that a Family Assessment Report be prepared, that an Independent Children’s Lawyer be appointed and “that time spent between the Applicant and the child … be at the desire and determination of the said child.”
10.On 9 December 2009 when some of the contravention matters were listed before Federal Magistrate Lindsay he made the following orders:
“1.The return date of all contravention and contempt applications filed to date by the father be brought forward to today.
2.All contravention applications and contempt applications filed to date be transferred to the Family Court of Australia for further consideration at a date and time to be determined by the Honourable Justice Dawe.”
11.In the Family Court of Australia directions had been made which included referring the Initiating Application and Response to further directions after a Family Consultant had provided a Children and Parents Issues Assessment Report.
12.The order of Registrar Paxton on 3 November 2009 made the usual orders requiring the parties to attend appointments with the Family Consultant.
13.The Court received the Children and Parents Issues Assessment Report dated 16 December 2009, prepared by Dr [A].
14.On 5 January 2010 the father filed a Notice of Discontinuance, discontinuing his Initiating Application filed on 26 June 2009 seeking to discontinue all of the orders applied for in that application.
15.On the same day the father filed further contempt applications and contravention applications. Thereafter he continued to file further contravention and contempt applications.
16.When the matter came on before Registrar Paxton on 2 February 2010 certain notations were made:
“In relation to the outstanding response of the mother filed on the 22^nd October 2009 (noting that the mother wishes to proceed and noting the father filed a Notice of Discontinuance re the application initiating proceedings on 5 January 2010) that the same be listed for a default hearing at a date and time to be advised by the Court and notifying the parties. That any affidavit for the default hearing be filed and served within 14 days. That the father serve the Notice of Discontinuance on the mother and Independent Children’s Lawyer within 7 days.”
17.By letter of 3 February 2010 the mother, father and Independent Children’s Lawyer were advised that
“This matter was adjourned by Registrar Paxton to a date to be fixed. This listing is for the purpose of dealing with the mother’s application for default orders in relation to her Response filed on 22 October 2009. It is also a directions hearing in respect of the outstanding contravention and contempt proceedings.
The date for your undefended hearing is Tuesday 6^th April 2010 at 2.15 pm at Commonwealth Law Courts, 3 Angas Street, Adelaide, SA 5000.”
According to the mother’s affidavit filed 22 October 2009 in support of the orders sought by her, the child had since 19 December 2009 refused to spend time with the father. The mother was seeking orders that the existing order for joint parental responsibility and orders for the child to spend time with and communicate with the father be discharged and be replaced with an order that the mother have sole parental responsibility and that the time spent between the father and the child be at the desire and determination of the child.
The numerous Applications for contempt/contravention of the December 2007 orders arise in the main part from the failure of the child to spend time with the father as provided in the original orders.
The issues before the Court, including the various contempts and contraventions, were the result of the breakdown of the relationship between the child and her father, and it was common ground that she had not seen him since 2009.

In the proceedings before Dawe J on 6 April 2010 both the mother and father appeared before her Honour unrepresented. An independent children’s lawyer appeared for the child.

Proceedings Before Dawe J on 6 April 2010

At the outset of the hearing on 6 April 2010, her Honour noted that despite the fact that the father had notification of the orders sought by the mother in her Response filed on 22 October 2009 to his original Application, in which she sought to discharge orders for contact between him and the child, the father filed a notice of discontinuance in relation to his Application on 5 January 2010. This was several months after he had received the mother’s Response and when he was aware of the orders she sought.
Her Honour pointed out to the father that the only Application for final orders before the Court was in the mother’s Response and that the registrar had listed the matter for an undefended hearing. The father then indicated that he had Responses to Applications and he wanted to file them. Her Honour rejected that Application and indicated to the father that she was going to proceed to deal with the matter before her, which was the orders sought by the mother in her Response. Her Honour suggested that the father remain in the courtroom if he wished to be heard. Her Honour indicated to the father that she would proceed to hear the Application and at the conclusion would proceed to give some directions as to the listing of the contempt and contravention proceedings which would be heard at a different time.

The decision by Dawe J to proceed on an undefended basis

Her Honour then gave ex tempore reasons for judgment as to why she was proceeding to hear the matter undefended. Her Honour noted first that the Family Law Rules 2004 (Cth) (“the Rules”) required that documents be filed in relation to Applications and that the father had not complied. Her Honour then noted that the proceedings before the Court relating to the welfare of the child had been outstanding for some time and were in fact commenced in

January 2008, orders by consent having been made in December 2007. The matter was originally filed in the Federal Magistrates Court but subsequently transferred to the Family Court. Her Honour noted that the Court had heard several Applications in relation to the matter but had directed that the matter proceed on an undefended basis because of the father discontinuing his Application and not seeking to file anything further in relation to the orders sought by the mother in her Response.
Her Honour noted that there were a number of contravention and contempt proceedings outstanding and that in “the usual course in matters”, contravention and contempt Applications would be dealt with before completion of a trial, particularly where children were concerned. However her Honour noted that this was not a defended proceeding but a hearing in relation to an undefended Application by the mother for final orders, which included orders that the time spent between the father and the child be at the desire and determination of the child. Her Honour opined that one of the significant factors to be taken into account was what was in the best interests of the child and indicated that she had placed considerable weight on the Child and Parents Issues Assessment conducted by the family consultant, which was the subject of a report to the Court on 16 December 2009. In the circumstances, her Honour determined that she should proceed to hear the Application for final orders by the mother on an undefended basis and thereafter list the Applications for contravention and contempt, of which her Honour noted there were in excess of 110, according to the father.
Her Honour accepted into evidence the family consultant’s report over objection by the father. The father’s objection is difficult to follow but emerges from the following piece of transcript which quotes the father:
That report from the psychologist was not done within the rules and regulations. She did not interview me beforehand. She spent four hours with me asking me some questions. That is not the procedure and protocol of a document like that which is placed before the court. If they did not proceed with protocol and practices and failed to give me reasonable time or to interview me on the first occasion, where it is written that she would; I find that that must be absolutely biased and must be stricken from the record.
(transcript 6 April 2010, page 10, lines 6 – 12)
Her Honour then indicated that she intended to receive the family consultant’s report of 16 December 2009 into evidence. The husband responded:
There we go. It’s a kangaroo court.
(transcript 6 April 2010, page 10, line 19)
Her Honour endeavoured to obtain information as to whether the mother wished to put forward any further evidence in the face of constant interjections by the father. Despite these interjections, her Honour continued to try to conduct the proceedings in an orderly manner, seeking submissions from the independent children’s lawyer first and then from the mother. Finally, at 2.50 pm her Honour noted that the father had left the courtroom and the following passage of transcript records what took place:
HER HONOUR:   I note that Mr [Chranley] is now ‑ ‑ ‑
MR [CHRANLEY]:   You want to put that on the record?
HER HONOUR:   ‑ ‑ ‑ leaving the room and held up his ‑ ‑ ‑
MR [CHRANLEY]:   The bird, call it the bird.
HER HONOUR:   ‑ ‑ ‑ finger twice at me as he left, screaming, “Do you want to put that on court?” …
(transcript 6 April 2010, page 11, lines 25 – 34)
At the conclusion of the submissions of the mother and the independent children’s lawyer, Dawe J noted that the mother and the independent children’s lawyer supported the discharge of joint parental responsibility orders and the orders providing for specific arrangements for the child to spend time with and communicate with her father. Her Honour noted that the family consultant’s report dated 16 December 2009 supported these submissions.

Her Honour cited parts of the report of the family consultant, considered the relevant matters in Part VII of the Family Law Act 1975 (Cth) (“the Act”), in particular the views of the child, and indicated by way of interim orders that she proposed to suspend “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… at any contact centre, or suspending any other order which makes provision for the father to spend time with the child” (transcript 6 April 2010, page 17, lines 33 – 36).
Her Honour indicated that she would reserve her judgment on the final orders that she intended to make. She also made an order adjourning the father’s contempt and contravention Applications until 9 August 2010.
There was no appeal in relation to the interim orders.
On 28 May 2010 her Honour delivered reasons and made final orders affirming the interim orders.

The decision by Dawe J on the substantive parenting orders sought by the mother

After setting out some background and the relevant law, her Honour then dealt with the evidence. First, she referred to the report of the family consultant, noting at [31] of the judgment that it was a report from a “well-qualified, experienced Family Consultant”. Her Honour then noted that the “key issues” were described in the report as follows (at [33], original italics):
·[The child’s] firm conviction that she does not want to see or speak to her father and her current refusal to do so primarily because she feels unsafe in her father’s company and unsafe when he denigrates Ms. [Smart]
·Mr. [Chranley’s] refusal to hear any feedback about [the child’s] views
·Mr. [Chranley’s] express refusal to receive this assessment from the Court
·Mr. [Chranley’s] aggressive and threatening presentation at Court.
In the paragraphs we have set out below, her Honour made reference to what she considered were the most important paragraphs of the report.
34.[The child] was described and her wishes discussed commencing on page 1 and continuing to page 2. Part of that section of the report states:
“[The child] presented as an engaging, gentle, articulate and mature child for her nearly thirteen years. [The child] conveyed a strong impression of an intelligent child whose language skills and cognitive ability appeared to fit well within the parameters suggested by her age and stage of development.”
35. Later there was a paragraph which commenced as follows:
“With regard to her father, [the child] described feelings of emotional pain, frustrations, fear and anger. [The child] adamantly stated that she will 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 Court.”
36.The report then continues under a heading “Parents’ Understanding of Children’s Needs”
“Mr. [Chranley] appeared unable to appreciate that [the child] has, independently of her mother, expressed firm views about spending time with him. Mr. [Chranley] expressed his view that [the child] is a mature, independent child who is bright and unlikely to be led by anyone else’s point of view. He did not appear to perceive any conflict between those two views. Mr. [Chranley] appeared motivated and fuelled by his remembrances of Ms. [Smart’s] perceived shortcomings over time and of his view that Ms. [Smart] “should be taken out of the picture”. Mr. [Chranley] appeared to be emotionally overwrought and, at this time, unable to separate [the child]’s needs for a peaceful life from his needs to continue with his relationship with the child and his needs to continue with litigation.
Mr. [Chranley], as previously described, clearly struggled with preparedness to hear, and in fact refused to hear his child’s views or accept this assessment. He did not appear to demonstrate ability, in this instance, to take on the child’s views.”
37.The report writer then dealt with the mother’s views and attitudes.
38. Under the heading “Future Directions” the report concludes:
“It appears unfortunate and difficult to imagine that further assessments might offer [the child] an opportunity to safely and comfortably spend time with her father. It appears to be fairly clear that there are distinct possibilities that even though Mr. [Chranley] reported his intention to discontinue this matter, he might well continue to litigate with the aim of restoring his relationship with [the child] at this time.
It appears that spending time with Mr. [Chranley] at this time could possibly and most likely present [the child] with an unacceptable risk of emotional and psychological harm. In the absence of Mr. [Chranley’s] willingness and preparedness to enter into counselling then further referrals would appear to be unhelpful at this time.
Future directions might include encouragement of Mr. [Chranley] to cease litigation and to make a conscious effort to never denigrate Ms. [Smart] to [the child], or allow any other person to do so, in the future. They might encourage Ms. [Smart] to similarly make a conscious effort to never denigrate Mr [Chranley] to the child… in the future or allow any other person to do so.
Future directions might include an agreement by each of the parties that [the child] be given permission to choose to see her father in the future and assistance to do so if necessary.” [original emphasis]

Her Honour then considered the presumption in s 61DA of the Act and, if the presumption applied, s 65DAA. Her Honour found that the presumption of equal shared parental responsibility should be rebutted in this case because it was not in the best interests of the child for her parents to have equal shared parental responsibility and, to the contrary, it was in the child’s best interests for her mother to have sole parental responsibility. Her Honour noted at [40]:
The ongoing litigation since the consent order was made in December 2007, the inability of the mother and father to engage in any form of civil communication about [the child’s] welfare and [the child’s] clear attitude towards, and her relationship with, the father are sufficient to rebut the presumption. …
Having determined not to make an order for equal shared parental responsibility, her Honour noted it was not necessary to consider the provisions of s 65DAA.
Her Honour considered carefully the primary considerations in s 60CC(2) and noted the need to carefully consider discharging an order previously made by consent.
After considering the relevant matters in s 60CC, including in particular the child’s views, her Honour concluded that the best interest of the child were met by allowing her to spend time and communicate with the father in a manner in which she decides. In particular her Honour noted at [45]:
The Family Consultant’s report referred to [the child’s] emotional pain, frustration, fear and anger and her concern about not suffering depression and other negative outcomes if required to spend time with the father. These are significant factors. These factors relate to the risk of psychological and emotional harm to [the child]. A meaningful relationship with the father would not be promoted by maintaining the consent orders. [original emphasis]
Under the additional considerations to be considered, her Honour noted as significant the child’s views. These her Honour set out at [48]:
The report indicated that [the child] was happy and satisfied with her living arrangements in the home of her mother, defacto stepfather and sister. The relationship with her father was described as a negative one brought about according to the child, by the father’s behaviour and in particular his ongoing denigration of the mother and continued litigation.
Her Honour also had regard to the likely effect of a change in the child’s circumstances, noting at [50]:
The Family Consultant’s report indicates that a change in the Court order and a reduction of proceedings before this Court would be likely to provide a significant benefit to [the child], particularly for her emotional and psychological wellbeing.
Her Honour also noted at [55] that it was preferable for the child and her parents to cease to be involved in ongoing proceedings:
This is a significant matter in these proceedings. It is clearly preferable for [the child] that her parents cease to be involved in ongoing proceedings. In particular the Family Report suggests:
“[The child] has the support of her mother, her defacto stepfather and her older sister. With such supports and with an opportunity to proceed through adolescence in the absence of ongoing parental conflict and feelings of fear relating to her father [the child’s] developmental milestones would appear likely to be achieved ….”

The appeal

Both the appellant father and the respondent mother appeared for themselves. The father appeared in person and the mother appeared by telephone with leave.
The appeal was listed for 10.00 am on 26 July 2011 but the father did not appear. Following enquiries by the appeals registry at the request of the Bench, the father was contacted and the matter proceeded at 2.15 pm. The father informed us that he was not aware that the matter was listed for hearing. The court file disclosed no reason why the father would be unaware of the hearing, particularly as the mother was present, albeit by phone. The father proceeded with his appeal but subsequent to the appeal hearing, he communicated with the appeals registry by email on 29 July 2011, indicating that he was not aware of the appeal hearing until the morning and that he did not have adequate time to go over his case and present all of the evidence required. The father also claimed that he had forgotten to address “major points” during the hearing of the appeal because he was feeling unwell and stressed. By way of this email, he sought to put before the Full Court written submissions on several issues.
In conformity with practice and the Rules, the Regional Appeal Registrar responded to him, with a copy to the mother and the independent children’s lawyer, indicating that it was not normally possible to make further submissions without making an Application to re-open the hearing. However, the Regional Appeal Registrar advised him that his email had been brought to the attention of the Full Court and that:
In the event that Ms [Smart] or the Independent Children’s Lawyer wish to make any reply, written submissions should be filed and served no later than 4.30 pm on 19 August 2011.
The independent children’s lawyer subsequently indicated that she did not wish to provide any reply. The mother responded to the invitation to reply to the submissions. The mother’s submissions in the main were directed to an objection to the Full Court allowing further submissions by the father on the basis that:
·There was no reasonable evidence supplied by the father for this matter to be re-opened and/or for further submissions to be considered.
·Between 3 May 2011 and 30 June 2011, there was a substantial amount of correspondence from the Southern Appeals Registry indicating both a likely date for hearing and giving confirmation of the date.
·Evidence and a summary of argument upon which the father intended to rely had been filed and a sound knowledge of the case could be expected.
·No medical evidence of illness was submitted to substantiate the claim of feeling unwell on the day.
·As to the claim of feeling unwell on the day, the father proceeded with the appeal without making any claim of feeling unwell.
In the circumstances we are prepared to allow the very short submissions of the father over the objection of the mother. Whilst there was no satisfactory explanation for the father’s non-appearance when the matter was called at

10.00 am on 26 July 2011, he was contacted by the appeals registry and he did appear later in the day. We see no reason to impute any bad faith to him by reason of his non-appearance. We are prepared to accept that he was unprepared although we are not satisfied as to why this was so. In the circumstances, however, we propose to allow the further submissions and will address them in our reasons.

The grounds of appeal

There were four grounds of appeal:
1.Justice Dawe failed to act within the guidelines and has perverted the natural course of justice.
2.Justice Dawe failed in her duty of care.
3.Justice Dawe failed to act within the guidelines in relation to the contempts and contraventions.
4.Justice Dawe refused to hear any argument from [the father] in relation to the final orders.
Clearly Ground 2 as drafted does not constitute an appropriate appeal ground. Whilst there are difficulties with the other grounds, conscious of the comments of the High Court in Neil v Nott (1994) 68 ALJR 509, with the consent of the father, we re-cast the grounds as follows:
1.Failing to accord procedural fairness to the father by:
a.proceeding with the hearing on 6 April 2011 as an undefended matter; and
b.failing to allow the father to file documents opposing the mother’s application.
2.Failing to accord procedural fairness and/or making orders contrary to law by proceeding to hear and determine the mother’s application for parenting orders before hearing and determining the father’s applications for contempt and contravention.
3.Failing to hear and determine the father’s contempt/contravention applications in the timeframes specified in the Rules or within a reasonable time.
As the father did not deal with the grounds seriatim we will deal with them in the order submissions were made to us.

Recast Grounds 2 and 3

It became apparent from the submissions of the father that the gravamen of his complaint about the Court not dealing with the contempt/contravention Applications first was, as he submitted, that if her Honour had heard them in accordance with the Rules, then the father would have had contact. Instead

her Honour proceeded with the substantive hearing, discharged the order and prevented that contact from occurring.
We will deal specifically with the complaints by the father about contravention of the Rules and whether her Honour was obliged to first hear the contempt/contraventions. The problem with this submission is that it presupposes that his Applications would have been successful and would have resulted in him having contact with the child. This is essentially the prejudice which he submits was occasioned by failure to accord procedural fairness and to abide by the Rules. The fallacy in this argument, however, is demonstrable. It fails to take account of the fact that there is a defence to the alleged contraventions and assumes that any defence would have been unsuccessful. Secondly, even proving breaches of orders without reasonable excuse will not, of itself, cure the problem at the heart of the dispute. That problem was that the child did not want to see her father and had not seen him since 2009. However, we need not speculate on the outcome other than to point out that the father’s general submission about the unfairness occasioned relies upon an assumption that he would be successful in the contravention/contempt proceedings, an assumption that cannot be made.
In family law proceedings, it is generally the case that allegations of contempt/contravention are heard and decided before the substantive proceedings commence. This is because, as her Honour pointed out, if there is some risk that a party might be found guilty of breaching an order, there exist appropriate constraints on that party giving particular evidence. Without those safeguards, a party might, for example, be put in a position where he or she is required to give evidence or be cross examined about matters potentially of consequence in a subsequent contravention/contempt hearing, in which a finding of guilt may result in a fine or imprisonment, or both. It is thus usually the case that procedural fairness is occasioned by allowing the contempt/contraventions to proceed first.
However, the hearing was undefended and the parties would not be required to give oral evidence. That being so, the requirement to consider whether the parties required any necessary protection from giving evidence in a matter prior to the contempt/contravention proceedings did not apply in this case.
Her Honour also took into account, appropriately in our view, the best interests of the child in having the substantive matter dealt with as soon as possible.

Her Honour referred to the Child and Parents Issues Assessment prepared by the family consultant on the basis of interviews with the parties and the child. This report her Honour accepted into evidence. We note that the report, at page 4, includes the following comments:
Overall, the child… has indicated her unwillingness and steadfast refusal to spend time with her father. She further indicated her experience of her father as troubling and “unsafe”. [The child] appeared vulnerable to her fears and to future emotional and psychological detriment when she considered spending time with her father.
Mr. [Chranley] appeared to be unable to move forward from his embedded position of holding Ms. [Smart], together with various intervening professionals and Court personnel, entirely responsible for his position. His proposals to have Ms. [Smart] “out of the picture” and to engage with [the child] on an ongoing basis at this time did not appear to relate well to [the child’s] present needs for stability, security and a conflict free environment.
The family consultant also wrote, again at page 4, that:
[The child] has the support of her mother, her defacto stepfather and her older sister. With such supports and with an opportunity to proceed through adolescence in the absence of ongoing parental conflict and feelings of fear relating to her father, [the child’s] developmental milestones would appear likely to be achieved. It seems possible that [the child] believes that if she is required by the Court to spend time with her father that she will not be able to successfully cope. It seems possible and likely that in that instance, [the child] will choose, orders or not, to refuse spending time with her father.
Under a heading called “Future Directions”, the family consultant opined, at page 5 of the report, that:
It appears that spending time with Mr. [Chranley] at this time could possibly and most likely present [the child] with an unacceptable risk of emotional and psychological harm. In the absence of Mr. [Chranley’s] willingness and preparedness to enter into counselling then further referrals would appear to be unhelpful at this time.
Future directions might include encouragement of Mr. [Chranley] to cease litigation and to make a conscious effort to never denigrate
Ms. [Smart] to [the child], or allow any other person to do so, in the future. They might encourage Ms. [Smart] to similarly make a conscious effort to never denigrate Mr. [Chranley] to the child… in the future or allow any other person to do so.
In our view, her Honour correctly identified that it was in the best interests of the child for the mother’s substantive application for variation of the existing orders to be determined with some degree of urgency.
The father conceded before us that in relation to the contempt/contravention proceedings (which involved over 110 Applications), he had made application to have disqualified at least two of the judges in the Adelaide Registry (including

Dawe J) and he anticipated that a lengthy hearing time would be necessary. In these circumstances we are satisfied that no procedural unfairness was occasioned to the father by her Honour proceeding to hear the substantive application instead of first determining the father’s Applications for contempt/contravention. We are further satisfied that the matters her Honour took into account in determining to proceed in this manner were all appropriate to the exercise of her discretion.
Finally, in relation to these grounds, the father argued that the Rules had been breached by her Honour failing to hear the contempt/contraventions in a timely manner.
While the father did not refer specifically to r 21.05 in his submissions before her Honour (as he did in his submissions before us), the transcript of the hearing before her Honour makes it clear that he raised the issue of the timing of the hearing. Addressing her Honour, he said:
Let me just overtalk you for a minute and let me tell you what the rules and regulations are of contempt and contravention ‑ to be heard within two weeks - eight months, eight months, and I’m still waiting. Do your job, do it properly, or I’ll hold you in contempt.
(transcript 6 April 2010, page 2, lines 20 – 23)
There are a number of problems for the father to overcome in relation to this complaint.
First, the transcript makes it clear that he was aware that the matter was not listed for final hearing before her Honour in relation to the contempt/contravention Applications, but was listed before her Honour for directions only.
There was no application brought by the father to review the registrar’s directions providing for the matter to be listed before her Honour for directions.
Secondly, r 21.05 requires that on the filing of an application by a party seeking to enforce a parenting order in contravention proceedings or contempt proceedings, the Registry Manager must fix a date for a hearing that is as near as practicable to 14 days after the date of filing.
The date required to be fixed is a date for the application to be heard. It is not required that the final hearing of all issues take place on that date. There may be some matters that can be heard in a relatively quick or summary way within that short timeframe. However there will be other matters that require other orders or directions, and they will be listed at a time where all issues can be properly heard. The father’s 110 Applications were demonstrably in the latter category.
Thirdly, at the time when his contempt/contravention Applications were filed and r 21.05 would have had application, the matter was before the Federal Magistrates Court. It was not transferred to the Family Court of Australia until

9 December 2009. Rule 21.05 would never have come into play in relation to the proceedings in the Family Court.
Fourthly, regarding the father’s complaint about the timely hearing of his contempt/contravention Applications, we observe that prior to the transfer of the proceedings to the Family Court on 9 December 2009, the parties had been ordered to attend appointments with the family consultant. On 2 February 2010 the matter was listed before Registrar Paxton, who adjourned it to a date to be fixed on both the substantive issues and a directions hearing in respect of the outstanding contempt/contravention proceedings. The day after, on

3 February 2010, the parties were advised that 6 April 2010 was the date so fixed. Given the issues involved and the number of Applications outstanding, we see no merit in the father’s argument that the Court did not deal with his Applications in a timely way.

Recast Ground 1

The first part of this complaint requires consideration of the steps that occurred prior to the matter coming before her Honour on 6 April 2010. The chronology set out at [8] of these reasons indicates that the dates of transfer to the

Family Court were 25 September 2009, in respect of the father’s Application of

26 January 2009 to vary the orders made by consent in December 2007, and

9 December 2009, in respect of the contempt/contravention Applications.
On 22 October 2009, after transfer to the Family Court, the mother filed a Response to the Initiating Application of the father. The mother sought that a family assessment report be prepared and an independent children’s lawyer be appointed. She further sought that contact between the father and child “be at the desire and determination of the said child”.
On 3 November 2009 Registrar Paxton made directions in the Family Court requiring the parties to attend appointments with a family consultant for the purposes of preparing a Children and Parents Issues Assessment. The directions referred the Initiating Application of the father and the Response of the mother for further directions at a time after the Children and Parents Issues Assessment had been prepared.
The Children and Parents Issues Assessment, dated 16 December 2009, was subsequently received by the Court.
On 5 January 2010 the father filed a notice of discontinuance, discontinuing his Initiating Application and seeking to discontinue all of the orders applied for in that Application. On the same day he filed further contempt Applications and further contravention Applications.
On 2 February 2010 the matter came on for directions before Registrar Paxton and we set out at [7] the directions made by the registrar on that day which made it quite clear what the status of the proceedings then were. The notations to the directions said (with shorthand notation expanded into longhand):
That in relation to the outstanding Response of [the] mother filed 22 October 2009 (noting that the mother wishes to proceed and noting the father filed a Notice of Discontinuance in the Application Initiating Proceedings on 5 January 2010) that the same be listed for default hearing [at a] date and time to be advised [by the] Court and notifying the parties.
That any affidavit in the default hearing be filed and served within 14 days.
That the father serve the Notice of Discontinuance on the mother and independent children’s lawyer within 7 days.

The court record notes that the father, the mother and the independent children’s lawyer all appeared before the registrar. Subsequently, by letter of 3 February 2010 from the Court, the father, the mother and the independent children’s lawyer were advised that:
This matter was adjourned by Registrar Paxton to a date to be fixed.
This listing is for the purpose of dealing with the mother’s application for default orders in relation to her Response filed on 22 October 2009. It is also a directions hearing in respect of the outstanding Contravention and Contempt proceedings. Your request for an expedited hearing was taken into consideration in the listing of this matter.
The date for your Undefended Hearing is Tuesday, 6 April 2010 at 2:15 PM at Commonwealth Law Courts, 3 Angas Street, ADELAIDE SA 5000. [original emphasis]
The father did not seek review of the orders and directions made by the registrar in relation to the setting down of this matter on an undefended basis.
While not relevant to the appeal, the father informed us that he only brought his Application so that he could force on the contempt/contraventions. What is clear from the chronology is that the father was aware that he had to meet the Application for orders contained in the mother’s Response. As he sought no orders himself, the matter was to be dealt with on an undefended basis. The father did make some submissions to her Honour, albeit in somewhat offensive and intemperate language, about the matter proceeding on an undefended basis and we should record them:
HER HONOUR: The matter has been listed to proceed on an undefended basis because the father has filed a notice of discontinuance in relation to any final orders and ‑ ‑ ‑
MR [CHRANLEY]: I filed that affidavit in a notice of discontinuance before the mother, the respondent mother, filed any application. Don’t come that crap with me, your Honour. I intend to hold you accountable, and I intend to make you follow the law, the rules and the regulations, because if you don’t ‑ ‑ ‑
(transcript 6 April 2010, page 2, lines 31 – 38)
We observe that the father’s contention – that he had filed a notice of discontinuance before the mother had filed any Response – was incorrect.
The father then continued his discourse with her Honour:
HER HONOUR:   Mr [Chranley], please be seated and do not use ‑ ‑ ‑
MR [CHRANLEY]:   I haven’t finished yet, your Honour ‑ ‑ ‑
HER HONOUR:   ‑ ‑ ‑ offensive language, please.
MR [CHRANLEY]:   That is not offensive. I have applications, which I’m going to present to the court now. The application is ‑ ‑ ‑
HER HONOUR:   Sorry, Mr [Chranley], I’m dealing with Ms [Smart’s] application by way of a response to an initiating application.
MR [CHRANLEY]:   Well, you’re dealing with it in the wrong way, your Honour; you’re dealing with it in the wrong way. I have a discontinuance; I discontinued my action, not the mother’s action, the respondent mother’s; I discontinued my action, so let’s get it right.
HER HONOUR:   Ms [Smart], in relation to the response to the initiating application, which was filed on 22 October 2009, has there been any document filed by the father in reply to the response to the initiating application that you filed, document 42?
MS [SMART]:   No, your Honour.
HER HONOUR:   Mr Hemsley, in relation to the response to the initiating application filed by the mother on 22 October 2009, are you aware of any document in reply filed by the father in these proceedings?
MR HEMSLEY:   I am not, your Honour…
(transcript 6 April 2010, page 2, lines 40 – 47 and page 3, lines 1 – 19)
A short time later the following exchange occurred:
MR [CHRANLEY]:   Maybe, for the transcript, you might want to read what I actually asked for, your Honour, just so it is on record for when I appeal your decision.
HER HONOUR:   It says:
Which of the orders you applied for do you want to discontinue?
And it says:
All of them.
MR [CHRANLEY]:   I don’t want to discontinue any. I have more applications to file today. Over the Easter break I didn’t have time to file an application in the case in response to the mother’s application. The mother filed ‑ ‑ ‑
HER HONOUR:   The matter that is now before me is the ‑ ‑ ‑
MR [CHRANLEY]:   Hang on a sec, hang on. You want to let me finish or not? The mother filed a form 2A, a response to an application in the case. I didn’t think that I needed to file a response to a response. It is a bit pathetic, if you ask me. I have got here an application in the case, I have got one to get rid of my good friend here again because he failed his duty of care again, but not to you. You tend to like him, for some reason. I have proof that this man has failed his duty of care.   I showed that to you last time, and I have got more to show to you now. I have also got an application in the case to ask that the custody now be 50/50 custody.
HER HONOUR:   Currently, the only application for final orders before the court is, I understand, the response to the initiating application filed by the mother on 22 October 2009.
MR [CHRANLEY]:   Excuse me, your Honour, do you have a hearing impediment or something ‑ ‑ ‑
HER HONOUR:   I’m asking you ‑ ‑ ‑
MR [CHRANLEY]:   ‑ ‑ ‑ because I seem to be doing a lot of talking but no‑one seems to be listening to what I’m saying. I have responses to applications in here to file now, and I wish to file them now, because over Easter I didn’t have a chance to file them. There are 110 applications of contempt and contravention against this woman. How can you continue to do an initiating application when Rice & Asplund will be used and they will be dismissed? The respondent mother has got 110 applications of contempt and contravention, so what the hell are you doing?
(transcript 6 April 2010, page 3, lines 30 – 46 and page 4, lines 1 – 25)
Finally, in respect of this topic, her Honour explained again to the father that he was aware of the status of the proceedings and what was before her Honour:
HER HONOUR: Stop shouting at the court, Mr [Chranley], please. In relation to the application before me today, orders were made quite specifically on ‑ just let me find the specific reference to the matter. On
2 February 2010, Registrar Paxton made orders that, in relation to the outstanding response of the mother filed on 22 October 2009, noting that the mother wishes to proceed, and noting that the father has filed a notice of discontinuance of the initiating proceedings, that the same be listed ‑ that is the outstanding response of the mother ‑ for a default hearing on a date and time to be advised, and that the parties have since, on 3 February 2010, been advised that the undefended hearing of the mother’s application in a response filed on 22 October 2009 is listed before me today.
(transcript 6 April 2010, page 4, line 47 and page 5, lines 1 – 9)
In what we view as an acknowledgment that the father was seeking an opportunity to file further applications, including an application seeking “50/50 custody”, her Honour sought submissions from the mother on the proposition that the Court proceed to hear the mother’s Response to an Initiating Application on an undefended basis:
HER HONOUR: Ms [Smart], what do you have, if anything, to put to me as to whether I should proceed to hear, on an undefended basis, your response to the initiating application and the orders that you sought, which was filed on 22 October 2009, whether I should proceed to hear that today or postpone it until such time as the contravention and contempt matters have been completed?
MS [SMART]: It needs to proceed today, your Honour. [The child], at this stage, does not have time spent with the father at all; he has now ceased phone communication with her, and she needs some closure as far as this is concerned, your Honour.
(transcript 6 April 2010, page 5, lines 28 – 36)
Her Honour then asked the independent children’s lawyer whether there should be an adjournment and his response was in a similar vein:
MR HEMSLEY: Your Honour, it is clearly in [the child’s] best interests for this matter to be finalised as quickly as possible. The fact that it is an undefended hearing gives your Honour the capacity to hear it more quickly than you would otherwise, and on that basis, I see no reason why the matter can’t be dealt with today.
(transcript 6 April 2010, page 5, lines 43 – 46)
Her Honour then delivered a short judgment comprising seven paragraphs indicating why her Honour intended to proceed with the matter on an undefended basis on that day.
Following that judgment, the father again asked to have the matter stood down so he could file further applications. Her Honour refused to stand the matter down, again indicating an intention to deal with the matter on that day.
The father’s submissions in relation to this ground are scant. His written submissions assert that the mother did not initiate any change to the orders. This is demonstrably incorrect as the mother did so in her Response to an Initiating Application. In simply repeating what he had said to her Honour, namely that he did not think he needed to file any Response to the orders sought by the mother, the father was unable to advance this ground. Again, it seems to us that it is demonstrably clear from the directions of the registrar, made at a directions hearing at which the father was present, and from the subsequent letter written by the Court, that it was known to the parties and the independent children’s lawyer that the father’s Application had been discontinued and that the mother’s Response was before the Court on an undefended basis. Accordingly, we see no merit in this ground.
The final part of this ground, as we discern it, asserts a failure to allow the father an opportunity to file documents opposing the mother’s Application. This is a discrete matter because although there were no other orders sought by the father, it was still open to him to seek to put material before the Court in opposition to her Honour making an order even though he himself was seeking no orders. By way of example, the Court may have been persuaded to simply adjourn the mother’s Application at that point and to make no orders, leaving the existing orders in place.
The father sought no opportunity to file any further affidavits. He certainly indicated to her Honour that he wanted to file further applications and that he had “responses to applications”. However he did not indicate to her Honour the nature of those applications, being whether they related to breaches of orders, or to the substantive matter regarding parenting orders for the child. Making it even more unclear were submissions by the father that the whole matter should be adjourned until after the contraventions and contempts: “That will give me time to lodge my applications, an application in the case for 50/50 custody, to remove this bastard of a man, because he has made a bastard of a case” (transcript 6 April 2010, page 5, lines 17 – 19).
We understand these submissions to be a suggestion by the father that he intended to make an application to have the independent children’s lawyer removed. In relation to that exchange, her Honour could have no precise idea of what applications the father intended to file, other than that they might include an application for “50/50 custody”. It is to be noted that this is the Application he had previously made and discontinued.
What is clear in our view, however, is that her Honour was dealing with the matter undefended and at no time sought to deny the father an opportunity to make submissions in relation to the orders that were being sought. The following exchange occurred between her Honour and the father after

her Honour had ruled that he was not permitted to file any further material:
MR [CHRANLEY]:   May I speak now, your Honour? I seek that this court stand adjourned for half hour. I will go down and file these.
HER HONOUR:   That is not permitted, Mr [Chranley]. I’m going to proceed to deal with the matter which is before me. I suggest you therefore remain in court if you want to be heard. [our emphasis]
MR [CHRANLEY]:   You are an absolute disgusting shame of a justice of this court. You are biased; you rule with contempt; you are conceited, and you have a double dose of self‑grandeur; you are a true narcissist. How can it proceed undefended? I may as well go, then. I can go, then, can I, undefended?
HER HONOUR:   Mr [Chranley], it is up to you. I am now going to proceed to hear the application which is before me, and at the conclusion of that I will give some directions as to the listing of the contravention and contempt proceedings.
(transcript 6 April 2010, page 7, line 47 and page 8, lines 1 – 14)
Her Honour then proceeded to try to deal with the matter, despite objections by the father. At one point her Honour said, “I couldn’t hear the final remarks of the mother because the father was shouting over her” (transcript 6 April 2010, page 10, lines 45 – 46).
Finally the father left the courtroom in circumstances which we have set out at [19].
We accept that once her Honour had decided the matter should proceed on an undefended basis, the father’s opportunity for participation was limited because he had no application, nor evidence upon which he could rely. However he was nevertheless in a position to make submissions to her Honour about whether orders should be made or whether some other course of action should be taken. Her Honour was clearly cognisant of that when she suggested that the father remain in court if he wanted to be heard. In addition, when her Honour accepted into evidence a report of the family consultant, the father made the following submissions in relation to it:
That report from the psychologist was not done within the rules and regulations. She did not interview me beforehand. She spent four hours with me asking me some questions. That is not the procedure and protocol of a document like that which is placed before the court. If they did not proceed with protocol and practices and failed to give me reasonable time or to interview me on the first occasion, where it is written that she would; I find that that must be absolutely biased and must be stricken from the record.
(transcript 6 April 2010, page 10, lines 6 – 12)
Having indicated that the father’s remarks opposing receipt of the family consultant’s report had been heard, her Honour nevertheless proposed to receive it despite his submissions. The father’s comment in response was, “There we go. It’s a kangaroo court” (transcript 6 April 2010, page 10, line 19).
Although from the father’s point of view the proceedings were undefended, and therefore the extent to which he could participate was limited, the father was nevertheless given the opportunity to make submissions to her Honour about the orders. As we think is clear from the passages in the transcript to which we have referred, the father made no real attempt to engage with the issues and his demeanour and engagement with the Court was largely rude and disrespectful. In our view, it should also not be forgotten that the overriding issue was the best interests of the child, and that it was in this context that her Honour made the ruling to proceed on the day with the matter undefended.
It is clear from the report of the family consultant that the continued litigation between the parents arose from orders that were no longer working for the child and which needed to be dealt with as soon as possible. The independent children’s lawyer supported that view. In our view, having regard to the best interests of the child, the exercise of her Honour’s discretion to proceed with the matter without permitting the father an opportunity to file further affidavits or Applications (none of which were specifically identified) was a discretion that did not miscarry.
Finally, we turn to the further submissions made by the father following the hearing of the appeal. The father complains that the transcript indicates that there were seven occasions when Dawe J spoke but her Honour’s words were not captured by the transcript, and instead the words “JUDGMENT DELIVERED” were stated. The father contends that Dawe J acted to have the transcript produced in this manner “to protect herself from showing any bias in the transcript, when infact [sic] she did show bias against me and did pervert the natural course of justice and act unlawful [sic]”.
This appears to be an assertion that the trial judge has perverted the course of justice by doctoring the transcript in some way. The father asserts, in particular, that he clearly remembered Dawe J saying that her Honour would hear from the respondent mother and the child representative but not from him. This is contrary to what appears in the transcript to which we have referred at [80].
Lawyers understand, while perhaps parties do not, that when a transcript is produced, judgments or rulings may not appear in the transcript of the proceedings but rather are extracted as separate rulings or judgments.
In view of the father’s assertions about the transcript having been doctored, we have taken the step of having the complete transcript transcribed by Auscript to compare the transcript in the Appeal Book with the entirety of the transcript, including rulings. We attach to this judgment copies of pages 6 and 7, first, as they appear in the Appeal Book, and then, from the complete transcript, from which it is plain that her Honour was attempting to deliver judgment but was being constantly interrupted by the father. More importantly, it is clear that the assertions by the father in his supplementary submissions about doctoring of the transcript are baseless.
The father not having satisfied us that any of these grounds have merit, the appeal should be dismissed.

Costs

The father sought to make an application for costs. No other party did.
As the father has been unsuccessful in the proceedings, we would not make any order in his favour.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Thackray JJ) delivered on 22 June 2012

Associate: C Bryan

Date: 22 June 2012

HER HONOUR: Sorry?

MR HEMSLEY: I see no reason why the matter can't be dealt with today.

MR [CHRANLEY]: The mother has just stood in this court and told you that she has contravened the orders. My good friend here has also stood ‑ ‑ ‑

HER HONOUR: Sorry, Mr ‑ ‑ ‑

MR [CHRANLEY]: Hang on. I'm not finished yet. The respondent mother stood and just said to you that [the child] has not seen me. The respondent mother has just admitted to contravention and contempt. My friend here stands up and says it should go forward. For the last 12 months, this man has done nothing about contraventions and contempts; he's ignored them. How can that be in [the child]'s best interest? How can you have any grasp of the matter when you've just heard the respondent mother stand up and admit that she has contravened the orders? How can you continue to hear a matter on [the child] and her custody when the respondent mother has stood up and admitted contempt and contraventions to you? If you do, it is unjust, it is unfair, it is unheard of.

JUDGMENT DELIVERED

MR [CHRANLEY]: I will file them with the court now, your Honour. I have them here. Here they are.

JUDGMENT DELIVERED

MR [CHRANLEY]: It is not undefended. I'm standing here in the court; I'm going to give you oral submissions. How can you continue to say it is an undefended case? This man made it an undefended case.

JUDGMENT DELIVERED

MR [CHRANLEY]: Yeah, and I haven't finished yet.

JUDGMENT DELIVERED

MR [CHRANLEY]: Documents to file.

JUDGMENT DELIVERED

MR [CHRANLEY]: Well, you better do it good, because you know this is going to come out in the appeal. This is all for the appeal; this is simply what this is. You're unjust, you're unethical, you are totally biased. I have documents here to file.

HER HONOUR: Sit down, Mr [Chranley].

JUDGMENT DELIVERED

MR [CHRANLEY]: Point of order, your Honour, point of order.

JUDGMENT DELIVERED

HER HONOUR: Yes, Ms [Smart].

MR [CHRANLEY]: May I speak now, your Honour? I seek that this court stand adjourned for half hour. I will go down and file these.

HER HONOUR: That is not permitted, Mr [Chranley]. I'm going to proceed to deal with the matter which is before me. I suggest you therefore remain in court if you want to be heard.

MR [CHRANLEY]: You are an absolute disgusting shame of a justice of this court. You are biased; you rule with contempt; you are conceited, and you have a double dose of self‑grandeur; you are a true narcissist. How can it proceed undefended? I may as well go, then. I can go, then, can I, undefended?

HER HONOUR: Mr [Chranley], it is up to you. I am now going to proceed to hear the application which is before me, and at the conclusion of that I will give some directions as to the listing of the contravention and contempt proceedings.

MR [CHRANLEY]: Of course, all the contraventions and contempts were long before this, and I will seek leave to appeal, your Honour. Simply, you cannot go on with a case ‑ with final orders while there is contraventions and contempts. The respondent mother has already admitted that she is in breach in contempt and contraventions.

HER HONOUR: No, Mr [Chranley], the mother has admitted that [the child] has not attended upon the time in accordance with the orders. My understanding is that the mother is clearly going to maintain that she had reasonable excuse for a failure to obey the orders. Is that correct, Ms [Smart]?

HER HONOUR: Sorry?

MR HEMSLEY: I see no reason why the matter can't be dealt with today.

MR [CHRANLEY]: The mother has just stood in this court and told you that she has contravened the orders. My good friend here has also stood ‑ ‑ ‑

HER HONOUR: Sorry, Mr ‑ ‑ ‑

HER HONOUR:In relation to this matter, the father has been on notice that the matter is listed before me, on an undefended basis, concerning the final orders sought by the mother. Currently, there are no further applications before the court by way of final orders, although the father, who appears unrepresented today, has shouted at the court that he intends to file further application seeking final orders.

MR [CHRANLEY]: I will file them with the court now, your Honour. I have them here. Here they are.

HER HONOUR: The matter is currently listed before me to hear the question of the final orders in relation to the child … on an undefended basis today.

MR [CHRANLEY]: It is not undefended. I'm standing here in the court; I'm going to give you oral submissions. How can you continue to say it is an undefended case? This man made it an undefended case.

HER HONOUR: The father has again interrupted and shouted at the court that he intends to deal with the matter in a particular way.

MR [CHRANLEY]: Yeah, and I haven't finished yet.

HER HONOUR: This is a superior court of record, and is a court which relies upon the documents which have been filed, and not the documents which the parties yell at the court that they are going to file. This matter has clearly been in a process of being listed.

MR [CHRANLEY]: Documents to file.

HER HONOUR: The father is now shaking his hand with a large number of documents towards the court and yelling, “Documents to be filed.”

HER HONOUR: Sit down, Mr [Chranley]. This application is a matter which concerns the welfare of the child... These current proceedings before the court have been outstanding for some time. In fact, proceedings were first started before the court many years ago, and it is only the current file which is currently before me, being proceedings which were started in January 2008, in the Federal Magistrates Court. The matter was subsequently transferred to the Family Court of Australia. The court has heard several applications in relation to the matter, and has directed, as I said previously, that the matter proceed on an undefended basis, because of the father’s discontinuance.

It is correct to say that there are a number of contraventions and contempt proceedings outstanding, and, in the usual course of matters, some contraventions and contempts would be dealt with before a conclusion of a trial in relation to final orders, particularly those concerning the children. However, this is not a hearing in relation to defended proceedings, but a hearing in relation to the undefended application, by the mother, for final orders, which include orders that the time spent between the father and the child … be at the desire and determination of the child.

Notwithstanding the authorities and the usual process of matters in relation to defended hearings, and contempt and contravention proceedings, and notwithstanding the shouting of the response of the father before me, in court, this morning, I am satisfied that one of the significant factors to be taken into account in this matter is what is in the best interests of the child … and, to that extent, I have given consideration to the child and parents’ issues assessment, which was conducted by the family consultant … in this matter, and which is the subject of a report to the court, of 16 December 2009. Taking into account all of those matters, I therefore intend to proceed to hear the application of the – for final orders by the mother, on an undefended basis this morning – this afternoon, with a view to thereafter listing the applications for contravention and contempt, which the father says ‑ ‑ ‑

MR [CHRANLEY]: Point of order, your Honour, point of order.

HER HONOUR: ‑ ‑ ‑ are a number in excess of 110. The order therefore will be that the court will hear the only outstanding application for final orders, being the response to the initiating application filed by the mother on 22 October 2009. Yes, Ms [Smart].

MR [CHRANLEY]: May I speak now, your Honour? I seek that this court stand

adjourned for half hour. I will go down and file these.

HER HONOUR: That is not permitted, Mr [Chranley]. I'm going to proceed to deal with the matter which is before me. I suggest you therefore remain in court if you want to be heard.

MS [SMART]: Yes, it is, your Honour.

HER HONOUR: And has that been your position made known to the father for a considerable period of time?

MS [SMART]: Most certainly, your Honour.

HER HONOUR: Mr Hemsley, have you ever been under the impression that there is anything other than the mother admitting that the time spent has not taken place, the communication has not taken place, but that she relies upon reasonable excuse?

MR HEMSLEY: That is certainly my understanding, your Honour.

HER HONOUR: Ms [Smart], can you tell me the documents that you're relying upon, please, in relation to the application for final orders that you're seeking.

MS [SMART]: The affidavit filed in conjunction with the response to the initiating application filed on 22 October 2009, your Honour. I'm unsure what document number it is on your file.

HER HONOUR: There was an affidavit filed by the wife on that date ‑ ‑ ‑