CHRANLEY & SMART
[2011] FamCAFC 26
•27 January 2011
FAMILY COURT OF AUSTRALIA
| CHRANLEY & SMART | [2011] FamCAFC 26 |
| FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – extension of time to a file Notice of Appeal – oral application by the father seeking an adjournment of the application to enable him to file an application seeking the judge’s disqualification and supporting material – where the father has had ample time to file a formal application – where no reason was provided for the failure to file an application – where the father is well aware of the rules and procedures of the Court – application seeking an adjournment dismissed. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the father attempted to make an oral application seeking the judge’s disqualification – oral application not received. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where there is no explanation for the delay – where no draft Notice of Appeal has been filed – where there is little chance of success on appeal – consideration of the consequences for the parties if the application is granted or dismissed – application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(a) & s 94(2F) |
| GallovDawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Chranley |
| RESPONDENT: | Ms Smart |
| FILE NUMBER: | ADC | 207 | of | 2008 |
| APPEAL NUMBER: | SA | 88 | of | 2010 |
| DATE DELIVERED: | 27 January 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 January 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 August 2010 |
| LOWER COURT MNC: | [2010] FamCA 715 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
The father’s oral application that Justice Strickland be disqualified not be received.
The father’s oral application to adjourn the Application in an Appeal filed on 17 November 2010 be dismissed.
The Application in an Appeal filed on 17 November 2010 be 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 88 of 2010
File Number: ADC 207 of 2008
| Mr Chranley |
Applicant
And
| Ms Smart |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application in an appeal filed by Mr Chranley on 17 November 2010 seeking, in effect, an extension of time to file an appeal against orders made by Dawe J on 9 August 2010.
At the commencement of the hearing today, Mr Chranley attempted to make an oral application that I disqualify myself from hearing this matter. I indicated to him that I was not prepared to receive an oral application given that he has had ample time to file an application seeking such an order. I heard from the respondent who indicated that she opposed the receipt of an oral application to that effect at this stage. I will come back to that.
Mr Chranley then sought an adjournment to file an application seeking that I be disqualified, together, presumably, with supporting material. That application is also opposed by the respondent.
I need firstly to deal with the oral application for an adjournment. I invited Mr Chranley to make submissions from the bar table in support of such an application. He has not responded to that invitation in the sense that he has not addressed the question that I asked, which is, to repeat, on what basis should an adjournment be granted, given, as I have said on at least two occasions, that it is apparent from the documentation that Mr Chranley has had ample time to bring a formal application seeking my disqualification. What Mr Chranley launched into was a diatribe raising a number of historical matters, none of which have any relevance to the question of an adjournment of this application today. The matters that Mr Chranley has raised – and I am not going to repeat what was said – have all been raised before on a number of occasions.
Significantly, nothing in what Mr Chranley has said provides any reason for him not filing an application seeking my disqualification prior to today. However, it is typical of the conduct of Mr Chranley in these long running proceedings before the Family Court of Australia, the Full Court of the Family Court of Australia and the Federal Magistrates Court, to attempt to make an application as late as this.
Mr Chranley, of all people, is someone who well knows the rules and procedures of this Court, and in particular, in terms of time frames, yet there have been a number of occasions in the past where Mr Chranley has attempted to do what he is doing now, namely raise matters at the last minute when he has had ample time to raise them in a formal and timely manner.
The Application in an Appeal was filed on 17 November 2010. A letter in the usual way was sent by the Regional Appeals Registrar on 17 December 2010 to Mr Chranley and the other parties advising that the application would be listed before me today. Yet Mr Chranley has done absolutely nothing in terms of attempting to bring an appropriate application before this Court in a timely way.
Mr Chranley, during the course of me delivering these reasons, has repeated the words “medical certificate” over and over again. I do not know to what Mr Chranley is referring because there is simply no medical evidence before this Court in the context of this application and, again, if there was some issue to be raised about Mr Chranley’s health relevant to either the Application in an Appeal, the proposed application that I disqualify myself or the adjournment of these proceedings to enable such an application to be filed, then Mr Chranley has had ample time to file such medical evidence in support, but he has done nothing.
Mr Chranley has provided no reason whatsoever for there to be an adjournment, therefore I dismiss his oral application to adjourn the Application in an Appeal.
I should briefly deal with, though, the question of receiving an oral application to disqualify myself. As I have indicated, that was the initial application attempted to be made by Mr Chranley. To repeat, I refused to receive such an application, given the circumstance that Mr Chranley has had, in my view, ample time to bring such an application in the proper way. I pause to invite Mr Chranley to put any further submissions he might want to in relation to whether I should receive that oral application.
I have now listened patiently to Mr Chranley responding to my invitation to make submissions as to why I should receive the oral application seeking my disqualification. However, he has repeated the matters that he referred to earlier. He has added other matters, but those further matters are also not relevant to the issue at hand, and he has still provided no reason or basis for this Court to now receive an oral application seeking that I disqualify myself.
I confirm that I am not prepared to receive an oral application that I disqualify myself at this late stage and, in effect, for the same reasons as I have refused to grant an adjournment, namely, Mr Chranley has had ample time to bring a formal application together with appropriate supporting material seeking the orders that he now wants to pursue.
I turn to the formal application before me, namely, the Application in an Appeal filed by Mr Chranley on 17 November 2010. To repeat, the order that he seeks in that application is, in effect, an extension of time to file an appeal against orders made by Dawe J on 9 August 2010. There is an affidavit in support of that application which purports to set out the reasons for Mr Chranley’s failure to file an appeal within time.
The proceedings before Dawe J on 9 August 2010 were a number of applications alleging contempt filed by Mr Chranley extending from January 2008 up to and including April 2010. It seems that Mr Chranley filed applications in that period of time alleging both contempt and contravention. It is apparent that what her Honour did on 9 August is hear those applications alleging contempt and adjourned those applications alleging contraventions. As I understand it, those applications alleging contraventions are next listed for hearing in February 2011.
What Dawe J ultimately did on 9 August and, indeed, the order she made was to dismiss all of the applications alleging contempt, and it is that order that Mr Chranley seeks to appeal against.
A Notice of Appeal must be filed within 28 days after the date the order appealed from was made, but a party may apply to the Court to extend that time limit. The relevant section of the Family Law Act1975 (Cth) (“the Act”) is s 94(2D)(a). That provides that applications for an extension of time within which to institute an appeal may be heard and determined by a judge of the Appeal Division and that is what is happening here.
The law in relation to applications for extension of time is well settled and the High Court case which is often referred to is that of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court decisions of this Court, including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
The relevant factors which need to be addressed are whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
Now, looking at the relevant factors in this case, what I have in terms of the material before me is, as I say, the affidavit of Mr Chranley filed on 17 November 2010. That affidavit is relatively brief and it seems to me helpful that I set out the entirety of that affidavit as follows:
The reasons for the lengthy delay in seeking an Appeal of the Orders of 9 August 2010 by Justice Dawe in relation to the many contempt applications are as follows:
· Justice Dawe denied me the right to present any evidence in relation to final orders on 6 April 2010;
· Justice Dawe heard the contempts after the final orders were made;
· Justice Dawe has denied me the right to any resolution within a reasonable amount of time (ie. 2 weeks as Family Law Rules state);
· Federal Justice [sic] Lindsay heard the first contempt on 25 September 2009;
· It has taken approx. 18 months (since filing) to get the contempts heard;
· Contraventions are listed to be heard on 11 February 2011;
· Justice Dawe disregarded current Court Orders of 4 December 2007 in regards to time not spent with [S] to be made up on the following weekend;
· I feel that it’s improper for Justice Dawe to continue to hear the contempts when there is a current Appeal Application in place against her;
· I have suffered greatly with anxiety (for which I have supplied Justice Dawe with a Medical Certificate) because of the actions of Justice Dawe in relation to her Orders against myself and her flagrant disregard of her own Court Orders
· I have no faith in Justice Dawe in hearing the upcoming contraventions on 11 February 2011 as she has shown complete bias in supporting the mother and disregarding procedures, protocol and practices
The first point to note about what is in the affidavit is that there is no reason whatsoever provided by Mr Chranley as to why he did not file his Notice of Appeal within time.
The second issue is he gives no explanation whatsoever as to why it took him until 17 November 2010 to file this application.
I invited Mr Chranley to make submissions to me in support of the application. Unfortunately, as occurred in relation to the two oral applications that Mr Chranley sought to make today, none of what Mr Chranley put to me in those submissions bears upon the question of delay or provides any adequate reason to explain the delay.
Mr Chranley has been at pains to repeat to me, in rote fashion, the words “medical certificate”. I note that in the affidavit one of the dot points reads thus:
I have suffered greatly with anxiety (for which I have supplied Justice Dawe with a Medical Certificate) because of the actions of Justice Dawe in relation to her Orders against myself and her flagrant disregard for her own Court Orders.
If that is meant to indicate that there is a medical reason why Mr Chranley failed to file his Notice of Appeal within time and also, for that matter, and almost as important in my view, provide a reason for his failure to file this application within a reasonable period of time, then it fails dismally, because there is no medical evidence that Mr Chranley has presented to this Court in relation to and in support of this application. Thus I repeat that there is no explanation of the delay.
That normally would be fatal to such an application but I propose to deal with some of the other relevant factors which the authorities say that I should.
For example, in terms of whether there is a substantial issue to be raised on appeal, Mr Chranley has failed to file a draft Notice of Appeal, despite him being advised to do so by the Regional Appeal Registrar. There is no draft Notice of Appeal before me. Thus how Mr Chranley can expect this Court to properly address his application, with no draft Notice of Appeal being filed, is beyond me. Mr Chranley has been before this Court, the Family Court and the Federal Magistrates Court on numerous occasions over seven to eight years. He, more than anyone else, is aware of the procedures that apply in this Court. He has both lodged and attempted to lodge numerous Notices of Appeal against orders made by Family Court judges and federal magistrates. He is fully aware, in my view, of the time frames that apply and the consequences that follow if he does not comply with those time frames. Indeed, as recently as July 2010, I dealt with an application by Mr Chranley to reinstate a Notice of Appeal. That Notice of Appeal was deemed abandoned after the father’s failure to file the necessary documents in relation to that appeal. One of the very real reasons why I dismissed that application, and Mr Chranley is well aware of this, is that there were no adequate reasons provided for the failure to comply.
Although, as I say, there is no draft Notice of Appeal filed, it seems to me that I can take from what Mr Chranley has put in his affidavit, rather than being matters addressing the Application in an Appeal per se and in particular the reasons for any delay in filing documents, as being his complaints about the order made by Dawe J. Indeed, in his oral submissions, which I listened to carefully and patiently, he in effect repeated and went through the dot points in his affidavit.
I have read her Honour’s reasons for judgment, and it seems to me that there is no complaint that Mr Chranley wishes to promote which has any realistic chance of success. Of course, I cannot be definitive about that and I am putting that view forward on the basis, as I say, of reading her Honour’s reasons for judgment, reading Mr Chranley’s affidavit and listening carefully to his submissions. I have to allow for the possibility that an appeal may be successful but concentrating on what I consider to be the complaints that Mr Chranley has in relation to the order made by Dawe J, in my view, there is little chance of success in an appeal.
Turning to other relevant factors identified by McHugh J, there is the conduct of the parties. In that regard, both before Dawe J and before me today, Mr Chranley has maintained his rage and made outlandish comments in relation to this Court, me personally, and Dawe J personally, without any basis or justification whatsoever. He has also failed to respond appropriately to my questions attempting to clarify his own application. Mr Chranley’s approach is to thumb his nose at the rules and procedures of this Court and to come along at a hearing and expect to be able to make oral applications willy nilly and be heard and take up the valuable time of this Court without any basis whatsoever.
I note that Mr Chranley has continued to interrupt me during my delivery of my reasons for judgment, maintaining the same outrageous allegations against myself and Dawe J. However, I put those personal attacks aside and I do not take them into account in reaching my decision today.
One very relevant factor that I need to consider is the consequences of either granting or refusing the application. Now dealing with the respondent’s position first, if I allow the application that would then mean that Mr Chranley can proceed with an appeal against the orders of Dawe J, and the impact of that result upon the respondent is obvious.
I have attempted to complete my reasons but continuously Mr Chranley has interrupted with a diatribe, repeating matters that he has said earlier today.
What I am attempting to address is the consequences of either granting or refusing the application. As I said, I start off by looking at the impact upon the respondent, and the impact would be that the respondent would then have to deal with the appeal. There would be time and, indeed, if she chose to instruct lawyers there would be costs involved in responding to that appeal, whereas the position if the application is refused is that Mrs Smart can proceed in the knowledge that the appeal cannot be pursued.
Turning to the consequences for the applicant of refusing the application, there are serious consequences for Mr Chranley because pursuant to s 94(2F) of the Act no appeal lies from an order made under s 94(2D). Therefore Mr Chranley would not be permitted to appeal my decision save and except he would still have the ability to make a special leave application to the High Court of Australia. That in itself is not an easy application to make. It is difficult, and particularly also difficult for someone representing themselves, but that would be the only avenue that Mr Chranley would have in relation to pursuing this matter if I refuse his application.
I note again that Mr Chranley has continued to interrupt my delivery of these reasons for judgment.
As I have indicated, the relevant factors outlined, for example, by McHugh J and confirmed in subsequent Full Court decisions, are to be taken into account in assessing where the justice of the case lies. Thus the fundamental issue at the end of the day is whether it is necessary to enable the Court to do justice between the parties to grant the application.
Now, in my view, in looking at the factors that have to be taken into account, namely, the issue of the delay, the prospects of success of an appeal, the conduct of the parties, the consequences to the parties of granting or refusing the application, the justice of the case requires that the application be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 January 2011.
Legal Associate:
Date: 21 February 2011
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