Chranley & Smart (No. 12)

[2007] FamCA 1642

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 12) [2007] FamCA 1642

FAMILY LAW – CONTEMPT – Application by father alleging mother filed false affidavit – Application in same terms as two applications previously dismissed by the Court – Not open to father to bring application in same terms – Nothing new raised – Frivolous and vexatious application by father – Application dismissed

FAMILY LAW – CHILDREN – With whom a child spends time – Application by father seeking further time with child – Issue proceeding to trial – Nothing to support interim change – Consideration of Family Assessment Report – No change to current arrangements until issues raised in report addressed – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father seeking orders be set aside pending outcome of appeal – Appealing orders made by consent – Father also consented to order pursuant to s 118 of Family Law Act – No basis to grant leave to file application – Application dismissed – Response to Application in case filed by Independent Children’s Lawyer seeking order pursuant to s 118 or alternatively r 11.04 of Family Law Rules adjourned

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 28 June 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 28 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWAYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Graeme Hemsley

Orders

1. That the Application for Contempt filed by the father on 30 April 2007 be dismissed and removed from the active pending cases list.

2. That paragraph 1 of the Form 2 Application filed by the father on 30 April 2007 be dismissed and removed from the active pending cases list.

3. That the Form 2 Application filed by the father on 30 April 2007 be dismissed and removed from the active pending cases list.

4. That the Form 2 Application filed by the father on 4 June 2007 be dismissed and removed from the active pending cases list.

5. That the Amended Form 2 Application filed by the father on 21 June 2007 be dismissed and removed from the active pending cases list.

6. That paragraphs 2, 3 and 4 of the Form 2 Application filed by the Independent Children’s Lawyer on 4 June 2007 be adjourned to the same date to be fixed as referred to in paragraph 2 of the order made on 30 April 2007.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779 OF 2000

MR CHRANLEY

Applicant

And

MS SMART

Respondent

EX TEMPORE REASONS

1. Firstly, I have before me paragraph 1 of an Application in a Case filed by the father on 30 April 2007, which was initially listed before me on 6 June 2007 and which I adjourned to today.

2. On 6 June 2007, by consent, I made orders dismissing paragraph 2 and 3 of that application.  Thus only paragraph 1 was proceeding, in which the father sought an order that he spend time with the child S from 5:00pm Friday until 5:00pm Sunday every second week and half of the school holidays, with the changeover at the children's changeover facilities on both occasions.

3. Secondly, I have before me an Application Alleging Contempt filed by the father on 30 April 2007 which was adjourned to today.  That application was a repeat of two previous applications, both of which have been dismissed.

4. The mother filed a Response to the Application in a Case wherein she sought dismissal of the application. 

5. Mr Hemsley also filed a response, but there is no need to pursue that given that on the application of the father I dismissed paragraph 3 of the application which was the paragraph Mr Hemsley was most concerned about.   

6. Thirdly, I have before me the father’s application filed on 4 June 2007. That was listed without reference to me.  The court staff made a decision to put that before me today, and that is an application in which the father seeks that my orders of 30 April 2007 be set aside until the outcome of the appeal and he seeks leave of this court to file this application.

7. The only other application I want to mention is the Application in a Case filed by the father on 21 June 2007.  The father describes that as an Amended Application.  I am assuming that that amends the application filed on 30 April 2007, because it seems to repeat the order sought about the child S.  It is not necessarily in the same terminology but the effect of it is pretty much the same.

8. In paragraph 2 the father has repeated paragraph 2 of that earlier Application in a Case but inserted a new date, namely, 13 July 2004. 

9. Dealing with the Application Alleging Contempt filed on 30 April 2007, that is an application which is in precisely the same terms as an application filed by the father on 22 November 2006 and also in precisely the same terms as an application filed by the father on 16 March 2007. I dismissed the first application on 9 February 2007, and I dismissed the second application on 4 April 2007.

10. The contempt that the father alleges is that on 13 July 2004, at Adelaide, the mother filed a false affidavit in the Family Court of Australia.  In support of the application that is now before me the father has filed an affidavit of his own and he has filed an affidavit of Mr P on 4 June 2007.  He has also told me today that he relies on an earlier affidavit of Mr P filed in 2004 and an affidavit of his mother, Mrs Chranley filed also in 2004.

11. The mother opposes the application and seeks, as she did on 4 April 2007, summary dismissal of that application, and in my view that is what should happen again.  It is not open to the father to simply file a further application in precisely the same terms and seek to proceed on that.  Whether or not he files further affidavit material in support of that application is in my view completely irrelevant.  There is still absolutely nothing new in terms of the basis of the father’s application.  He says paragraphs of the wife’s affidavit are false and he says that he has filed affidavit material which establishes that.  However, that is not the point.  The father had the opportunity in February 2007 to proceed on the basis of having his application, which I heard at that time, dismissed and then to file a further application with further supporting affidavits if so advised.  The father though, decided to proceed without taking up that opportunity.  He presented a further affidavit, I heard the matter, and dismissed the application.  Thus that was the end of this particular issue.

12. As I have said on previous occasions, and particularly in my reasons for judgment delivered on 4 April 2007, the history of these proceedings is littered with application after application after application filed by the father and often without any legitimate basis or any prospect of success.

13. This application, to repeat what I said on 4 April 2007, is another example of the father wasting this Court's time and in my view attempting to put the mother to expense and trouble in attending this Court, unnecessarily and inappropriately.  This application is yet another example of a frivolous and vexatious application by the father.  To repeat, there is no basis on which he can now file the same application which has been dismissed on two previous occasions.  I find he has done so frivolously and vexatiously and I dismiss the Application in a Case filed on 30 April 2007.

14. Turning to paragraph 1 of the Application in a Case filed on 30 April 2007, that is an application in which the father seeks further time with the child S.  That is the issue though that is proceeding to trial and there is a pre-trial conference listed for 13 August 2007.  A trial date will be allocated at that pre-trial conference. 

15. The father has filed an affidavit in support of this application, but it is opposed by the mother and by the Independent Children’s Lawyer. 

16. The most relevant evidence in relation to this topic is a report of Dr M dated 10 May 2007 and it is annexed to the affidavit of the Independent Children’s Lawyer filed on 4 June 2007.  That is a Family Assessment Report prepared for the purposes of the Application for Final Orders in this matter. 

17. The position of Mr Hemsley, whose view I need to give great weight to, given his particular position as the Independent Children’s Lawyer acting for S, is quite straightforward. Namely, there are two bases for opposing the application of the father at this stage.  Firstly the fact of the trial being close in terms of being listed, and the very issue that the father is wanting to obtain an order about now is the subject of that particular trial.  Secondly,   that there is no basis in any material filed by the father, and more importantly, there is nothing that can be taken from the report of Dr M which would support an interim change in relation to the time that S now spends with her father. 

18. Dr M sets out his conclusions on page 10 and onto page 11 of his report as follows:

    “1.      [The mother] reported that she still feels controlled by [the father] because of his many Applications to the court, and is resentful about the amount of time she must spend on these, and of the disruption this causes to her personal and family life.

    2.   [The father] has continued to pursue his belief that [the mother] had lied, particularly in her affidavit of 7.7.04, and because of these lies he maintains he has been deprived of his proper relationship with his children.  It is his strong conviction that, as a matter of principle, [the mother] should be held accountable for her past actions.

    3.   Unfortunately, these issues between the parents have intruded into the relationship between [the father] and his children, for which he holds their mother responsible.  Both children are very much aware of the ongoing court issues and the effects of this upon their family life, to the extent that [the child J] has taken the protective step of severing contact with her father.

    4.   There is evidence to show that [the father] had regular contact with both his children in the past, and that the children at least felt comfortable in his presence.  While [J] has chosen to sever contact with her father at this time, [S] remains committed to continuing contact with her father, and has reported that there are mutually-shared activities, e.g., cooking, that she enjoys when visiting her father.

    5.   She nevertheless presents as being somewhat cautious about contact, feeling uncomfortable about the ongoing conflict between their parents, and was clear she wished she had the ability to bring a halt to this.  She felt, however, that she could spend more time with her father, including the possibility of staying on Saturday nights, if her parents could reach agreements about the children without the court being involved, and that her father would no longer talk to her about court matters.

    6.   In his interview with me, [the father] said that he would be prepared to work towards more extended contact with [S].  Despite [S] saying that she wouldn’t feel confident negotiating directly with her father about contact, it is my view that she has nevertheless provided clear guidelines that would enable more extended contact to progress.

    7.   [The father] appeared satisfied that the twice weekly phone contact and his ability to write to [S]. With respect to other electronic communication between them, given the common usage of emails, I can see no dangers in [S] and [the father] emailing each other using the email accounts already existing in both households.”

19. In summary, Dr M says that there is the possibility of S spending more time with her father including overnight, but certain things have to happen first.  The parties themselves would have to substantially change their attitudes and recognise their responsibilities towards their child before that could happen.

20. The result of this is that there should be no change in the current arrangements, unless and until there is evidence before this court that the matters raised by Dr M have been addressed and S is comfortable and happy to have the extended time with the father that he seeks. 

21. The trial provides the vehicle for these issues to be determined. In the meantime, I urge the parties to take to heart what Dr M says and to work towards that, as the father apparently told Dr M that he would.  It may be that if the parties do what Dr M says there will be no trial because this is about the best interests of S.  S is expressing a view that she would like to spend some more time with her father, but the parties are making it impossible for her to reach that point.  That is my interpretation of Dr M's report.

22. For those reasons I dismiss paragraph 1 of the Application in a Case filed by the father on 30 April 2007.  For completeness, I note that the father has filed an Amended Application in a Case on 21 June 2007 in which he amends that application, which I've just dealt with.  However, in that Amended Application the father simply repeats the order that he seeks in relation to S on an interim basis.  Thus, I also dismiss paragraph 1 of the Amended Application in a Case filed by the father on 21 June 2007.

23. Next, there is the Application in a Case filed by the father on 4 June 2006. What he seeks in that application, if he gets leave to file it, is that the orders of 30 April 2007 be set aside until the outcome of the appeal that he lodged on 16 April 2007.

24. There was some discussion on the last occasion about precisely what orders the father was appealing against but I think it is clear from the Notice of Appeal that he is appealing paragraphs 1 and 3 of the order that I made on 4 April 2007.  I will remind everyone again what those orders were. 

25. In paragraph 1 I adjourned consideration of an Amended Form 2 Application filed by the Independent Children’s Lawyer and a Form 2 Application filed by the father on 23 March 2007 to 30 April 2007.  Paragraph 3 was the order whereby I dismissed the Application Alleging Contempt. 

26. I do not know, of course, what has happened with that appeal.  I assume though that it has not yet been heard.

27. Putting aside the leave issue for the moment, to repeat, what the father seeks is that the orders of 30 April 2007 be set aside until the outcome of that appeal. Again, to put it into context, my orders of 30 April 2007 were by consent. I made an order that until further order, pursuant to Section 118(1) of the Family Law Act 1975, I adjourned further consideration of the Amended Form 2 Application of the Independent Children’s Lawyer and the Form 2 Application of the father to a date after the appeal was heard, and I listed the application alleging contempt to another date.  I also ordered that the question of the Independent Children’s Lawyer’s costs be reserved.  Thus that is the application that the father is making. 

28. In his short affidavit in support of the application the father alleges that this Court has shown bias and discrimination in declaring him a vexatious litigant.  He alleges that the Independent Children’s Lawyer was able to serve documents four days after the time allowed in an order, and that I showed bias against the father by allowing that, pointing out that he had served an application late and I dismissed that application.

29. In my view there is no basis to give leave to file this application. The father consented to an order until further order that an injunction pursuant to Section 118(1) of the Family Law Act1975 be put in place. 

30. In any event even if I granted leave there is no basis set out in the affidavit material in support of this application which would require this Court to set aside those orders.

31. The final application before me is the one filed on 21 June 2007, and I have dealt with that insofar as paragraph 1 is concerned.  In paragraph 2, the father amends the date of the affidavit of the mother which he seeks to set aside until the outcome of the contempt application.

32. Putting aside whether the father needed leave or not to file this application, it is completely ill-founded and a nonsense application.  In any event, I have now dismissed the Application Alleging Contempt, and thus there is no basis for this application to proceed.  Therefore I dismiss the application filed on 21 June 2007, and I consider this application to be yet another frivolous and vexatious application filed by the father, just the same as the application filed on 4 June 2007 which I dismissed a moment ago.

33. Mr Hemsley has raised with me his response filed on 4 June 2007, in which he seeks an order pursuant to Section 118(1) of the Family Law Act 1975 and also, in the alternative, an order pursuant to Rule 11.04 of the Family Law Rules and, in the further alternative, an injunction.

34. That response is before me today and Mr Hemsley seeks, in relation to paragraphs 2, 3 and 4, that they be adjourned in the same way as the application filed by Mr Hemsley on 23 February 2007 and the Application in a Case filed by the father on 23 March 2007 were adjourned to a date to be fixed after the delivery of any judgment by the Full Court in relation to the appeal that I have just referred to.

35. In my view it is sensible to do that.  There can be no prejudice to either the father or mother in relation to that.  Thus I make a further order that paragraphs 2, 3 and 4 of the Response to an Application in a Case filed by the Independent Children’s Lawyer  be adjourned to the same date that is to be fixed, as referred to in paragraph 2 of my order of 30 April 2007.

I certify that the preceding 35 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland

Associate

Date: 28 June 2007