Chranley & Smart (No. 3)

[2007] FamCA 335

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 3) [2007] FamCA 335

FAMILY LAW - CHILDREN – Interim Hearing – Oral evidence – Cross-examination

Family Law Act 1975 (Cth)

Marriage of C and C (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 28 March 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-Represented

INDEPENDENT CHILDREN’S LAWYER COUNSEL: N/A

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Graeme Hemsley

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Chranley & Smart No 3

Orders

1. Paragraph 1 of the father’s Form 2 Application filed on the 27 February 2007 is dismissed.

1. The father file and serve by the 12 April 2007 any affidavit setting out fresh evidence upon which he seeks to rely in relation to his application for alteration to the time that he spends with the child, a daughter, born in March 1997.

1. The mother file and serve by the 12 April 2007 any affidavit setting out fresh evidence she seeks to rely upon in relation to the application to alter the time that the child spends with the father.

1. Leave is given to the Independent Children’s Lawyer to file and serve any fresh material upon which he seeks to rely provided the same is filed and served by 17 April 2007.

1. At the request of the father to adjourn for him to seek legal advice this matter is adjourned to the 20 April 2007 at 9.30 am before The Honourable Justice Dawe.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779  of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

REASONS FOR JUDGMENT

1. I deal with the first paragraph of the father's application in the case, which is document 202 filed on 27 February 2007.  The father is seeking that the mother be cross‑examined in relation to her affidavit filed to gain interim orders.

2. It is clear from the submissions of the father I have heard this morning that he is referring to the mother's affidavit filed on 13 July 2004 in relation to certain interim proceedings then outstanding.

3. The father says that he seeks the mother be cross‑examined in relation to that affidavit because there are special circumstances in this case.  The special circumstances to which he refers are, in summary, that the affidavit of the mother filed on 30 July 2004 is false, is designed to pervert the course of justice and to malign him.

4. He questioned whether the affidavit was intended to mislead all the child representatives and the independent family assessors who have prepared reports, namely Ms S and Dr M.

5. He has asserted that the mother has relied on that affidavit to seek interim orders before various judicial officers of this Court, but points out that she apparently is not seeking to rely on that affidavit for final orders when the matter comes on for trial.

6. He asserts that the accusations made by the mother are without foundation, are corrupt and malign him.  He referred to paragraphs in the affidavit and asserted that these in particular were false.

7. After my request, the father indicated that he has filed his response to the mother’s affidavit by filing document 25, being an affidavit of the father filed 22 October.

8. I correct myself and note that the father takes great offence being referred to as "the father".  The father filed his affidavit on 22 October 2004, in which he sets out his response to those materials.

9. The Court has had before it at least since October 2004, a clear indication that the factual matters in the mother's affidavit are significantly in dispute.

10. The various interim hearings have been before particular Court officers and I cannot comment upon their hearings.  I have heard some of the interim proceedings in this matter and delivered reasons for orders that I have made.  In particular I refer to the judgments which I have delivered recently in the interim proceedings in which I refer to the difficulties of making decisions in preliminary hearings.

11. The Court has in the past considered the necessity for hearing oral evidence, in particular cross‑examination, in relation to interim hearings.  In particular the case of In the Marriage of C and C (1996) FLC 92-651 in which the Full Court dismissed an appeal in relation to an appeal by the mother against a finding that interim custody orders should be made. In that case the Full Court said:

    “It was necessary for the Court to place limits on the time taken in interlocutory proceedings and the mode by which they are conducted.  Its workload would mean that many other litigants would suffer serious injustice by reason of increased delays.  Further, there must also be concern for litigants themselves where lengthy hearings of interlocutory matters are both expensive and emotionally draining, and do not lead to a final determination of the issues.  This approach to interlocutory matters and to interim custody proceedings in particular is a widespread approach throughout the Family Court and one which should be encouraged if the Court is to efficiently conduct its business and that of its litigants.”

12. The Court there also referred to the discretion that the Court would have to permit the calling of evidence and cross‑examination on interlocutory hearings, but said that as a general rule this should not be permitted.

13. In particular, I have given consideration to the authorities of the Full Court, such as C and C (supra), and the Full Court Judgment of Goode v Goode (2006) FLC 93-286. I am not satisfied that this matter is one in which the general provisions should be departed from.

14. In particular, I am not satisfied that that is the case because I am aware the matter is being prepared for a final hearing as soon as possible on the basis that the parties have indicated that other than the completion of the report of a family assessment, the matter will be otherwise ready for trial in the immediate future.

15. I, therefore, refuse the father's application for the mother to be cross‑examined, highlighting of course that it is not necessarily the case that the mother's allegations are deemed to be correct and the father's allegations deemed to be false.

16. On the contrary, the references in the various cases emphasise the fact that the Court must bear in mind when making an interim decision that there is a difficulty in relying upon the allegations of one party or the other where there are matters which are significantly in dispute, as in the present case.

17. I will, therefore, hear the father's other submissions in relation to the others that he seeks in paragraphs 2 and 3 of the form 2.

18. At the request of the father for an adjournment for legal advice, I adjourn this matter to 20 April at 9.30 am before me.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 April 2007