Chranley & Smart (No. 3)
[2008] FamCAFC 216
•4 December 2008
FAMILY COURT OF AUSTRALIA
| CHRANLEY & SMART (NO. 3) | [2008] FamCAFC 216 |
| FAMILY LAW – APPEAL – from decision of Federal Magistrate – where Federal Magistrate decided that there was no change of circumstances which would justify re-litigating orders made in December 2007 for the child to spend time with the father – where father alleges the Federal Magistrate erred in not considering all evidence before him – where father alleged that the Federal Magistrate showed bias – appeals dismissed Family Law Act 1975 (Cth) Rice v Asplund (1979) FLC 90-725 |
| APPELLANT: | MR CHRANLEY |
| RESPONDENT: | MRS SMART |
| FILE NUMBER: | ADC | 207 | of | 2008 |
| APPEAL NUMBER: | SA | 53 | of | 2008 |
| APPEAL NUMBER: | SA | 54 | of | 2008 |
| DATE DELIVERED: | 4 December 2008 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 December 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATES: | 21 April 2008 30 April 2008 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
ORDER
That the Notice of Appeal in Appeal Number SA 54 of 2008 be dismissed.
That the Notice of Appeal in Appeal Number SA 53 of 2008 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 Numbers: SA 53 and 54 of 2008
File Number: ADC 207 of 2008
| MR CHRANLEY |
Appellant
And
| MRS SMART |
Respondent
EX TEMPORE REASONS
Today I have heard the appeal filed by Mr Chranley against the order made by Brown FM on 30 April 2008 and a second appeal that Mr Chranley has filed against an order made by Brown FM on 21 April 2008.
Firstly I want to address the appeal against the order made on 30 April - and perhaps to identify it properly, it is Appeal Number 54 of 2008. The order appealed against is that the application filed on 5 March 2008 by Mr Chranley be dismissed.
His Honour delivered reasons for judgment, and I have those reasons before me. As I indicated earlier, I also now have the transcript of the hearing before the Federal Magistrate and I have, from Mr Chranley, what passes as a list of documents relied upon and a summary of argument, and from the respondent a summary of argument. I have heard further submissions today from Mr Chranley in support of his appeal.
The brief background to this matter is that there were proceedings over a number of years in the Family Court of Australia in relation to parenting issues. On 4 December 2007 final orders were made by consent by Dawe J in respect of the child S. The orders were that the father spend time with S from 10:00am Saturday to 6:00pm Sunday of each alternate weekend, such time to commence on Saturday, 15 December 2007, that there be communication by mobile telephone, with the father to telephone S on her mobile telephone between 6:00pm and 6:30pm on each Wednesday and at 8:30pm on each Friday, provided that the mother shall facilitate S ringing the father in the event that she requests to do so, and that all handovers occur at the Y Contact Handover Service provided that if that should not be available handovers shall take place at the Y Police Station.
That was the final order made by her Honour after the filing of extensive affidavit material over a lengthy period of time by both parties, the involvement of an Independent Children's Lawyer and the presentation to the Court of expert reports, particularly from Dr Mertin.
Then on 5 March 2008 Mr Chranley filed an application in the Federal Magistrates Court in which he sought orders that he spend time with S, on both an interim and a final basis, every second weekend from 5:00pm on the Friday afternoon to 9:00am the following Monday. Further, that he spend time with S during every second week of her school holidays.
That was the application that was before Brown FM on 30 April 2008. The mother opposed the orders sought and was looking to maintain the orders made by Dawe J in December 2007.
The learned Federal Magistrate determined to dismiss Mr Chranley’s application and the primary reason for him doing so was that there was no sufficient, and indeed no change of circumstances which would allow the arrangements in relation to the child S spending time with her father to be re‑litigated before the Federal Magistrates Court, and particularly given the short time frame that had elapsed since the final orders made on 4 December 2007.
Mr Chranley explained to the learned Federal Magistrate that he consented to those orders of 4 December 2007 under duress. He said that he thought that was the only way that he would be able to spend time with his daughter, particularly over the Christmas period of 2007. He also suggested to the learned Federal Magistrate that in some way Dawe J gave him comfort in providing him with the opportunity to bring an application to the Federal Magistrates Court as soon as he did. He said that her Honour made comments about that issue.
The reasons for judgment of the learned Federal Magistrate are relatively concise and straight to the point. To summarise those reasons, his Honour referred to the brief history that I have just outlined. He referred to the father's position being that the mother had committed perjury or falsely attested to an affidavit or affidavits, certainly on 13 July 2004 and maybe on other occasions, and that it was Mr Chranley's position that the mother had misled both the court and its officials and the experts who had been retained to provide reports regarding the needs of S.
The learned Federal Magistrate indicated that Mr Chranley was saying that the mother had lied about the extent of time the child had spent with him in the past and that had perverted the Family Court's processes. He recorded that Mr Chranley's position was that if the family report writers knew, and the judges and the Independent Children's Lawyers appointed for the child S knew, about the extent of the mother's duplicity, they would not have made the recommendations that they did, and, in the case of the judges and Court officials, they would not have made the orders that they have made in regard to the child.
Be that as it may, the learned Federal Magistrate noted that the orders of 4 December 2007 were made by consent. He recorded what Mr Chranley had put to him about that, namely, that he felt that he had to agree to those orders and he was under duress. The learned Federal Magistrate then recorded the mother's position, being that the orders of Dawe J should stand. Her case was that the child had been independently represented, there were two family assessments which had addressed the child S's best interests, and the orders made and consented to on 4 December 2007 were in the best interests of the child.
Before the learned Federal Magistrate the father had also taken umbrage at previous applications which had been made to have him declared a vexatious litigant. The learned Federal Magistrate, though, noted that Mr Chranley was not presently under any impediment in that regard. The learned Federal Magistrate confirmed that there was nothing explicitly in the orders of 4 December 2007 which prevented the father from bringing any further applications. The learned Federal Magistrate referred to the fact that Dawe J had indicated to him that it was likely that the Court would not be well disposed if an application was brought, for example, within a week, but, to repeat, Mr Chranley took that to mean, it seems, that there would be no difficulty with him bringing an application in a matter of three or four months afterwards.
The learned Federal Magistrate then summarised Mr Chranley's position as being that he understood it was open to him to bring further proceedings, in either the Federal Magistrates Court or the Family Court, and the basis of his application was that earlier proceedings in the Family Court were flawed.
The learned Federal Magistrate referred to other applications which Mr Chranley has had before him, the learned Federal Magistrate, and he also alluded to Mr Chranley telling him that he had attended the Kids Are First Program, which was the subject of the order of December 2007.
The learned Federal Magistrate indicated that it was laudable that the parties had attempted to make their own arrangements in respect of the child, referring obviously to the fact that the orders of 4 December had been by consent. He then recorded that the mother's position was that there had not been any significant change of circumstances and it was not in the child S's best interests for the issue of the arrangements for her care to be reopened.
The learned Federal Magistrate referred to the fact that both parties were not legally represented before him and that that had been the case in both the Federal Magistrates Court and the Family Court of recent times.
Coming to the nub of the learned Federal Magistrate's reasons for judgment, he records in paragraph 24 as follows:
“This morning, on several occasions, I asked [Mr Chranley] to tell me what other changes of circumstances he believed there had been in respect of arrangements for [the child's] care. I do not believe that he has been able to tell me of any other changes of circumstances there has been since 4 December 2007.”
His Honour continued in paragraph 25:
“I raised with [Mr Chranley] the issue of the so-called rule in Rice v Asplund. He told me he did not understand it fully but had heard, perhaps, in general terms, what it meant but he was not able to tell me in any great detail what it meant. I endeavoured to explain it to him.”
Then his Honour said this in paragraph 26:
“I think it is the mother's position that this is a case to which the rule in Rice v Asplund is pertinent, and in my view it is such a case. I will endeavour at this stage to explain to the parties what the rule in Rice v Asplund is.”
His Honour then summarised that rule, concluding that a court will not readily reopen a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. It is a rule that applies equally to orders made after a final or contested hearing, or to orders made by consent by the parties concerned.
His Honour then enumerated the matters that the court must look at in arriving at a decision as to whether to allow further litigation. He identified that the test is a strong one, that the change or fresh circumstances must be of some significance, to such an extent that, once the court has become aware of it, it is left in no doubt that it is necessary to re‑litigate the parenting issues in dispute between the parties.
Then his Honour turned to the circumstances of this case. He indicated that an order had been made for the child to live with the mother and for her to spend regular time with the father. He had been told that what the parties agreed was in line with what Dr Mertin recommended and had the imprimatur of counsel for the Independent Children's Lawyer.
He repeated that Mr Chranley pointed to what the mother deposed to in July of 2004 and his Honour makes the obvious point that that was prior to the orders of 4 December 2007. He went on to accept that the contents of that affidavit evoked strong emotions in the father, but he had to look to the seriousness of the issues raised and then balance them against the impact of further litigation on the child.
The learned Federal Magistrate accepted what the mother had told him in submissions that day, namely, that the child does not want her parents to be litigating about arrangements for her care. The orders of December were recently made. Mr Chranley says they were unfair to him because of what the mother allegedly falsely deposed to in July 2004. The learned Federal Magistrate reiterated, though, that he had to consider whether it is likely to be in the best interests of the child concerned to allow yet more litigation about her.
Finally, the learned Federal Magistrate commented as follows (paragraph 36):
“[Mr Chranley], at this juncture, is not able to point to any change in circumstances which in my view justify the reopening of these matters, which were in my view fairly recently concluded. I am satisfied that there arises serious potential for [the child] to be detrimentally affected by further proceedings.”
For those reasons His Honour dismissed the application.
The grounds of appeal set out by Mr Chranley in the Notice of Appeal are as follows:
“1. Magistrate Brown fail [sic] to consider all the evidence before him;
2. Magistrate Brown has shown bias toward me and my applications.”
The orders sought by Mr Chranley in this Notice of Appeal are:
"1. Magistrate Brown to stand down from all matters in relation to my applications and file number ADC207/2008;
2. All my previous applications before Magistrate Brown to be relisted for hearing."
Mr Chranley has presented to the court what purports to be a summary of argument and, in that document, he says he wants “to know how an application is referred to the High Court of Australia.” The Appeals Registrar has “advised” him “that an appeal application had to be directed to the High Court of Australia”, that being in “reference to a direction hearing that was dismissed by Justice Strickland to pervert the natural course of justice”. He asks in this summary of argument, “That Justice Strickland stand down from all matters in relation to all my applications.” He says, “Magistrate Brown has shown bias and has continually shown discrimination against me by remarks made against my court proceedings.” He goes on and refers to comments by Magistrate Brown. However, I suspect that they relate more to the other appeal that is before me. For example, he says Federal Magistrate Brown referred to the mother as “this poor woman”, and that certainly is something that is not part of this appeal but is part of the other appeal.
Mr Chranley, in oral submissions today, has concentrated on the rule in Rice v Asplund. He has quoted the rule to me and he has suggested that the learned Federal Magistrate failed to consider it. The circumstances that he has put to me are, frankly, the same circumstances that were put before the learned Federal Magistrate, namely, Mr Chranley has referred to the affidavit of the mother of July 2004, he has compared that with an affidavit of the mother filed in 2007, and he has suggested that the mother has in effect admitted perverting the course of justice. He has referred me to Dr Mertin's second report and alleged that the mother has misled Dr Mertin. He has strongly put that it cannot be permitted to have a person misleading the court. He submits that he did have the contact that he says he did and he did live at the address that he was living at.
When I drew his attention, though, to the precise grounds of appeal which were before me, because at that point I could not quite follow how those submissions related to the actual grounds of appeal, Mr Chranley's response was to say that, in relation to his complaint that Brown FM failed to consider all the evidence, he was referring to those earlier affidavits and the report of Dr Mertin. In relation to the second ground of appeal - namely, Brown FM has shown bias towards him - he says that Brown FM's failure to consider the information before him - ie, those affidavits and the report - indicates that Brown FM was biased against him.
Dealing with the grounds of appeal and also, generally, the oral submission made by Mr Chranley today, there is nothing that Mr Chranley has put, either in his written submission or in his oral submission, which indicates that there is any error at all in the learned Federal Magistrate's judgment. It may be that Mr Chranley misunderstands the rule in Rice v Asplund, but what that says is that there needs to be a change and a substantial change of circumstances since the date of the order, for the issue to be re‑litigated.
There is no change of circumstances that Mr Chranley has referred me to arising in the evidence before the learned Federal Magistrate. The learned Federal Magistrate gave Mr Chranley every opportunity to indicate to him what the change of circumstances since the order of 4 December 2007 were. He was unable to. I have read the transcript of the hearing and it is quite apparent that nowhere in any of the evidence before the learned Federal Magistrate was there any change of circumstance, alleged or presented or put to the learned Federal Magistrate as being a change sufficient to allow a re-litigation of the arrangements for the child.
Mr Chranley seems to be obsessed with an affidavit that the mother swore in July 2004. However, it matters not that Mr Chranley is concerned about that. None of those matters raised by Mr Chranley create or imply a change of circumstances since December 2007.
In terms of the complaint that the learned Federal Magistrate did not address the evidence that was before him, it is quite clear from a perusal of the transcript that the learned Federal Magistrate received and read everything that Mr Chranley wanted him to read. Indeed Mr Chranley made a point of insisting that he read out part of relevant affidavit material to his Honour.
In relation to the allegation of bias, nowhere in the transcript of the hearing before Brown FM did Mr Chranley allege that Brown FM was exhibiting bias towards him and there was no application made during the course of that hearing for Brown FM to disqualify himself, on the basis of either apprehended or actual bias. The law is clear that a party is bound by the conduct of his case:
“Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.(per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in University of Wollongong v Metwally (1985) 60 ALR 68 at 71.)”
However there is an exception where a party is acting for himself or herself in that more leeway is given to litigants in person in this regard. Although Mr Chranley is only now raising the allegation of bias, I have been prepared to allow him to pursue that complaint. Addressing that now, the test is well-settled and it is as follows:
“Bias can exist if, in all the circumstances, a fair-minded lay observer may reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.(Johnson v Johnson (2000) FLC 93-041, at p87,631-2)”
Applying that test here, there is absolutely nothing that the learned Federal Magistrate said, either during the course of the hearing or in his reasons for judgment, which could in any way be interpreted by a fair‑minded lay observer as indicating "that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".
Indeed Mr Chranley has not referred me to anything said or done by the learned Federal Magistrate during the course of that hearing which would indicate that he was exhibiting bias towards Mr Chranley.
There is no merit in either ground of appeal and there is no merit arising from the further submissions made by Mr Chranley to me today and thus the order that I propose to make is that the notice of appeal be dismissed.
Turning to the appeal against the order made on 21 April 2008. In that order His Honour dismissed the application filed by Mr Chranley on 20 February 2008. His Honour delivered reasons for judgment on that day, and I have those before me. I also have the transcript of the hearing before his Honour on that day.
The application that was before his Honour was in effect an application by Mr Chranley that the learned Federal Magistrate disqualify himself from further dealing with the applications that Mr Chranley had before the Federal Magistrates Court, and in particular, one application which was an application that Mrs Smart be dealt with for contempt.
The brief background facts of this matter are that, as I say, the application before his Honour was filed on 20 February 2008. That was supported by an affidavit filed by Mr Chranley on the same date, where Mr Chranley complained - and summarising his affidavit - that Brown FM had referred in court to Mr Chranley making "this poor woman" - referring to Mrs Smart - come to court. Mr Chranley complained that the Magistrate went on and asked the mother when she would be able to attend court, and he, the Magistrate, made comment to her in regard to her sleep because he knew she worked nightshift. He complains that Brown FM asked Mrs Smart if she knew her working dates, and then allowed her to nominate a date when she was free.
He further complains that Brown FM allowed the mother five weeks to respond and file an affidavit in relation to the contempt applications that had been filed by Mr Chranley, and although it is a bit hard to follow his affidavit, but trying to summarise and doing the best I can, he says that Brown FM has conducted himself with absolute bias, in a manner that any layperson would form the understanding that he would corrupt this case and make rulings in a contemptuous manner, because of his conduct and interaction with the respondent mother. He concludes by saying that he has the opinion and has formed the understanding that "Magistrate Brown is biased and will reflect in a corrupt finding against me."
It seems that the complaints of Mr Chranley related to an earlier hearing before Brown FM of either one or two contempt applications brought by Mr Chranley.
The reasons for judgment delivered by the learned Federal Magistrate were delivered ex tempore, and I just want to address those reasons for the moment. The learned Federal Magistrate identified the application that was before him. He referred to his previous dealings with Mr Chranley in relation to other applications of his that he had heard. He refers to the fact that he had dealt with an application that Mr Chranley made regarding Child Support and that he, the Magistrate, did not make the orders which Mr Chranley sought. The learned Federal Magistrate indicated he did not know whether Mr Chranley had appealed or not, although Mr Chranley told him that he had appealed that decision.
The learned Federal Magistrate then referred to more recent applications, namely, an application that the court deal with Mrs Smart for contempt. The learned Federal Magistrate recalled that that arose following the completion of proceedings in the Family Court regarding arrangements for the parties' child. He indicates that he thought it appropriate that Mrs Smart be given an opportunity to respond to that application by way of an affidavit setting out her perception of the matter.
The learned Federal Magistrate recognised, in these reasons for judgment, that that was unusual, but he considered it appropriate. He records that he was then looking to adjourn the proceedings to a date in May, but before he did that he inquired of Mrs Smart as to a date that suited her. He explained that he was well aware that there had been many proceedings between the parties brought by Mr Chranley. He was aware that Mrs Smart worked as a nurse and that he had been told in the past that she works at night. He inquired of her as to a time that was suitable to her. He indicates that Mr Chranley took umbrage at that, at the time, and, as Mrs Smart reminded the learned Federal Magistrate on this day, that precipitated an outburst from Mr Chranley which the learned Federal Magistrate describes as being distressing to him and to his staff. He says he suspects it was also distressing to Mrs Smart.
Then his Honour comes to the application before him that he disqualify himself. He records that the basis of the application is that he has given an undue advantage to Mrs Smart by asking her when it is convenient to her for the matter to be re-listed.
The learned Federal Magistrate then set out the test as to apparent bias and he quoted from the High Court decision of Johnson v Johnson, supra. His Honour remarked that that test is based on the fundamental principle that justice must be both done and seen to be done. He went on and said (paragraph 9):
“…if any fair-minded person either perceives or suspects that the court has a preconceived notion of the appropriate outcome for the case, it will inevitably lead to the erosion of public confidence in the judicial process.”
Quite properly, the learned Federal Magistrate then put the other side of the coin that applies with applications like this as follows (paragraph 10):
“Similarly, in my view, if I disqualified myself because anyone perceived that I was trying to avoid having to deal with [Mr Chranley's] application, because [Mr Chranle]y is acting on his own behalf and because [Mr Chranley] is a forceful advocate of his own views about matters to do with him, and similarly, if [Ms Smar]t thought that I was disqualifying myself because it would be easier for me to get away from dealing with this type of application, I think that would also bring about a situation whereby the public would feel no confidence in the judicial system. [Mr Chranley] is not entitled to determine who should hear his applications.”
His Honour then concludes (paragraph 11):
“I do not think, because [Mr Chranley] feels that he may not get the result he wants, that I should disqualify myself. I do not think a fair-minded observer would think I prejudged the matter because of what I said to [Ms Smart]. For those reasons the application is dismissed.”
Turning to the grounds of appeal, they are as follows:
“1. Magistrate Brown has shown bias in his refusal to stand down.
2. Magistrate Brown failed to consider all the evidence.
3. Magistrate Brown failed to acknowledge the evidence in relation to the application.”
I inquired of Mr Chranley as to what he wanted to say in support of those grounds of appeal and he then read out to me what he had set out in his pre‑argument statement, which is a statement that is required to be filed by an appellant after a notice of appeal is filed.
I have had a look at that statement and it is a repeat of what was in the affidavit of Mr Chranley in support of the application, namely, the reference to the learned Federal Magistrate saying that he, Mr Chranley, had made this poor woman come to court, and inquiring of the mother as to when she would be able to attend, referring to her sleeping arrangements and her working status, allowing her to nominate a day when she would like to attend court, allowing the respondent mother five weeks to respond to an affidavit and making the same allegations that Magistrate Brown has “perverted the natural course of justice by not following procedures and protocol of the Magistrates Court of Australia”. I do not know what Mr Chranley is referring to there; he did not elaborate on that. He continued, “Magistrate Brown failed to consider the facts before him to make orders in relation to the facts before him” and “Magistrate Brown threaten [sic] me with a pending order, as to be declared a vexatious litigant, his remarks were directed for the respondent mother to instigate.”
That last point was not in fact in the affidavit, but just to put that into context, it was after judgment was delivered and Mr Chranley said he took offence at the remarks made by the learned Federal Magistrate in his reasons for judgment and he said the order would be subject to an appeal, and His Honour said this:
“[Mr Chranley], it is your entitlement to appeal, and I think Mead FM has commented in the past about whether it is the time to consider whether you should be prevented from bringing proceedings in this court, but I leave that to others.”
Mr Chranley responded:
“Go ahead, your Honour, feel free, because I've got no problem defending myself against such a biased and corrupt finding as that.”
Returning to the grounds of appeal. Ground 1 is that, “Magistrate Brown has shown bias in his refusal to stand down.” Mr Chranley has not pointed to anything in the transcript of the hearing, nor raised anything in his submissions, which indicates that the learned Federal Magistrate demonstrated bias towards Mr Chranley in the hearing of that application and in his refusal to disqualify himself. Thus there is simply no merit in that ground of appeal.
The second ground of appeal is that, “Magistrate Brown failed to consider all the evidence.” The only evidence before the learned Federal Magistrate was the affidavit of Mr Chranley, and the learned Federal Magistrate was taken to it by Mr Chranley, thus there is again no merit in that ground of appeal.
The third ground of appeal is that, “Magistrate Brown failed to acknowledge the evidence in relation to the application.” I did not understand that ground of appeal and when I asked Mr Chranley about it he indicated that really it was the same as ground 2. Whether that is the case or not, I still do not quite follow it, but it seems to allege something in relation to the evidence. As I have said, and I repeat, there is no indication, and Mr Chranley has not taken me to anything in the transcript which indicates there was any evidence overlooked by the magistrate to which he was referred or which was being relied upon. Thus again there is no merit in that ground of appeal.
I certify that the preceding 61 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 4 December 2008.
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