Chranley & Smart (No. 6)

[2007] FamCA 440

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 6) [2007] FamCA 440

FAMILY LAW - PROCEDURAL – Failure of father to file affidavit – Time extended

FAMILY LAW - CONTEMPT – Application filed by father – Filing of affidavits already used in an Application for Contempt which was dismissed – Frivolous and vexatious – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Mr G Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 4 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 4 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr G Hemsley

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Chranley & Smart No. 6.

Orders

1. That further consideration of the Amended Form 2 Application filed by the Independent Children’s Lawyer on 23 February 2007 and the Form 2 Application filed by the father on 23 March 2006 be adjourned to 2:15pm on Monday 30 April 2007 (with a time estimate of 2 hours).

2. That the father file and serve any affidavit on which he proposes to rely for the purposes of that hearing by 4:00pm on Thursday 26 April 2007.

3. That the Application alleging Contempt filed by the father on 16 March 2007 be dismissed and removed from the active pending cases list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779 of 2000

MR CHRANLEY

Applicant

And

MS SMART

Respondent

REASONS FOR JUDGMENT

1. In this matter I have two applications before me today. 

2. Firstly, there is an Amended Application in a Case filed by the Independent Children’s Lawyer on 23 February 2007. That purports to amend a Form 2A Response filed by the Independent Children’s Lawyer on 12 January 2007. Obviously the appropriate form would have been an Amended Form 2A Response, but that procedural defect should not prevent this matter proceeding. Everyone is aware of what the issues are and what the application is. What the Independent Children’s Lawyer has done is amended those paragraphs of the earlier response wherein he seeks orders either pursuant to the provisions of Section 118 of the Family Law Act or pursuant to the provisions of Rule 11.04 of the Family Law Rules.

3. There is a short affidavit in support of that amended application which deals with what is described as some “confusion” with two annexures to the affidavit of the Independent Children’s Lawyer filed on 12 January 2007.  I confirmed with Mr Hemsley this morning that the primary evidence in support of the application that he makes is still contained in the affidavit of 12 January 2007, of course, with the clarification in the most recent affidavit filed by him.

4. The father has filed a Form 2 Application in relation to this matter.  He filed that on 23 March 2007, and he seeks an order dismissing the Independent Children’s Lawyer’s amended application.  Again, there may be a query as to whether that is the appropriate form to lodge, but in any event, as I said with the form filed by the Independent Children’s Lawyer, that can not prevent this matter proceeding.

5. Thus the issue is joined; the orders are sought, and they are opposed.  The father, though, chose not to file an affidavit responding to the factual issues the subject of the application, and rather, filed an affidavit where he took issue with whether the application that is now before me was properly served or was indeed served on him at all.  I have read the documents relating to that issue and, as I indicated at the start of these proceedings, I do not accept that the father was not appropriately served and I am satisfied that he is fully aware of the orders being sought by the Independent Children’s Lawyer and of the evidence in support of that application.

6. The effect of what the father has done, though, is that there needs to be a further adjournment of this matter.  I have determined to give the father one last opportunity to file an affidavit addressing the factual issues the subject of the application and, in particular, responding to the affidavit of 12 January 2007.  Thus I propose to adjourn that application to 2.15 on Monday, 30 April 2007, with a time estimate of two hours and make an order for the father to file an answering affidavit.

7. In terms of the affidavit to be filed by the father, he has had since at least late January, allowing time for service of that affidavit, to file an answering affidavit to the affidavit of 12 January.  The father asked for a further four weeks to file his affidavit.  However, I am not prepared to do that, because, as the father himself has just finished saying to me, he is anxious to get this matter finalised and dealt with as expeditiously as possible and I consider that three weeks is ample time to prepare his affidavit.  To repeat, he has already had all of February and all of March to prepare that affidavit.  However, even if we draw a line in the sand and say that for some reason he has not done it and now he wants to sit down and do it, I view three weeks as ample time to prepare the affidavit. 

8. The second application that is before me today is the Application alleging Contempt filed by the father on 16 March 2007.  That was originally listed before a Registrar in the usual way on 5 April 2007, to then be referred to a hearing, if appropriate.  However, given that the parties were before me today, namely, 4 April 2007, it was considered appropriate and sensible for that application to be brought forward and listed before me.

9. 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.  He has filed an affidavit in support of that application, and that affidavit identifies the paragraphs in the affidavit which the father says are false. 

10. The mother seeks that that application be dismissed, for two reasons, one is that it is precisely the same application which the father has previously filed and which has been dismissed by this court; and secondly, the mother submitted that the question of credit in terms of any affidavit material filed by either party should be a matter that is dealt with at the trial in these proceedings, rather than by way of an application alleging contempt.

11. The mother is perfectly correct in both of these submissions.  There was an application in precisely the same terms filed by the father on 22 November 2006 and there was an affidavit in support of that application.  That application was dealt with on an interlocutory basis and then listed for hearing before me on 7 February 2007.  On that day I heard submissions about that application and adjourned further consideration of it to 9 February 2007.

12. On 9 February 2007 the father presented what I have described as "substitute" affidavits for not only the affidavit in support of that application but also for the affidavit in support of another Form 19 Application alleging Contempt which he had filed and which I dealt with in the same way.  On 9 February 2007 I gave leave to the father to file those two amended affidavits, but obviously the only one I am concerned with at the moment is the affidavit in support of the application for contempt which was precisely in the same terms as the one now before me.

13. The father then sought to proceed on that application, and after hearing further submissions, I dismissed it and removed it from the pending cases list.  The father, to repeat, has now filed precisely the same application.  He has filed a further affidavit in support, but he has conceded today that there is nothing new.  He has rephrased the affidavit, but there is no new allegation being made.  It is precisely the same allegation that was relied on for the purpose of the earlier application for contempt.

14. The father says that he has now brought this application because he wants justice in this court.  He says that this is a matter that must be heard; that it will shorten the ultimate trial in these proceedings and expedite the same.  I reject those submissions. 

15. The father then says that he was suffering from stress, or some such condition, on either 7 or 9 February 2007 and that he really did not know what he was doing.  Again, I reject that claim.  There is no medical evidence presented about that and I note that no application was made to me on the day to the effect that the father was suffering from some condition and he was not able to deal with the matter appropriately on that day.  Indeed, it was spread over two days and the father came along on the second day with an amended affidavit and wanting to proceed.  The suggestion that the father was unwell or medically unfit to conduct the proceedings on either day was not a matter that was raised with me. 

16. 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.  This application is another example of the father wasting this court’s time.  It is a frivolous and vexatious application. 

17. There is simply no basis on which the father can now file the same application which was dismissed.  To repeat:  I find that he has done so frivolously and vexatiously and I dismiss the application filed on 16 March 2007 and remove it from the active pending list.

I certify that the preceding
17 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 4^th day of April 2007.

……………………………………….
Associate