Chranley & Smart (No. 7)

[2007] FamCA 649

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 7) [2007] FamCA 649

FAMILY LAW - CONTEMPT – Father alleges mother gave false evidence at hearing – allegations not in proper form - father relies on his own evidence and evidence of three witnesses’ affidavits filed

FAMILY LAW - PROCEDURAL – Father sought leave to file amended affidavits during hearing – no objection by mother – leave granted

FAMILY LAW - VEXATIOUS LITIGANT – Father’s applications considered vexatious and frivolous – Dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 9 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Hemsley

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Graeme 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.

Orders

1. That the father have leave to file two amended affidavits, one of which is in support of the Form 19 Application for Contempt filed by the father on 22 November 2006 (Document 174) and the other affidavit is in support of the Form 19 Application for Contempt filed by the father on 22 November 2006 (Document 172) and I note that these affidavits replace the original affidavits filed by the father which will no longer be relied on.

2. That the Form 19 Application for Contempt filed by the father on 22 November 2006 be dismissed and removed from the pending cases list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779 of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX TEMPORE REASONS

1. Two applications that were before me when this matter commenced on Wednesday were the two Form 19 Applications for Contempt filed by the father on 22 November 2006, being respectively documents 172 and 174.  I invited the husband on Wednesday to proceed on those applications but, as a result of further discussion, the husband indicated that he wished the opportunity to file an amended application, certainly in relation to one of the applications that were before me at the time, and specifically document 174 relating to the affidavit of the mother filed on 15 September 2006.

2. What the husband put to me was that he wanted to include an allegation that the mother had given false evidence at the hearing.  I indicated to the husband that how I proposed to proceed was to dismiss the application, given that he was not going to proceed with it in the form it was before the court, and that that would leave him to bring a further application if he was so advised.

3. In relation to the other application, the husband indicated - again after a discussion - that his affidavit was inadequate in that neither in that document nor in the application itself, where it could have been theoretically, had he indicated in what way certain paragraphs of the mother's affidavit were false.  On that basis, he sought the same thing in relation to that application as he did with the other.  I responded in the same way, indicating that if he was not proceeding with the application as it stood then I would be dismissing it and he would be able to file a new application if he was so advised, and the matter was left on that basis.

4. Today I intended to formally dismiss those applications, but the husband has indicated he is prepared and still wants to proceed on those applications as they stand, but he has tendered to the court two affidavits, both sworn by him, one relating to the application in relation to the affidavit of 13 July 2004 and the other in relation to the affidavit of the mother of 15 September 2006.  What he seeks is that the applications proceed, with these affidavits as the supporting material, in lieu of the affidavits filed with the applications.

5. I have given the wife the opportunity to look at the affidavits prior to me receiving them.  She has indicated that after reading those affidavits and in the knowledge that she has the opportunity to seek an adjournment.  She has agreed to proceed with the applications on those affidavits.  She has also indicated that she does not want the opportunity to file any further affidavit material in response to these two affidavits.  She did, in fact, file affidavits in response to the applications as they stood when they were filed, and of course I assume the wife still relies on those affidavits.

6. Given all that, the matter can proceed.  I should firstly formally make an order giving leave to the husband to file the two affidavits.

7. I now have before me an Application for Contempt filed by the father on 22 November 2006, being document 172 in the court file.  I will not repeat what I have said about it thus far, but in summary it is an Application alleging Contempt whereby the husband alleges that the mother has filed a false affidavit in this court, being her affidavit filed on 13 July 2004.

8. In the supporting affidavit the husband has identified the particular paragraphs that he alleges are false, namely 5, 6, 8, 13, 14, 20 and 25.  The affidavit on which the husband relies sets out what the mother has said in each of those paragraphs and then below that sets out the husband's version of what the mother is saying.  As I understand it, the father filed an answering affidavit to the affidavit of 13 July 2004, and I assume that in that affidavit I would find these responses that the husband makes to the particular paragraphs that the wife included to in her own affidavit.

9. In addition, the husband seeks to rely on the affidavits of a Mr F filed on 3 February 2006 and an affidavit of his filed on 21 November 2005, which he tells me annexes three affidavits of other persons, and he also relies on those affidavits.

10. In summary then, the husband has deemed it appropriate to file a very serious and grave application in this court alleging contempt, the contempt being the mother filing a false affidavit, and his evidence in support of that is his own evidence and the evidence of three or four witnesses contained in their affidavits.

11. The state of this case is that it commenced some time ago.  It has not yet reached a final hearing and it has no immediate prospect of reaching a final hearing.  There have been innumerable applications and affidavits filed by the husband and then responded to by the wife, and there has been the involvement of an Independent Children's Lawyer.

12. The husband expects this court by this application to hear all of the evidence, to then decide who is telling the truth - and on his case the mother is not telling the truth - make a finding to that effect and then make a finding that that is a contempt of the court.  In my view, that is directly and precisely within the definition of a frivolous and vexatious application.

13. The wife, at my invitation made an application for summary dismissal of the application.  To repeat, I consider it vexatious and frivolous and I dismiss the application. 

I certify that the preceding
13 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 9^th day of February 2007.

……………………………………….
Associate