Chranley & Smart (No. 8)

[2007] FamCA 760

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 8) [2007] FamCA 760

FAMILY LAW - PRACTICE AND PROCEDURE - s 118(1) of Family Law Act - father restrained until further order from instituting applications without leave of Court - Father permitted to file Amended Application for Final Orders for purposes of pre-trial conference

Family Law Act 1975 (Cth) s 118

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Mr G Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 30 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr McQuade

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 BY CONSENT

1. That UNTIL FURTHER ORDER pursuant to the provisions of Section 118(1) of the Family Law Act 1975 as amended, the applicant father be restrained from instituting any applications under this Act in relation to the Independent Children’s Lawyer, Dr M and/or any issue relating to his review assessment, an application for Contempt or Contravention or any application to vary the circumstances in which the father spends time with the child S born in March 1997 or communicates with the said child without the leave of this Honourable Court SAVE AND EXCEPT that the father be permitted to file an Amended Form 1 Application for Final Orders for the purposes of the pre-trial conference on 4 August 2007.

2. 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 2007 be adjourned to a date to be fixed no later than 14 days after delivery of any judgment by the Full Court of this Court in relation to the Notice of Appeal filed by the father on 16 April 2007 against the orders made by the Honourable Justice Strickland on 4 April 2007.

3. That the listing of 14 May 2007 of the Form 19 Application alleging Contempt filed by the father on 30 April 2007 be vacated and that application be listed at 9:15am on 6 June 2007 before the Honourable Justice Strickland.

IT IS FURTHER ORDERED

1. That the question of the Independent Children’s Lawyer’s costs be reserved.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779 of 2000

MR CHRANLEY

Applicant

And

MS SMART

Respondent

REASONS FOR JUDGMENT

1. I have before me 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.  I set aside two hours today to deal with those applications.

2. I made a further order on 4 April 2007, when I made the order setting it down for hearing, that the father file and serve any affidavit on which he proposes to rely by Thursday, 26 April 2007.  The father has complied with that.  He filed an affidavit on 20 April 2007.  Unfortunately, it had not reached the court file before today, but I have been provided with a copy of the affidavit which I have now read.

3. In any event, counsel for the Independent Children's Lawyer seeks to pursue the application today, but the father seeks an adjournment of this hearing.

4. What in fact has happened is that the father has filed a Notice of Appeal against an order that I made on 4 April 2007, namely, the order setting this matter down for hearing today.  The appeal has just been lodged and I assume nothing more has happened to it.  I am not able to gauge or determine how long it will be before that appeal is heard.

5. I indicated to the father that I was not prepared to grant his adjournment application because although there is an appeal, he has not sought a stay of the relevant order the subject of the appeal.  The father then made an oral application for a stay of that order.  That application was opposed on the ground that there was no evidence presented by the father in support of the application, which was correct.

6. I was about to rule on that issue when the submission was made that it may be appropriate in the circumstances of the appeal that the father has lodged, to make an order by way of interim injunction in terms of the orders sought by the Independent Children's Lawyer, with such interim injunction lasting until not only after the decision of the Full Court has been delivered, but lasting until the matter then comes back before me after that event, depending of course on what the Full Court decide in relation to the father’s appeal.

7. The father has indicated that he is prepared to consent to such an order and in the circumstances the Independent Children's Lawyer supports the making of such an order.  The mother has indicated that she supports the making of such an order as well.

8. The father though, in indicating his consent to such an order, has been at pains to confirm that two applications he has lodged today would not be affected by that particular order and that is the case because of course the order sought by the Independent Children's Lawyer is an injunction restraining the father from instituting further proceedings, not preventing him from continuing any existing proceedings.

9. It seems that apart from the applications filed today, there are in fact no outstanding applications filed by the father in any event, but regardless of that the position is that once that interim injunction is put in place - as I will do in a moment - these two applications filed by the father today will proceed.

10. In that regard I note that the Form 2 Application has a return date of 6 June 2007 and the other application, which is an Application Alleging Contempt, has a return date of 14 May 2007.  There is a supporting affidavit in relation to, presumably, both applications. 

11. Those matters will proceed and I am proposing to vacate the listing of the contempt application and have that listed on the same date as the other application, which is also before me.  In the meantime, as I have explained to the father, the Independent Children's Lawyer and the mother, once served with these documents, will then file responses if so advised, and if I can, I will deal with the applications and responses on 6 June 2007.  I cannot predict though either what the responses will be or what I will do with the applications that are filed by the father.

12. It has been pointed out to me that at the Trial Notice List Hearing, the father was ordered to file an Amended Form 1 Application.  Clearly that should still happen by way of preparation for the pre-trial conference which is listed for 4 August 2006.  I will specifically exempt the filing of that document from the injunction that I am about to grant.

13. Also for the benefit of the father, I confirm that the injunction does not and was not intended to prevent him from filing his affidavit material for the purposes of the trial.  It will though, prevent any application within the terms of the order being filed by him during the currency of the injunction without leave of the court.  I am satisfied that he knows what that entails, because he has instanced how that might cause a delay in certain circumstances.

I certify that the preceding
13 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 30^th day of April 2007.

……………………………………….
Associate