Chranley & Smart (No. 9)

[2007] FamCA 1354

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 9) [2007] FamCA 1354

FAMILY LAW – COURTS AND JUDGES – Application by father seeking disqualification of judge on numerous grounds including bias and failure to comply with procedures, protocol and guidelines of the court – Complaint relates to dismissal of applications, particularly dismissal of a contempt application – Allegation judge made orders without considering evidence and that were not supported by evidence – Contempt application dismissed as in same terms as applications previously dismissed by court – Failure to identify any authority, law or rule of court judge allegedly breached or failed to implement – Nothing in affidavits establishes any basis for complaint or orders sought – Test of bias in Johnson & Johnson (No. 3) (2000) FLC 93-041 not met – No basis for disqualification – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Father seeks leave to file application – Failure to identify application for which leave is sought – Father required to identify application at time of seeking leave – Application for leave to file dismissed

Family Law Act 1975 (Cth)

Johnson & Johnson (No. 3) (2000) FLC 93-041

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Mr G Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 15 October 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 15 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr G Hemsley

INDEPENDENT CHILDREN’S SOLICITOR: Graeme Hemsley

Orders

1. That the Application in a Case filed by the father on 11 September 2007 be dismissed and removed from the active pending cases list.

2. That the hearing of the Application in a Case filed by the father on 24 September 2007 be brought forward to today and the hearing before the Honourable Justice Dawe on 25 October 2007 be vacated.

3. That the said application be dismissed and removed from the active pending cases list.

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)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779 of 2000

MR CHRANLEY

Applicant

And

MS SMART

Respondent

EX TEMPORE REASONS

1. This is an application filed by the father on 11 September 2007, and which he says is supported by three affidavits.  The application is a wide-ranging one which perhaps is best summarised as an application for me to stand down because of bias, discrimination, failure in duty of care, failure to comply with procedures and protocol, and failure to act within the guidelines of this court.

2. Turning to the supporting affidavits - and I will do that one at a time - firstly, there is the affidavit which was filed on the same date as the application, namely, 11 September, and it simply says, “I refer to affidavits and applications filed in the Family Court of Australia in relation to ADF 4779 of 2000.”

3. Now, I do not know what the father expects me to do with that.  It is far too general to make any sense of and in my view is not a proper affidavit in support of such a serious application.

4. Next, I go to the two affidavits filed by the father on 24 September 2007.  At first blush it seemed that those two affidavits were supporting an application filed by the father on that date, but he tells me that that is not the case and that those two affidavits support this application.

5. With the first of these two affidavits, it is an affidavit which has nine paragraphs.  The father there refers to his affidavits filed on 30 April 2007 and on 13 July 2007.  The allegation is that apparently - and I will look at the affidavit of 30 April 2007 again in a moment, but I recall that that affidavit annexed or referred to a number of photographs and a number of videos - that I made orders without considering any of the evidence in that affidavit of 30 April 2007 and I made orders that are not supported by the evidence in that affidavit.

6. In paragraph 8 the father further alleges that “the affidavit of 30 April 2007 shows that the respondent mother has filed a false affidavit in regard to gaining interim order in her favour”.  Paragraph 9 says that “the affidavit filed 30 April 2007 shows that the Independent Children's Lawyer has fail his duty of care to his clients and he has perverted the natural course of justice”.  The father though agrees that that latter paragraph has no relevance to the application that is before me today, and thus I disregard it. 

7. The father does not in this affidavit identify my orders of which he complains.  However, doing the best I can from the court file, the affidavit of 30 April 2007 was filed in support of an application filed the same day alleging contempt, the alleged contempt being that on 13 July 2003 the respondent filed a false affidavit in the Family Court of Australia.  That application was initially listed before me on 14 May 2007, but I note that an order that I made on the same date, 30 April 2007, when the application was filed, was to vacate by consent the listing on 14 May, and I listed it on 6 June before me.

8. On 6 June 2007 I adjourned further consideration of the application alleging contempt to 28 June 2007.  Then on 28 June 2007 I dismissed that application for contempt and removed it from the active pending cases list.  It seems that that is what the father is complaining of in this affidavit of 24 September 2007.  To repeat, he is alleging that I failed to consider any of the evidence in the affidavit of 30 April 2007, I failed in my duty of care by not considering any of that evidence, I failed to allow video evidence as referred to in that affidavit, and I made orders that were not supported by the evidence in the affidavit.

9. I should mention, just to be clear, because the father certainly is not clear as to which application or which affidavit, or which order is relevant, there was another application filed by him on 30 April 2007 which was a Form 2 Application in a Case, in which he sought orders in relation to the time to be spent with S, one of the children of the relationship, that the affidavit of the mother dated 13 July 2003 be set aside and that the Independent Children’s Lawyer be removed because of, "the false affidavit filed by the respondent mother and his involvement in the content of this false affidavit…"

10. That application had a return date of 6 June 2007, and thus it was heard on the same date as the contempt application.  On that day paragraphs 2 and 3 of the Form 2 Application were dismissed on the application of the father and further consideration of paragraph 1 was adjourned to 28 June 2007.  On 28 June 2007, that application was dismissed and removed from the active pending cases list.

11. However, I do not read the father’s affidavit of 24 September 2007, whereby he refers to issues arising out of his affidavit of 30 April 2007, as relating to anything other than the contempt application.  Why I suggest that that is the case is because of paragraph 8, where he refers to his allegation of the mother filing a false affidavit in regard to gaining an interim order in her favour, and that is the alleged contempt.

12. Dealing then with the application alleging contempt, which I dismissed on 28 June 2007, I delivered reasons in relation to that dismissal and in those reasons I noted that the application was in precisely the same terms as an application filed by the father on 22 November 2006 and also in precisely the same terms as an application filed by him on 16 March 2007.

13. I dismissed the first application on 9 February 2007 and I delivered reasons in relation to that.  With the application filed on 16 March 2007, I made an order dismissing that application on 4 April 2007, and I also delivered reasons. 

14. I note that the father filed a Notice of Appeal against my order of 4 April 2007.  However, I am told today that that appeal was not proceeded with and in fact all appeals that have been filed by the husband have been deemed to be abandoned.  Thus I proceed on that basis.

15. I am not going to repeat what I said in my reasons for judgment on 28 June 2007, but the long and the short of it is that it was not open to the father to simply file a further application in precisely the same terms as two previous applications which were dismissed.  Although the father had filed supporting affidavits there was nothing new in terms of the basis of the application, and it was for that reason that I dismissed the application.

16. I also found that the father’s actions in this regard, in the sense of simply filing an application which repeated earlier applications which have been dismissed to be frivolous and vexatious.

17. In my view the father has not established in any affidavit that he has filed to date, and referring specifically to the affidavit that I have been addressing, and including the other affidavit filed on 24 September 2007 which I will come to, in a moment, any basis for the complaints that he makes about me in relation to the dismissal of that application of 30 April 2007.

18. The test in relation to bias is whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the issue (Johnson & Johnson (No. 3) (2000) FLC 93-041). The test is certainly not whether one of the parties considers the judge to be biased.

19. What happened in relation to the applications alleging contempt are quite clearly set out in my reasons for judgment delivered in respect of each application.  The father had the ability to appeal any of those orders if he was unhappy with them.  Indeed, he did appeal one of them but that appeal has not been proceeded with it. 

20. Mr Hemsley has made a pertinent comment, namely, that the father seems to be mistaken in some of the views that he holds about what happens with proceedings in this court.  It seems to me, to put the best gloss I can on it, that the father has misunderstood the effect of the initial dismissal of the application alleging contempt. 

21. As I have said each time that I have dismissed the father’s application when he has filed the same application again, it is not open to him to simply file a fresh application.  He had the opportunity, and I gave him that opportunity in February 2007, to proceed on another application with proper supporting material.  He chose not to file any further supporting material and it was on that basis that I dismissed the application at that time.

22. The father has attempted, as is his want, to suggest that affidavits he files at various times are also in support of applications filed at different times.  Doing the best I can about that, the father is now, I assume, suggesting that he is also complaining about my dismissal of his Form 2 Application filed on 30 April 2007.  As I said, that does not seem to be the purport of the affidavit that I have been referring to but, be that as it may, I have referred earlier to the subsequent history of that application, namely, paragraphs 2 and 3 of it were dismissed by consent, indeed on the father's own application, leaving paragraph 1 of that application to be dealt with and I finally dealt with that on 28 June 2007.  To repeat, paragraph 1 sought an order in relation to the child S.

23. I delivered reasons for judgment in dismissing that application on 28 June 2007 and I am not going to repeat all that was said in those reasons for judgment.  In reaching that decision I took into account all of the evidence, both by way of affidavit material and otherwise, which all parties, including the Independent Children’s Lawyer, put before me for the purpose of that application, including, importantly, the report of Dr M of 10 May 2007 which was annexed to the affidavit of the Independent Children’s Lawyer filed on 4 June 2007.

24. The father in the affidavit that I have been dealing with, which is the nine paragraph affidavit, as I said, refers to the affidavit filed on 30 April 2007 and suggests that it was not taken into account in relation to this particular application.  The fact of the matter is that, to repeat, I took into account all of the evidence that was properly before me at that time, both in support of and in opposition to the application the father was making.  In my view there is nothing in that affidavit of 24 September 2007 which supports in any way the orders that the father seeks, to the effect that I stand down from this matter.  I refer again to the principle stated by the High Court in Johnson, supra, and find that the test is simply not satisfied in relation to that issue.

25. Turning to the third and final affidavit which the father says is in support of this application, he makes general allegations against me about perverting the natural course of justice, denying him his civil liberties, and corrupting the proceedings by repeatedly disallowing him to present evidence in relation to justice being delivered.  He does not state it but I assume he is there repeating his complaint about not being able to present evidence in support of the application alleging contempt because in the next paragraph he goes on and refers specifically to the fact that I dismissed a contempt application of his on three occasions; he says, for reasons unknown to him. 

26. I interpolate that all the father needs to do is to look at my reasons for judgment and my reasons will be perfectly clear to him.  That perhaps is another reason why he has fallen into the same error of filing the same application again.  If he took the time to read my reasons for judgment it might become clear to him that he simply could not continue to do that.

27. Given my summary dismissal of the application there was no basis or need or justification for the mother to give evidence in relation to it.  If the application is misconceived in the first place and dismissed for that reason, then the application does not proceed, and that obviates the need for any party to give any evidence in relation to it.

28. The father in this affidavit repeats the allegation that he has filed an affidavit which should be taken into account, namely, his affidavit of 30 April 2007, and I have already addressed that in these reasons.  He makes the same allegation of me not considering this evidence in relation to more time spent with his children.  I have indicated that that affidavit was very much before me, as well as the report of Dr M, when I made my decision on 28 June 2007.

29. I do not know what the father is referring to when he alleges that I failed in my duty of care.  There is no authority cited by the father, there is no Section of the Act, and there is no Rule that he has identified in this regard.  Thus I cannot take this any further.

30. The father alleges that I have protected the respondent mother against all his attempts to have these matters heard.  If what he is referring to is the fact that the mother has not been called upon to give evidence in relation to his applications alleging contempt, then I have dealt with that. 

31. The father continues to make general allegations that I have shown bias towards him.  Without any specific allegation I do not know what he expects to be done about that.  He further makes the general allegation that I have failed to implement the law and the Rules of the Court.  The father though again fails to identify the Rules of Court or the law that I have failed to implement, and thus I cannot take that any further.  The father also makes the general allegation that I have denied him his civil liberties, but again there are no specifics of that allegation.  I do not know what he is referring to and I cannot do anything with that complaint.

32. The father repeats these general allegations in this affidavit.  He goes over the same ground again but I do not propose to repeat what I have just said about these complaints that he has.  He refers to a decision I made about the Independent Children’s Lawyer serving documents upon him later than the time that was allowed for that to occur.  He is right when he says that I was satisfied that the documents had been served correctly.  On the evidence that was before me I was perfectly satisfied that the father had made every effort to avoid being served, that in effect he was served, and that I was not going to allow the fact that it was later than the time that had been specified for service to prevent the matter proceeding as it should.  The father then refers to me making orders about declaring him a vexatious litigant.  As Mr Hemsley has rightly pointed out though the order made in relation to the father being able to bring further applications was an order made by consent, and thus I do not need to say anything more about that.

33. The father, continuing to looking at his affidavit, again repeats this issue about the contempt application.  He also complains about me dismissing all his attempts to have the Independent Children’s Lawyer dismissed for failure of his duty of care.  It is not only me who has dismissed such applications; I note from the file that Dawe J has also dismissed such applications.  I am not going to go to each and every one of the times that such an order has been made dismissing such an application.  There is nothing new that the father has raised in this affidavit.  There is nothing that he alleges which indicates any bias, prejudgment or the like, and there is nothing which would lead to any disqualification.

34. The father refers to the respondent mother perjuring herself under oath and he says in his affidavit that I have refused him permission to listen to the transcript.  However, that is a blatant misrepresentation by the father of what in fact happened.  He made the application, I asked him to identify the date of the transcript that he wanted to listen to and he could not.  Therefore I could not make an order about that.

35. In summary, in my view there is absolutely nothing in any of the three affidavits relied on by the father which satisfies the test from Johnson, and there is no basis for me to disqualify myself from this case.  Simply because the father does not like the orders that are made does not therefore mean that the judicial officer who makes the orders is biased against him.  Clearly the father is not happy with the way that I have handled this matter and the orders that I have made, but that is not the test. 

36. I have now noted that the father has filed a Further Application in a Case on 24 September 2007.  That application has been served upon the mother and Mr Hemsley.  They are both here today obviously to deal with the application of 11 September 2007.  In an attempt to assist the father, and to avoid an unnecessary court hearing, I propose to bring forward the application filed on 24 September 2007 to today.  The application seeks leave to file an application but there is no application identified in respect of which leave is sought.  It is not open to the father to simply make a bald application seeking leave.  He has to identify that application, and indeed the correct way to do it is to annex to either an affidavit or the application for leave itself, the application in respect of which he seeks leave, so that the judicial officer who has to determine the application for leave has something to deal with.

37. I am not going to allow this court’s valuable time to be wasted.  The father needs to file an application in the proper form.  In other words, if he wants leave to file an application he has to identify the application about which he seeks leave at the same time.  He has not done that and thus I propose to dismiss the application.

I certify that the preceding 37 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

Date: 15 October 2007