Grange and Langmeil

[2015] FamCA 1237

FAMILY COURT OF AUSTRALIA

GRANGE & LANGMEIL	[2015] FamCA 1237
FAMILY LAW – CHILDREN – Child over held by mother and returned to father – costs.

APPLICANT: Mr Grange

RESPONDENT: Ms Langmeil

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED 21 December 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne via video link from Adelaide

JUDGMENT OF: Bennett J

HEARING DATE: 21 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dixon

SOLICITOR FOR THE APPLICANT: AK Reeves & Associates, Adelaide

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: Self Represented

Orders

IT IS NOTED that for case management purposes:-

a)that there is a hearing before the Honourable Justice Dawe, in Adelaide, on 12 February 2016 for the mother’s application in a case;

b)that pursuant to the Order made on 20 October 2010 by the Honourable Justice Dawe the mother is not entitled to institute proceedings without first obtaining leave of a judge to do so; and

c)that the mother has not sought leave to institute proceedings and no leave has been granted to the mother enabling her to do so

IT IS ORDERED:

1. The mother’s oral application for an adjournment of this application of the father filed on 14 December 2015 (“the application”) is refused.

2. The mother forthwith deliver the child M born … 2004 to the Child Care Room of the Adelaide Registry of the court to abide further order of the court.

   IT IS FURTHER ORDERED BY THE COURT:-

   3. Pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to find and recover the child M born … 2004 and to deliver the said child to the father NOTING that this recovery order is deemed to be executed in full upon the  Federal Agents taking possession of the said child, delivering the said child to the Child Care Room and signing the child into the care of the proper officer of the Child Care Room.

   4.The applicant father, Mr Grange, be and is hereby authorised and permitted to remove the child from the Child Care Room at his convenience AND IT IS REQUESTED that he do so prior to 1pm this day in the event that the Child Care Room is unattended during lunch time.

   5.That the parties be and are hereby mutually restrained by injunction from removing or causing, permitting or suffering the children M born … 2004, W born … 2005 and L born … 2006 (or any of them) to be removed from the Commonwealth of Australia.

   6.That the Australian Federal Police place the names of the said children M born … 2004, W born … 2005 and L born … 2006 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list Until Further Order of this Honourable Court.

   7. *That the mother’s entitlment to spend time and/or communicate with the children (or any of them) be and is hereby  suspended until 12 February 2016 or further order of this Court (whichever first occurs).*
   8. That paragraph 5 of the father’s application be dismissed NOTING that there has been no determinaton of that application on the merits.

3. That the father have leave to make an oral application for costs.

10.  That the mother make a contribution towards the father’s costs of and incidental to the application, fixed in the sum of  NINE HUNDRED DOLLARS ($900.00).

11. That the application be otherwise dismissed and the hearing allocated to the application, being 12 February 2016, be vacated NOTING that the mother’s previously filed application in a case remains listed for that day.

* Pursuant to Regulation 17.02 of the Family Law Rules 2004 this order is amended on the 23 day of December 2015*

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Langmeil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 365 of 2008

Mr Grant

Applicant

And

Ms Langmeil

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1.This parenting matter, which concerns the child M born in 2004, comes before me by video link between this Registry and the Adelaide Registry. Everyone except me is in Adelaide.

2.M is the oldest child of the applicant father and the respondent mother. The parents married in 2003 and separated in 2008. I gather that there has been a large amount of litigation about parenting arrangements for the children who, apart from M, are W born in 2005 and L born in 2006 (hereinafter collectively referred to as “the children”).

3.A significant feature of the litigation, and one which the mother seemingly does not wish to address, is that on 20 October 2010 Dawe J ordered that the mother be restrained from filing any application in this Court in relation to the children or in relation to property settlement matters, except by leave of a judge. Any application for leave is to be made in the first instance to a judge in chambers and, unless otherwise ordered, is not to be served upon any other party.

4.The matter which brings the parties to court today is the father’s application in a case filed on 14 December 2016 in which he seeks an urgent hearing, a recovery order and a watch list order in relation to M, that the children’s time with the mother be suspended for a period of six weeks and that “the mother be restrained … from applying to vary” the Order made on 3 August 2011.

5.The Order made on 3 August 2011, by Stevenson J, provides that the father have sole parental responsibility for the children, the children live with the father and spend time with the mother:

4.1      once per week at a contact centre for the maximum period permitted by the manager of that facility; or

4.2      from 10:00am until 2:00pm each Saturday under the supervision of a person approved by the father.

6.The children’s interests were represented by an independent children’s lawyer. There is no independent children’s lawyer today.

7.The father’s application is supported by an affidavit sworn 14 December 2015 which I have read. The father deposes at [5] that from August 2011 to November 2014, the mother spent four hours with the children each Saturday under his supervision. He deposes that he was then prepared to allow the children to spend time with the mother otherwise than under his direct supervision, and overnight but that he observed that M started acting aggressively whereupon the father said that he would revert to the previous arrangement of supervised visits of four hours duration, consistent with the orders.

8.From December 2014 the mother did not spend time with the children nor contact the father to arrange to do so. The father deposes at [7] that he permitted the maternal grandmother to see the children. It recently came to the father’s attention that the mother has been communicating with M whilst on visits to the maternal grandmother and the father deposes at [8] to M challenging him about the propriety of the court proceedings which culminated in the Order made on 3 August 2011.

9.The father deposes at [9] that the mother attended M’s school on 23 November 2015 and tried to communicate with him. The mother then contacted the father and arranged to spend time with the children, under the father’s supervision, on 28 November 2015 and 5 December 2015. According to the father at an arranged spend time occasion, the mother removed M from the father’s care in the following circumstances:

[15]. At 9.45 am on the 12th of December 2015 the children and I arrived at [a park] for the mother to see the children.

[16]. When we arrived the mother was in the car park with her son [NN].

[17]. While we walking to [the park], the mother referred to me as an animal in front of all the children. I ignored her comment.

[18]. The mother then encouraged the children to play with and under the ground sprinklers. The mother laughed as [M] grabbed the sprinkler and directed the spray to the other children. I suggested that this was not the right thing to do, as the sprinklers should not be touched and I believe they use boar (sic) water, which could make the children ill.

[19]. At this point, the mother launched into an incoherent but aggressive rant at me in front of the children. Both [W] and [L] came to my side, while [M]l was laughing and encouraging his mother.

[20]. Towards the end of the visit the mother approached me and said that when she spoken to [M] on the phone and in person, he ([M]) had said that he wanted to live with her.

[21]. I asked the mother when she had spoken to [M] without my knowing but the mother ignored my question and went on to state that when a child reaches 12 years or close to 12, the child can choose which parent they want to live with.

[22]. By this time I was getting quite suspicious about the mother’s comments especially in light of previous comments made by her and [M] so I rang the Police and alerted them to the possibility that the mother might retain the child against Court Orders and I might need their assistance at 2pm.

[23]. At the end of the visit we reached the car and said goodbye but [M] was very close to his mother when she unlocked the car and when she unlocked the car she allowed [M] to get in the car and then threw him the keys and he locked the car door.

[24]. By this time the Local Police had turned up and I greeted them and explained the situation and then the mother spoke to them and said there is nothing you can do to get him out of the car as you are not Federal Police.

[25]. The Police advised her that she is breaching the Court Orders and she should return the child but she just ignored them and returned to her car.

[26]. The Police did explain and I already suspected that they could not forcibly remove the child from her car and that I need the Federal Police.

10.The father deposes at [13] to the child M having asked him on 30 November 2015 what consequences would flow if he (M) refused to return after spending time with the mother. The father told him that the police would likely become involved. The father, who is the parent with sole parental responsibility for the children, deposes at [27] to [31]:

[27]. I am very concerned about the mother’s behaviour and her influence on [M]. I know that he might be missing his mother having not seen her for nearly 12 months and has divided loyalties but the mother appears to have in the last couple of months been secretly contacting him and involving him in a secret plan for her to breach the Court Orders and have him come live with her.

[28]. I do not even know if the mother is still permanently living in Adelaide given that I heard that she had been living in Melbourne only recently and she has been coming to visits with a male who appears by his clothing to be a member of a motorcycle gang.

[29]. The child [M] is very vulnerable and easily influenced and I am concerned about the psychological impact the mother’s actions will have on him.

[30]. The children have been seeing a child psychologist for the last 12 months. The Psychologist was actually organized by Families SA due to the number of reports that the mother has made about the children in the past and they could refer to the Psychologist about the childrens (sic) welfare.

[31]. Upon the return of [M] to my care I would like him to spend some time with the Psychologist to determine the impact on him that the mother’s actions have caused before continuing again with the visits.

11.The mother has not filed any response to the father’s application for, inter alia, a recovery order. Had the mother filed a response to the father’s limited application, Daw J’s order of 20 October 2010 would not impact on her. That is because the mother is restrained from initiating proceedings not from responding to proceedings instituted by the father, such as those which bring this case before me today. However, the mother’s application of 26 November 2015 is an application initiating a proceeding as is the application she seeks to make today which is, in effect, an application for a change of residence.

12.The mother has recently instituted proceedings, without seeking or obtaining the necessary leave to do so, by an application in a case filed in the Melbourne Registry on 26 November 2015. The first page of the application is annotated as follows:

Urgent: Attention Diana Bryant or a family court judge who does not think young children engaged in adult sex acts is ‘normal’ or who does not think reporting child rape is ‘vexatious’ or a judge who protects children currently being assaulted (If there is one??)

13.That application was returnable on 2 December 2015 before Macmillan J sitting in the Judicial Duty List in Melbourne. The relief sought appears as six paragraphs of closely typed narrative, detail and evidence from which it is apparent that the mother seeks leave to file an application and supporting affidavitory evidence to obtain possession of the children, “for return of the former matrimonial home to the mother and a discharge of the family court bankruptcy urgently”.[1]

[1] Application in a Case, filed on behalf of the mother, 26 November 2015, [6].

14.On 2 December 2015 Macmillan J transferred the mother’s application in a case to the Adelaide Registry where it is returnable before Dawe J on 12 February 2016. Accordingly, I am not seized of that application.

15.As matters stand, M has been separated from his siblings for nine days — since the incident at the park on 12 December 2015. Under the extant parenting order made 3 August 2011, the mother is entitled to four hours of time with the children once a week under the supervision of a contact centre or a supervisor approved by the father.

16.The mother has not applied for leave to make any application for parenting orders to regularise her over holding of M since 12 December 2015.

17.In her affidavit in support of the application sworn on 26 November 2015, which necessarily predates the over holding by two and a half weeks, the mother deposes to threats made by the father in 2014 to kill her (relayed by the children) and M having complained of being threatened in November 2014 at [4] and physically assaulted by the father in April 2015 at [2]. There is no explanation of why no action was taken by the mother in April this year. She deposes at [3] “[i]n November 2014 [M] informed Police Officer [NS] he wanted to kill himself and Police Officer [NS] informed the mother that [M] was disclosing self-harming”. There is no explanation as to why the mother took no action a year ago when, as referred to above, the father deposes that the mother ceased spending time with the children. This is material with which the father has not been served and in respect of which he has not been accorded procedural fairness. If a child is at risk, procedural fairness may have to temporarily be given way but this is a situation where, even on the wife’s evidence, the child M made statements to a police member over a year ago who would, presumably, have been aware that the child was in the sole care of the alleged perpetrator and yet no action was taken by the police or protective services at a child state welfare level or by anyone in this Court. Given the delay between the alleged complaints and any action taken by the mother, I would regard this evidence with circumspection if it was before me (which it is not) until the father has an opportunity to answer and test it.

18.Today the mother has brought M to court and announced that M wants to be introduced to me, speak to me and be an “independent party” in the proceedings. I do not consider that it is appropriate to speak to M at this juncture. It is his mother’s responsibility to run her case, not M’s responsibility to be his mother’s advocate. I am very mindful of my obligation to take a child’s views into account in the process of any determination in which the child’s interests are the paramount consideration. I am fully cognizant of the court’s need to accord children respect and to do so by keeping them generally apprised of the progress of proceedings, receiving and taking into account their views. However, I am also mindful of my responsibility to safeguard M’s wellbeing in the process. That involves him not being subjected to conscious and unconscious pressure from the mother and those who support her and attend court today when the mother comes to court in an apparently unsustainable position.

19.The mother seeks to make an oral application for a recovery order. For a start, the mother cannot make applications without leave and she does not apply for leave. Perhaps even more significantly, a recovery order will only be made requiring delivery up of the child to a person entitled to care of the child. The mother is not entitled to care of the child. She would accept a change of residence to support the recovery order but that begs the issue about the mother being restricted from making an application for change of residence without having first obtained leave to do so.

20.If or when the mother obtains leave and institutes parenting proceedings, M may well have an independent children’s lawyer appear on his behalf and there may be an assessment by Child Dispute Services. In our jurisdiction, the voice of the child including the views of the child are usually communicated through an independent children’s lawyer and a family report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) or a child and parents’ issues assessment under s 11F.

21.I did not consider that M’s interests will be advanced by me speaking to him today. The mother has an application before the court today. There is involvement by an independent children’s lawyer or the receipt by the court of any family report.

22.At approximately 11:30 a.m. (Melbourne time) I directed that M be taken to the Child Care Room in the Adelaide Registry. That necessarily involved the mother taking him personally or with the assistance of one or some of the people who I understand accompanied her and M to court today.

23.An hour elapsed and the child had not been taken to the Child Care Room. It is wholly inappropriate for a child to be brought to court and left standing around the foyer. The purpose of the matter being stood down at 11:30 a.m. was so M could be placed in the Child Care Room.

24.I requested that Federal Agents (Australian Federal Police) take possession of M and deliver him to the Child Care Room. This was done.

25.The mother said that she had not understood that she was obliged to sign the child in to the Child Care Room. I suppose that is conceivable. However, M was in her possession and present in the precincts of the court with her supporters. I did not envisage that M would sign himself into the Child Care Room.

26.The mother spoke in opposition to the father’s application for a recovery order. She had no affidavit evidence or independent evidence. Her statements were not submissions or evidence but a series of bald assertions. She stated, inter alia:

a)M had been physically assaulted by the father, threatened with murder, threatened with my murder and that the South Australian police have evidence to corroborate these matters but have refused to comply with Freedom of Information processes when a Member of Parliament asked for those reports;

b)M was not being withheld by her. He had locked himself in her car on 12 December 2015;

c)M has had neck injuries and eye injuries;

d)M has been told (presumably by the father) that the mother will be killed and her house will be set on fire, if he continues to talk about what happens at the father’s home;

e)She is concerned for the immediate safety of all three children;

f)She agreed that none of the children should be removed from Australia for the time being;

g)Various complaints about M being abused have been made by his schoolteachers to the child protection authorities whilst the mother was not even in the State.

h)M’s injuries were photographed at a hospital and the attending doctor asked if the father would be charged.

27.The mother’s presentation is concerning. If her assertions are based in fact, they would be extremely concerning. I accept that the mother believes the assertions to be true. However, I have significant doubts that the assertions are factually accurate.

28.I have mentioned above the accusations of the mother around events in 2014 in respect of which she did not take action. I do not know if [26(a)] and [(c)] above are those accusations re-stated or if they are recent. It is problematic for the mother to come to court and ramble from one unspecified accusation to another. It precludes the father and the court being able to identify what case the he has to meet. If the issues cannot be clearly stated, the court is unable to identify the controversy in which findings should be made and a decision rendered.

29.As with any parenting matter, I regard the child’s best interest as the paramount consideration and Part VII and in particular, s 60CC of the Act provide a pathway to assist in arriving at a decision which is in a child’s best interests. However, the considerations must necessarily be made in relation to evidence. The evidence can be conflicting but it has, initially, to be clearly stated. Of course, where a party repeatedly makes unfounded assertions about the other party that becomes an issue itself. When a party causes, permits or suffers a child to be involved in inaccurate or delusional allegations about the other parent, that is abusive and behaviour from which a child must be protected. I make no findings about the accuracy or otherwise of the mother’s accusations. I am circumspect. The best course of action for the mother is to prepare her case clearly and concisely and to be in a position to participate in the proceedings which are before Justice Dawe next month in the Adelaide Registry.

30.I asked the mother if she was under the care of a psychiatrist. She said that she has seen Dr SN and three others (I do not know over what period). The mother said, that Dr SN was the most recent practitioner and that he “recommended that I tell everybody what’s going on to the children, because he has seen the evidence of the child abuse”.

31.The mother says all of her (4) psychiatrists have given her a clean bill of health to wit, “said that there is nothing wrong with me”. It would be as well for the mother to obtain some reports to that effect for use in any subsequent proceedings and even on her application for leave to file an application. Of course, if the mother is not within the clinically relevant range for diagnosis of a mental illness there may be some psychological condition that impairs her ability to parent.

32.I am not prepared to act on the bald assertions of the mother, unsupported by evidence, to alter the existing parenting arrangements. That means that M must be returned to the father forthwith. It is not necessary for me to make any further order about M other than to direct that the officers in the Child Care Room can release M to the father.

Costs

33.The father makes an application for costs in the sum of $900. 

34.I am satisfied that in the circumstances of this case there are reasons justifying an order for costs by the mother in favour of the father. The father has been required to bring an application to recover M and he has succeeded.

35.I turn to s 117(2A) of the Act to consider what order for costs ought to be made.

36.I have statements from the bar table by the mother and on behalf of the father. I am satisfied that the mother is impecunious and that the father is on a modest teacher’s salary in South Australia. I am satisfied that neither of these parties can afford to spend money on legal costs which are unnecessary.

37.Neither party is in receipt of legal assistance.

38.There is no conduct by the parties in relation to the filing of documents or pleadings or particulars or discovery or inspection or admissions of fact which are an issue in these proceedings.

39.The main matter for consideration is whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court. I am satisfied that this is such a case. It was a blatant over-holding of the child.

40.The mother at all times knew that the father was the resident parent of M and she was obliged under the law to return M to the father. She failed or neglected to do so. The father has brought these proceedings in order to have the child retuned to him so that he can be reunited with his siblings within the father’s household. M will now be back in the father’s care.

41.The only part of the father’s application with which he has not been successful in is paragraph 5, in which he sought a restraint against the mother from applying to vary orders, being the parenting orders of 3 August 2011. In that respect, I have dismissed that part of the application but make it clear that I did so without a consideration of the merits of the application.

42.There is no offer that the parties have referred to. 

43.I have regard to the fact that the mother is obviously burdened by threats made to and about M and about herself, but the appropriate course in this case is not to over-hold the child. It would have been to make application for leave to institute proceedings and to then demonstrate in that leave application that she had an arguable case with some prospect of success. She has failed to do so. The father has been put to unnecessary expense.

44.The mother has not addressed me on quantum; $900 is claimed. It is a modest sum and less than what is calculable under the Family Law Rules. I will therefore be making an order that the mother pay the father’s costs of and incidental to this application.

45.The mother says she cannot pay. I have already taken that into account. Impecuniosity does not excuse unreasonable applications or taking unreasonable steps that require another party to have to bring an application before the court. The mother, and her supporters, made some exclamations which I suspect indicate their disapproval of the costs order. It would have been more informative for the mother to tell me something of how she could budget for the payment. I could have considered time for payment

46.I will order that the mother pay the father’s costs of, and incidental to, this application fixed in the sum of $900. That amount is payable forthwith.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 December 2015.

Legal Associate:

Date: 8 August 2016