Langmeil and Grange

[2010] FamCA 45

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE [2010] FamCA 45

FAMILY LAW – CHILDREN – where final orders have been made and are the subject of an outstanding appeal – with whom a child spends time – where the mother’s time is to be supervised – whether the proposed supervisors are appropriate

Family Law Act 1975 (Cth)

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 20 JANUARY 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 20 JANUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR SPICER
SOLICITOR FOR THE APPLICANT:	WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT:	MR RICHARDS
SOLICITOR FOR THE RESPONDENT:	BARNES BRINSLEY SHAW LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR TREDREA
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR T C STEPHEN

Orders

IT IS ORDERED, PENDING THE OUTCOME OF THE MOTHER’S APPLICATION FOR APPEAL HEARD BY THE FULL COURT ON 7 OCTOBER 2009, THAT:-

1. Paragraph 3 of the Orders made by the Honourable Justice Bell on 17 November 2008 be amended to record that the mother spend time with the children M born … February 2004, W born … June 2005 and L born … November 2006 as follows:-

   (a)from 11.00 am until 3.00 pm each Sunday, commencing on Sunday 24 January 2010, subject to paragraphs 1(b) to 1(e) inclusive hereof UPON NOTING that such Sunday time will encompass Mother’s Day on Sunday 9 May 2010;

   (b)from 10.00 am until 3.00 pm on Sunday 4 April 2010 (Easter Sunday);

   (c)from 3.30 pm until 7.30 pm on … February 2010 (M’s birthday) which period is to be in lieu of the mother’s time to be spent with the children on Sunday 28 February 2010;

   (d)from 2.00 pm until 6.00 pm on … March 2010 (the mother’s birthday) which period is to be in lieu of the mother’s time to be spent with the children on Sunday 14 March 2010;

   (e)from 3.30 pm until 7.30 pm on … June 2010 (W’s birthday)

   UPON CONDITION THAT:-

   (f)all such times are to be supervised at all times by any of Ms E, Ms A or Mr I;

   (g)all handovers at the commencement and conclusion of each period are to be effected by the father and/or his agent at the mother’s premises at F Street.

2. The Initiating Application filed by the mother on 30 December 2009 be otherwise dismissed and removed from the pending list.

3. The appointment of the Independent Children’s Lawyer be discharged.

4. Leave is granted to the parties to bring any application impacting upon the children’s best interests by an Application in a Case pending the outcome of the aforesaid Appeal in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Langmeil & Grange is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 365  of 2008

MS LANGMEIL

Applicant

And

MR GRANGE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for determination today the mother’s Initiating Application filed on 30 December 2009.  The matters though which I have been asked to deal with today are those in relation to interim and procedural Orders.  The reason for that is obvious.  The proceedings were litigated and that resulted in the Judgment of Bell J delivered on 17 November 2008.  That Judgment has been the subject of an Appeal to the Full Court and I am advised that the Appeal has been heard but that the determination of the Full Court is still outstanding.  The terms of the Orders of Bell J confine the matters that I can deal with today and there is general agreement by all Counsel at the bar table that the matters to which I should confine myself are those in relation to the mother’s time to be spent with the children described in paragraph 3 of Bell J’s orders as being for a duration of not less than four hours and also the issue as to supervision of the mother’s time with the children.

2. The effect of the operation of his Honour’s orders in the discharge of the Independent Children’s Lawyer was that the mother was unable to pursue any additional supervised time once her time at the Children’s Contact Service had expired.  There were subsequently some times agreed between the parties but it has now been necessary for the Court to make a determination in relation to those two issues.

3. It is with the consent of the father and the Independent Children’s Lawyer that Ms E, Ms A and Mr I are appropriate to act as supervisors of the mother’s time with the three children M born in February 2004, W born in June 2005 and L born in November 2006.

4. Counsel for the mother abandoned his application in relation to Ms CE, the godmother of the children, after hearing the expressed concerns of the Independent Children’s Lawyer.  Thus the only proposed supervisor who remained in contention and required my determination was Professor BF. Professor BF is well known to this Court and to me on a personal level and as a witness in this Court.

5. There has been no suggestion made by anybody that Professor BF is not entirely suitable to act as a supervisor of time spent by the mother save and except in respect of the obvious expertise and explicit knowledge that she would bring to the role.  I accept the assurances of Counsel for the mother that Professor BF would not be called as an expert witness by the mother in the event that there were any subsequent proceedings in this Court, including any re-trial that may be ordered by the Full Court.  However, I accept the submission of Counsel for the father supported by the Independent Children’s Lawyer that that is frankly not the end of the matter.  There is a possibility which I cannot ignore that the father or indeed the Independent Children’s Lawyer may seek to call Professor BF to give evidence in an expert capacity.  It is fair to say that Professor BF would be somewhat different from the ordinary casual observer and supervisor of time.  It would be impossible for her to ignore her years of experience and her significant expertise in the areas of child protection, medical aspects of child protection, early childhood education, personal safety and child abuse.   Thus it would be legitimate for Counsel for the father or the Independent Children’s Lawyer to either examine or cross-examine her as to her interpretation of observations that she made during supervised time.  On that basis I think it inappropriate to approve Professor BF as a supervisor of the mother’s time with the children and hence I decline to do so.

6. That then left for my consideration the issue of the hours to be spent by the mother with the children.  To the credit of the parties there is agreement reached in respect of most of the matters pursued by the mother in paragraph 2 of the interim and procedural orders sought by her and they specifically are as to the 4 hours which were to occur each week.   It is the agreement of the parties that it is to occur each Sunday.  Further, the father has indicated his agreement to the mother spending four [4] hours with each of M and W on their birthdays and four hours with the children on her own birthday.  It is not a matter of considering it inappropriate that the mother spend time with L on her birthday, it is rather more a hope expressed by all parties that the Full Court’s determination will be known before L’s birthday in November this year.  The father also readily agrees to the request of the mother for time on Mother’s Day.  It of course will be in any event on a Sunday and will coincide with her ordinary weekly entitlement.  In my view issues of Christmas are issues that would be prematurely dealt with at this time.  The matter ought to await the determination of the Full Court.  In the event that that determination is not known prior to Christmas I propose to give the parties leave by the filing of an Application in a Case to pursue that issue or any other relevant issue that arises prior to the known determination of the Full Court.  The father has further agreed to the mother’s request to spend 5 hours with the children on Easter Sunday of this year.

7. The application of the mother in relation to telephone communication is illegitimate within the context of this determination as I am confined by Bell J’s Orders until the Full Court decision is known.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: