Langmeil and Grange

[2008] FamCA 1260

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE [2008] FamCA 1260

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time
FAMILY LAW – PROPERTY – former matrimonial home – superannuation entitlements

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 17 November 2008

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: Bell J

HEARING DATE: 29 & 30/9/2008 and
1 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Nelson QC and Mr Berman
SOLICITOR FOR THE APPLICANT:	Mark Mudri & Associates

COUNSEL FOR THE RESPONDENT:	Mr Richards
SOLICITOR FOR THE RESPONDENT:	Wallmans Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Tredrae
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

Orders

1. That the children M born … February 2004, W born … June 2005 and L born … November 2006 forthwith live with the father.

2. That the father be solely responsible for the parental care of the aforesaid children and any decisions in relation to their short term as well as their long term care.

3. That the mother spend such time with the children as may be agreed upon between the parties and not less than for a duration of not less than 4 hours on a weekly basis on the condition that the mother’s time spent with the children be supervised and the supervisor should be a person agreed by both the mother and the father and failing agreement as approved by the Independent Children’s Lawyer.

4. That once per month the Independent Children’s Lawyer arrange for the children’s spending time with the mother to be viewed under s 65L by a Family Consultant and such Family Consultant report to the court within six months from today.

5. It is directed that the mother undergo psychiatric counselling directed to the issue identified by Dr B in his Addendum Psychiatric Report of 18 August 2008, p 1.9 – 2.1, namely the mother’s near delusional beliefs concerning what she perceives to be the father’s sexual abuse of the children.

6. The Independent Children’s Lawyer be discharged after six months.

7. Upon payment of the sum of $144,460 to the mother by the father the mother do transfer to the father all her right, title and interest in the former matrimonial home situated at R within three months.

8. The ownership of the chattels held by the parties vest in them.

9. The parties be entitled to their respective superannuation entitlements without the necessity of a splitting order.

10. The question of a splitting of the superannuation entitlements is adjourned to a date to be fixed to be brought on by either of the parties within three months of today.

11. The possibility of the sale of former matrimonial home be adjourned to a date to be fixed within three months and on the same date as nominated in respect of Order 11 of these orders.

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 BRISBANE

FILE NUMBER: ADC  365 of  2008

MS LANGMEIL

Applicant

And

MR GRANGE 

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Langmeil (the applicant) for property settlement and parenting orders in relation to her marriage to Mr Grange (the respondent).  She seeks those orders in her amended application of 8 August 2008.

2. The parties commenced cohabitation in about 1993.  They married in January 2003.  The relationship had moved from its commencement in coastal South Australia to Adelaide in or about the year 1994.  From the unions aforesaid three children were born: M born in February 2004, W born in June 2005 and L born in November 2006. 

3. In late 2006 the mother became concerned at the manner of the paternal grandfather handling the infant child M.   She was concerned that he appears to have placed a hand under the bottom of M when it appeared to her to be inappropriate so to do and she further is concerned that at the time the paternal grandmother was cognisant of this inappropriate behaviour but did nothing about it.  The mother on numerous occasions, as she says, requested the paternal grandfather to stop this behaviour but it was ignored.  The mother’s concerns which according to the evidence were of concern to the father.  The father agreed in indicating to the paternal grandmother and grandfather that they were no longer to have any form of spending time with the children and as a result thereof the paternal grandfather and his wife have not seen the children since November 2007. 

4. The mother also was exhibiting heightened concern about the conduct of not only the paternal grandfather but the father and indicated it was necessary for the parties to seek counselling.  The respondent acquiesced and counselling commenced.  I make it quite clear that the father, the respondent, agreed to the paternal grandparents not having spending any time with the children alone. 

5. In October 2007 M started to make disclosures to the wife about Pop (the grandfather) touching S’s doodle and S having to touch Pop’s doodle and this person S subsequently became identified as a S E who had no contact with the paternal grandfather or grandmother in any way at all.  The mother indicates that an inference should be drawn (see her submissions) that M was not talking about SE but rather about the paternal grandfather.  This submission, which I am sure was made on instructions, indicates to me that perhaps this is the start of the mother’s what I will find to be delusional behaviour which became more and more bizarre as the time went by.

6. The allegations by the mother were of grave concern to the father.  He indicated that up until perhaps 2006 he and the mother were getting along reasonably well, that there was little concern about the mother’s parenting ability and in effect he still has little concern about her parenting ability per se but that her demeanour and conduct changed adversely and he exhibited to me in the witness box a great deal of concern and bewilderment as to the allegations made by the mother not only against him but against the paternal grandparents.

7. As a result of this Child Protection Services Family S.A. became involved and they had interviews on 15 and 21 January and 1 February.  The first two of the interviews were directed towards the issue of whether the paternal grandparent had sexually abused M.  On or about 21 January however the mother advised that she was concerned that M may have been influenced by the father not to make disclosures against the paternal grandfather.  As I have said, the father was asked to leave, which he did and from that time (about 22 January) the mother substantially escalates the allegations to include serious sexualised and psychological abuse of the children by the father and I refer to a document tendered as exhibit 9 in the document wherein the mother says 

   “[the father], [the paternal grandmother] and [the paternal grandfather] (the grandparents) have manipulated, threatened and blackmailed my children and myself for the purposes of gaining sexual gratification, power and control over my children.  They have been organised, systematic, devious, cunning and controlling.”

8. What evidence does the mother put forward to support these allegations?

9. The mother relies upon disclosures made not only to herself by in particular M, but other witnesses whose affidavits have been filed but were not called (CT and MC), particulars of which are set out in the reports as well..

10. The mother also relies upon two DVDs.  These DVDs came about as a result of the mother installing in the former matrimonial home security cameras which were focussed particularly upon the bedrooms and the living room of the former matrimonial home.  This took pace in or about July/August of this year.  In it she, in effect, triumphantly says:  There is the evidence which shows beyond doubt that the father has in fact sexually interfered with the children and in particular M.

11. I have had the task of viewing the DVDs which amount to something in excess of 100 minutes and upon my viewing it I was of the opinion that nothing in there would have concerned me greatly as to showing that the children had been sexually abused nor did I consider that their conduct was out of the norm or extraordinary.  Naturally, of course, I am not an expert in that field but I do believe that judges have children and that judges over many years of experience in this court are able to exercise some of the experience they have gained over those years in coming to that conclusion.  I did not see anything untoward in the conduct of the children save that I thought the mother exhibited a total lack of control and discipline over the children; that in fact, as I will touch upon at a later stage, the conduct towards the children and their complaints were such that I believe it was corrosive.  These DVDs in my opinion it have strengthened the case of the father enormously and have caused Ms D infra to change her view.

12. Have these allegations been substantiated?

13. The mother in evidence presented somewhat bizarrely.   She had a most unfortunate  manner in the Court.  She tended to laugh inappropriately and was not a person who gave me very much confidence in her ability to look at reality. 

14. I also note that in my opinion the parts of the DVD - I have been unable to find how I can identify them - but in particular on one occasion when the child was in bed, this being reasonably late in the evening, and he indicated that the father had slapped him.  The mother inter alia indicated that you should not be alone with your father but make sure that the supervisor can see you (to supervise) and be with you at all times as well as the other two children.  This was commented upon by Ms N and by the children’s Family Services witnesses that I will be touching upon at a later stage. 

15. Another matter which causes me great concern is exhibit 9 (see para 6 hereof) which is what appears to be a statement made by the applicant, for what purpose I am not quite sure, but I think it may be for the purpose of drafting affidavits or briefing the Children’s Protection Services. In it she believes that the father is responsible for systematically, methodically, deceptively carrying out severe psychological abuse and sexual abuse towards his sons, M and W and to what seems at this stage, to a lesser extent, his daughter L.  I refer to and incorporate this statement of the mother in the material in my judgment.  I refer to a page which appears to be page 6 of 013, a fax pagination, in which she says “It is clear to me that [M] and [W] and maybe even [L] have been sexually abused by their father.  The boys have also been subjected to extensive psychological abuse neither of which was clear while their father was present. Looking back, it now makes sense …”.

16. She goes on to refer to having found pornography on the respondent’s computer about 12 years ago.  This appears to be a one-off and there has been an explanation put forward by the respondent.  Further in the same paragraph she goes on to say, “[the father], [the paternal grandmother] and [the paternal grandfather] (the grandparents) have manipulated, threatened and blackmailed my children and myself for the purpose of gaining sexual gratification, power and control over my children.  They have been organised, systematic, devious, cunning and controlling”.  I have seen [the father] intimidate my children with a look in his eyes…..”.  It was obviously prepared prior to 6 February because on the same page she referred to M returning for a further assessment on 6 February with Child Protection. 

17. She sets out in that document what she says M has disclosed to her.  This document, I understand, was put before the Child Protection Units and has been considered by the relevant experts and the child experts are satisfied no form of abuse has been substantiated.  In fact, I will go so far as to say that they are satisfied that nothing has happened which was untoward (see Ms N’s evidence).

18. The hyperbole exhibited by the respondent in this document (and I refer to only two or three which appear therein) is an extreme concern to me.  It supports what I will discuss very briefly the evidence of a psychiatrist who was not called. Dr B says in a report, “Some factor …. has led to a faulty idea regarding the children being sexually abused which has enabled [the mother] to keep that particular emotion from awareness.  In technical terms this would be known as an overvalued idea referring to a near delusional belief” (my underlining).  It has been submitted by the husband, the respondent, in his written submissions that arguably the mother is significantly worse than what Dr B postulates.

19. I wish to touch briefly upon the various witnesses in this case.  I have briefly touched upon the mother.  Insofar as the maternal grandmother is concerned, it appears to me to be unable to divorce herself from fights of fancy and consider the reality of the matter in that there is no evidence to support any conclusion that the children have been sexually abused and/or any evidence of inappropriate behaviour either on the part of the father or the paternal grandparents.

20. The evidence of Dr B, the psychiatrist, was not attacked in any way at all.  I have already referred to his evidence. 

21. Insofar as the experts are concerns, Ms N of the Child Protection Services, South Australia, had not had the opportunity of seeing the DVDs to which I have referred and as a result of an order by myself she and Ms D, the Family Consultant, were able to view the DVDs, over a weekend I believe, and they have come to certain conclusions. 

22. Ms N’s conclusions are, in effect, I believe damning towards the mother.  She is of the view that the light-hearted, giggly and excited conduct of the boys indicated developmentally appropriate and it was healthy behaviour.  She did not see any evidence of matters which would heighten concerns of sexual abuse including coercion, age-inappropriate knowledge of sex, compulsive behaviour, deep fear, etc.  She believed that M’s licking and request that W lick him may be no more than an extension of his own pattern of behaviour in relation to licking generally.  She did express some concern in relation to W’s faeces smearing but indicated that this need not necessarily be evidence of or symptomatic of sexual abuse.  As I infer from her evidence, it is equivocal and without more it could not be suggested that that is a symptom of sexual abuse.

23. Ms N was concerned at the mother’s behaviour as evidenced on a DVD.  She did not physically prevent the behaviour by redressing them, by diverting them into other activities or separating them.  For example, I refer to the incident where M is jumping up and down on a double bed which I understand it the one that he shares with his mother and the mother made ineffectual attempts, in my opinion, to control him, she indicating that it was late and that if he did not go to bed she would close the door.  How this emphasised her discipline, I have no idea. 

24. I have touched upon the fact that the mother has indicated that M should protect himself and the others from the father when he is being supervised by the supervisors, and that they would protect them from his father. 

25. Ms N was of the belief that there was no evidence upon which it was possible to draw a conclusion that M and either or any of the children had been sexually abused.  

26. Ms D in her first report of 26 May 2008 was of the belief that if the Court was of the view that the children were not at risk from their father and if the Court was further of the view that the mother’s ability to parent the children appropriately had been comprised, then the children should be placed in the care of their father and only have supervised time with their mother for six months. 

27. In her second report, she varied her opinion and was of the view initially that the children should remain with the mother but it would be necessary for the mother to have professional counselling by way of psychotherapy in order to alleviate her concerns which as I have already found have no foundation in fact in evidence.

28. After seeing the DVD material, however, Ms D once again varied.  She indicated that her second view that the child should remain with the parent was brought about as a result of her attempting to lessen the impact upon the mother.  However, once seeing the DVD material she was concerned about the overall parenting and that her attempts at discipline were very, very weak.  She was of the view that the mother is attempting to either overtly or covertly alienate the children’s affections, (see the Statement concerning the supervision by the supervisors), that she allows M to stay awake and engage her repeatedly by making statements about his father.  This was quite evident on the DVD and in itself once again, as far as I am concerned, exhibited not only a lack of discipline but a concern that the child was allowed to continue discussing his father in perhaps not a most advantageous way.

29. She even went so far in relation to the concern that M appeared to have been instructed to watch his siblings (this is the one to which I have just hereinbefore immediately referred to) during supervised time with the father and with this behaviour as she found was only to be described as being “corrosive” of this child’s need to develop his own relationship with other adults. 

    “The destructive of this on such a young child cannot be overstated.”

30. She was also concerned about M sleeping routinely in the mother’s bed and she believed that W’s toileting behaviour was an “acting out sequence”.  She was of the view that the children had effectively been coached by their mother.  The monitoring by M (see above) of the father’s behaviour whilst spending time with the children was, in her view, constituting emotional abuse.  She was further of the view that the mother’s parenting was impaired by way of the clear emotional abuse of M, a lack of atonement or genuineness and selective attention.

31. The children were seen by Ms D.  Ms D was particularly concerned about the child M’s various reactions throughout the day which demonstrated to her that not only had he been not sexually abused but that his important relationship with his father had been suddenly removed from him in a manner which was not understandable to him.  The observed signs of anxiety, fragility and anger in this boy were in the writer’s opinion congruent with the conclusion that M has a complex grief reaction to the circumstances where his father has been dramatically removed from his life in a manner which has left him bewildered and in a setting where his mother’s fears would be apparent to him on a daily basis. 

32. The husband gave evidence, and in my opinion he exhibited truthfulness, honesty and frankness, and he was clearly bewildered by statements made by the mother against him and his parents and in which he believes there is no substance whatsoever and I have found to that effect.  The paternal grandfather was grief stricken as a result of his being excluded from his grandchildren’s life, as was the grandmother.  I have also no hesitation in saying that I am satisfied there is no evidence before me which would in any way cause me to have any concern in relation to the children’s whilst being in the presence of their grandparents.

33. The mother’s presentation was such that the family consultant was of the view that the mother might not be easily able to come to terms with an outcome which does not support her strong conviction in regards to the children having sexually abused.  She was further concerned that the destructive effects of the children of ongoing insinuation of unfounded sexual abuse allegations concerning them could not easily be over estimated.  The children are not at risk of their father and a conclusion reached by the family reporter was that the children should be placed in the care of the father and have only supervised time with the mother, at the same time requiring the mother to attend parenting therapy to assist her in understanding the meaning of the children’s behaviour and the children’s needs.

1. Ms D has gone far further now as a result of subsequent contact with the mother, particularly in relation to the DVD, and Ms D is of the opinion that the children should be removed from the mother.  The Independent Children’s Lawyer is afeared for the safety of the children and as a result of that I order that the children be presented to the Court immediately prior to this judgment being delivered so that the Independent Children’s Lawyer can endeavour to explain to them as best as possible the ramifications of such order.

2. I am of the view that the presumptions have obviously been discharged:  the mother’s conduct is not in the best interests of the children, in fact it is inimicable to the children’s further welfare.  (See the evidence of Ms D, Ms N and Dr B).  I believe that she would be unable to adequately relate to the father in any matters of importance to the children and that is why I am indicating that the father should be the person who has the sole parental responsibility.

3. I am therefore of the opinion that it is not in the children’s interests that they remain in the possession of their mother and I order that they forthwith live with the father. 

4. I further order that the father have the sole parental responsibility for the children. 

5. If it is necessary to discuss the provisions of s 60CC, may I make it quite clear that the mother’s continued unjustified, bizarre and delusional actions in relation to the allegations against the father would in future destroy any meaningful relationship that the children may have with their father.   And consequently I am also of the opinion that the mother’s general conduct towards the children is not in their best interests.

6. I am more than satisfied that the father’s attitude is such that he will endeavour to ensure that the children have a meaningful relationship with their mother and equally I am sure that the paternal grandparents will adequately assist their son if necessary in the general welfare of the children.

7. The further subsections to which I refer are those in s 60CC(2)(b).  I feel my reasons adequately explain the reason why that subsection is of relevance.

8. Section 60CC(3)(a) – at this stage I do not believe that the children are of an age at which they could express any mature and reasoned view. 

9. (3)(b) – I have referred to the evidence of Ms D wherein M exhibited signs of distress at his being separated from his father. 

10. (3)(c) – clearly I am of the opinion that the mother would at this stage not have the ability to facilitate and encourage– and her whole course of conduct and actions would not in any way facilitate a continuing relationship between the child and the father.

11. (3)(d) – I recognise that the children will have some difficulty initially but their obvious love and affections, particularly M’s, will enable them to overcome any feeling of separation for the period which I am going to indicate hereinafter.

12. So far as (3)(f) is concerned, I am quite clear that upon the evidence put before me the mother at this stage would be incapable of providing for the needs particularly insofar as emotional needs are concerned.

13. So far as (3)(i) is concerned, I am quite satisfied that the mother’s attitude towards the child and the responsibility of parenthood is sadly lacking.

14. These are the matters which under s 60CC I consider are important.

15. There has been evidence before me that the mother should cease having any form of spending time with the children for a period to enable them to get over what I consider to be the corrosive attitude of the mother towards the father and to the paternal grandparents. 

16. However, the children are closely allied to the mother and save for her delusional beliefs which inter alia have led her at least to covertly attempt to alienate the children, particularly M (supra).  She appears, according to the evidence of the father, to be a caring mother.  I feel that the children therefore would suffer too much from their being excluded from any physical association with their mother for a lengthy period.  Consequently, I am not persuaded to cease any physical association by the children to the mother but it is essential; for a considerable period such spending time with be supervised by a person agreed to between the parties or as appointed by the Independent Children’s Lawyer.

17. I am of the opinion that the mother is to have supervised contact with the children once per week on a Saturday for the maximum number of hours allowed by any contact centre.

18. I further order that once per month arrangements be made by the Independent Children’s Lawyer for the children’s spending time with the mother be viewed under s 65L by a family consultant and that such consultant report to this court six months from today.

19. Insofar as property is concerned, it appears to me that there is little or no dispute amongst the parties which I find quite surprising.  And that is that should the children reside with one or other of the parties it should be split 65/35.  Seeing the children are going to live with the father I am satisfied that the property should be split in the ratio of 65/35.

20. As a result of the parenting applications before this Court, understandably the question of the property has to a great extent been submerged in the parenting problems.  It appears to me doing the best I can that the parties are somewhat in agreement in that should the children remain with the mother, 65/35, to the father 65/35, although I do not have the luxury of a transcript, that it may have been suggested that it be 60/40.  If the children go to the father I would assume basically on the suggestion that the father’s income prospects in future are more substantial than those of the wife, she at present not being gainfully employed in a full time position. 

21. I find it somewhat difficult, as I have said, to determine this matter, particularly as there has been little or no argument directed towards it.  In the submissions of the father there is one paragraph.  There is none in the submissions of the applicant.

22. Doing the best I can, I will adopt the estimates of the parties’ properties as set out in the Joint Case Summary filed on 19 September 2008.  The matters for my determination come under two headings:  the assets of the parties or either of them; and, notwithstanding they are now classed as assets, the superannuation of the parties.  I incorporate the current financial circumstances of the parties at page 12 of the Joint Summary.  Consequently, it appears that the net, and I will accept the respondent’s valuations therein because I have to find one or the other.  I cannot, as the High Court has prohibited me from doing, add them together and divide by two, although I note that the bottom line insofar as the assets, ie the property assets, seem to be only some $5000.  As I have said, I will accept the father’s valuation.  And I note that insofar as the superannuation entitlements are concerned there appears to be no dispute between the parties.

23. It was faintly suggested by the father in his written submissions that the superannuation should be divided equally by way of some form of splitting order.  I do not think that that is the case here.  I would prefer all of the property, superannuation now being classed as property notwithstanding authorities which look at this dilemma, should be divided between the parties in accordance with the percentage that I will come to.  I have considered the respective evidence of the parties contained in their affidavits and the arguments put forward.  I would have thought that at separation, which was only some comparatively short time ago, it could not be suggested that the parties assets including the superannuation should be divided other than 50/50.

24. What then are the s 75(2) factors?  Obviously, as has fallen from both counsel for the respective parties, it is the question of the residence of the children.  They are three young children.  They are moving into school years.  They will be not only a financial burden upon the parties.  In this case since they are going to the father I doubt very much whether there would be any, or any substantial, child support payments being made and that would, of course, increase not only the financial difficulties but he will have a large emotional and physical component and I would have thought that the 15% referred to hereinbefore in all the circumstances should be in favour of the father.

25. Consequently, the assets of the parties should be divided 65/35.  According to my mathematics it would mean that the property of the parties, by property I mean physical chattels, would amount to some $337,000 net and the superannuation entitlement of both of the parties would be $107,400, making a gross total according to my maths of $444,400, 65% of which is $288,860; 35% being $155,540.  The wife has in her possession the Ford motor vehicle valued at $3500 and she has those superannuation entitlements to which I have referred, they amounting to something like $7400.   Therefore it should be deducted from the wife’s entitlement an amount of $3500 plus $7400 being $10,900.

26. Therefore, it would appear to me that the wife was entitled to an amount of $144,460.

27. The father, as I have said, desires if at all possible to retain the former matrimonial home.  Therefore I will order that upon the father paying to the mother the amount of $145,145 that the mother do transfer to the father the whole of her right title and interest in the former matrimonial home together with the furniture and effects and that the father indemnify the mother in relation to any debts in relation to such property, that the interests in the superannuations vest in the person in whose name they are accountable.

28. Therefore I order:

    (1)That the children M born … February 2004, W born … June 2005 and L born … November 2006 forthwith live with the father.

    (2)That the father be solely responsible for the parental care of the aforesaid children and any decisions in relation to their short term as well as their long term care.

    (3)That the mother spend such time with the children as may be agreed upon between the parties and not less than for a duration of not less than 4 hours on a weekly basis on the condition that the mother’s time spent with the children be supervised and the supervisor should be a person agreed by both the mother and the father and failing agreement as approved by the Independent Children’s Lawyer

    (4)That once per month the Independent Children’s Lawyer arrange for the children’s spending time with the mother to be viewed under s 65L by a Family Consultant and such Family Consultant report to the court within six months from today.

    (5)It is directed that the mother undergo psychiatric counselling directed to the issue identified by Dr B in his Addendum Psychiatric Report of 18 August 2008, p 1.9 – 2.1, namely the mother’s near delusional beliefs concerning what she perceives to be the father’s sexual abuse of the children.

    (6)The Independent Children’s Lawyer be discharged after six months.

    (7)Upon payment of the sum of $144,460 to the mother by the father the mother do transfer to the father all her right, title and interest in the former matrimonial home situated at R within three months.

    (8)The ownership of the chattels held by the parties vest in them.

    (9)The parties be entitled to their respective superannuation entitlements without the necessity of a splitting order.

    (10)The question of a splitting of the superannuation entitlements is adjourned to a date to be fixed to be brought on by either of the parties within three months of today.

    (11)The possibility of the sale of former matrimonial home be adjourned to a date to be fixed within three months and on the same date as nominated in respect of Order 11 of these orders.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              17 November 2008