Langmeil and Grange (No. 2)

[2012] FamCA 588

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE (NO. 2) [2012] FamCA 588

FAMILY LAW - PRACTICE AND PROCEDURE – application by the mother seeking leave of the Court to file an application in a case – where the mother is seeking a substantial change in existing parenting orders – where the mother alleges that the children have been subject to violence whilst in the care of the father – where the matter previously proceeded to trial and judgment was delivered – where the matter has a long and complex history – where the allegations made by the mother are of a similar character to those previously made at trial – application of the rule in Rice and Asplund (1979) FLC 90-725 – best interests – where the Court was not satisfied that it was in the best interests of the children for proceedings to be reinstituted – application dismissed.

Family Law Act 1975 (Cth) s 60CC

Bennett and Bennett (1991) FLC 92-191
Garning & Director-General, Department of Communities Child Safety and Disability Services and Ors (Discharge of return order) [2012] FamCA 565
Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 20 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. The Applicant Mother’s Application in a Case filed on 4 July 2012 for leave from the Court to file an Application in a Case and a Form 4 Notification of Child Abuse and supporting Affidavit is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langmeil & Grange (No. 2) has been approved by the Chief Justice 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

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the Application in a Case, filed by the mother on 4 July 2012.  That Application in a Case contains an application to seek leave from the Court for an urgent hearing, in relation to an attached Form 4 and attached affidavit. 

2. The orders sought by the mother are the urgent removal of the children from “the risk of child abuse and the threats of further child abuse from the father, [Mr Grange] and the children’s urgent return to the full time care of their mother”.

3. Paragraph 3 refers to “permission of the Court” for the children to attend “appropriate counselling”.  Paragraph 4 seeks “an urgent independent psychiatric assessment of the father and rehabilitation”, presumably of the father. 

4. In paragraph 5 the applicant “requests the father have only supervised contact in a contact centre for two hours once per month following his assessment and the outcome of counselling”. 

5. In paragraph 6 the applicant “requests the father be restrained from contacting the children or the mother or threatening them in any way”.

6. In paragraph 7 the mother seeks permission to subpoena the records from RR Contact Centre and Childcare Agency NN, “as evidence of the children’s further disclosures of abuse and threats of abuse by the father”. 

7. In paragraph 8 the mother seeks “permission to subpoena the records from SAPOL, Families SA and the Child Abuse Report Line from 2011 to 2012, the current date”. 

8. In paragraph 9 the mother “requests the subpoena material referred to in point 7 and 8, be made urgently returnable” to the Court.

9. The mother appears this morning on the application for leave to bring those proceedings.  She appears unrepresented.  There is no appearance for the father.  The Independent Children’s Lawyer, Mr Stephen, appears. 

10. Filed or attempted to be filed on 4 July 2012 was a Notice of Child Abuse and an affidavit of the mother.  Those two documents refer to the allegations made by the mother.  The allegations are repeated in several different ways in each of the forms.  In particular the Form 4 says in Part F on 1 July 2012 “[M] stated that dad had hit [W] that morning”.  W stated, “Please, mum, don’t tell the police because dad hits me even more when you tell the police”.  The Form says that the statements were made, witnessed and recorded by the RR Contact Centre. 

11. There was a further allegation in relation to 14 April 2012, where it is alleged that M and W stated that “Dad hit them every night and yelled at them”.  It is said that these statements were also witnessed by the independent supervisor from Childcare Agency NN. 

12. Another allegation is that on 2 June 2012, W asked his mother not to tell the police or the Government about the violent computer games his dad let him play.  This was also alleged to have been witnessed and recorded by the independent supervisor from Childcare Agency NN.

13. The fourth allegation is that on 21 April 2012 and 27 May 2012, M and W described a violent R-rated movie they watch “All the time with dad.”  The allegation is that the children outlined scenes from the movie and the staff at RR Contact Centre informed the mother that the movie was R-rated.  The mother notes there that the children are only five, seven and eight years of age.

14. The Application in a Case, which the mother seeks leave to file is in relation to a significant change in the final orders of the Family Court of Australia in relation to the three children.  Such an application, of course, could not be by an Application in a Case, but would have to be by an originating Initiating Application if leave were to be granted.

15. The application for leave needs to be seen in the context of the history of these proceedings.  In this judgment I take into account the significant history of the proceedings, which is set out in the judgment of Justice Stevenson of 3 August 2011, a detailed lengthy judgment, which was delivered after a lengthy hearing before Her Honour in May of 2011, in which the issues of the allegations of abuse that were then made by the mother in relation to the father, were considered in some detail.

16. That judgment was also the subject of an unsuccessful appeal by the mother to the Full Court of the Family Court of Australia. 

17. I have given serious consideration to the background to the matter and the decision of the Full Court, as set out in the judgment of the Full Court of 16 March 2012.

18. The principle that has to be considered as the guiding principle in this matter is what is in the best interests of the children.  The rules that require applicants to show reasonable likelihood of success before the matter is dealt with on its merits and the principles of Rice & Asplund are clearly subservient to the best interests of the children as the paramount consideration.

19. The Court has to consider this application clearly in the history of this matter and not simply in the context of the allegations now made by the mother.  I rely upon the lengthy history of the matter set out in the judgment of Justice Stevenson, showing as it does that these children have been the subject of ongoing litigation for a considerable portion of their lives.

20. The mother has referred to the authorities of Rice and Asplund (1979) FLC 90-725 and Bennett and Bennett (1991) FLC 92-191. She also referred to the decision of Justice Murphy in the recent decision which is pending in the High Court of Australia, Garning & Director-General, Department of Communities, Child Safety and Disability Services and Ors (Discharge of return order) [2012] FamCA 565 which altered the interim arrangements for the care of the children, pending the decision of the High Court of Australia. That decision considered the best interests of the children, but does not greatly assist in determining the best interests of these children, as my decision has to be considered in the context of these children and the relevant history.

21. It is clear from the decisions that have considered the principles of Rice & Asplund (supra) that the decision must be one which is made in the best interests of the children, taking into account the history.  The Court should consider the history of the matter and should not lightly entertain an application to reverse an earlier custody order, if that merely invites endless litigation for change.

22. The decisions which have considered the principles of Rice & Asplund have moved on to say that a fresh application for custody (as it then was described) should not be entertained unless there exists a substantial change in circumstances.  In particular previous decisions have taken into account the enormous psychological harm which can be inflicted, not only upon the litigants but also upon the children by ongoing litigation.

23. The factors are all such that the Court needs to consider in each individual circumstance whether the particular circumstances of the matter under consideration, require the Court to consider afresh how the welfare of the children should be best served. 

24. In accordance with the submissions of the Independent Children’s Lawyer, that is a significant factor to be taken into account when considering whether the application of the mother has a reasonable likelihood of success.

25. In relation to the material that has now been put before the Court, it is alleged by the mother that the children have been experiencing violence at the hands of the father and are watching inappropriate films or playing inappropriate video games.  The allegations made by the mother, on this occasion, are strikingly similar to allegations which had been made by the mother previously, being based upon statements the children have made to her in the presence of other persons.  These types of allegations or similar allegations were allegedly made by the children in the presence of other witnesses and were issues which were determined most recently by Justice Stevenson.  They may not be the same allegations, but they are of a similar character.

26. The mother tells the Court from the bar table that the police are investigating the allegations.  The mother also relies upon the United Nations Convention on the Rights of the Child and requests that the voices of the children be listened to and that their voices be heard.  The Court, in determining what is in the best interests of the children, is required under the provisions of section 60CC, to listen to the wishes of the children, but it also appropriate, as was discussed in the previous proceedings, to take into account the context in which the children are making the statements.

27. In view of the submission of the Independent Children’s Lawyer and the history of this matter, particularly the history of the ongoing long litigation concerning these children, I am not satisfied that it is in the best interests of the children for the mother to be given leave to bring the further proceedings that she seeks.  I, therefore, dismiss the Application in a Case.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 July 2012.

Associate: 

Date:  26 July 2012