Langmeil and Grange (No 2)

[2011] FamCA 118

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE (NO 2) [2011] FamCA 118

FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – where the mother’s legal representative is not present at the hearing – where the matter is not ready for trial – procedural orders made with the view to prepare the matter for final hearing.

FAMILY LAW - INTERVENTION – orders requesting the intervention of the Minister for Families and Communities pursuant to section 91B.

Family Law Act 1975 (Cth) s 91B

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 9 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Reeves

SOLICITOR FOR THE RESPONDENT: A K Reeves & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

UPON NOTING THAT this matter is adjourned to enable the parties to:

(a)      Decide on affidavits of evidence in chief to be filed for trial;

(b)      Identify all witnesses to be called;

(c)Determine what reports or assessments, if any, are to be obtained or directed by the court to be carried out before the matter can be heard by way of final hearing; and

(d)Determine issues about the evidence each party will be seeking to rely on.

IT IS ORDERED THAT

(1)Further consideration of the matter be adjourned to 4 March 2011 at 9.15am before the Honourable Justice Dawe for directions to prepare the matter for final hearing.

(2)Leave to the mother to file her application and supporting affidavit referred to in court this day, 9 February 2011.

(3)Pursuant to section 91B of the Family Law Act 1975 the court requests the intervention of the Minister for Families and Communities, Families SA in these proceedings and the court requests the Minister to send a representative to the court on 4 March 2011 at 9.15am to indicate if the Minister is going to intervene, and if not, why not.

1. If any further application is to be made in relation to the removal of Mr Stephen as the Independent Children’s Lawyer and in particular any application for interim orders which could delay the final hearing of this matter, it is to be filed and served on the parties including the Independent Children’s Lawyer by the 23 February 2011.

IT IS NOTED that publication of this judgment under the pseudonym Langmeil & Grange (No 2) 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

EX TEMPORE REASONS FOR JUDGMENT

1. The matters in the application in a case do not deal with the specific directions that I gave on the last occasion.  The mother specifically seeks the return of the children L born … November 2006, W born … June 2005 and M born … February 2004 “to the full-time care of the mother”, psychiatric assessment of the father, and other orders, including the immediate replacement of the Independent Children’s Lawyer, and an order that:

   “The cessation of the harassment and false allegations by Families SA and Mr Terrence Stephen that the mother has a mental illness when she has been assessed four times by four different independent experts to have no mental illness.”

   The mother also seeks leave to issue subpoenas.

2. The only named respondent is the father, Mr Grange. Families SA are not named as a respondent, although they appear to be referred to as an agency against which the mother seeks to have orders made.

3. The mother says she is obtaining legal advice.  I return the application in a case to the mother on the basis that that matter will not be dealt with today, but I will hear the mother on her application to adjourn the proceedings to another date when she might be represented by her barrister in order to prepare the matter for directions and to ascertain whether there needs to be any preliminary hearing of the matter before the matter is fixed for final hearing.

4. The final matter could have been listed before The Honourable Deputy Chief Justice Faulks in the special listings if it were ready for that hearing.  However, there has been no agreement reached in relation to the assessment of significant issues in relation to the children, including who should be conducting any further inquiries, if any.  On the face of it, therefore, the matter is not ready for a final hearing during the fortnight commencing 7 March 2011.  I could list the directions before The Honourable Deputy Chief Justice but that would have to be as a reserve during the fortnight of 7 March 2011.  That listing would be unlikely to be convenient to a barrister from interstate.

5. I have given leave to the mother to file the application and supporting affidavit to which she referred this morning, but I strongly recommend that she obtain proper legal advice before filing and serving that application.  It is therefore appropriate to vacate the listing for final hearing for the week commencing 7 March 2011.  I will not remove it entirely, but I will not have it listed in the Judge’s callover which is proceeding on 28 February 2011 but will reconsider on 4 March 2011 whether any interim matter can be listed.

6. I take into account that the mother has received further correspondence from Families SA indicating that there is an investigation being conducted.  I note in November last year, I made an order requesting the intervention of the Minister, but that the Minister then declined to intervene.  In view of the new correspondence and the complexity of this matter, and in particular in view of the orders which the mother has foreshadowed she will seek against the Department, I consider it is appropriate for a further notice to be given to the Minister requesting that the Minister intervene in these proceedings.

7. The Minister will have an opportunity, as she always does, to intervene in these proceedings.  If the mother is obtaining proper advice, and then continues to seek orders against the Minister or the Department, they will need to be served and named as respondents to the proceedings so that they can be aware of the orders sought against them, and be represented in court.

8. It is obvious from the history of this matter that the intervention of the Minister would greatly assist the Court, and probably the parties and the children, but the Court cannot order the Minister to intervene; it is only a request that can be issued.

9. The matter is adjourned before me for directions to prepare for final hearing.

10. I am not hearing the application this morning for a variation of the orders made on 10 December 2010.  The orders made on 19 January 2011 were pending the hearing of the matter by way of final orders or specific orders.  The orders made on 10 December 2010 are continued, providing for the time spent between the mother and children to be supervised at the children’s contact centre.

11. The listing before me this morning was for directions to prepare the matter for that final hearing.  I have previously given reasons for the orders made in December 2011 and I have already adjourned the directions for the preparation of the matter for trial to 4 March 2011 at 9.15 am.  If there is any further application to amend the interim orders, then such further application needs to be filed and served on the other parties, including the Independent Children’s Lawyer by 23 February 2011, if the matter is to be heard on 4 March 2011.

12. On the last occasion, both parties agreed to Mr Stephen being reappointed as the Independent Children’s Lawyer.  If there is any proper application for the replacement of the Independent Children’s Lawyer the Court will hear argument about that based upon the affidavit material filed, and if there are unusual circumstances which might require the cross-examination of the Independent Children’s Lawyer, then consideration will be given to those circumstances. 

13. I will note that the mother is foreshadowing an application for the removal of the Independent Children’s Lawyer.  I have made it clear that any application and affidavit for interim orders, particularly interim orders which might delay the listing of the matter for final hearing, need to be filed and served by 23 February 2011, and the affidavit needs to contain all of the material upon which the party might be relying for the interim orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 February 2011.

Associate: 

Date:  1 March 2011