Langmeil and Grange (No 2)

[2010] FamCA 969

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE (NO. 2) [2010] FamCA 969

FAMILY LAW – PROCEDURAL – where the matter has a long history – where the mother seeks to present new evidence in relation to issues which have already been determined in previous proceedings – where the children are at risk of emotional and psychological abuse due to ongoing litigation – where the proceedings have been declared vexatious – orders made restraining the mother from filing further applications without the leave of the court

FAMILY LAW – COSTS – where the proceedings have been held to be vexatious – where the mother has been wholly unsuccessful in the proceedings – consideration of the financial circumstances of the parties – orders that the wife pay $800.00 for the father’s costs

Family Law Act 1975 (Cth) ss 117 & 118

CDJ v VAJ [1998] FLC 92-828
T & S (2001) FLC 93-086

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 20 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 October 2010

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

Orders

1. The mother’s Initiating Application filed on 5 October 2010 is dismissed.

2. UNTIL FURTHER ORDER MS LANGMEIL is restrained from filing any application under the Family Law Act 1975 in this Court in relation to the children M born … February 2004, W born … June 2005 and L born … November 2006 or in relation to property settlement matters except by leave of a Judge.

3. 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 mother pay the father’s costs of the proceedings fixed in the sum of EIGHT HUNDRED DOLLARS [$800.00] such amount to be paid to the father’s solicitors within one [1] calendar month from today.

5. All outstanding applications before the Court are dismissed.

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

EX –TEMPORE REASONS FOR JUDGMENT

1. This is the application of the mother initiated by initiating application filed on 5 October 2010.  The matter was listed before me today on the basis that the final orders sought are as disclosed therein, and that the mother was seeking urgent interim or procedural orders.

2. The final orders that the mother sought were:

   “(1)That the mother [Ms Langmeil] have sole parenting responsibility of the children [M] ([…]/02/04), [W] ([…]/6/05) and [L] ([…]/11/06).”

3. The orders also sought by way of final orders were that the father:

   “(2)…undergo a psychiatric assessment by an independent person qualified in the field of child sexual abuse and that he receive rehabilitation prior to any supervised contact with the children. 

   (3)That the mother [Ms Langmeil] receive at least fifty per cent of the income and assets accumulated during her 17 year union with the father [Mr Grange]..”

4. By way of interim or procedural orders, the mother sought:

   “(1)That the children [M] and [W] spend significant time with their mother unsupervised.”

5. The word “urgently” was then added in handwriting.  In the hearing before me, the mother says it was a typing error that she omitted the name of the other child, L, from that application. 

6. The mother continues to seek:

   (1)That the mother be at liberty to seek proper medical attention for any of the children if they present with medical conditions such as urinary tract infections, red swollen pensis’s (sic), trouble urinating, abdominal problems, infected ear drums, lumps and bruises to their foreheads or cut and bleeding bottoms, [and again the word “urgently” is added].

   (2)That the father [Mr Grange] undergo independent psychiatric assessment by a psychiatrist with skills and experience in child sexual abuse.  [Again, the word “urgently” is added.]

   (3)That the sale of the matrimonial home at [R], take place immediately to enable the mother to receive a fair and just percentage of the income and property of her 17 year relationship with the father.  [And, again, the words “urgently” are added.]

7. Paragraph 5 is in handwriting and says, “The mother respectfully requests the above interim orders be dealt with urgently.”

8. In support of the application, the mother filed an affidavit on the same day, to which is annexed appendix A, which appears to be a medical history referring to the notes of the doctor in relation to the information of 29 August 2010 and 30 August 2010.  Annexed to that affidavit is also a letter of four pages signed by the mother and addressed to the Police Complaints Authority dated 31 August 2010.  There is also annexed a letter to the Police Complaints Authority of 7 January 2010, and an Applicant’s Summary of Argument Form 18 in relation to the mother’s application for special leave to appeal to the High Court against the orders of the Full Court which dismissed her appeal from the final orders in relation to children and property settlement matters made by Justice Bell. 

9. The mother also filed a Notice of Child Abuse or Family Violence in which the mother asserts that W was abused.  She says in paragraph 1 of section 6 of the Notice of Abuse:

   “On Sunday, 29 August 2010, my five year old son, [W], was witnessed to have blood coming from his anus and three cuts around his anus.  This injury to his bottom was witnessed by the mother and a Court-ordered supervisor, Mr [Y].”

10. The reference to the Court-ordered supervisor, Mr Y, has to be seen in the context that the Court ordered that the children be supervised by one of several supervisors, one of whom was Mr Y, the mother’s current partner. 

11. The mother then recites the steps that she took to have the child’s anus medically assessed and the matter reported to the police.  One of the explanations that W gave to the detective, according to the mother’s statement of abuse, was that he had had something to do with bedroom furniture, and the mother says in her part F, paragraph 10 of the Notice of Abuse:

    “The mother believes, based on the sexualised behaviours, the physical symptoms of sexual abuse witnessed by independent witnessed (sic) for period of over two years, that the children [M], [W] and [L] are at a significant risk of further sexual and emotional abuse by the father [Mr Grange].”

12. She then asserts that she believes that the children are also at further significant risk of sexual and emotional abuse while in the care of the father due to the unwillingness of Families SA, the South Australian Police and the Family Court “…thus far in properly investigating and assessing the father by a psychiatrist with skills and expertise in child sexual abuse, and to properly assess the children by an independent professional with skills and expertise in child sexual abuse”.

13. These matters all have to be seen in the context of the litigation which has been ongoing for many years. 

14. In response to the application by the mother, I have received today the Response of the father in which he seeks by way of final and interim orders, that the mother’s application be dismissed, and that pursuant to the Rules and section 118 of the Family Law Act, the mother be ordered not to file or continue any further applications in this Court “unless expressly permitted by the Court.”  The father also seeks costs.

15. As part of his Response, the father has also sworn an affidavit, which was received by me today, in which he recites the history of the litigation indicating that a significant part of the hearing before Justice Bell in November 2008 was the issue of the mother’s allegations of sexual abuse and with whom the children should live. 

16. His Honour’s judgment was the subject of an appeal by the mother, which was substantially dismissed by the Full Court.  No special leave was granted to the mother to appeal to the High Court of Australia from the Full Court’s decision.

17. The mother puts to the Court that the material before the Court now is fresh material. She relies on the judgment of T & S (2001) FLC 93-086 and in relation to the provision of new information in relation to the case of CDJ v VAJ [1998] FLC 92-828. That submission by the mother also needs to be seen in the context of the decision of the Court in relation to the allegations which were made by the mother and which she now repeats, and also in the context of the material which the mother alleges establishes new material which would warrant further consideration of the orders that are in the best interests of the children.

18. Having carefully considered the mother’s affidavit material and her submissions, I accept the submission that there is nothing new in the character of the allegations made by the mother.  On the face of it, the mother is referring to the possible bleeding she saw after the child had been in her care for the weekend, and when taken to the doctor, no specific finding has been made by the doctor in relation to the observations he made which would be deemed to be serious enough or, indeed, of a character which would warrant the further re-opening of the Court proceedings in relation to what is in the best interests of the children. 

19. As a result of orders made by the Court previously, the Families SA Magellan Project Officer has replied to the Court by letter of 19 October 2010.  The Department had its attention drawn to the notification of child abuse or family violence which had been filed by the mother on 5 October 2010.  The Families SA letter recites:

    “Families SA records indicate this intake was assessed as no grounds for investigation based on the following information:

    ·The incident occurred two months ago and was appropriately assessed at the time.

    ·The child was seen by a GP at the time, and was also interviewed by SAPOL. 

    ·SAPOL concluded there was no basis to suspect that child abuse had taken place.

    ·The GP did not conclude the injury was of a nature where child sexual abuse was likely.

    The Court documents submitted to Families SA sheds no further light on this matter, and repeats historical information.  An investigative response at this time is not warranted.”

20. The letter concludes that:

    “Families SA would like to inform the Court that it does not intend to intervene and is agreeable to the matter proceeding through the Family Court.”

21. The mother takes some issue with the contents of that letter and, in particular, the suggestion that the GP did not conclude that the injury was of a nature where child abuse was likely.

22. The father’s affidavit refers to the notification that he received in relation to the allegation made as a result of the children spending time with the mother during the weekend which concluded on 29 August 2010. 

23. Weighing up all of those factors, I am satisfied that not only does the material before the Court not indicate that there is a sufficient basis for further litigation in relation to the best interests of the children, but that the information before the Court also establishes on the necessary standard of proof that the provisions of section 118 may well be applicable.

24. I propose therefore to dismiss the initiating application by the mother by way of both final orders and interim orders on the basis that it is clearly in the best interests of the children that litigation between the parents cease, and that the mother’s attitude to bringing proceedings in this Court as disclosed in the material from the doctor and the Families SA, causes the Court to have concern for the welfare of the children not because of the possibility of sexual abuse, but because of the possibility of emotional and psychological abuse that could be inflicted upon the children as a result of the mother’s attitude and the ongoing litigation in this Court.

25. In relation to the property settlement proceedings, the mother concedes that the property settlement proceedings were heard by Justice Bell and final orders made by him.  The mother asserts that the orders were wrong, or that she does not like those orders, and seeks to have further orders made on the basis that she is also claiming that the children reside with her.

26. Having viewed the material before the Court, there is no basis for the application made by the mother for a further order by way of property settlement, which of its nature is an appeal.  The mother has not taken any proper legal advice as to the ability to file an appeal from an order made some years ago by Justice Bell in relation to the property settlement proceedings.  The initiating application to a single judge of this Court is a misconceived application in relation to property settlement proceedings and is therefore dismissed.

27. In relation to the question of vexatious proceedings it appears that the mother, although she resides with a man who is a lawyer (or “criminal lawyer” as she refers to him at the bar table) she has not taken proper advice.  Therefore the proceedings in relation to the property settlement proceedings, when seen in the context of already concluded property settlement proceedings when orders were made some years ago, is also vexatious.

28. In relation to the question of costs, the father makes an application for an order for costs against the mother, and the Court is therefore required to consider the provisions of section 117.  The Act itself makes it clear that an order for costs is not an automatic order made when one party is successful.  Rather, the provisions of section 117 are that:

    “Subject to the provisions of subsection (2) (and other sections of the Act which are not relevant) each party to the proceedings under this Act shall bear his or her own costs.”

29. One of the exceptions to that section, however, is the provision of section 118, which is the section under which:

    “The Court may, on being satisfied that the proceedings are vexatious, dismiss the proceedings and make such order as to costs as the Court considers just.”

30. In relation to these proceedings, therefore, the provisions directly fall within the provisions of section 118, because I have made the orders pursuant to subsection (a) and subsection (c) of section 118.

31. In response to the submissions as to costs, the father’s counsel indicated that he was seeking an order of $740 plus GST.  Taking into account the documents filed and the attendance of legal representative at Court today, such an amount is more than reasonable and would not warrant any taxation. 

32. In relation to the question of whether such an order is just, and notwithstanding the provisions of section 118 overriding section 117, subsection (1), I also give consideration to the other provisions of section 117 (2A) which includes that:

    “…whether any party to the proceedings was wholly unsuccessful in the proceedings, and the financial circumstances of each of the parties to the proceedings.”

33. It is clear from the comments that I have already made, that the mother has been wholly unsuccessful in the proceedings before me, and in relation to the financial circumstances of each of the parties to the proceedings is one of the factors that needs to be taken into account.  I am aware from the documents before me that both of the parties, the mother and father, are employed, and the mother is residing with Mr Y, who has qualifications as a lawyer. 

34. Taking into account the overall factors in this matter, the most significant factors are that the mother has been wholly unsuccessful in the proceedings, and that I have dismissed the proceedings pursuant to section 118.

35. That otherwise dismisses all outstanding applications before the Court.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 October 2010.

Associate: 

Date:  2 November 2010