Langmeil and Grange (No 3)

[2010] FamCA 1168

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE (NO. 3) [2010] FamCA 1168

FAMILY LAW – CHILDREN – interim orders – where the mother seeks orders that the children live with her and the father have supervised time – where the mother alleges that the father has sexually abused the children – where similar allegations were not established at trial – where the matter has a long history – where there are concerns about the risk of the psychological and emotional abuse of the children – where there are concerns surrounding the mother’s mental health – best interests – orders that the children live with the father and the mother have supervised time with the children

FAMILY LAW – JURISIDCTION – whether the Court has the jurisdiction to make an order by way of mandamus – held that State law does apply to the Family Court where it is not contradictory to the Family Law Act 1975 (Cth) – held that the Court does possess the jurisdiction to make such order

Family Law Act 1975 (Cth) ss 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 10 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR REEVES

SOLICITOR FOR THE APPLICANT: A K REEVES & ASSOCIATES

FOR THE RESPONDENT: IN PERSON

UPON NOTING: 

1. Ms Olsson appearing as a representative from the Minister of Families SA has attended on the Minister’s behalf and indicated to the Court that the Minister does not propose to intervene in the proceedings.

2. That there is no objection to the Minister or her representative having access to and the capacity to inspect all documents on the Court file.

Orders

1. The children continue to reside with the father and that the time spent with the children and the mother is suspended until such time as arrangements can be made for the children to spend supervised time at a Children’s Contact Centre on one occasion each month.

2. Within the next fourteen [14] days both parties take the steps to register at the Z Children’s Contact Centre and to apply for the ability to have the mother spend time with the children at the Z Children’s Contact Centre supervised by the centre once a month.

3. It is directed that both parties file and serve any application for final orders which they seek and UPON NOTING if there is any further application for final orders the Court orders thereafter pursuant to Section 68L of the Family Law Act1975 (Cth) as amended THAT the infant children M born … February 2004, W born … June 2005 and L born … November 2006 be separately represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party in these proceedings since the discharge of the previous Independent Children’s Lawyer UPON NOTING the Independent Children’s Lawyer is not to be Mr Terrence Stephen (pursuant to his request).

4. The father’s application for costs is reserved for determination at the time of final 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 ADELAIDE

FILE NUMBER: ADC 365 of 2008

MS LANGMEIL

Applicant

And

MR GRANGE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter was before the Court on the last occasion on 28 November 2010 when certain directions were made in relation to subpoenaed material and further affidavit material being filed.  The Minister of the Department for Families and Communities, Families SA, was requested to intervene and if the Minister chose not to intervene, she was requested to send a representative to the Court to explain that situation.

2. The Court has, since the hearing of 18 November, received further affidavit material from both of the parties and witnesses.  Annexed to the mother’s affidavit are certain other documents. 

3. We have the assistance today of Ms Olsson for the Crown appearing on behalf of the Minister who has indicated that the Minister is not proposing to intervene in these proceedings.  The Court has received the report of the Department for Families and Communities, being the letter of 10 December 2010 written by the Magellan Project Officer for Families SA which provides a detailed report on the concerns and allegations made in 2010 ranging through more than nine pages and coming to certain conclusions.

4. This morning I heard detailed submissions from the mother who appears unrepresented Counsel appears for the father and made submissions. 

5. The Court must take into account the provisions of the Family Law Act1975 (Cth) (“the Act”) and in particular Part VII of the Act and the sections of the Act which strongly indicated that the best interests of the children are the paramount consideration at all times.

6. The Court is also directed to consider the matters set out in section 60CC so far as they relate to determining the best interests of the children, even on this interim basis where the Court is required to assess the evidence in the documents provided to the Court (such evidence as yet to be tested by a final hearing).  I rely on the authority of Goode & Goode (2006) FLC 93-286.

7. It is significant in this matter to consider the applications before the Court in the context of the history of the proceedings which have been before the Court for a number of years.  There was a trial and final orders were made in relation to the children’s issues by Justice Bell some time ago.  Proceedings have then been started again and various orders made.  In particular the order of 9 November 2010 was made when the father was represented and the mother was in Court.  It provided for the mother to deliver the children up to the father at 2.00 pm that day and directed the issue of a Recovery Order.  The matter was then adjourned.

8. The matter has proceeded since.  Further affidavit material has been filed and the Police Department have answered the subpoena which was issued at the request of the mother.  The parties had an opportunity this morning to inspect the subpoenaed material.

9. What is most significant in this matter are the competing allegations.  There is a significant allegation made by the mother that the father has sexually abused the children.  In particular the mother refers in her affidavit to an allegation that the father has sexually abused the child W.  The father denies the allegations of sexual abuse and makes a serious allegation that the mother’s ongoing behaviour puts at risk the psychological and emotional welfare of the children because of the behaviour of the mother in frequently requiring them to attend doctors, sections of the police, hospitals, child protection services and community service departments in order for the children to be interviewed or assessed in relation to the allegations she says they have made which indicate that they have been abused by the father.

10. These are serious matters and it is necessary for the Court to weigh them up carefully.  In that context the Court has considered the report of Families SA dated 10 December 2010 and the decision that has been made by the Child Protection Service (“CPS”) not to take any further steps to interview any of the children. 

11. There are conclusions in relation to each notification based upon the material that was available to the authorities at the time.  When the final pages of the report are considered, it is significant to note that the CPS concludes:

    “CPS reported that the mother’s mental health became a concern and was reportedly also identified by Family Court family assessors.  CPS thought that a recommendation had been made that the mother have no contact.  CPS referred to a previous Family Court report that expressed serious concerns about the mother’s mental health.  South Australian Police advised they will not proceed with any investigation against the father and will contact the mother to advise of this.”

    This is under the heading of 9 November 2010.  It then continues:

    “Families SA, South Australian Police and Child Protection Service noted that the allegations currently being made by the mother indicated a pattern of behaviour that would probably continue and felt that her mental health needed to be addressed.  Also of noted concern is the current access arrangement whereby the mother’s partner supervises.  The impact that virtually unsupervised contact on the children that is being subjected to allegations against their father and the mother’s apparent desire to involve them in her vendetta against him was considered.  CPS were firm in their view that they would not be prepared to conduct interviews and suggested that the Family Court should review the information from previous assessments, that is CPS psych family assessments and perhaps undertake a new family assessment.”

    It concludes:

    “Families SA supervisor, […], Adelaide District Office, would like to inform the Court that Families SAs main concern is the impact on the children of the ongoing allegations by the mother and the possibility that the mother will withhold the children from returning to the father after access if access continues to be unsupervised.  A concern is also noted of the mother’s mental health and it is respectfully recommended that a family assessment and a mental health assessment of mother may be an appropriate course of action.  Families SA has considered the Court’s request and would like to advise the Court that Families SA respectfully declines to intervene in these proceedings.”

12. The report makes it clear that CPS are declining to carry out any further interviews of the children in relation to the allegations made that the mother asserts indicate that the children have been abused by the father. 

13. In the context of that report and the history of the matter I am now being asked by the mother to order, by way of mandamus, that the Families SA or CPS carry out further forensic interviews of the children in relation to these allegations.

14. In response to that, Ms Olsson, quite properly, questions the capacity of this Court to make an order by way of mandamus, that jurisdiction normally being exercised by the Supreme Court of South Australia. However, in view of the provisions of the Act, which allow the provisions of the State law, where not contradictory to the Act to apply to the Family Court I would assess that it is possible that this Court does have jurisdiction in appropriate circumstances to make the order. However, it is necessary to carefully assess whether such an order should be made.

15. One of the matters that must always direct the Court in this jurisdiction is whether that order would be an order which would be in the best interests of the children.  Even though it is a procedural order and may not be considered to be a parenting order it is certainly an order which is likely to have an effect upon the welfare of the children.  Therefore it is necessary for the Court to balance the considerations of whether it would be beneficial for the children to be again interviewed in relation to the allegations or beneficial for the children to be protected from further stress of ongoing forensic interviews.

16. I come to the conclusion, therefore, that even though I may have the jurisdiction to make such a mandamus order, I exercise the jurisdiction on the basis that the discretion should be exercised in a manner which promotes the best interests of the children.  I am not convinced that it would be in the best interests of any of the children to be subjected to further forensic interviews, particularly considering the conclusions reached in the report of 10 December 2010 from the Magellan Project Officer in Families SA.

17. I then turn to the question of the interim orders to be made for the children.  The mother seeks an order that the children live with her and that the father have only supervised time.  The father seeks an order that the children live with the father and that the mother’s time be suspended or that the mother spend time with the children for no more than four hours in the context of supervised arrangements being made for a Children’s Contact Centre to supervise that time the children should spend with the mother.

18. In this interim hearing I rely upon the fact that the allegations made by the mother are of a very similar context to previous allegations which have been made and which resulted in the decision of Justice Bell (when orders were made for the children to reside with the father and spend supervised time with the mother).  I also need to weigh in the consideration of the allegations the assessment made by the experts in the South Australian Police and Magellan Project Officer in Families SA, where they have declined to carry out interviews on the basis of the allegations made by the mother.

19. The mother has provided the Court with material in relation to other parties involved or who have become involved in these proceedings, including an annexure to her affidavit which appears to be a document signed by Emeritus Professor of Child Development, Prof BF.  That is a signed document but not a document on oath.  She also provides to the Court, by way of annexures to that affidavit, correspondence from Dr G, a psychiatrist whom she has consulted.  The orders of Justice Bell provided for the mother to receive treatment but Dr G has assessed that the mother does not have a substantial psychiatric illness.  The psychiatrist asserts that she does not have delusions.  (See letter dated 22 November 2010).

20. There is also annexed to the mother’s affidavit a letter from the Minister, the Honourable Jennifer Rankine, in response to the mother’s concerns about the Department and the police.  There is also a Police Complaints Authority letter indicating that they have noted the mother’s complaints about the police officer’s behaviour. 

21. Also annexed to the mother’s affidavit is appendix E, which appears to be emergency triage record from the Department of Mental Health Services in relation to the mother’s attendance or assessment taking place on 7 November 2010 wherein the symptoms were described as:

    “Police on scene have described [the mother] as “delusional and all over the place” and say that she would not “maintain eye contact.  Her eyes were darting all over the place and she was not maintaining focus.”  Making statements regarding sexual abuse to children by ex partner which SAPOL felt indicated that she was delusional due to bizarre content.  No further details.”

    That annexure continues to include, under “risk assessment” as part of the risk of harm to other, the rating was three and the comment was:

    “Significant/current thoughts/plus impulsive action/recent impulsivity/some plans but not well developed/increased alcohol or drug use”.

    And under the level of problem with functioning the rating was 4:

    “Extreme impairment/inability to focus in almost areas”.

22. The document which is annexed by the mother to her affidavit continues with the psychiatric assessment schedule which refers, at first, to a provisional diagnosis which was deferred but it then continues with a continuation sheet and that continuation sheet ends with some typed notes which includes, on one of the pages which is headed 7 November 2010:

    “[The mother’s] affect was reactive but incongruent at times to the circumstances.  At times her story was inconsistent.  She reported being driven to resolve her ongoing concerns that the children are being abused through the Court system and believes that Families SA and CIB/CPS may be working together to protect her ex partner.”

23. It then continues to refer to the mother’s report concerning her attendances upon Dr B and Dr G.  That page concludes:

    “Dr [AS].  Further assessment warranted given current complexity of this situation in critical issues presented.”

24. The continuation sheet, which is in handwriting for either 7 or 17 November 2010, 11.30, refers to the interview with a Mr SS.  There are numerous handwritten, but difficult to read, notes concluding with another summary:

    “In summary, no evidence of psychotic illness.  It is possible she has dramatic elements to her personality structure.  The history she gave me was strikingly plausible, even allow for her academic knowledge of child sexual abuse.”

    It then says:

    “CC to Dr [G].  Indicates he feels there is no psychotic illness but that the history re patient’s husband suggests a serious problem there.  No treatment plan at present.”

25. The material before the Court continues in some detail in relation to the assessment and includes an affidavit which was handwritten and apparently signed by Dr CA indicating that his opinion was expressed as:

    “Not possible to determine whether the injuries which he observed on [W] were sustained as a result of sexual abuse or natural causes, both being credible potential explanations.”

26. I have taken all of the material filed by the mother into account and am satisfied that the current evidence suggests that the risk to the children of ongoing emotional and psychological abuse is significant.  In particular I rely upon the material filed on behalf of Families SA.  The primary consideration is to protect the children.

27. I propose to order that the children continue to reside with the father and that the time spent with the children by the mother be suspended until such time as arrangements can be made for the children to spend supervised time with the mother at a Children’s Contact Centre supervised by the staff of that centre on one occasion each month.

28. I further order that both parties take all steps within the next 14 days to register with the Z Children’s Contact Centre and to apply for the mother to have time spent at the children’s contact centre at Z supervised by the centre once a month. 

29. I will direct that both parties file and serve any application for final orders.  If there is any further application for final orders I will direct, pursuant to the usual provisions, there be an appointment of an Independent Children’s Lawyer by the Legal Services Commission and that both parties provide the Legal Services Commission with copies of all documents filed by them since the discharge of the last Independent Children’s Lawyer, noting that the Independent Children’s Lawyer is not to be Mr Terry Stephens, as I understand that is his request.

30. The matter will return to the Court upon the filing of the applications for final orders. 

31. The father’s application for costs is reserved for determination at the time of the final orders. 

32. It is noted there is no objection to the Minister or her representative having access to, and the capacity to inspect, all documents on the Court file.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 December 2010.

Associate: 

Date:  22 December 2010