LANGMEIL & GRANGE

[2015] FamCA 225

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE [2015] FamCA 225

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to initiate proceedings – mother alleges father poses a risk to children’s wellbeing - whether reasonable likelihood of success – police and welfare authorities do not consider new disclosures warrant further investigation – long running matter with numerous allegations made by the mother – mother’s right to initiate proceedings - best interests of the children would not be served by fresh litigation – mother’s application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 26 March 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 March 2015

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

Orders

1. The Applications in a Case filed by the mother on 25 February 2015 and 24 March 2105 are dismissed and all matters are removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langmeil & Grange 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 hearing of an interim application, being the applications in a case filed by the mother on 25 February 2015 and 24 March 2015.  Although there are two applications in a case now before the Court in this matter, it would appear that the second document is a photocopy of the first document, because both are signed and appear to be dated 20 February 2015.  The orders that are sought in the application are as follows:

   (a)     I'm seeking an urgent leave of a judge for the order of 20 October 2010 by Hon. Justice Dawe to be overturned and, according to this order, application for leave is to be made to a judge in chambers.

   (b)    I understand my urgent application in the case filed on 13 February 2015 was not filed as I did not seek leave of a judge initially.

2. The opening affidavit material filed in support of the badly worded application in a case is the affidavit of the mother, which appears to have been sworn on 20 February 2015.  I refer to the bad wording of the applications in a case, because it is understood that the application is probably an application on behalf of the mother for leave to bring further proceedings in relation to the children.

3. Such applications have previously been brought and, on other occasions, dismissed. 

4. The order of 20 October 2010 was an order I made and delivered reasons on that date.  The order then provided for the mother to be restrained from filing any application in this Court in relation to the children M who was born in 2004, W who was born in 2005, and L who was born in 2006, or in relation to property settlement matters, except by leave of a judge.

5. 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.  There were orders also made for costs. 

6. The matter has not been heard in chambers today because, when the mother filed the application in a case with the affidavit, I considered it appropriate for the mother to be given an opportunity to be heard.

7. The listing in Court was also necessary as the affidavit that was filed in support of this alleged application (to overturn an order I made on 20 October 2010) raised some serious difficulties. 

8. The affidavit filed on 25 February 2015 is a handwritten document in which the mother gives her usual occupation as professional. 

9. I read the affidavit onto the judgment as follows:

   Please refer to application in case filed in Adelaide Family Court on 13 February 2015.

10. The following paragraph is different print and is put in a block of line:

    The media is not covering the story as far as I know.  I am not interested in a media story.  My interest, since early 2008, has been protecting my children from child abuse.

11. The next paragraph is in the handwriting similar to the first paragraph and is as follows:

    Based on advice from Federal Royal Commissioner into Child Sexual Abuse, the evidence in this case is currently at [Channel X].  Please contact the [Senior Judge] for recent information.

12. That is the end of the affidavit of the mother. 

13. The mother appears before me today unrepresented and has sought to have the Court take into account certain documents.  I therefore gave the mother the unusual opportunity at the hearing of an interim application (especially in relation to an application for leave to institute proceedings) to be sworn in and give her oral evidence on oath and to provide documents which she sought the Court to receive as exhibits.  I have heard her evidence and received six exhibits.

14. In her evidence, the mother refers to the fact that she is now seeking the return of her three children to her full-time care.  She considers that she is at risk and the children are at risk of domestic violence and abuse. 

15. She referred to the matters which had been raised with Families SA and the police department in relation to alleged threats to kill the mother and one of the children, M, and that M was suicidal.  She had referred these matters to Families SA and the police.

16. When the Court received her oral evidence, she put certain matters to me which she claimed were consistent with what she alleges is the risk to the children, and her complaints about the police and Families SA in investigating the matters about which she expressed concern.  I therefore refer to the documents which she has provided to me.

17. The first document was a letter from a senior public servant, Mr HT, dated 7 October 2014.  That letter refers to the reports and investigations in relation to the matters and deals with the dissatisfaction the mother has with a report prepared by the independent psychologist, Ms WJ.  He refers in the letter to factual inaccuracies and past assessments.  These related allegations made about instances in November 2010, and being unaware of any forensic assessment of W being undertaken, following his report to SAPOL on 7 November 2010.

18. That material needs to be considered in light of the orders of this Court made on 20 July 2012 and the appeal by the mother, which was dealt with by the Full Court of the Family Court of Australia.  Orders were made on 18 March 2013 dismissing the mother's appeal against the orders I made on 20 July 2012, which dealt with a large number of matters in relation to some of those allegations.  Indeed, they referred to the history of the matter in some detail.  The material that is before the Court today needs to be seen in the context of the history of the matter and the ongoing involvement of the mother with various authorities now, not only the police and Families SA, but politicians.

19. The second document the mother sought to rely upon is a letter from a senior Federal politician, dated 24 October 2014, to Mr HT, raising questions about the steps the department had taken in the past.  The material in that letter indicates that the mother has received assistance from the politician in writing to Families SA, but does not raise any new matters because they relate to matters dealing with incidents and inquiries which took place in 2010 and 2011.

20. Document 3 is an email from Ms RC (whom, we are told, is from the South Australian Police Department) to the mother, and is dated 27 April 2012 but seems to have been forwarded on 2 December 2014.  It says that:

    In relation to your request for access to the interviews I have conducted with [W] and [M], we are unable to release them as they are protected documents under the Children's Protection Act.

    I have spoken again with my supervisor, [Detective Sergeant CD] about previous allegations raised in relation to [Mr Grange]. (who is the father in these proceedings) Again I have been informed that all investigations referred to SAPOL by other agencies have been thoroughly investigated and they will not be re-opened.”

21. The fourth document upon which the mother relies is the letter from Mr HT, the senior public servant, to the mother, dated 16 February 2015.  I have taken all of the contents in that letter into account, including that in the conclusion it states:

    Families SA closed the intake on 5 December 2014.  It was noted that police were filing the matter.  Any concerns relating to the children's emotional wellbeing could be addressed by [Mr YD], and any other matters could be addressed by general case management.

    The letter then concludes:

    If you have any queries about the children's current matters, I encourage you to contact [Ms CC], acting supervisor, Families SA, Adelaide office ….”  (Then a telephone number is given). 

22. The fifth document is a letter from the psychologist, Mr YD, dated 30 January 2015, which I have also taken into account.  It refers to the therapeutic process which is currently being undertaken and includes, as part of that letter, that it was the psychologist's current assessment “that it is in the children's best interests to have you (the mother) support the therapeutic process if the following conditions are met”.  It then sets out conditions in relation to a working plan.  I have taken all of the contents of that letter into account.

23. Document six is a family contact plan which the mother said on oath was provided to her by the father, being a family contact plan draft 1 (17 December 2014). 

24. The Court needs to consider the leave which the mother seeks.  This is now quite different from the application in a case.  As I understand it, she is seeking leave to bring further proceedings in relation to the children. 

25. The reasons for judgment which were given in relation to the dismissal of the mother's appeal from the orders I made in December 2012, set out the basis upon which the Court should consider providing the mother with leave to reopen a case or bring fresh proceedings in relation these children's matters. 

26. I cannot, in these extempore reasons, set out the full history of the matter, but I have taken that into account and, in particular, referred to the history of the matter set out in the Court of Appeal's judgment of 18 March 2013. 

27. The court should not grant permission to start a case unless it is satisfied that the case has reasonable likelihood of success.  The material before the court today indicates that the mother has raised issues concerning the children's welfare and, in particular, what she says are fresh allegations of risk to the children's wellbeing by M threatening to harm himself and the children reporting to her the father's threats to harm them and the mother.

28. What appears from the documents the mother has provided is that these allegations have been referred to Families SA and to the South Australian Police.  The conclusion, as indicated in the correspondence the mother has provided, is that both departments do not consider that any new disclosures which have been made to them warrant any further investigation.

29. The material before the court does not form any basis to conclude that the matter would have a reasonable likelihood of success.  What the court must also bear in mind is the history of these proceedings and the considerable risk that the reopening of the case would cause harm to the children. 

30. The mother has just yelled out, "This is bullshit I’m sorry”.

31. And now yells out, "This is worse than the Catholic Church".

32. I continued to deliver my reasons but the mother continued to shout.

33. The transcript contains the following further comments made by the mother as I was delivering my reasons:

    ·This is outrageous

    ·My son was detained under the Mental Health Act

    ·Are you serious?

    ·The police have lied about my son saying he was raped

    ·I’ve been threatened with being killed and you’re not taking my children out of there?  What is going on in this Court?

    ·Families SA have lied, the police have lied, and you’re leaving my children with that man?

    ·Are you people insane?

    ·My children are going to sue you after they are 17.  They have lost their mother because of your corruption.  You should be ashamed of yourself.  You are a disgusting woman.  How dare you do that to my children.  Go to hell

34. I will have the remarks the mother has made taken from the transcript and include them into my reasons for judgment.  Those remarks cause me to have further concern about the risk which might be caused to the children if these proceedings were reopened. 

35. I have taken into account, in assessing the mother's application, not only the poor wording of her application but the application that she made in the witness box, seeking to reopen the case, to seek orders that the children be returned to her care.  In assessing the mother's application, it is necessary to consider the history of the matter as a whole and, in particular, the similar nature of the allegations that the mother is now making concerning the father.

36. Previously there were allegations of sexual abuse and threats of physical abuse and violence in relation to the mother and the children.  The fresh allegations concerning the threats by the father, are not exactly the same as those previously alleged by the mother but could be considered to be in a similar category.

37. I take into account that there needs to be serious consideration given to the mother's right to bring proceedings, as any person would normally have, to bring proceedings in this court.  However, that must also be weighed against the history of the matter.

38. Because it is an application for leave to bring proceedings, it is not, strictly speaking, necessarily a matter which relates to the welfare of the children, which requires that to be the paramount consideration.  However, taking into account the authorities of the Full Court, the welfare of the children is a factor which can also be considered. 

39. I find that it is not in the children's best interests for fresh litigation to be commenced in this court. 

40. Clearly, the matters to which the mother has referred have been dealt with by Families SA and the Police Department.  No risk to the children has been discovered by them to the extent they have determined that the matter does not require any further investigation.

41. If there were any genuine concern about the risk to the mother to be caused by the father's threats or behaviour, or any risk to any of the children of that nature, I have no doubt that the proper investigations of police and Families SA would have been undertaken. 

42. The mother has now left the courtroom as has the only other person who came into the courtroom with the mother.  I will conclude my ex tempore reasons and reserve the right to edit them before final publication. 

43. The applications in a case filed by the mother on 25 February 2015 and 24 March 2015 are dismissed.  That removes all matters from the pending list.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 March 2015.

Associate: 

Date:  2 April 2014