LANGMEIL & GRANGE

[2012] FamCA 498

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE [2012] FamCA 498

FAMILY LAW - PRACTICE AND PROCEDURE – application by the mother seeking leave of the Court to file a contravention application – where the matter has a lengthy history – where the Court is required to take into account whether the application has a reasonable likelihood of success – consideration of the overall impact of ongoing litigation on the family as a whole – where it was deemed appropriate to grant the wife’s application notwithstanding the Court’s concerns regarding the success of such application – leave granted.

FAMILY LAW - COURTS AND JUDGES – application by the mother seeking that the Judge disqualify herself on the basis that she is in breach of the United Nations Convention on the Rights of the Child – where the Court was not satisfied that it was appropriate for the Judge to disqualify herself from hearing the matter – application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 21 June 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: A K Reeves

Orders

1. The mother has leave to file an Application for Contravention in the terms of the Application annexed to the Application in a Case for leave filed on 30 May 2012 and the affidavit in support thereof.

2. The Contravention Application (if filed and served in accordance with the leave granted today) to be listed before the Honourable Justice Dawe at 9.15 am on 16 August 2012 for mention with a view to ascertaining the length of the hearing in relation to the Contravention Application and providing for a future listing before a Judicial Officer UPON NOTING that the Independent Children’s Lawyer is excused from further attendance in relation to the Contravention Application.

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 an Application in a Case brought by the mother pursuant to directions of the Court requiring her to seek leave to make an application before this Court.  Orders made in 2010 restrained the mother from bringing any application before the Court without first obtaining the leave of the Court.  Subsequently, there have been significant parenting orders made, but the order in relation to section 118 would not normally be described as a parenting order.  Therefore, I consider that the order in relation to the mother being required to obtain leave still applies.

2. The question, however, is what are the principles that should be applied when considering granting leave and particularly, when considering granting leave in relation to an application for an alleged contravention.  The principles would normally indicate if the other party does not comply with an order of the Court, then it would be expected that the Court would grant leave for a Contravention Application to be instituted to ensure that the Court’s orders are respected and obeyed.

3. In this case, however, it is appropriate to take into account the lengthy history of the matter and in particular, the submissions of Mr Stephen, the Independent Children’s Lawyer in this matter.  The difficulty in this matter is that the mother is unrepresented.  The documents prepared in relation to the contravention were prepared by the mother and therefore, have to be seen in a context of the difficulties which the mother’s application creates because of their very form. 

4. The Contravention Application alleges that the father has breached the order of Justice Stevenson made on 3 August 2011 in relation to paragraphs 4, 4.1, 4.2.  Paragraph 4 of that order reads that:

   4.        The children spend time with the mother:

   4.1once per week at a contact centre for the maximum period permitted by the manager of that facility;  or

   4.2from 10.00 am until 2.00 pm each Saturday under the supervision of a person approved by the father.

5. There are no further particulars in relation to how the supervised time with the mother is to be arranged or how it is spent.  The mother alleges that the father has breached that order on 19 May 2012.  In the Contravention Application proposed to be filed she alleges:

   The respondent without reasonable excused refused to allow the applicant to spend time with the children, [M], [W] and [L] as per orders of 3 August 2011.

6. Paragraph 9 of the application says:

   State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place if applicable.  See the examples on page 2.

7. That part, paragraph 9 of part D, is not completed, nor is part 8.  That is a minor difficulty and another indication of the mother’s ongoing lack of legal representation.  More importantly, however, the evidence that she relies upon is apparently set out in the affidavit which was annexed to the application for leave (being an affidavit sworn on 21 May 2012) alleging that on 19 May 2012 the father refused to comply with the orders:

   …by attaching impossible conditions such as extra cost and an unsuitable location for the contact period of four hours to proceed.

8. She then refers to annexure B.  The annexures to the affidavit are correspondence between the mother and the father wherein the mother indicates to the father that she is unable to afford proposed locations by the father.  In particular, the correspondence indicates that the supervisor proposed by the father is unwilling to attend the mother’s home and in response to the father’s suggestion that:

   As the regular contact centre is not available this weekend, you may either choose to take the children ice skating or perhaps you can find if there are any available times at another contact centre.

9. That is the condition to which the mother responds when she says:

   I do not have the funds to pay for ice skating, even if I was not paying for an independent nanny which I personally am not.  My parents are paying for the nanny from [Childcare Agency NN].  It is not practical for me to attend ice skating when the children wish also to see their two year old brother.

10. Then the mother indicates to the father that:

    If the children are not dropped off at my home at 10 am on Saturday 19 May and picked up at 2 pm, the father will be in contempt of Court.

11. This is an email to the father’s solicitors.  I have not put into this judgment the complete correspondence, but I take it into account. 

12. There is, therefore some doubt as to the likelihood of the mother establishing the necessary grounds for it to be found that the father has contravened the order of the Court without reasonable excuse. 

13. The rules require that the Court take into account whether the applications have a reasonable likelihood of success.  The other factor which I think needs to be taken into account is also the overall impact of the ongoing litigation upon the family as a whole, being the mother, father and children.  There has been great concern expressed in previous material in this matter that the family has been undergoing ongoing proceedings for many years.

14. I take those matters into account, but also take into account that the matters to which I have referred in the mother’s affidavit and the question of the actual alleged contravention and the basis of reasonable excuse have not been tested. 

15. I also take into account that the order restraining the mother from bringing further proceedings without leave was an order made in 2010 prior to the final conclusion of the last set of proceedings in which Justice Stevenson made an order providing for the children to live with the father and to spend limited time with the mother under supervision. 

16. Taking into account all of those factors, therefore, I believe it is appropriate to grant the application for leave to file the application for contravention notwithstanding the concerns that the Court has on the particular information before the Court as to whether that contravention will be successful.

17. The mother appears to misunderstand the need for Court proceedings when these matters should be the subject of sensible negotiations between the parties.  However it is clear from the history of this matter that the capacity of the parents to negotiate sensibly has long since passed. 

18. The application by the mother also seeks that the application for contravention not be heard by me:

    …Hon Burr J or Hon Strickland J due to all three justices being the subject of alleged breaches of UNCRoC [which I understand would stand for the United Nations Convention on the Rights of the Child] in a current application for special leave to the High Court of Australia and the inherent conflict of interest.

19. In that regard the mother tells the Court from the bar table that I am named in some Summary of Argument document (of which I have not received a copy) in relation to the special leave to the High Court.  The mother is unable to say when the application for special leave to the High Court is likely to be heard. 

20. Having taken into account the provisions of the United Nations Conventions on the Rights of the Child and my past involvement in this matter, I am unable to see how such a statement by the mother can establish that I am disqualified from further hearing matters concerning these parties.  In relation to Justice Burr, His Honour is now retired from this Court and the matter is therefore not likely to be heard by him.

21. As far as His Honour Justice Strickland is concerned, I am told by the Independent Children’s Lawyer, Mr Stephen, that His Honour had previously dealt with one of the appeals in this matter and is therefore probably unlikely to be considered.  The other factor is that due to his sitting arrangements with the Full Court as an Appeal Court Judge he is unlikely to be available to hear the matter.  In considering whether I should disqualify myself I have taken into account the mother’s reference to the alleged breaches of the United Nations Convention on the Rights of the Child and do not consider that there has been any factor established that would mean that I should be disqualified simply because the mother is making such an allegation.

22. If the High Court, were to rule that there had been any breach of the Convention by myself that would change.  In the meantime however, I refuse to disqualify myself if that is the application that the mother is making in paragraph 2 of her Application in a Case. 

23. Therefore the mother has leave to file an application for Contravention in the terms of the application annexed to the Application for Leave and the affidavit in support thereof.  The same will be listed before the next available Judicial Officer in the Adelaide Registry (which is likely to be myself) for a mention date at 9.15 am with a likelihood that at that mention hearing a date will be fixed for a prompt hearing of the matter.

24. The Independent Children’s Lawyer is excused from further attendance in relation to the Contravention Application.

25. The Contravention Application, if filed and served in accordance with the leave I have granted, will be listed before me at 9.15 am on 16 August 2012 for mention.  That will be with a view to ascertaining the length of the hearing in relation to the Contravention Application and providing for a listing before me, or if there happens to be a visiting Judicial Officer from another registry who has the time.  At this stage, subject to arrangements I am attempting to make for judicial assistance for the Adelaide Registry from other registries, I am the only one currently listed to be sitting in this Registry as a Judge at First Instance for a considerable period of time.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 June 2012.

Associate: 

Date:  29 June 2012