LANGMEIL & GRANGE

[2011] FamCA 28

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE [2011] FamCA 28

FAMILY LAW – PRACTICE AND PROCEDURE – question of whether the mother’s application for final orders should be dismissed due to procedural issues – where a Rice and Asplund issue may arise – where the mother’s application has been filed without required leave – where the mother is unrepresented – best interests of the children – held that it would be inappropriate to dismiss the mother’s application at the interim stage of the proceedings

FAMILY LAW – CHILDREN – interim orders – best interests – previous orders that the children spend supervised time with the mother be continued

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

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

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 19 January 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms  Dixon

SOLICITOR FOR THE RESPONDENT: A K Reeves & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: n/a

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

Orders

UPON NOTING that there is no opposition to the orders made on 10 December 2010 and 21 December 2010 being amended to permit Mr Stephen to be the Independent Children’s Lawyer and therefore the orders made on 10 December 2010 and 21 December 2010 are both amended by deleting the reference to “UPON NOTING the Independent Children’s Lawyer is not to be Mr Terrence Stephen (pursuant to his request).”

IT IS ORDERED THAT

1. Leave is given to the parties (including the Independent Children’s Lawyer) to obtain copies of subpoena documents produced to the Court by the Police Department PROVIDED THAT each of the parties are restrained and an injunction is granted restraining them from providing the information in those documents or copies of those documents to any person other than a person involved in the preparation of this matter for trial.

2. The question of interim orders to be made to prepare the matter for final hearing is adjourned to Wednesday 9 February 2011 at 9.00 am before the Honourable Justice Dawe on the basis that each party (including the Independent Children’s Lawyer) file and serve by 4.00 pm on Tuesday 1 February 2011 any application and supporting affidavit setting out the orders they seek to prepare the matter for final trial.

3. The listing for the final hearing week commencing 7 March 2011 is vacated UPON NOTING the listing is being maintained for hearing of possible interim or procedural orders.

4. Pending the hearing of this 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 the children to be supervised at the Children’s Contact Centre.

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. Initially this matter was dealt with by me on 10 December 2010 when Mr Reeves represented the father, the mother was in person and Ms Olsson was here representing the Minister for Families SA.  On that occasion, I made an order that if any further application for final orders was made then pursuant to section 68L, the Legal Services Commission appoint an Independent Children’s Lawyer.  That order included:

   “...upon noting the Independent Children’s Lawyer is not to be Mr Terrence Stephen (pursuant to his request).”

2. Following that order I made on 10 December, on 21 December I made a specific order, because by then there had been a further application for final orders. 

3. On 10 December 2010, my recollection is that the Court was told that Mr Stephen had requested that he not be appointed as the Independent Children’s Lawyer again. 

4. I note that there is no opposition to the order that I have made on 10 December and 21 December being amended to permit Mr Stephen to be the Independent Children’s Lawyer.  Therefore the order that I made on 10 December 2010 and the order I made on 21 December 2010 are both amended by deleting the reference which is:

   “...upon noting the Independent Children’s Lawyer is not to be Mr Terrence Stephen (pursuant to his request).”

5. I do that on the basis that the parties are not opposing that amendment and also on the basis that it is clearly in the best interests of the children that they have the benefit of an Independent Children’s Lawyer who is very familiar with the proceedings and is able to represent them with a considerable amount of knowledge of the past history of the matter and limiting the costs to the Legal Services Commission and other parties which might arise from the appointment of someone else.  That order is therefore made in relation to Mr Stephen being the Independent Children’s Lawyer.

6. In relation to the final orders application that is before me, the mother is seeking certain orders, including a final order by way of “an independent investigation into the handling of reports of child sexual abuse by Families SA, SA police and the Family Court”.

7. In relation to the Rice & Asplund[1] argument, the significant factor is that the mother has made significant new allegations, albeit that those allegations are of a similar nature to the allegations previously made.  They are based upon matters which she alleges are new facts which she says require consideration in the overall best interests of the children. 

   [1] (1979) FLC 90-725

8. The other significant factor is that because of matters which have occurred since the final hearing and final orders made by Justice Bell and, indeed, since Justice Burr has heard the matter, the father is bringing an application to change the orders so far as they relate to the mother spending time with the children.

9. Bearing in mind the restrictions in Rice & Asplund (supra) and the emphasis which is placed upon the need for the Court to consider the best interests of the children even as a factor to be considered in procedural matters, I am not satisfied that the Rice & Asplund (supra) principles require the Court to immediately dismiss the application of the mother at an interim stage.  It may be that the father after receiving appropriate advice might seek to maintain an argument in relation to Rice & Asplund (supra) when the final proceedings are dealt with after all the evidence is heard and tested.  My finding on an interim basis that I do not dismiss the proceedings on Rice & Asplund (supra) will not prevent the Judge who hears the final proceedings making a determination on that basis.

10. The mother is on notice that significant issues in relation to costs may well arise if the father is successful in maintaining a Rice & Asplund argument on the final hearing of the matter.

11. In relation to the order that was made by way of injunction directing that the mother not to issue further proceedings in relation to children without leave, I note that the final orders application was filed without specific leave being granted.  However, taking into account the orders that I made on 10 December 2010 and the fact that the mother continues to be unrepresented in these proceedings, it is possible that the order that I made directing that both parties file and serve any application for final orders which they seek could have been interpreted as leave being given to the mother to file the application.

12. In any event, in view of the material which has been before the Court in the interim orders which were considered in relation to the matters before me on 10 December 2010, the events which occurred whereby the mother retained the children when it was necessary for orders to be made for the police to assist in the return of the children to the father and the allegations made by the mother which she says formed the basis of her behaviour at that time, I am satisfied that the Court would, in any event, have granted leave to the mother to bring the final orders application.  On that basis, therefore, I do not dismiss the final orders application because of the previous injunction orders made by me. 

13. I now consider what needs to be done in relation to the listing of the matter to determine the final orders application.  The mother has raised orally from the bar table an allegation that Families SA are conducting an independent review and the Police Complaints Authority are also conducting an internal review.  The Independent Children’s Lawyer has only recently been reappointed and therefore has not had an opportunity to make any further inquiries in relation to the matters raised. 

14. The final orders application of the mother is probably drafted without proper legal advice.  It seeks orders that there be appropriate counselling for the children following CPS forensic interviews of the children and the right to take her children to the doctor “if their bottoms are cut and they have internal bleeding”.  The mother, being unrepresented, appears to seek final orders for forensic interviews of the children, but the affidavit that she has filed suggests she is in fact seeking the orders by way of mandamus (which were rejected by me on the last occasion) as an interim order that the children be further interviewed and assessed.

15. I am proposing to adjourn the question of interim orders to be made to prepare the matter for final hearing to myself at 9 o’clock on 9 February 2011 on the basis that each party, including the Independent Children’s Lawyer, file and serve any application and supportive affidavit setting out the orders they seek to prepare the matter for final trial by 1 February 2011, being any application and supporting affidavit for the interim orders they seek to prepare the matter for trial.  Obviously, that is only if those matters cannot be agreed. 

16. At this stage, I am sceptical as to the capacity of various other entities, including Family Consultants and other authorities (if involved) to get the matter ready for trial before the listings commencing on 7 March 2011.  It is unlikely that the final hearing will be able to proceed on that date.  But it may be that the availability of the Judges during that fortnight could be used to overcome any difficulties of resolving interim issues I therefore vacate the final hearing for the week of 7 March 2011.

17. The material which is now before me which has been filed since the hearing before me on 10 December 2010 does not raise any new issues that were not before the Court and dealt with on 10 December 2010. 

18. The primary obligation in relation to this matter is to ensure that the best interests of the children are the paramount consideration.  For the reasons which I gave on 10 December 2010, I consider it to be in the best interests of the children that the orders that I made on 10 December 2010 continue (those orders providing for the time to be supervised by the Children’s Contact Centre).  I leave those orders in place pending the hearing of the matter by way of final orders or subsequent order.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 January 2011.

Associate: 

Date:  28 January 2011