Langmeil & Grange

[2009] FamCA 63

FAMILY COURT OF AUSTRALIA

LANGMEIL & GRANGE [2009] FamCA 63

FAMILY LAW – CHILDREN – interim proceedings – where final orders made in November 2008 – where mother’s appeal of final orders yet to be determined – where mother unsuccessfully applied for a stay of those orders – application by mother seeking urgent order that the children spend half the time with her pending the appeal – reliance on psychiatric report prepared pursuant to final orders – where matters raised were the subject of determination by the trial judge and would be the subject of a stay application – application inappropriate – not in best interests of children to make interim orders sought – application dismissed.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – application by mother seeking dismissal of the Independent Children’s Lawyer – no basis established for discharge – dismissed.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – application by mother for final orders – matters dealt with by trial judge and subject of pending appeal – application inappropriate – Initiating application dismissed.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – SUBPOENAS – whether subpoenas issued by the mother relate to proceedings currently before the court – not established that the subpoenas deal with issues the subject of appeal – orders for subpoenas discharged.

FAMILY LAW – CHILDREN – COSTS – application by father seeking costs – where mother wholly unsuccessful – financial circumstances of the parties – consideration of final property settlement orders of the trial judge – mother to pay father costs of and incidental to application – payment to be made by deduction from the amount payable by the father to the mother by way of final property settlement.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Langmeil

RESPONDENT: Mr Grange

INDEPENDENT CHILDREN’S LAWYER: Mr T.C. Stephen

FILE NUMBER: ADC 365 of 2008

DATE DELIVERED: 28 January 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr R. Richards

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr K. Tredrea

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. The Application in a Case filed by the mother on the 19 December 2008 is dismissed.

2. The Initiating Application filed by the mother on the 23 December 2008 is dismissed.

3. The orders for subpoena in documents 97 and 98 (SAPOL and N Medical Centre) are discharged..

4. The mother pay the father’s costs of and incidental to the applications heard before me today such costs as to be agreed between the parties and in default of agreement as taxed.  Payment to be made by deducting from the amount payable by the father to the mother of any final property settlement order.

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 an Application in a Case, initially, that was listed before me today.  The Application in a Case is brought by the mother Ms Langmeil.  The Application in a Case is document 91 and is headed Urgent.  It was filed on 19 December 2008.  In that the mother seeks orders that the children spend time with or live with the mother 50 per cent of the time pending the outcome of the appeal. 

2. Paragraph 2 is seeking:

   “Urgent independent psychiatric assessment of the father by an expert in child sexual abuse, given the outcome of the mother's psychiatric counselling and the lack of expert assessment of the DVDs displaying sexualised behaviour of the children”.

3. Paragraph 3:

   “Dismissal of the Independent Children's Lawyer, Terry Stephen, on the grounds that he has not acted in the best interests of the children, and the appointment of an Independent Children’s Lawyer.”

4. In support of that application the mother has filed an affidavit (document 92) on 19 December 2008, which contains three paragraphs:

   “(1)Justice Bell’s decision on 17 November 2008 found the mother was ‘delusional’ and I was ordered to attend a psychiatrist.  After several counselling sessions the psychiatrist is convinced I am not delusional and do not suffer any mental illness.  Please see ‘Annexure A’ .  Several other medical and psychological reports have been provided to the Court confirming my mental health.

   (2)The father has not been independently assessed by an expert in child sexual abuse despite his work history, drug history and refuse (sic) to care for [L’s] recent genital redness on 7^th December ’08.

   (3)The ICL, Terry Stephen has requested I not report any issues of abuse and is preventing me from seeing the children for the Court ordered for 4 hours per week.”

5. Annexure A to that affidavit is a letter from Dr G dated 18 December 2008.  Dr G is a psychiatrist.  That letter is addressed to Mr Stephen, the Independent Children’s Lawyer, and deals with issues concerning the mother's health.

6. To see the matter in context, it is necessary to note that the mother and the father, Mr Grange, have been involved in Family Court proceedings for some time.  The matter came on for final hearing and determination before his Honour Justice Bell in September and October 2008, when the mother was represented by counsel and Queen's Counsel.  Mr Richards represented the father and Mr Tredrea appeared for the Independent Children’s Lawyer.  The mother now appears before me today unrepresented.

7. His Honour Justice Bell delivered his judgment on 17 November 2008 and made the orders of 17 November 2008.  He published his reasons for making those final orders.

8. The parties before me today concede that when the order was made the mother made an unsuccessful application for a stay of the order pending an appeal.  I was told this morning that the mother has filed an appeal and that that appeal is yet to be determined.

9. The father's counsel opposes the orders sought by the mother, as does the counsel for the Independent Children’s Lawyer.  I will deal with each of the matters separately as they relate to significantly different issues.

10. The first application by the mother in the Application in a Case is that she seeks an urgent order that the children spend 50 per cent of the time with her pending the outcome of the appeal.

11. The children are M, who was born in February 2004; W, who was born in June 2005; and L, who was born in November 2006.  The orders of Bell J provided that the children immediately commence to live with the father and that he have sole responsibility for their short-term and long‑term parental care.  He made other specific orders in relation to the mother having supervised time with the children and certain orders irrelevant to today's proceedings that relate to property settlement proceedings.

12. The children are therefore children of a young age.  The application by the mother, in paragraph 1, clearly refers to the fact that she is seeking an order that she have 50 per cent of the time pending the outcome of the appeal.  In the affidavit which was filed in support of that application she refers to the psychiatrist's report which she has from Dr G and to the fact that, "The father was not independently assessed by an expert in child sexual abuse."

13. These matters are matters which clearly relate to the decision of His Honour Justice Bell and quite clearly challenge the matters determined by His Honour Justice Bell in the judgment which he delivered on 17 November 2008.  They are not matters which raise issues which are separate from the issues which were determined by His Honour.

14. The matters contained in paragraphs 1 and 2 of the mother's affidavit are clearly matters which were the subject of the hearing before His Honour Justice Bell prior to him delivering his judgment.  They are, by their nature (as the mother refers to in her application) matters which would be the subject of a stay application pending the appeal. 

15. I was not the Judge at first instance, and this application for orders pending the appeal is inappropriate, both in relation to the way it has been brought and the material upon which it relies, where the mother seeks to vary the orders made concerning the children pending the appeal to the Full Court.

16. When considering these matters, however, I do not only consider the technical matters concerning the question of whether it is a stay application or a fresh application but, on the basis that it could possibly be considered a fresh application, I give consideration to whether the material raised by the mother is such as to require that, in the best interests of the children, those orders be made.

17. Bearing in mind the decision of Bell J and the findings of fact that he has made in his decision, I am not satisfied that the matters raised by the mother in her affidavit, including the report of Dr G, are such as to make the interim orders sought by the mother in the best interests of the children.

18. I accept to a certain extent that Dr G’s report deals with the issue of the mother's mental health, but the orders made by Bell J were not orders conditional upon any diagnosis of the mother's mental health.  Rather, Bell J's orders were that the children reside with the father and that the mother undergo psychiatric counselling directed to the issue; namely, the mother's near delusional beliefs concerning what she perceives to be the father's sexual abuse of the children.

19. Dr G’s report deals, to a limited extent, with the mother's alleged delusional beliefs but goes further to deal with issues which have already been dealt with by the parties at the trial and the determinations made by His Honour Justice Bell in his judgment of November 2008.

20. In relation to the third order that the mother seeks (which is the dismissal of the Independent Children’s Lawyer Mr Stephen) I have considered the material filed by the mother which, in her affidavit, simply refers to Mr Stephen requesting that she not report any issues of abuse and that he was preventing her from seeing the children for the Court-ordered period. 

21. I have considered the correspondence which is annexed to the affidavit of Mr Stephen and I have taken into account the specific orders of His Honour Justice Bell, which provided that the supervisor should be a person agreed by both the mother and the father and, failing agreement, as approved by the Independent Children’s Lawyer.

22. I am satisfied that the steps taken by the Independent Children’s Lawyer in this case fall within the appropriate role of the Independent Children’s Lawyer and the guidelines concerning the actions of the Independent Children’s Lawyer and do not establish any basis, other than that the mother disagrees with his decisions.  That is not a basis upon which the Independent Children’s Lawyer should be discharged, nor has the mother established that the Independent Children’s Lawyer has in any way acted against the best interests of the children concerned in this matter.

23. I am therefore not able to say that the mother has established in any way that there is any basis for the dismissal of the Independent Children’s Lawyer, and I decline to do so.

24. On that basis, and for those reasons set out, I am satisfied that the Application in a Case is an inappropriate application and the materials filed in support of the application and the mother's affidavit in no way establish a ground for those orders, and I dismiss the Application in a Case.

25. I turn to the consideration of the Initiating Application, document 90, which is also listed before me today.  I am asked by counsel for the father and the Independent Children’s Lawyer to dismiss that application for final orders.  The mother was unable to explain with any clarity why she had filed the application seeking final orders, other than to say she was told that she would have to do so to support an Application in a Case.

26. This advice she received suggested that this would prevent the Application in a Case, being categorised as an application for a stay pending the appeal.  The final orders sought by the mother are clearly orders that the mother seeks “pending an appeal”.

27. Paragraph 6 of the handwritten notice says:

    “I have an appeal application lodged with the Melbourne registry.  My intention in filing an urgent Application in a Case was not to bring about a fresh application but, rather, to seek interim orders pending the outcome of the appeal.”

28. The final orders seek specifically that there be "a variation of the parental responsibility of the parents and the time the mother spends with the children as follows".  She then proceeds to seek that the mother have sole responsibility for the three children and that the children spend supervised time with the father at times determined to be appropriate by the Court, that the children attend counselling and that the father undergo counselling and rehabilitation.  She also seeks an order that the assets of the parties be divided on a 70 per cent split in favour of the mother and a 30 per cent split in favour of the father.

29. I have dismissed the Application in a Case.  I consider that the application for final orders is inappropriate, in that the matters of the children's issues and financial issues have been dealt with by Bell J in his judgment and the matter is currently the subject of a pending appeal.  I therefore dismiss the Initiating Application on the basis that it is not an appropriately filed application; there is no basis for it to be maintained pending the appeal to the Full Court.

30. The mother has also filed recently two subpoenas, one to the N Medical Centre and one to the South Australia Police; documents 97 and 98.  Those subpoenas are returnable before me this morning.  It would appear that the police have complied with the subpoena but it is not clear whether the N Medical Centre has yet complied.  It may have done so and the records of that compliance have not yet reached the file. 

31. In any event, both the father's counsel and the Independent Children’s Lawyer's counsel seek that no order be made to provide for inspection and copying of the documents and that the subpoena order be discharged.  It is necessary for the subpoena to relate to proceedings which are currently before the Court.  It has not been established that either of the subpoenaed materials relates to issues that will be the subject of appeal.  By their very nature, both of the subpoenas deal with matters which were of the type described in the judgment of His Honour Justice Bell.

32. I am not satisfied, therefore, that the subpoenas are appropriately based or that there is any basis upon which they should be maintained and I discharge the orders for subpoenas in documents 97 and 98.

33. The application now to be determined by me is the application by the father for costs of and incidental to the application. The provisions of the Family Law Act provide that, in general terms, each party will bear their own costs. However, the provisions of section 117 also indicate that, where the Court is satisfied that the circumstances justify it, an order can be made in relation to costs of one party against the other.

34. The provisions of section 117(2A) set out matters which the Court is required to consider. They include whether one party has been wholly unsuccessful and also the financial circumstances of each of the parties to the proceedings.

35. They are the most relevant factors in determining the application before me today.  The question of whether the mother has been wholly unsuccessful in her application is clear.  The question of the financial circumstances of the parties is only dealt with briefly in relation to the judgment of His Honour Justice Bell.  I accept that the trial before His Honour Justice Bell would have been a costly exercise, the mother having instructed counsel and Queen's Counsel.

36. The judgment, however, indicates that the parties have agreed that the division of the property should be on the basis of 65/35, being 65 per cent in favour of the person with whom the children were to reside.  It concluded with an order that the mother was to transfer the former matrimonial home to the father upon payment to the mother by the father of $144,460 and otherwise each retain the chattels held by them.

37. Both parties are in employment.  The father has the care of the three infant children of the marriage.  I consider in these matters and the sum ordered to be paid to the wife in the property settlement orders made by His Honour Justice Bell, I am satisfied that it is just and equitable that an order be made in relation to the costs incurred by the father.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5 February 2009