Langmeil v Grange - [2013] HCASL 137

LANGMEIL
v
GRANGE
[2013] HCASL 137
A12/2013

The applicant and the respondent were married in January 2003 and separated on 21 January 2008. They have three children together.Following orders made by a single judge of the Family Court of Australia (Bell J), the children live with the respondent father and have supervised time with the applicant mother.
On 4 July 2012, the applicant filed an application in the Family Court seeking leave to commence parenting proceedings. It was necessary for the applicant to seek leave because, on 20 October 2010, the Family Court (Dawe J) made an order pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) ("the Act") restraining the applicant from filing any application under the Act in relation to, inter alia, the children, except by leave of the Court.
On 20 July 2012, the Family Court (Dawe J) refused the application for leave. Dawe J noted that the allegations made by the applicant against the respondent, namely that he had physically abused the children, were "strikingly similar" to claims previously made and rejected by the Family Court in earlier proceedings. Her Honour acknowledged that the Family Law Rules 2004 (Cth) ("the Rules") required the applicant to demonstrate that she had a "reasonable likelihood of success" before leave could be granted, but concluded that the "guiding principle" remained the children's best interests.Given the long history of litigation, Dawe J held that it was not in the children's best interests for leave to be granted.
The applicant appealed against the decision of Dawe J to the Full Court of the Family Court (Coleman, Ainslie-Wallace and Ryan JJ). She also made an application to adduce further evidence. On 18 March 2013, the Full Court dismissed her appeal and application. It held that Dawe J's comments concerning the children's best interests were made in the context of her Honour's conclusion that the applicant did not show a "reasonable likelihood of success", as is required under r 11.05(4) of the Rules before leave can be granted.
The applicant now seeks special leave to appeal against the Full Court's decision. The applicant's argument invites this Court to reconsider factual issues determined below. No matter of principle arises and the applicant has not identified any error in the Full Court's decision. Special leave should be refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013
P.A. Keane

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCASL 137
Decision Date

CaseChat Overview and Summary

The applicant, Langmeil, sought special leave to appeal a decision of the Full Court of the Family Court, which dismissed her appeal against a decision by Dawe J, which had refused her leave to commence further parenting proceedings. The applicant's children had been living with the respondent, Grange, since their separation and the refusal of leave to file the new application was upheld by the Full Court. The applicant sought special leave to appeal to the High Court on the basis that the Full Court had erred in its determination.

The central legal issue in this case was whether the Full Court of the Family Court erred in dismissing the applicant's appeal and refusal to grant leave to file further proceedings. The applicant argued that the Full Court did not give adequate consideration to the new evidence she wished to present, which she claimed would have demonstrated a reasonable likelihood of success in her case. The Full Court had dismissed her appeal on the basis that the applicant had not demonstrated a reasonable likelihood of success in her case, as required by the Family Law Rules 2004 (Cth).

The High Court found that the Full Court had not erred in its determination. The Court found that the Full Court had appropriately considered the evidence and circumstances of the case and had correctly determined that the applicant had not met the threshold requirement of demonstrating a reasonable likelihood of success. The Court also found that the Full Court's comments concerning the children's best interests were made in the context of its conclusion that the applicant had not met the required threshold. The Court found no error in the Full Court's decision and dismissed the application for special leave to appeal.

The High Court ordered that the Registrar draw up, sign and seal an order dismissing the applicant's application for special leave to appeal. The Court found that no matter of principle arose and that the applicant had not identified any error in the Full Court's decision. The Court also found that the applicant's argument invited reconsideration of factual issues determined below, which is not appropriate in an application for special leave to appeal.

Orders