Langmeil v Grange (No.3)
[2011] FamCA 171
•4 March 2011
FAMILY COURT OF AUSTRALIA
| LANGMEIL & GRANGE (NO 3) | [2011] FamCA 171 |
| FAMILY LAW - CHILDREN – interim orders – with whom a child lives – where the mother seeks orders that the children reside with her – where the proceedings have a lengthy history – where the mother alleges that the children have been sexually abused by the father – where the father says that the children are being subjected to emotional and psychological abuse by the mother – best interests – orders that children remain living with the father PRACTICE AND PROCEDURE – where the mother seeks that the independent children’s lawyer be replaced – consideration of whether there exist appropriate circumstances for the discharge of the appointment – where the Court is not satisfied that such circumstances exist – application dismissed |
| Family Law Act 1975 (Cth) s 60CC |
| Goode v Goode (2006) FLC 93-286 Lloyd and Lloyd and Child Representative (2000) FLC 93-045 T v L (2000) FLC 93-056 W and M and W [2006] FamCA 512 |
| APPLICANT: | Ms Langmeil |
| RESPONDENT: | Mr Grange |
| INTERVENOR: | The Minister For Families SA |
| INDEPENDENT CHILDREN’S LAWYER: | Legal services Commission of SA |
| FILE NUMBER: | ADC | 365 | of | 2008 |
| DATE DELIVERED: | 4 March 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 4 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kriss |
| SOLICITOR FOR THE APPLICANT: | n/a |
| COUNSEL FOR THE RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE RESPONDENT: | A K Reeves & Associates |
| COUNSEL FOR THE INTERVENOR: | Ms Elmes |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tredrea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
UPON NOTING THAT:
a)Ms Elmes advises the Court that the Minister declines to intervene in these proceedings;
b)If the trial does not commence on 11 May 2011 it will at least be heard the week of 16 May 2011 and counsel and witnesses are put on notice that they will be required between 11 May 2011 and 20 May 2011;
c)In relation to the admissibility of the evidence of Dr B1 the receipt of that evidence is left up to the trial judge;
d)The compliance check listed for 28 April 2011 at 9.15 am will be heard either by Stevenson J or Dawe J.
IT IS ORDERED THAT
(1)Further consideration of this matter be listed for Trial before The Honourable Justice Stevenson not before 11 May 2011 at 10.00 am for 5 days.
(2)Further consideration of this matter is listed for a compliance check on 28 April 2011 at 9.15 am.
(3)Each of the parties file and serve affidavits of evidence in chief and that of their witnesses who are not being subpoenaed with such affidavits to be limited only to the issues which have been identified today and to be on the basis of evidence and as to facts observed and relevant to the matters to be determined and not in relation to opinion, submission or comment and those affidavits are to be filed and served by the 21 April 2011.
(4)The Mother has leave to issue subpoenas to the witnesses she is calling to give evidence and those subpoenas can be to the witnesses to produce documents and give evidence at the trial provided that any subpoena as to documents should be issued and made returnable before a Registrar in the normal course of events before 21 April 2011 with the inspection of those documents to take place before compliance check listed on 28 April 2011 at 9.15 am.
(5)The mother has leave to issue subpoenas to the following persons to give evidence at the trial with such subpoenas to be returnable for 11 May 2011 at 10.00 am. Those witnesses are:
· Mr B1
· Detective M1,
· Mr D1, and
· Detective H1
(6)Paragraphs 1 – 7 and paragraph 9 of the interim orders sought on the Amended Initiating Application of the wife filed on 22 February 2010 are dismissed.
(7)As per paragraph 8 of the Amended Initiating Application of the wife filed on 22 February 2010 the mother is given leave to issue a subpoena to SAPOL for copies of their policies and procedures for responding to reports of child sexual abuse in South Australia.
(8)All applications by way of interim orders are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Langmeil & Grange (No.3) 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
The interim orders sought by the mother commence on page 2 and continue on page 3 of the Amended Initiating Application filed on 22 February 2011. The first of the orders sought is that the children M, W and L:
“... be returned to the full-time care of the mother pending the outcome of the Family Court trial, the Families SA independent review and the completion of the investigation by the South Australian Police Complaints Authority.”
The children concerned were previously in the care of the mother prior to a trial before Justice Bell. Justice Bell heard all of the matters that were then considered to be relevant to the best interests of the child as presented by the parties and the Independent Children’s Lawyer and gave his judgment on 17 November 2008. That judgment was the subject of appeal to the Full Court which was unsuccessful and an appeal to the High Court of Australia which was unsuccessful.
The mother has subsequently issued numerous proceedings in relation to the children, being the applications filed in December 2008 and thereafter on numerous other dates.
The children were, pursuant to the order of Justice Bell, placed in the care of the father with specific orders made in relation to the mother spending time with the children under certain conditions. Those conditions and orders have been varied subsequently. However, the mother continued to have time with the children which was supervised until recent decisions have been made.
The mother now seeks the return of the children on an interim basis. These matters have been before the Court previously.
The Court is and has been required to consider, as set out in Goode v Goode (2006) FLC 93-286 the matters that relate to the best interests of the children notwithstanding that there is considerable dispute about the factual material now presented before the Court.
I take into account the provisions of Part VII of the Family Law Act in which the primary considerations require me to consider the best interests of the children are met by ensuring that they are protected and ensuring that they have a meaningful relationship with each of the parents. There are obviously significant other considerations set out in section 60CC.
(The provisions of section 65DAA emphasise the matters to be considered if the parties are to have joint parental responsibility.)
In this matter it is not a case where the provisions of section 65DAA need to be given consideration on an interim basis. The matters which are primarily of concern in this interim hearing is the question of the need to protect the children. The mother alleges that the children have been sexually abused by the father or in the father’s care. The father is concerned about the children’s welfare based on the ongoing allegations made by the mother.
It is not possible to make a conclusion in relation to those matters on the evidence which is before the Court, but taking into account in particular the reports that have been provided to the Court by Families SA and based upon the steps taken at the time by the police, the Court is not satisfied that it is necessary to remove the children from the care of the father on an interim basis in order to provide protection. At the same time the allegations in relation to the concern expressed about the need to protect the children from ongoing emotional and psychological abuse is a factor.
Therefore it has not been established appropriately that it is in the best interests of the children that they be removed from the care of the father and placed in the care of the mother. On an interim basis, therefore, paragraphs 1 and 2 of the mother’s application for interim orders are dismissed.
In paragraph 3 the mother seeks an order that the father undergo an independent psychiatric assessment by a person with training, experience and expertise in the field of child sexual abuse. This order is opposed by the father and not supported by the Independent Children’s Lawyer’s counsel.
I am not satisfied that the need for such a psychiatric assessment of the father by someone in the area of child sexual abuse is a need established on the matters put forward by the mother, particularly bearing in mind the decision of Justice Bell made as recently as November 2008 which dealt with specific issues then arising in relation to the mother’s allegations of child sexual abuse. I therefore dismiss the application of the mother in paragraph 3.
Paragraph 4 is not relevant if the mother does not have the care of the children and would not arise unless the mother was spending time with the children pending the trial.
Paragraph 5 seeks that the mother attend independent counselling regarding the loss of contact with her children as a result of reporting child sexual abuse. The basis of such an application to this Court is not clear. I am not aware of any order which prevents the mother from seeking counselling for herself if she thought that she required such counselling. The orders in existence would prevent the mother taking the children or involving the children themselves in any such assessment or counselling, but I am not aware of any order which prevents the mother herself from seeking any assistance for her own mental or psychological health. Therefore, that paragraph is also dismissed.
Paragraph 6 is that Mr Terry Stephen be replaced by an independent children’s representative. The material filed by the mother in relation to the dismissal of the Independent Children’s Lawyer must be the material which has been filed by the mother since the order for Mr Stephen’s reappointment was made.
In response to that application Mr Stephen has filed an affidavit setting out the substantial history of this matter and the opposition to the discharge of his appointment.
The application needs to be seen in the context of the recent history of this matter and the past involvement of Mr Stephen as the Independent Children’s Lawyer.
The orders which I made on 21 December 2010 in this matter provided for the children to have an Independent Children’s Lawyer, but were concluded with:
“Upon noting the Independent Children’s Lawyer is not to be Mr Terry Stephen (pursuant to his request).”
When the matter then came on before me subsequently Mr Stephen appeared and it was pointed out by him that he had not requested that he not be appointed.
On that occasion the mother was present in Court and was specifically asked if there was any opposition to the appointment of Mr Stephen. She indicated that there was not. Therefore on 19 January 2011 I noted that there was no opposition to the orders made on 10 December and 21 December being amended to permit Mr Stephen to be the Independent Children’s Lawyer. An order was therefore made which provided amendments to the previous order so that Mr Stephen could be appointed as the Independent Children’s Lawyer.
There has subsequently been the application and amended application filed by the mother seeking that Mr Stephen not be the Independent Children’s Lawyer. It seems to be on the basis of bias, or as Mr Tredrea for the Independent Children’s Lawyer this morning suggests, some suggestion of incompetence.
Relying on the chronology set out in the affidavit of Mr Stephen and the transcript of the proceedings before the Court, it is clear that on 19 January 2011 Mr Stephen, indeed, made comments in which he referred to having sympathy for the position of the father in this case. It was not a reference to sympathy for the father as such, but sympathy for the father’s position in the case so far as it related to the argument concerning Rice v Asplund; namely, that there was consideration being given to whether the mother should be required to establish a significant change in circumstances in order to bring further proceedings in this Court. On that occasion the expression of sympathy for the father’s position was put to the Court on the basis that although the Independent Children’s Lawyer had some understanding of the father’s attitude to the Rice v Asplund application, the Independent Children’s Lawyer supported the mother’s position before the Court and not the father’s position.
The reference to the Independent Children’s Lawyer making some comment of sympathy for the position of the father needs to be seen in its true context.
Similarly, it has to be seen that as of 19 January 2011 the mother said that she did not have a problem with Mr Stephen being the Independent Children’s Lawyer and immediately thereafter said, “I think it would be a good opportunity for the children to have a representative that is independent.”
The comments of the mother on 19 January 2011 can therefore be described as somewhat incongruent when taking into account complaints that the mother through her counsel Mr Kriss now seems to make about the Independent Children’s Lawyer’s behaviour prior to 19 January 2011.
Indeed, Mr Kriss as counsel for the mother this morning refers to what he says is a significant criticism; namely, the failure of the Independent Children’s Lawyer to present evidence to Justice Bell at the trial in 2008 concerning interpretation of DVD videos which were shown to Justice Bell. That complaint also needs to be seen in the context that the argument concerning evidence being presented by Dr B1 as to his possible interpretation of what the children were displaying in the DVDs had been before Justice Bell and that application had not been successful. The criticism, therefore, directed to the Independent Children’s Lawyer necessarily needs to be considered in that context.
It also is necessary to consider the role of the Independent Children’s Lawyer and the material which is before the Court. The Independent Children’s Lawyer should not be discharged merely because the Independent Children’s Lawyer does not support the position taken by one of the parties to the proceedings.
The Court has the power to remove an Independent Children’s Lawyer. It is clear from the reported cases that the power exists. However, it is also clear that the authorities make it plain that there has to be a proper basis before the Independent Children’s Lawyer is dismissed and another is appointed. The fact that the mother has made complaints to the Legal Services Commissioner and to the Legal Practitioners Board is not in itself a basis upon which the Independent Children’s Lawyer should cease to act. If that were the case, there would be a continual circle of Independent Children’s Lawyers when one party perceived that the Independent Children’s Lawyer was not supporting the particular party’s position or view.
The authorities upon which I rely include the judgment of Chisholm J, as he then was in T v L (2000) FLC 93-056. That decision has subsequently been referred to with approval by the other Judges of the Court. The Full Court in the matter of W and M and W [2006] FamCA 512, (a decision of the Chief Justice and Warnick and May JJ in 2006) relied upon the decision of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 and his Honour’s decision of T v L (supra). They said, quoting Chisholm J:
“An application to remove a child representative is not strictly covered by the principle that the child’s best interests must be treated as the paramount consideration. Those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant’s position or from that litigant’s point of view, contrary to the child’s best interests.”
The Court also referred to the decision of Lloyd (supra) saying:
“There are a number of very good reasons why in my opinion, the Court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. Those reasons include:
(i)The best interests of the children have to be borne in mind…
(ii)The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not ``on side'' or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
The third factor was also public policy considerations. The quotation from Lloyd (supra) is relevant, as are the factors which are referred to in Lloyd’s case when considering what matters should be taken into account when determining whether a child’s representative should be changed.
Bearing in mind the consent of the mother to the appointment of Mr Stephen in January 2011 and also bearing in mind that the history of the proceedings and the response of the Independent Children’s Lawyer to the complaints made by the mother, I am not satisfied that the mother has established an appropriate basis which would indicate that the best interests of the children would require Mr Stephen ceasing to be the Independent Children’s Lawyer. Nor has it been established that it would otherwise be proper for the Court to discharge that appointment. I therefore dismiss the application in paragraph 6 of the mother’s interim application.
In paragraphs 7 and 8 the mother seeks leave to subpoena counselling records from Counsellors 1 and Counsellors 2 for the period 2006 to 2007 where the mother and father attended counselling regarding the sexualisation of the children by the paternal grandparents. It is not clear from the material filed whether this was confidential counselling and, therefore, subject to matters which would restrict production, of that matter as far as evidence is concerned. Nor has there been a sufficient explanation to indicate why a subpoena should issue in relation to records which came into existence well before the trial before Justice Bell in November 2008. I therefore do not consider that the mother has established it as appropriate that those counselling records be made the subject of subpoena and dismiss the application in paragraph 7.
In relation to paragraph 8, it reads:
“That the Honourable Court allow the mother to subpoena SAPOL for copies of their policies and procedures for responding to reports of child sexual abuse in South Australia.”
I have given the mother leave to subpoena Detective M1, Police Officer Mr D1 and Detective H1 to give evidence and produce documents. It is not clear why evidence about policies and procedures for responding to reports will be relevant evidence nor is it clear if the mother has made any efforts to obtain such policies and procedures from the Police Department other than pursuant to subpoena. However, on the basis that the South Australian Police Department are only being requested to provide copies of their policies concerning procedures for responding to reports of child sexual abuse in South Australia, I will give leave to the mother to issue such a subpoena in those terms. That does not, of course, mean that the documents so subpoenaed would become admissible in the proceedings before this Court.
Paragraph 9 of the application for interim orders by the mother is:
“That the Honourable Court make orders for Lucy Morgan of Westminster Lawyers, Victoria, release – (presumably “to release”) the mother’s Family Court file to allow the mother and her barrister, Mr Maurice Kriss, to prepare for the trial.”
The affidavit of the mother indicates that there is money owing to Ms Morgan when she apparently represented the mother as a solicitor and that Ms Morgan has apparently declined to release the file until such time as her costs have been paid. There is also some discussion about Ms Morgan expecting payment from the Attorney-General’s Department in relation to what I assume was a certificate concerning some form of appeal. The application, however, has not been served on Ms Morgan and there is nothing to indicate before this Court that Ms Morgan was aware that the mother was seeking orders against her. I therefore decline to make any order in those terms and dismiss the same.
The matter is, therefore, fixed for final determination before Justice Stevenson with specific orders made in relation to the filing and service of affidavits of evidence-in-chief. It must be clear to the parties that the evidence of the parties and their witnesses must be limited, as I have already indicated, to the issues which we have dealt with today.
Therefore, the final orders remain listed before myself for compliance check if necessary and Stevenson J for the trial and I otherwise have dealt with and therefore dismiss all of the applications by way of interim orders.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 March 2011.
Associate:
Date:
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