Langmeil v Grange (No.3) - [2011] FamCA 171

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

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…

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.

Continue reading Langmeil v Grange (No.3)

Details

AGLC: Langmeil v Grange (No.3) [2011] FamCA 171
Case: [2011] FamCA 171
Decision Date: 4 March 2011

CaseChat Overview and Summary

In *Langmeil v Grange (No.3)*, Dawe J of the Family Court of Australia considered applications concerning the interim living arrangements for children and the replacement of an independent children's lawyer. The mother sought orders for the children to reside with her, alleging sexual abuse by the father, while the father contended the children were suffering emotional and psychological abuse from the mother. The proceedings had a lengthy history.

The court was required to determine whether to replace the independent children's lawyer and to make interim orders regarding the children's residence. The mother also sought various interim orders, some of which were dismissed.

Dawe J dismissed the application to replace the independent children's lawyer, finding no appropriate circumstances existed for such a discharge. The court also dismissed the mother's interim orders concerning the children's residence, effectively leaving the children living with the father pending further determination. The court noted that the admissibility of evidence from Dr B1 would be left to the trial judge and set a trial date.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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