Leroux and Leroux & Anor - [2016] FamCA 862

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ANOR

[2016] FamCA 862

FAMILY LAW – CHILDREN – Where each party seeks that the two children, aged 14 and 12, live with them – Where the children have rejected their father – Where the father claims that the mother has alienated the children from him – Where the father seeks immersion therapy to reunite with the children – Consideration of section 60CC factors – Where the children’s wishes are given considerable weight – Where it is in the best interests of the children to cease therapy and for the litigation to conclude – Where orders for the children to spend time with the father will likely lead to further litigation – Where orders were made for the children to spend time with their father only as they elect.

FAMILY LAW – PROPERTY SETTLEMENT – Application by wife for adjustment of property –Where the wife received an inheritance from her mother’s estate – Where the parties shared the care of their two children – Greater contributions by the wife during the marriage – Contributions assessed at 60 per cent in favour of the wife – Where the wife has an illness and cannot return to work – Consideration of 75(2) factors – Where a further 10 per cent adjustment is made in favour of the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the basis of apprehended bias – Application refused.

Family Law Act 1975 (Cth), ss 60CC, 75(2), 79(2)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Smits v Roach (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT:

Mr Leroux

RESPONDENT:	Ms Leroux
2^nd RESPONDENT:	Mr Digby

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

HBC

909

2014

DATE DELIVERED:

7 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Hobart

JUDGMENT OF:

Rees J

HEARING DATE:

29 August – 16 September 2016

REPRESENTATION

THE APPLICANT:

In Person
August 29 and 30, September 2, 5, 6, 7, 8, 12, 13, 14 and 15

COUNSEL FOR THE APPLICANT:

Mr Broomhall

August 31 and September 1

COUNSEL FOR THE APPLICANT:

Mr Munro

September 16

COUNSEL FOR THE RESPONDENT:

Mr Blissenden

SOLICITOR FOR THE RESPONDENT:	Blissenden Lawyers
THE 2^ND RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr FitzGerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

IT IS ORDERED
PARENTING

That the children D, born … 2002, and E, born … 2003 (“the children”) live with the mother.
That the mother have sole parental responsibility for the children’s long term care, welfare and development.
That the children spend such time with the father as they elect.
That the father be permitted to communicate with the children by email, not more than once each week, to the children’s personal email addresses, which are to be provided by the mother to the father forthwith.
That the father be permitted to send…

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 Leroux and Leroux & Anor

Details

AGLC: Leroux and Leroux & Anor [2016] FamCA 862
Case: [2016] FamCA 862
Decision Date: 7 October 2016

CaseChat Overview and Summary

In the matter of *Leroux and Leroux & Anor*, Rees J of the Family Court of Australia considered applications concerning the parenting arrangements for two children, aged 14 and 12, and a property settlement between the parents. The father sought orders for the children to live with him, alleging parental alienation by the mother and proposing immersion therapy to facilitate reunification. The mother also sought orders for the children to live with her. In relation to property, the wife sought an adjustment of property interests, including consideration of an inheritance she had received. An application for recusal of the judge on the grounds of apprehended bias was also before the court.

The court was required to determine the best interests of the children in accordance with section 60CC of the *Family Law Act 1975* (Cth), giving considerable weight to the children's expressed wishes, which indicated a rejection of their father. The court also had to consider the wife's application for a property adjustment, assessing the parties' respective contributions and the relevant section 75(2) factors, including the wife's illness and inability to return to work. Finally, the court had to rule on the application for recusal.

Rees J refused the application for recusal, finding no apprehended bias. In determining the parenting orders, the court concluded that it was in the children's best interests to cease immersion therapy and for the litigation to conclude, noting that orders for the children to spend time with the father were likely to lead to further litigation. Consequently, the court ordered that the children live with the mother and that she have sole parental responsibility for their long-term care, welfare, and development. The children were to spend time with the father only as they elected, with specific provisions for communication and the exchange of school information. Regarding property, the court assessed the wife's contributions at 60 per cent and made a further 10 per cent adjustment in her favour, resulting in a division of assets that included the sale of certain properties and the payment of specific sums between the parties.

Orders

Orders of the court

IT IS ORDERED

PARENTING

That the children D, born … 2002, and E, born … 2003 (“the children”) live with the mother.

That the mother have sole parental responsibility for the children’s long term care, welfare and development.

That the children spend such time with the father as they elect.

That the father be permitted to communicate with the children by email, not more than once each week, to the children’s personal email addresses, which are to be provided by the mother to the father forthwith.

That the father be permitted to send presents and cards to the children at their home address by mail on each of their birthdays, and at Easter and Christmas.

That the father and the mother authorise any school which the children attend to send copies to each of them of all material usually forwarded to parents.

That the father be permitted to attend any event at the school attended by the children, to which parents are normally invited, noting that nothing in this Order detracts from, or affects, the authority of the Principal or the school board to determine who is permitted upon school grounds and in what circumstances.

That the mother inform the father, as soon as reasonably practicable, of any serious illness or injury suffered by the children.

That each of the father and the mother is authorised to provide to Ms B, Dr R, Dr S, Dr I and Dr W, copies of the following documents:

(a) These Reasons and Orders;

(b) The report of the Family Consultant dated 28 July 2016;

(d) The affidavit of Ms B sworn 2 August 2016.

10.

That the mother facilitate the children’s continued consultations with Ms B as the children and Ms B agree.

11.

That each the father and the mother is restrained from denigrating or disseminating derogatory information about the other and each shall use their best endeavours to prevent any other person from so doing.

PROPERTY

12.

That the mother do all things required to sell the land in Country K, to pay all selling costs, and to pay 30 per cent of the net proceeds of sale to the father.

13.

That the mother do all things required to sell the property at Unit 1, X Street, Suburb Y, and to pay the proceeds of sale in the following manner and priority:

(a) To discharge the mortgage;

(b) To pay all selling costs including agents’ commission and selling costs, and solicitors’ costs on the conveyance;

(d) To pay a further sum of $4,719 to the father;

(e) To pay the balance to the mother.

14.

That within two months of the date of these Orders, the father pay to the mother the sum of $119,000, and simultaneously with the payment of that amount, the mother shall sign all documents required to transfer to the father her interest in the property known as Unit 2, X Street, Suburb Y and the father shall thereafter indemnify the mother against all liability to repay money advanced by way of mortgage to the father and the mother by Mrs Digby and Mr Digby.

15.

In the event that the father does not pay the sum of $119,000 within two months of the date of these Orders, then the father and the mother shall do all things required to sell the property at Unit 2, X Street, Suburb Y and to pay the proceeds of sale in the following manner and priority:

(a) To discharge the mortgage;

(b) To pay all selling costs including agents’ commission and selling costs, and solicitors’ costs on the conveyance;

(d) To pay the balance to the father.

16.

Other than as provided in these orders, each party shall be solely entitled to any property in his or her possession at the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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