Leroux and Leroux & Anor (No 2)

[2015] FamCA 811

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ANOR (NO 2)

[2015] FamCA 811

FAMILY LAW – CHILDREN – Application by father for the removal of the Independent Children’s Lawyer – Application adjourned to fixed hearing date

FAMILY LAW – CHILDREN – Application by paternal grandfather to be joined as a party to the proceedings – Application granted

FAMILY LAW – CHILDREN – Application by mother to suspend children’s time with paternal grandmother – Grandmother’s time with the children suspended for a fixed period of time

Family Law Act 1975 (Cth)

APPLICANT: Mr Leroux

FIRST RESPONDENT: Ms Leroux

SECOND RESPONDENT: Ms Digby

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 909 of 2014

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 16 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Leroux in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE FIRST RESPONDENT: Mr Blissenden

SOLICITOR FOR THE FIRST

RESPONDENT:

COUNSEL FOR THE SECOND

RESPONDENT:

SOLICITOR FOR THE SECOND

RESPONDENT:

COUNSEL FOR THE INDENDEPENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Blissenden Lawyers

Mr Fitzgerald

Legal Aid Commission

Blissenden Lawyers

Ms Digby in Person

Mr Fitzgerald

Legal Aid Commission

Orders

1. Parenting order made in the Federal Circuit Court on 4 June 2015 be varied to include after the word ‘paternal grandmother’ in order 1 to read the words ‘and the paternal grandfather Mr H Digby’.

2. The operation of order 1 made 4 June 2015 be suspended for the next five (5) visits from the date of this order.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. The terms of family therapy be varied to include:-

   (a)to remove any doubt, for the purpose of family therapy Dr G may have leave to approach, make enquiries of and communicate with any person or entity she deems necessary for the purpose of such therapy;

   (b)to remove any doubt, Dr G may explore, as part of the family therapy with Ms I, appropriate collaborative therapy and other strategies to address issues identified by her;

   (c)the Independent Children’s Lawyer shall have liberty to provide to Dr G any class of document, advice and authority including permission to communicate such as reasonably requested to assist her undertaking and discharge her role under this order, provided such communication is in writing from the Independent Children’s Lawyer, and that each party is provided with a copy of such communication; and

   (d)such family therapy to include the paternal grandparents.

IT IS DIRECTED

1. The father’s application in a case for removal of the Independent Children’s Lawyer be stood over to 2.15pm on Friday 27 November 2015.

2. The father file and serve his affidavit material in support of that removal application on or before 4.00pm Thursday 24 September 2015.

3. The father be restrained from filing any further material in support of that removal application after that time without leave of the Court.

4. The Independent Children’s Lawyer file any affidavit material in reply to the removal application which he seeks to file within a further period of twenty eight (28) days from that date.

5. The applicant father to contain his oral submissions to no more than thirty (30) minutes.

6. The Independent Children’s Lawyer to contain his oral submissions to no more than thirty (30) minutes.

7. The applicant father to contain his submissions in reply to no more than ten (10) minutes.

IT IS FURTHER ORDERED

1. The return date of 23 September 2015 be vacated.

IT IS NOTED

1. The contravention application filed by the father on 18 June 2015 is to be listed for hearing before a Federal Circuit Court Judge.

2. The paternal grandparents are and remain parties to these proceedings.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 909 of 2014

Mr Leroux

Applicant

And

Ms Leroux

Respondent

And

Ms Digby
Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. In the matter of Leroux & Leroux and Anor it is back before me yet again and I think this is the third or fourth time it has been before me since it was transferred from the Federal Circuit Court in about August of this year. 

2. The matters before me today fall into a number of areas.  The first was an application by the father to remove the Independent Children’s Lawyer.  That application was not supported by any evidence of any nature at all.  I was invited to dismiss that application by counsel for the mother, and the Independent Children’s Lawyer suggested I adopt a more conservative approach given that the father was unrepresented. 

3. I have indicated earlier that I would give the father the seven days he seeks to file the material and I will do so.  I will list the father’s application for a date to be fixed to determine that aspect of it. 

4. It is a matter for the father whether he takes that step or not.  It is a significant matter to remove an Independent Children’s Lawyer and the father will need to make sure that he is properly advised and that the evidence he has is such as would base such an application.  It is not for me to tell him what evidence to put on.  It is for the father to find that out himself or through others who may advise him.  Accordingly, I will make that order. 

5. The second application was in relation to the inclusion of the paternal grandfather as a party to these proceedings.  Clearly, one of the possible outcomes of these proceedings is that the children spend no time with their father particularly given the age of the children, and the likelihood that it is not to be determined for at least another six or eight months, by which time E will have attained the age of 12 years and D attained the age of 13 years. 

6. However, what happens there will be a matter for the evidence and the assessment of evidence at that time. It is a possibility that if no time is ordered with the father that time may be ordered for the paternal grandparents in their own right and as such I accept the submission of the Independent Children’s Lawyer, which is not opposed by the mother, that they should be parties to the proceedings and they will remain parties to the proceedings. Accordingly, I will make an order to that effect. 

7. The next issue is a really vexed issue.  Consent orders were made on 4 June of this year which provided that the children spend three hours every two weeks with their grandmother.  It was clear, from the nature of those orders, that the grandfather could be present and should be present at that time.  Those orders were made by consent. 

8. The order which the paternal grandfather seeks in his application of the case can be read in a conflicted sense or as simply as he says a belt and braces approach in the event that his wife is unable or unwell and cannot see the children.  I raised with the Independent Children’s Lawyer and the lawyer for the mother whether order made 4 June ought to be simply amended to provide for the inclusion of the paternal grandparent.  There was no objection to that course because that order would then provide for the protections that the parties had carefully considered and consented to on 4 June.  I intend to make that order. 

9. The next question is the question of suspension of time.  I have read the affidavits referred to me by the mother, her witness, the father and the grandparents.  I have read the relevant parts of the expert reports including that of Ms I.  The father is determined to have Ms I excluded from this process.  This has to be seen in the circumstances that that application was, in effect, made before her Honour Judge Baker earlier this year.  Her Honour, according to the father, did not fully understand the matter and made the order in the absence of that understanding.

10. Quite properly, the father lodged an appeal as that is a way to deal with orders of judges where you believe there is an error in law.  That appeal has been withdrawn.  Therefore, the order of her Honour stands and as I have explained to the father on a number of occasions, it is not for me to review the decisions of her Honour.  I think an endeavour was made to do so in August of this year and I declined to do so given material that was before me at that time or it may have been withdrawn.  I am not 100 per cent sure of that.  What happened on Father’s Day has been construed by each of the parties in their various ways. 

11. Interestingly, there is not that much in dispute in regard to the substantive events, that is, that the mother went to the paternal grandparents’ home and the children declined to get out of the car.  It is the evidence of the mother and her witness that it was the view of the children alone.  It is the evidence of the grandparents that the mother did not support the children in getting out of the car and they assert the mother could have done much more including stopping the engine of the car or moving closer to the driveway. 

12. However, it is also clear that the mother remained there for some 50 minutes although this could be reduced to 30 minutes depending on some other submissions made.  Clearly some endeavours were made.  A suggestion was made, although there is dispute as to who the made suggestion, that the children go to a skate park.

13. Then there was an argument, apparently, or a disagreement, as to whether the mother should remain or go.  The mother went and then there was an argument as to whether she should say goodbye to the children.  There was an argument when the children contacted the mother to come back.  Whatever it was, it was an awful, terrible experience for the children in circumstances which should have been far less stressful. 

14. I accept the submission of the Independent Children’s Lawyer given the evidence that I have heard at the moment and I accept that evidence is untested and that the children appear to be becoming more and more resistant to spending time with their grandparents.  Of course, the mother says that that is not a cause of her and she is doing her best to encourage them.

15. The grandparents say that is entirely as a consequence of the mother and they are in many ways supported by the father, who sees all of the problems as resting with the mother.  These are old-ish children who have their own views and they are not in a position where they can, as with smaller children, be picked up and taken somewhere. 

16. I am concerned about the impact of these changeovers on those children.  I am also concerned that if what is happening continues, their relationship with their grandparents, particularly that between D and her grandmother which seems very close, may be undermined.

17. I find on the evidence before me that it is necessary that some intervention come into place.  The paternal grandmother suggests time out of some one week which would take it to Sunday.  This would give up this Sunday and make it a fortnight later if my arithmetic is correct.  Mr Blissenden, on behalf of the mother, says it should be until something occurs with the family therapy.  Mr Fitzgerald says that it ought to have some return date to bring it back so that it does not get lost in the mail.

18. I intend to suspend the time but I intend to suspend it for a period of time so that hopefully Dr G might be able to find a way to restore it in a child-focused and less confrontational way.  That she might be able to hear the voices of the children because I am hearing the voices of the mother, the father, and the grandparents.  When you read what the children are saying, I wonder whether they are being heard; children at this age, whether parents or grandparents like it or not, like to be heard.

19. I will be suspending time for the next four visits, which will be a definite period of eight weeks.  I will bring the matter back in terms of the father’s application to have Mr Fitzgerald removed as the Independent Children’s Lawyer within that period of time.  It is possible if the parties ask me and they file the appropriate applications that I will consider either extending or discharging the suspension of time. 

20. There was an application made by the Independent Children’s Lawyer to extend the terms of the family therapy to include the paternal grandparents.  It appears that there is no objection to that from anyone from what I can see and I intend to expand it to that purpose.  He also suggested three other orders.  Orders 1 and 3 were not the subject of any objections subject to any communication with Dr G to be in writing and the parties notified of that writing.  Again, there was no objection to that.

21. There was an objection to the submission by the Independent Children’s Lawyer for the following order and I quote:-

    (2) To remove any doubt, [Dr G] may explore as part of the family therapy with [Ms I] appropriate collaborative therapy and other strategies to address issues identified by her.

22. The father opposes that Order because he has a strong view that Ms I is aligned with the mother and is supportive of the mother of the father’s perception of alienation of the children from him and from his family. 

23. The father says that Ms I is the subject of a complaint by him which is being dealt with and, therefore, it is inappropriate for her to continue.  As I explained to him on this occasion, and perhaps on other occasions, a determination was made by Judge Baker in relation to Ms I and that determination is now not going to be reviewed on appeal.  I do not, at this stage, have evidence which would cause me to re-determine that matter.  At one stage, I invited the father to make an application.  He did not.  I said if he wished to make an application, he could do so.  I neither encouraged him nor discouraged him.  He would need to adduce evidence of what has happened since that time and I would determine it on its merit.  That is not an encouragement.  It is simply reflecting what rights he may or may not have or wish to exercise in this court.

24. I intend to make those orders sought by the Independent Children’s Lawyer. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 September 2015.

Associate:     

Date:              16 September 2015