Leroux and Leroux & Ors (No 3)

[2016] FamCA 696

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ORS (NO 3)

[2016] FamCA 696

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father for extension of time to file trial material – Application granted – Application by second and third respondents for extension of time to file trial material – Application granted

FAMILY LAW – PRACTICE AND PROCEDURE - Leave granted for parties to photocopy school documents - Leave granted to father to issue further subpoena to children’s school to produce documents – Orders made in respect of parties filing a trial plan

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made for the appointment of a single expert to value property – Injunctive Orders

FAMILY LAW – PRACTICE AND PROCEDURE – Appeal of Registrar’s Orders by way of a hearing de novo – Appeal dismissed and Registrar’s Orders confirmed

APPLICANT:

Mr Leroux

FIRST RESPONDENT:

SECOND RESPONDENT:

THIRD RESPONDENT:

Ms Leroux

Ms Digby

Mr Digby

INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

FILE NUMBER: HBC 909 of 2014

DATE DELIVERED: 5 July 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 5 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE 1^ST RESPONDENT: Mr R Blissenden

SOLICITOR FOR THE 1^ST RESPONDENT:

COUNSEL FOR 2^nd RESPONDENT:

Blissenden Lawyers

In person

COUNSEL FOR THE 3^rd RESPONDENT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

In person

Mr P Fitzgerald

Legal Aid Commission of Tasmania

Orders

1. BY CONSENT the application in a case filed by the applicant on 1 July 2016 for extension of time to file his material by 1 August 2016 is granted and he is required to file and serve all affidavit material upon which they seek to rely on or before
   1 August 2016.

2. BY CONSENT the application in a case filed by the second and third respondents dated 1 July 2016 for extension of time to file affidavit material by 1 August 2016 is granted and they are required to file and serve all affidavit material upon which they seek to rely on or before 1 August 2016.

3. In relation to subpoena to and production of documents by C School, leave be given for the parties to have photocopy access to all of that material including that relating to the financial issues and in the event that such produced documents (which had been previously produced may no longer be available), leave is given to the applicant to issue a further subpoena to the C School to produce such documents.

4. The appeal by way of rehearing of the order made by a Registrar of the Family Court on 25 May 2016 (namely orders 4, 5, 6 & 7) is dismissed and this court confirms:-

   (a)[4] Pursuant to Rule 15.45 of the Family Law Rules expert evicence be given by Quantity Surveyor, J Surveyors, as to the market value of land located in the Country K with title reference … and ...

   (b)[5]     The single expert referred to in order 4 (made 25 May 2016 and above) be given instructions in terms of the joint letter annexed hereto and marked “Exhibit 1”.

   (c)[6]     The letter referred to in order 5 (made 25 May 2016 and above) shall be presented to the applicant for his signature by the first respondent’s solicitors within seven (7) days of the date of this order.

   (d)[7]     In the event the applicant fails to sign and return the letter referred to in order 6 (made 25 May 2016 and above) within seven (7) days of the date of this order, the the first respondent’s solicitors are authorised to sign and dispatch the letter without the applicant’s signature.

IT IS NOTED

1. The second and third respondents will be giving evidence to assist the father in terms of his property application, such evidence may include assertions of fact that:-

   (a)monies which they assert that they advanced pursuant to a mortgage over property owned by the applicant and/or the first respondent;

   (b)the loan repayments which were paid and/or not paid;

   (c)physical support in respect of such property including the moving of rocks;

   (d)the funding of the applicant and first respondent’s family at various times (which is said to be taken into account in terms of the applicant’s contributions);

   (e)the extent of the mortgage and/or liabilities to the second and third respondents;

   (f)low interest or no interest loans at various times during the course of the relationship to the applicant and the first respondent; and

   (g)evidence as to the providence of the vesting of the Country K property in the applicant’s name.

IT IS DIRECTED/ORDERED

1. Mr M of N Pty Ltd (Mr M’s employer) be appointed to underake the valuations of units X Street, Suburb Y (as single expert) and with the first respondent’s solicitor, Mr Blissenden, to send to Mr M a letter substantially in the terms of the letter to annexure “A” to the application in a case filed by the first respondent on 15 June 2016, with a copy to be sent to the applicant.

2. Neither party will be present at the property at the time of valuation and that the parties will meet the reasonable requirements of N in advance of the valuation.

3. The solicitor for the first respondent forward a letter to Mr M and to Mr O enclosing a copy of this order informing N of this direction.

4. The mention date of 25 July 2016 be vacated.

5. The property and parenting proceedings be listed before Benjamin J at Melbourne at 4.15pm on Thursday 4 August 2016 by telephone by dialling … then enter passcode …#.

6. The applicant, the first, second and third respondents, and the Independent Children’s Laywer, file and serve on or before 3 August 2016 a draft trial plan.

7. Costs of all parties are reserved.

IT IS FURTHER NOTED

1. The application by the applicant to restrain the first respondent from selling the property at X Street, Suburb Y may be pursued on 4 August 2016.

IT IS CERTIFIED

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

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux and Ors (No:3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 909 of 2014

Mr Leroux

Applicant

And

Ms Leroux

First Respondent

And

Ms Digby
Second Respondent

And

Mr Digby
Third Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. There is an application in a case before me filed by Mr Leroux on 15 June 2016.  It relates to an order made by a Registrar on 25 May 2016 for the valuation of a property in the Country K by Mr J.  There had been orders made by the Registrar on that date to enable the property to be valued, and for the single expert to be given instructions. 

2. As I understand the Rules[1], any review of that decision had to have been made within seven days after the order was made.  I accept and acknowledge that Mr Leroux was unrepresented in this matter.  However, when you look at the whole of the matter, it is clear that there was an application in the case filed on 23 March 2016 on behalf of the mother seeking the appointment of Mr J as the single expert for the purpose of that valuation.  That was returnable before the Court on 20 April 2016 and was supported by an affidavit of Mr Blissenden sworn on the same day.

   [1] Family Law Rules 2004 (Cth).

3. The order was made on 25 May 2016, a period of almost two months after the application was filed.  No affidavits were filed by or on behalf of Mr Leroux in terms of that application in a case.  After the orders were made, some 19 days passed, to be accurate, and then the application in a case was filed. 

4. Mr Leroux says two things in essence:  firstly, he says that he now has evidence that this single expert ought not to have been appointed.  In that period of, now, between three and four months, that material has not been put in affidavit form.  Mr Leroux said he sought the advice of the Registry Manager who said, in applications such as this, you need not file an affidavit.  Mr Leroux has been involved in numerous applications in a case and is well aware of the need to file affidavits and I have spoken to him on many occasions about his submissions of fact from the bar table.

5. The second is, he said, that he was of the view that I should have made these determinations.  Mr Leroux was made aware in May, this year, that I was going on leave for a period of time.  I made that clear to him, and to other people in the Court, at the times that the matter was before the Court on a number of occasions.  This matter has been listed for trial for months and months.  The expert evidence is needed and, as such, I am not disposed to further delay in relation to the property matter, which will, in my view, simply delay the hearing, when there is reasonable opportunity for Mr Leroux to deal with the matter in advance.  Having heard the application de novo and having regard to the exchanges between the parties, the legal representatives and the bench the appeal is dismissed and the Registrar’s orders are confirmed [pursuant to the de novo hearing].

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 July 2016.

Associate:     

Date:              22 August 2016