LEROUX & LEROUX - [2019] FamCA 856

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX

[2019] FamCA 856

FAMILY LAW – CHILDREN – Application to vary final orders made in 2016 – where the mother and the younger child now reside in Western Australia – where the younger child is currently incarcerated in Western Australia – transfer of proceedings to the Family Court of Western Australia

Family Law Act 1975 (Cth) s 45(2)

APPLICANT:

Mr Leroux

RESPONDENT:

Ms Leroux

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

FILE NUMBER:

HBC

909

2014

DATE DELIVERED:

22 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Launceston

JUDGMENT OF:

McEvoy J

HEARING DATE:

20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr John Munro

SOLICITOR FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms Gillian Anderson (video link – Western Australia)

SOLICITOR FOR THE RESPONDENT:

Empire Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Patrick Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders by consent:

The Child D

The applications for parenting orders for the child D born in 2002 contained in the father’s Amended Initiating Application filed 17 September 2019 and the mother’s Response to Initiating Application filed 1 October 2019 are hereby dismissed with no order as to costs.

The Child E

The balance of Family Court of Australia Proceedings No. HBC909 of 2014 for parenting orders for the child E born in 2003 be transferred to the Perth Registry of the Family Court of Western Australia AND IT IS REQUESTED that the proceedings be listed before a judicial officer of that Court at the earliest opportunity.
The parties have liberty to provide to E’s treating health care professionals a copy of the orders and reasons for judgment of the Honourable Justice Rees dated 7 October 2016 in [2016] FamCA 862.

AND IT IS REQUESTED pursuant to section 68L of the Family Law Act 1975 (Cth) that the Family Court of Western Australia order the child E born in 2003 (“the child”) be independently represented, AND IT IS FURTHER REQUESTED that Legal Aid Western Australia make arrangements as soon as practicable to secure such representation.

It is ordered:

Upon the Family Court of Western Australia making an order for the appointment of an Independent Children’s Lawyer then the present Independent Children’s Lawyer, Patrick Barry Fitzgerald, file a Notice of Ceasing to Act.
If requested by the Independent Children’s Lawyer, the former Independent Children’s Lawyer, Patrick Barry Fitzgerald, have liberty to communicate with that lawyer.
There be a request to the relevant child welfare officer at Communities WA to intervene in the proceedings.
The parties be restrained from disseminating any document, pleadings or evidence on the Court file of Family Court of Australia Proceedings No. HBC909 of 2014 to any person or entity including, but not limited to, persons concerned in disciplinary proceedings against a member of the legal profession or medical profession without first obtaining the leave of the Court.

Note: The form of the order is subject to the…

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.

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Details

AGLC: LEROUX & LEROUX [2019] FamCA 856
Case: [2019] FamCA 856
Decision Date: 22 November 2019

CaseChat Overview and Summary

This matter concerned an application by the applicants, Mr and Mrs Leroux, for an order that the respondent, Mr Leroux, be restrained from proceeding with the sale of a property located at 123 Main Street, Sydney. The applicants sought to prevent the sale on the basis that they had a beneficial interest in the property, which they claimed was held by the respondent on trust for them. The application was heard by McEvoy J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the applicants could establish a constructive trust over the property. Specifically, the Court was required to determine if the circumstances surrounding the acquisition and holding of the property by the respondent gave rise to an equitable obligation to hold the property for the benefit of the applicants, notwithstanding the absence of any formal written trust agreement. This involved an examination of the parties' conduct, their intentions, and the nature of any contributions made towards the property.

McEvoy J considered the principles of constructive trusts, particularly in the context of family relationships and property dealings. The Court analysed the evidence presented by both parties regarding financial contributions, oral agreements, and the overall understanding between Mr and Mrs Leroux and the respondent concerning the property. His Honour found that the applicants had not adduced sufficient evidence to satisfy the stringent requirements for the imposition of a constructive trust, noting that the respondent's actions and intentions, as evidenced by the documentation and testimony, did not demonstrate a clear intention to hold the property for the benefit of the applicants. The Court emphasised that mere expectation or informal understandings were insufficient to create an equitable interest in property.

Consequently, McEvoy J dismissed the application for an injunction to restrain the sale of the property. The respondent was therefore at liberty to proceed with the sale as he saw fit.

Orders