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 of 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

1. 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

1. 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.

2. 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:

1. 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.

2. If requested by the Independent Children’s Lawyer, the former Independent Children’s Lawyer, Patrick Barry Fitzgerald, have liberty to communicate with that lawyer.

3. There be a request to the relevant child welfare officer at Communities WA to intervene in the proceedings.

4. 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 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 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 LAUNCESTON

FILE NUMBER: HBC 909 of 2014

MR LEROUX

Applicant

And

MS LEROUX

Respondent

REASONS FOR JUDGMENT

1. Before the Court is said by the applicant father to be an Amended Initiating Application filed on 17 November 2019.[1] The father sought various orders, including that the order of Rees J made on 7 October 2016 in [2016] FamCA 862 that the children live with the mother, be vacated. The father also sought sole parental responsibility for the younger of the two children, that that child live with the father, and that that child spend such time with the mother as he elects.

   [1]     Such a document does not appear to have been filed. However on 17 November 2019 the father filed a Case Outline for the interim hearing on 18 November 2019. This document specifies the orders which the father sought at that time.

2. The father had earlier filed an Initiating Application dated 14 August 2019, an Amended Initiating Application dated 16 September 2019, and a further Amended Initiating Application dated 17 September 2019. The father had also filed affidavits dated 14 August 2019, 23 August 2019, and 17 September 2019.

3. On 15 August 2019 a registrar ordered, amongst other things, that the younger child be independently represented.

4. On 1 October 2019 the mother filed a Response to Initiating Application together with a short affidavit. She sought orders seeking that the father’s applications be dismissed, together with various other orders including, by way of alternative, an interim order that the proceedings be transferred to the Family Court of Western Australia, to be listed before the Duty Judge for directions.

5. On 18 October 2019 I listed all extant applications before me in the Launceston Registry of this Court for interim hearing and directions on 18 November 2019. I also ordered that no further affidavits be filed without the leave of the Court.

6. On 13 November 2019, the Independent Children’s Lawyer filed a Reply to the father’s then current Amended Initiating Application. The ICL sought various orders, including that the proceedings as they related to the younger child be transferred to the Perth Registry of the Family Court of Western Australia with a request that they be listed before a judicial officer for the making of procedural orders, as well as the appointment of an Independent Children’s Lawyer.

7. As has been mentioned, on 17 November 2019 the father filed a case outline for the interim hearing on 18 November 2019.

8. At the interim hearing on 18 November 2019 the ICL provided a case outline, and counsel for the father sought leave to file a further affidavit of the father, dated 17 November 2019. Objection was taken to aspects of this affidavit by both the ICL and the mother, but they were content for me to receive it on a provisional basis, and I did so. The affidavit purported to deal with recent events, including that the younger child was presently in a juvenile detention facility in Perth, Western Australia. It appears to be common ground that he has been accused of assaulting his mother, and has been incarcerated for that reason.

9. By reason for the unavailability of the mother on 18 November 2019, and the unavailability of the mother’s counsel past 10.00 am (Perth, AWST) that day, I acceded to the mother’s application, supported by the ICL and not opposed by the father, that the matter be adjourned until 20 November 2019 before me, again in Launceston.

10. The matter resumed on 20 November 2019, the father having filed a further case outline that morning pressing his application for the vacation of the order of Rees J that the younger child live with the mother, and seeking sole parental responsibility for the younger child. However in the alternative the father also sought that the proceedings be transferred to the Family Court of Western Australia, together with various other ancillary orders.

11. During the course of the hearing on 20 November 2019, counsel for the father indicated that his client was content for an order to be made transferring the proceedings as they related to the younger child to the Perth Registry of the Family Court of Western Australia for listing before a judicial officer for directions, including the appointment of an Independent Children’s Lawyer, as soon as practicable. Counsel for the father also indicated that his client no longer sought orders in relation to the older of the two children, who is shortly to turn 18, and that his applications in this regard could be dismissed.

12. I am satisfied that, pursuant to s 45(2) of the Family Law Act 1975 (“the Act”), it is appropriate to order a transfer of the proceedings to the Family Court of Western Australia in the terms sought by the consent of the parties. Accordingly I make this order in the form of a minute furnished to my chambers in Melbourne on 21 November 2019 and signed by the parties. Insofar as the parties seek, pursuant to s 68L of the Act, that the younger child be independently represented, and that Legal Aid Western Australia make arrangements as soon as practicable to secure such representation, I will note in the orders a request that this occur.

13. There was also agreement between the parties that the proceedings, as they related to the older of the two children, be dismissed with no order as to costs. Accordingly, I make this order by consent also, in the form of the consent minute.

14. There was also agreement between the parties that they be at liberty to make available to the younger child’s treating health care professionals the orders and reasons for the decision of the Honourable Justice Rees on 7 October 2016 in [2016] FamCA 862. Accordingly, I make this order by consent also, in the form of the consent minute.

15. The ICL also sought procedural orders in the following terms, as set out in the minute provided to my chambers –

    a)THAT 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.

    b)THAT if requested by the Independent Children’s Lawyer, the former Independent Children’s Lawyer, Patrick Barry Fitzgerald, have liberty to communicate with that lawyer.

    c)THAT there be a request to the relevant child welfare officer at Communities WA to intervene in the proceedings.

    d)THAT 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.

16. The mother has indicated, through her counsel’s notation on the minute of orders, that she consents to the further procedural orders sought by the ICL. As I understand the position, the father does not consent to the making of orders in these terms, but he made no submission that they should not be made. On balance I consider that there is utility in the making of procedural orders in these terms, and I do not consider that the father would be prejudiced by them in any way. Accordingly I will make these orders also.

17. The final matter for resolution is the father’s application for orders that –

    a)The father and the mother be authorised to provide the younger child’s health care professionals with a copy of the family report of Family Consultant Ms U dated 23 July 2016.

    b)The younger child be at liberty to have telephone communication with his father.

    c)The father be at liberty to contact the younger child by phone once per day.

    d)The father be at  liberty to contact the younger child’s health care professional and legal counsel.

18. The ICL and the mother oppose the making of these orders.

19. The father submits that such orders are required having regard to the dire circumstances in which the child finds himself. He draws attention, in particular, to the following subpoenaed documents in this regard –

    a)document No. 52 - the material from the SS Hospital at pages 7, 8, 16, 435, 449, 453 and 459;

    b)document No. 54 - the material from the TT Hospital at pages 466 and 642;

    c)document No. 53 - the material from the Tasmania Police as tagged on pages 1, 2, 3, 4, and 5; and

    d)the child protection file, at page 3.

20. The father says that all this material goes to the background, why the father needs input, and why the father should remain involved in his son’s treatment.

21. In all the circumstances I am not convinced that orders in the terms sought by the father should be made by this Court at this stage, particularly given that the proceedings are to be transferred to the Family Court of Western Australia. While it does seem that the situation is dire, in my view it would be preferable that the Family Court of Western Australia consider the desirability of orders in the terms sought by the father once it is seized of the matter and is able to receive evidence from all parties, in particular the Independent Children’s Lawyer who will be appointed in Western Australia.

22. I will otherwise dismiss all extant interim applications.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 22 November 2019.

Associate: 

Date:  22 November 2019