Leroux & Leroux

Case [2015] FamCA 1128

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ORS (INDEPENDENT CHILDREN’S LAWYER)

 [2015] FamCA 1128

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – Application by father for removal of  Independent Children’s Lawyer – Allegations that the Independent Children’s Lawyer failed to recognise and respond to evidence of alienation, failure to raise notice of risk of child abuse, failure to recognise need of mental health assessments, forming premature unqualified views, conflict of interest, lack of impartiality, over familiarity with mother’s solicitor, improper Father’s Day arrangements, failing to request preliminary report from psychologist, relevant considerations.

Family Law Act 1975 (Cth)

Leroux & Leroux [2015] FCCA 2078
Knibbs & Knibbs [2009] FamCA 840
Pagliarella & Pagliarella [19893] FLC 92-400
Bosgard & Bosgard [2013] FamCA 308
Kingley & Arndale (No. 2) [2010] FamCA 968

APPLICANT: Mr Leroux
1st RESPONDENT: Ms Leroux
2nd RESPONDENT: Mrs Digby
3rd RESPONDENT: Mr Digby
FILE NUMBER: HBC 909 of 2014
DATE DELIVERED: 17 December 2015
PLACE DELIVERED: Hobart
PLACE HEARD: Melbourne
JUDGMENT OF: Benjamin J
HEARING DATE: 13 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person
COUNSEL FOR THE 1ST RESPONDENT: Mr Blissenden
SOLICITOR FOR THE 1ST RESPONDENT: Blissenden Lawyers

SOLICITOR FOR THE 2ND RESPONDENT:

In person - Mrs Digby was excused as she was apparently unwell
SOLICITOR FOR THE 3RD RESPONDENT:

In person  

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr Welch
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

  1. The application in a case filed by Mr Leroux, the father, on 9 September 2015 be dismissed.

  2. Any costs applications in respect of the removal application are reserved.

IT IS NOTED

  1. These proceedings are listed for trial directions and for orders to appoint a single expert at Hobart on 11 February 2016 at 4.00pm.

IT IS CERTIFIED

  1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) 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 Ors (Independent Children’s Lawyer) 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
First respondent

And

Mrs Digby
Second respondent

And

Mr Digby
Third respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

  1. An order was made in the Federal Circuit Court on 4 June 2015 requesting that the Legal Aid Commission of Tasmania make arrangements for the appointment of an Independent Children’s Lawyer for the children, D born 2002 and E born 2003 (‘the children’).  Subsequent to that order the Legal Aid Commission appointed Mr Patrick Fitzgerald of the Legal Aid Commission to be that Independent Children’s Lawyer.

  2. The children’s parents are Mr Leroux (‘the father’) and Ms Leroux (‘the mother’).  The children’s paternal grandparents, Mr Digby (‘the paternal grandfather’) and Mrs Digby (‘the paternal grandmother’) are parties to the substantive proceedings.

  3. By way of application in a case filed…

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AGLC
Leroux & Leroux [2015] FamCA 1128
Case
[2015] FamCA 1128
Decision Date

CaseChat Overview and Summary

In *Leroux & Leroux* [2015] FCCA 2078, Benjamin J of the Federal Circuit Court of Australia considered an application by the father, Mr Leroux, seeking the removal of the Independent Children’s Lawyer (ICL) appointed in proceedings concerning their children. The father alleged a range of failures by the ICL, including a lack of recognition of parental alienation, failure to address risks of child abuse, inadequate consideration of mental health assessments, premature formation of opinions, conflicts of interest, lack of impartiality, over-familiarity with the mother's solicitor, and improper arrangements for Father's Day.

The central legal issue before the Court was whether the conduct of the ICL warranted their removal from the proceedings, having regard to the ICL's duties and the best interests of the children. The Court was required to assess the specific allegations made by the father against the established principles governing the appointment and conduct of ICLs under the *Family Law Act 1975* (Cth).

Benjamin J dismissed the father's application, finding that the allegations did not establish a sufficient basis for the removal of the ICL. The Court applied principles from cases such as *Knibbs & Knibbs* [2009] FamCA 840 and *Bosgard & Bosgard* [2013] FamCA 308, which emphasise that removal of an ICL is an exceptional measure and requires a significant demonstration of bias, conflict, or failure to fulfil their role. The Court considered the ICL's duty to represent the children's best interests and noted that disagreements with the ICL's views or approach do not automatically equate to grounds for removal, referencing the approach in *Kingley & Arndale (No. 2)* [2010] FamCA 968. The Court also implicitly considered the principles outlined in *Pagliarella & Pagliarella* [1983] FLC 92-400 regarding the role of the ICL.

The application filed by Mr Leroux on 9 September 2015 was dismissed. Any applications concerning costs in relation to this removal application were reserved.

Orders

Orders of the court

1.

The application in a case filed by Mr Leroux, the father, on 9 September 2015 be dismissed.

2.

Any costs applications in respect of the removal application are reserved.

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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