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Justice Le Poer Trench

This Judge makes careful and well rounded decisions

Justice Le Poer Trench does it again - This Judge makes careful and well rounded decisions

Last edit: by OneRingRules


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War and peace - What makes a diffference

The CCP pilot developed into section 12A - Under the revised legislation implimented in July 1 2006.
Agog said
I would like to see a 'pilot' scheme with NO legal representation - that way the issue of costs would be immaterial. The Courts could appoint a 'Parents Rep' - with costs shared between the parties - that way neither is disadvantaged
by financial, language or other circumstances Yes I think a good idea.  The CCP (Childrens Cases Program) is definitely being roled out as the rule from what I can see and being a less adverserial system allows the judicial officer to take some control and direct the matter to try and get down to the bottom of the key issues more quickly.

This new method also avoids the ridiculous situation of cross examination which usually results in trying to prove one party or the other left the toilet seat up or was the party responsible for all the ills of the relationship.

Secretary SPCA said
Have we a detailed list of the procedures for CCP and is the procedure being adopted widely?

CCP should avoid and in fact negate costs as you can be pretty well self represented I would have thought under CCP.

What do our SRL friends say about representation under CCP? CCP was supposed to completely wipe out adveserail cases.

How did Section 12a come about?
This was posted from an old SMH news article
War and peace
February 9, 2005

A radical Family Court project is reducing the bitterness of divorce, writes Lauren Martin.

He's wearing the usual wig and robe, but otherwise Justice Mark Le Poer Trench is presiding over a courtroom radically different from others in the Sydney registry of the Family Court of Australia.

The warring parents in La Poer Trench's court entered by the same steps from Goulburn Street, through the same metal detectors and past the same warning signs to hand over their knives. But at the request of the judge, they arrived early to view a sobering video starring the straight-talking children of divorce.

The video is compulsory viewing for all separated parents taking part in a Family Court pilot program called the Children's Cases Project (CCP). The program aims to cut time, costs and acrimony. Cases arrive before a judge in weeks rather than the 12 to 15 months it typically takes in litigious Sydney.

To achieve this, however, the project skirts the rules of evidence. It turns on its head the principle that people control their own litigation. It does away with most legal objections, legal argument - "all those things that take up time", as the judge puts it.

This is nothing like the usual court combat. And for that reason it's cited by the new chief justice of the Family Court, Diana Bryant, as "the future of family law".

ON a sunny Friday just before Christmas, a divorced couple in their mid-30s has brought to the program a dispute about where their seven-year-old son will go to school. He lives alternate weeks with each, playing with siblings he's acquired as both parents remarried. He's always been at the same school, but with both parents now living elsewhere in the city, the question is should he go to school near Mum's house, Dad's house, or halfway between?

It is a simple dispute compared to most, yet still intractable.

When three knocks announce La Poer Trench's arrival in the courtroom, the parties rise from their places around same table. Then they're introduced to a mediator.

Justice Le Poer Trench said
That doesn't happen in any other case, [In non-CCP cases] we don't have a mediator involved in the case as an adviser to the parties and to the judge.

Courts usually keeps strict walls between its staff mediators and judges. Changing this is "hugely radical", and one of the challenges in drafting legislative changes to make the project permanent.

Anyone who gets to this court has already had compulsory mediation. "But just being in the same room as an ex-partner can be so overwhelming that you don't hear anything" in early mediation sessions.
Here, with a judge watching, mediators meet a totally different response.
Justice Le Poer Trench said
Imagine yourself in a relationship break-up. Most people feel very hurt, most people feel unjustly treated, and that they don't have any avenue for anybody to hear their legitimate complaints.

We [Australian family law] are a 'no fault' jurisdiction, so you can't stand up and say: 'This person has got no morals . . . they've formed an emotional relationship with someone else, and that's entirely unfair.' "

In this program, they can.
Le Poer Trench begins today's case by outlining his understanding of the family situation, gleaned from questionnaires parents fill out before their first day in court. Then he asks each parent to tell him in 10 minutes what the case is about for them.
Justice Le Poer Trench said
Doesn't happen in any other case. Usually, judges do not even question the parties' lawyers until final submissions. "Parties do not get a chance to put their case directly to a judge unless they appear for themselves."

What's been amazing about the pilot, which has been operating in Sydney and Parramatta for almost a year, is how few use this time to bag their "ex".

We didn't know what was going to happen. I sort of anticipated that it might become a brawl - 'Oh, that b…..d over there, I need 10 minutes just to tell you what a b a s t a r d he is'. But it's quite the opposite.

Project cases have been broadly representative of the range of Family Court cases. They are not all cases where people desperately want to settle and they just need the judge to give advice and formulate it. Some of them are very bitter disputes which you would think would naturally choose the adversarial path, were it not for the financial savings of this program.

Yet in their 10 minutes, people tend to be nice. "In fact, one of the problems is … they are not telling us important things that might be seen as being critical of the other party."

Still, this unfiltered exchange allows the judge to tell where the parties are, emotionally. "If you're hearing from somebody [who] hasn't yet begun to come to grips with the emotional battle that they have to deal with, then you know you've got no prospect of really resolving anything on the first day. (Five to 10 per cent of CCP cases settle on the first day).

The court has formed relationships with counselling agencies to handle such matters. There are increasing numbers of programs CCP judges can send parents to for help getting "to a point where they can start to appreciate what's in their interests and what's in the child's interest".
Today, Le Poer Trench can hear - though it is unsaid - that Mum feels Dad is overbearing, while he believes she is emotionally manipulative.

The court can make orders, lay down rules for them to live by. "But in CCP, we understand that whatever the court does in the process is not going to solve the problem that brought them here - and that is an inability to co-operatively parent the children. So from day one, I discuss with parties their becoming involved with an outside agency that can work therapeutically with them."

The couple in court 5A see the sense in this. The judge reckons they can take some tough love. He tells them to stop saying they just want what's best for the child. If that were true, he says, they'd find the best school in Australia, both move there and find new jobs and new friends. "You've got to pick your mark," he admits during a break. "[With a lot of cases] I couldn't do that, because they're too emotionally frail … It really has to be put in proper context - not just the interests of the child, but how do we cater, as best we can, for his interests in the whole circumstances in which we live."

Court mediator Paul Lodge is here as a neutral party. Le Poer Trench asks him to talk to this couple, and Lodge says it matters little, relatively, which school the boy attends. What will really affect his wellbeing is the conflict, or co-operation, between his parents. The child will know if one parent doesn't support the idea of sending him to school X and that will affect everything about his experience there.
Court mediator Paul Lodge said
I don't comment on the specifics of a family. Things like family violence, relocation, all those thematic things we confront in the court . . . I comment from an evidence-based research perspective.
Le Poer Trench tries to convince parties that the answer is always in their relationship. "Because if you can develop a working relationship built on a foundation of respect then everything else falls into place."

Today the judge tells the couple that if he has to decide where this boy goes to school, he will consider it a failure. But he will if he has to.

Le Poer Trench could dress in civvies for CCP hearings, but he chooses to wear the wig and robe.
Justice Le Poer Trench said
The parties have to know that although I might engage in exploring with them possible resolutions - so that it looks a bit more like mediation than judicial determination - if we can't resolve it that way, then I make the decision. And it's not me personally . . . I am making the decision as a judge of the court.

You've still got to apply all the law.
It's the procedure that's radically new. In CCP, the same judge sees a case throughout. That judge decides what are the issues, what affidavits are needed, what witnesses, whether there can be any cross-examination.

Judges spend an average of 21 hours per CCP case compared to 21 days for normal hearings, according to a Senate Legal and Constitutional Committee's estimates released last May (2006).

Justice Le Poer Trench said
Being very interactive, very directive, doing a lot of talking - it's a huge change for a judge.

On the first day, if the judge feels parties are "getting it", he can suspend the hearing to give them time with the mediator. Some couples work it out then. If not, they are introduced to their own case co-ordinator, whom they can call any time. The judge may order a family report to be done, or meet the children involved.
Few CCP cases reach a second hearing day, and none of the CCP decisions so far has been appealed against.

(So far 28 matters have been settled by the CCP project in Sydney and another 63 are pending. There are another 100 CCP matters in Parramatta, of which 49 have been finalised.)

Lodge predicts CCP outcomes will be more sustainable than those decided in less democratic courtrooms. "Parents are treated with a different sort of respect," says the mediator. "They're encouraged to speak and participate . . . that's what makes a difference. If you're feeling good about yourself, feeling part of the process, you're more likely to give a little bit."

Today's case is a wrap. Before walking back out onto Goulburn Street, these parents opt for a school midway between their homes, and agree to attend a program to help them communicate better.

Le Poer Trench expects that before this year is out, Federal Parliament will agree to laws enabling this project to become permanent: "Then every children's case will be done this way."

Secretary Shared Parenting Council said
The results of Justice La Poer's courtroom have assisted in moving major changes into law through the various submissions and reports about the CCP Pilot.

Justice Faulks has been a supporter of the changes and it remains to be seen through statistical analysis as to how many outcomes through the new process are achieving more contact for the "spends time with parent".

The reality however, is that a presumption in law of equal time parenting time might well stop many of those delinquent parents who still have some misguided view that witholding contact from the other will in the end be a successful strategy… The argument as to how much time one or the other should have, where one or other of the parents can accomodate such time is realatively easy.

They can either manage equal time or an amount of time up to equal time or they can't. In which case they will make sensible arrangements for which they can accomodate and so should they!

Executive Secretary - Shared Parenting Council of Australia
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Wen & Lam [2008] FamCA 705 (11 August 2008)

Yet another case where the justice try's very hard to deliver some sort of outcome in the face of seemingly impossible odds. This father will get his last wish and credit to a judge in most difficult circumstances. I hope we do not see contravention proceedings in this case.

REASONS FOR JUDGMENT

   1. This is a tragic case in many respects. The father, Mr Wen, is dying of liver cancer and has between six and 12 months to live. He has not seen his daughter who was born in October 1997, now nearly 11 years of age, since about late 2003. The mother, Ms Lam, is apparently permeated with hatred for and disgust of the father. So much so that she really doubts he is actually ill, let alone dying. This is notwithstanding Professor N having given evidence in the hearing before me that the father has inoperable liver cancer and his life expectancy is only six to 12 months. The child has expressed the most negative statements about her father including a wish that he die.

2. The family consultant, Ms M, has produced a number of family reports for the case. She has given oral evidence. Her opinion is that if the father dies without he and the child being able to meet and say goodbye, the child will come to regret this later in life when she has her emotional independence from her mother and has time to reflect on the appalling way in which she was drawn into the conflict between her parents.

   3. Before proceeding further I must record my observations of the mother. She is without a doubt one of the most extraordinary people who I have ever seen in my Court. She is apparently devoid of any compassion for the father, a person who she apparently once loved and the father of her child. She presented as angry and apparently loudly protesting in her evidence. She was intractable in her stance to the father's application. Although saying the choice was the child?s whether she saw her father or not, it was clear from the mother's evidence that she thought the child should not see her father.

   4. The mother has re-partnered and has another child. I was left with the impression that the mother took the view that she and the child have now moved into another family unit and that the father is a threat to that new family. It is most likely the child has a form of anxious attachment or insecure attachment to her mother. She has had a very disrupted younger life with her strongest attachment probably being with her maternal grandmother. The child had been sent to China to live with her grandmother when she was 18 months old and did not return until September 2000. On 15 July 2002, final parenting orders were made. The orders provided for the child to live with her mother. They also provided for the child to be able to be sent to China to live with her grandmother between 2002 and 2004.

   5. The parties have a very high level of conflict. The family reports reflect this. The parties attended on Unifam to try and reduce conflict. This seems to have been ineffective. I am satisfied the mother is not interested in repairing her relationship with the father. She wants him out of her life and out of the child?s life. In a most unusual facet of this case the Independent Children's Lawyer tendered a transcript of a recent interview with the child. She was emphatic that she did not wish to see her father. She spoke of having her own dad and his name was D. She said Mr Wen was not her father any more.

   6. I accept that this notion of having a new father would have been encouraged by her mother. The child said her father was selfish, mean and a very bad man. The child attributed hateful and hurtful statements to the father which she said were spoken to her at Court by the father. Her father denies this statement. The mother confirms there were negative statements made. I accept the father's evidence on this point.

 

Executive Secretary - Shared Parenting Council of Australia
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That appalling!

There sure are some ignorant people out there!

4MYDAUGHTER
I often wonder, can't these people put their anger and bitterness aside and look inside their hearts?

Then I realise, some people have no heart.


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