Desjardins and Desjardins (No 2)

[2015] FamCA 1141

FAMILY COURT OF AUSTRALIA

DESJARDINS & DESJARDINS (NO 2) [2015] FamCA 1141

FAMILY LAW – PRACTICE & PROCEDURE – Final parenting orders made – where on the balance of probabilities evidence was fabricated by the father and some of his witnesses - deliberate attempt to mislead the Court – matter referred to the Attorney General for the Commonwealth.

APPLICANT: Mr Desjardins

RESPONDENT: Ms Desjardins

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 10493 of 2013

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES: N/A

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown QC and Mr Holmes

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Sweeney and Mr Martin

SOLICITOR FOR THE RESPONDENT: Carew Counsel

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

ORDERS

IT IS ORDERED THAT

1. The following documents be referred to the Chambers of the Chief Justice of the Family Court of Australia for referral to the Attorney-General for the Commonwealth of Australia:

   (a)a sealed copy of the final orders made 28 September 2015;

   (b)a sealed copy of the orders made this day;

   (c)a certified copy of the reasons for judgment delivered 28 September 2015;

   (d)affidavits of the father filed 5 December 2014, 19 December 2014 and 30 January 2015;

   (e)affidavits of the mother filed 2 December 2013, 20 December 2013, 14 November 2014 and 13 January 2015;

   (f)affidavits of Ms Y filed 19 December 2014 and 23 February 2015;

   (g)affidavit of Mr J filed 30 January 2015; and

   (h)affidavit of Mr M filed 30 January 2015;

   for consideration of prosecution of the father Mr Desjardins, Ms Y, Mr J and Mr M for a breach of any of the laws of the Commonwealth of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Desjardins & Desjardins(No 2) 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 MELBOURNE

FILE NUMBER: MLC 10493 of 2013

Mr Desjardins

Applicant

And

Ms Desjardins

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 28 September 2015, I made final parenting orders and delivered my reasons for doing so.   On that date I also reserved the question of whether the matter should be referred to the Attorney-General for the Commonwealth of Australia.

2. In my reasons delivered that day, I found that I was satisfied on the balance of probabilities that evidence had been fabricated and that it appeared that there may have been a deliberate attempt to mislead the Court and hence pervert the course of justice by or on behalf of the father.

3. Although I  raised with counsel during the hearing the possibility that I might refer this matter to the relevant authorities, I reserved the question of whether or not I should do so to allow the parties the opportunity to apply to have the matter listed for mention and make submissions in relation to this issue.

4. Pursuant to the orders made 28 September 2015, the parties had until 4.00 pm on 12 October 2015 to apply for the matter to be so mentioned for the purpose of making any submissions with respect to this issue. 

5. Neither the father nor the mother sought to have the matter relisted.  In those circumstances, given my findings and what I considered to be the seriousness of the matter, I propose to refer the matter to the Chambers of the Chief Justice of the Family Court of Australia for referral to the Attorney-General for the Commonwealth of Australia for consideration of what, if any, further steps might be taken against the father and/or his witnesses.

6. As previously referred to in my reasons delivered 28 September 2015, it is not for me to determine whether either the father or the witnesses upon whose evidence he sought to rely have committed a criminal offence.  However, I am also satisfied that the Court should not turn a blind eye to conduct such as the conduct of the father and his witnesses in this case.  It is ultimately a matter for the Attorney-General for the Commonwealth of Australia to determine whether an offence may have been committed and what steps might be taken as a consequence.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 13 November 2015.

Associate: 

Date:  17 December 2015