DESJARDINS & DESJARDINS

[2014] FamCA 1242

FAMILY COURT OF AUSTRALIA

DESJARDINS & DESJARDINS [2014] FamCA 1242

FAMILY LAW – PRACTICE AND PROCEDURE – Father’s application to vacate trial and for the parties and children to attend therapeutic counselling – application opposed by the mother – where the father’s application purports to be in line with the family report recommendations – where the evidence has not been tested – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Desjardins

RESPONDENT: Ms Desjardins

INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

FILE NUMBER: MLC 10493 of 2013

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holmes

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

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

Orders

IT IS ORDERED THAT

1. The father’s application in a case filed 5 December 2014 be dismissed.

2. Paragraphs 2 and 3 of the mother’s response to an application filed 10 December 2014 be adjourned for hearing in the Judicial Duty List at 10.00 am on

   
   

   14 January 2015.

3. By 4.00 pm on 5 January 2015 the father file and serve any reply to the mother’s response filed 10 December 2014 and any affidavits in support thereof.

4. The time for the father to file and serve the affidavits of evidence in chief of all witnesses he relies upon pursuant to paragraph 3 of the orders made 5 August 2014 be extended to 4.00 pm on 19 December 2014.

5. The time for the mother to file and serve the affidavits of evidence in chief of all witnesses she relies upon pursuant to paragraph 4 of the orders made 5 August 2014 be extended to 4.00 pm on 16 January 2015.

6. The time for the father to file and serve any affidavit in reply to the affidavits of the mother pursuant to paragraph 5 of the orders made 5 August 2014 be extended to 4.00 pm on 30 January 2015.

7. The parties’ and the Independent Children’s Lawyer’s costs of this day be reserved.

IT IS ORDERED BY CONSENT THAT

1. The Independent Children’s Lawyer shall be at liberty to provide to Dr B and Dr C copies of the following:

   a)    the family report herein dated 11 November 2014;

   b)    the report of Dr B dated 3 April 2014;

   c)    any report herein received from Dr C; and

   d)    the psychosexual assessment of Dr D.

IT IS FURTHER ORDERED THAT

1. The mention before Justice Macmillan on 20 January 2015 be vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Desjardins & Desjardins 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

1. I have before me for mention today the father’s Application in a Case filed on 5 December 2014 in which he seeks, inter alia, that the trial fixed to commence on 23 February 2015 be vacated on the basis that both parties cooperate to ensure that the parties and the children E born in 2001, F born in 2004, and G born in 2007 attend upon and at the direction of Mr H for the purposes of therapeutic counselling as recommended by Ms I, the family consultant, in the family report dated 11 November 2014. 

2. The family report was released on 13 November 2014.  The father’s case is that it is the general thrust of that report, irrespective of what findings the Court might make as to any risk that the children may be in in the care of either of the parents, that the children and the parties require therapeutic counselling.  At paragraph 134 of that report, upon which the father relies, Ms I says as follows:

   The children’s anxiety, however, is evident in relation to their father and appears to further compound the potential psychological impact related to any ongoing relationship with him at present, regardless of the accuracy of the current allegations.  In this regard, their emotional wellbeing will need to be considered within the context of any Court Orders, and intensive counselling assistance for the children will need to occur, irrespective of the outcome of this dispute.

3. It is submitted by Mr Sweeney on behalf of the mother, and supported by Mr O’Connell on behalf of the Independent Children’s Lawyer, that the course proposed by the father essentially abrogates the Court’s responsibility for determining the issue in favour of the recommendations made by the family consultant.  It may well be that these children require ongoing counselling and there does not seem to be any real dispute as to that being the position, however, there is certainly a question as to what counselling will best promote their welfare.

4. The difficulty I have in this case is that the evidence is not yet in. Clearly, it has not been tested and, in particular, the evidence of the family consultant has not been tested.  Whilst it may be that her report carries significant weight, I am not in a position to determine whether that is the case at this time or make findings in relation to any of the evidence or the weight to be given to either party’s evidence or the evidence of the family consultant.  This is a Magellan matter, and the Court does its best to have these matters dealt with in a timely manner.  The allegations in this matter are serious and, in my view, it is not appropriate to vacate the trial and I propose to leave the matter listed as it is currently listed. 

5. The father also refers to both intervention order proceedings, which are set down for final hearing in March 2015, and various police investigations into both his conduct and that of the mother, which he said may give rise to issues of credit in relation to the trial before me commencing on 23 February 2015.  It is not even clear to me what part these matters will play in the proceedings because as yet the parties have not filed their affidavit material. 

6. However, it is always open to the parties to seek a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) if they consider it is necessary to do so or ultimately the Court determines that they should give that evidence and must order a certificate be given. In any event, the welfare of these children and the need to have this matter determined, in my view, overrides any of those issues in this case on the basis of my assessment of it at this time. Obviously, if there were issues that arose once the material was filed, they would have to be addressed but they can be addressed at the trial.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan J delivered on 12 December 2014.

Associate:

Date:  22 December 2014