Lefevre and Lefevre

[2016] FamCA 236

FAMILY COURT OF AUSTRALIA

LEFEVRE & LEFEVRE [2016] FamCA 236

FAMILY LAW – PRACTICE AND PROCEDURE – Notice of Discontinuance filed by both the applicant and the respondent – where the matter is in the Magellan List – final orders made dismissing all applications and discharging the Independent Children’s Lawyer

APPLICANT: Mr Lefevre

RESPONDENT: Ms Lefevre

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 7500 of 2015

DATE DELIVERED: 22 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 22 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spong

SOLICITOR FOR THE APPLICANT: MST Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schembri

SOLICITOR FOR THE RESPONDENT: Schembri & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

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

Orders

1. That the husband’s Initiating Application filed 10 August 2015, and Amended Initiating Application filed 27 January 2016 be struck out.

2. That the wife’s Response to Initiating Application filed 31 August 2015 be struck out.

3. That the order for the appointment of the Independent Children's Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lefevre & Lefevre 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 7500 of 2015

Mr Lefevre

Applicant

And

Ms Lefevre

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter of Lefevre is listed for mention before me today as a result of the filing by the applicant and the respondent of notices of discontinuance, the applicant’s notice having been filed on 15 March 2016 and the respondent’s filed the same date.

2. The background to these proceedings is that they are proceedings relating to parenting matters with respect to the parties’ two children, B, who is aged almost four years, and C, who has recently turned one.

3. The matter was allocated to the Magellan list of cases due to the very serious allegations raised by the mother that the children, and particularly B, had been subject to sexual abuse at the hands of his father. 

4. As a consequence, an Independent Children's Lawyer has been appointed to represent the interests of the children.  The parties have undertaken independent psychiatrist assessment with Dr A.  He has prepared reports, and an affidavit annexing those reports has been filed in the proceedings. 

5. There has been a Magellan report prepared by the Department of Health and Human Services.  Further, the father has been assessed by Dr D, he having undertaken a psycho-sexual assessment of the father and having sworn an affidavit annexing that assessment, that affidavit being filed 3 December 2015.

6. Trial directions were made for the preparation of the matter for a final hearing on 16 December 2015.  That hearing was listed to commence before me for five days on 9 May 2016.

7. Against that backdrop, the fact that the parties have determined to file notices of discontinuance is surprising.  The issues between them are highly contentious.  It is as a consequence of the filing of those notices that I have listed the matter for mention before me today. 

8. Helpfully, the parties’ legal practitioners have attended Court to represent them.  I have been informed by the parties’ representatives that the parties have been communicating, that there is an agreement between the parties as to the time the father is to spend with the children.  That time is greater than the time provided in the interim orders made by Senior Registrar FitzGibbon on 16 December 2015.

9. I am informed that the father continues to have supervised time with the children, that his time with B is occurring on alternate weekends from after school Friday to Monday, that the father, because of his work commitments, is able to spend additional time with B on alternate Mondays also.  Due to the child C’s young age, the father is spending shorter periods of time on a frequent weekly basis with C.

10. I am told that the father is continuing to spend that time with supervision as provided for in the orders of 16 December 2015, and that the supervision is being provided by the persons named in paragraph 3 of the interim orders.  This is an arrangement that I am told is satisfactory to both of the parties.  Further, I am told that as C matures and develops, that it is likely that the parties will negotiate further changes to the time.

11. From the children’s perspective, I am hopeful that the mother and the father will continue to communicate openly and frankly with each other to ensure that the children’s best interests are met.

12. The Independent Children's Lawyer has raised with me this morning concerns as to whether or not the mother is attending upon a psychiatrist or psychologist as was required pursuant to order 5 of the interim orders.  The mother’s lawyer has informed me today that the mother is continuing to attend upon her psychologist, Ms E, and further that that psychologist has been provided with information obtained during conduct of these proceedings, particularly the report of Dr A, and also material provided by Gatehouse.

13. Having regard to those circumstances and in the face of both parties seeking to end these proceedings the Court is left with little option but to accede to that request.  In doing so, I express concerns for the future.

14. The parties’ case has been identified as one that requires particular intervention by the court, and it has been placed in the Magellan list.  It has had significant resources provided to it in terms of the appointment of an Independent Children's Lawyer, the provision of an early hearing, specific attention from the Senior Registrar to ensure that all of the evidence necessary to enable the matter to proceed to trial is available to the Court.  Appointments had been organised for the parties to attend upon a family consultant to prepare a family report.  As a result of the filing of the notice of discontinuance, those appointments were cancelled.

15. The parties, by filing the notices of discontinuance, have now lost the opportunity, or will lose the opportunity, of a trial to explore the issues before the Court to enable evidence to be produced and to enable from the children’s perspective findings to be made as to the very serious allegations that have been raised.  If the communication breaks down between the parties, it is unlikely that they will again receive the accommodation that has been provided to them by the provision of those resources if the matter returns to the Court again.

16. Nonetheless, that is the path down which the parties have elected to travel.  In the circumstances, the orders that I make are as follows:

    (1)That the husband’s Initiating Application filed 10 August 2015, and Amended Initiating Application filed 27 January 2016 be struck out.

    (2)That the wife’s Response to Initiating Application filed 31 August 2015 be struck out.

    (3)That the order for the appointment of the Independent Children's Lawyer be discharged.

17. I thank the practitioners for their assistance in the matter.  I have no doubt that they have provided advice in the strongest of terms as to the impact of the decisions taken by the parties.  Further, I am confident that the Independent Children's Lawyer has no doubt been frank in her views as to any concerns that she has as to the decisions taken by the parties.

18. I wish the parties well.  They need to focus their energies on what is best for their children.  Presumably this chapter is something they wish to put behind them.  At all times they need to regard the children’s interests as the paramount consideration.  They need to be focussed on ensuring that the children have an opportunity of a meaningful relationship with both of their parents and that the children continue to be protected from harm.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 March 2016.

Associate:  Alison Power

Date:  22 March 2016