McPherson and Trevisan

[2008] FamCA 134

FAMILY COURT OF AUSTRALIA

MCPHERSON & TREVISAN [2008] FamCA 134

FAMILY LAW – CHILDREN – Proceedings in Defended List –  Father died and orders sought by Independent Children’s Lawyer –  Not opposed by mother – Satisfactory arrangement made for children to maintain contact with their father’s family.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mr McPherson

RESPONDENT: Ms Trevisan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1671 of 2006

DATE DELIVERED: 15 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Steele

SOLICITOR FOR THE APPLICANT: M K Steele & Giammario

COUNSEL FOR THE RESPONDENT: Ms Jefford

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T J Mulvany & Co

Orders

1. That all extant applications be dismissed AND THAT the proceedings be removed from the Active Pending Cases List.

2. That the order for the appointment of the Independent Children’s Lawyer be discharged.

3. That the hearing date of 27 March 2008 for the proceedings be vacated.

IT IS CERTIFIED

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS NOTED that publication of this judgment under the pseudonym McPherson & Trevisan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1671  of 2006

Mr McPherson

Applicant

And

Ms Trevisan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter was listed to be heard in my defended list.  Mr Steele appears for the applicant father on the record.  Ms Jefford for the respondent mother, and I will explain her position shortly.  Mr Mulvany appears as the Independent Children's Lawyer.

2. The proceedings concern three children, B, aged nine years, E who is five years, and Y, who is three and a half years of age.  Tragically, the father passed away in December 2007.  Ms Jefford informed me that she caused to be filed a Notice of Discontinuance in December 2007.  She appears this day as a matter of courtesy to explain her position.

3. Mr Mulvany has submitted to me that he seeks orders for the discharge as the Independent Children's Lawyer.  He is satisfied from all inquiries made by him of the family that, to use his rather novel and colourful phrase, "the paternal constellation" is in touch with the mother and the children.  He has submitted that it is in the best interests of the children to finalise the proceedings, and that he recommends that all applications, which includes the Response, be dismissed and the proceedings be removed from the Active Pending Cases List.

4. Ms Jefford accepts that this would be an appropriate disposition, as does Mr Steele.  Mr Steele has informed me that the father's brother spends time with the children for one weekend a month, as do the paternal grandparents.  This is a tragic matter for these young children to lose a loving father at such a young age and it is absolutely essential, in my view, that they maintain contact with their late father's family in the manner provided.

5. The provisions of the Family Law Act 1975 (as amended) prescribe, when dealing with the principles and objects of the welfare jurisdiction, the importance of those persons in addition to the parties who have a significant role in the care, welfare and development of children. Section 60B(2)(b) provides that, one aspect of the principles underlying the objects of the Act, except where it would be contrary to the children's best interests, children should spend time on a regular basis with their parents, "and other people significant to their care, welfare and development, such as grandparents and other relatives".  It is clear, in my view, that the memory of their father should be maintained through spending time with their uncle and paternal grandparents, and I congratulate the professional representatives in facilitating this arrangement.

6. In the circumstances, and I can do no more than accept the submissions of the parties, which are wise in the circumstances.  It is an instance that brings to bear the gift of life and its limits.  I propose to make the orders sought.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  6 March 2008