Burton and Gilbert (No. 2)

[2007] FamCA 1558

FAMILY COURT OF AUSTRALIA

BURTON & GILBERT (NO. 2) [2007] FamCA 1558

FAMILY LAW – CHILDREN – Shared Parenting – Father failing to spend time with his two children despite orders made in his favour in May 2007 – Father fails to attend hearing and orders made in favour of the mother

Family Law Act 1975 (Cth)

APPLICANT: Mr Burton

RESPONDENT: Ms Gilbert

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2755 of 206

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watson

SOLICITOR FOR THE APPLICANT: Watson & McLeod

COUNSEL FOR THE RESPONDENT: Ms Toose

SOLICITOR FOR THE RESPONDENT: Cynthia A Toose & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bender

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

Orders

1. That all previous parenting orders be discharged.

2. That the parents have equal shared parental responsibility for the child of the marriage … born … October 1998 (“the child”).

3. That the child live with the wife.

4. That the child spend time with the husband as agreed between the parents.

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

6. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

1. That the ex tempore Judgment delivered this day be transcribed, placed upon the court file and a copy made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 2755  of 206

MR BURTON  

Applicant

And

MS GILBERT  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura and concerns the child, who was born in October 1998.  She is nine years of age.  It was last before me on 7 May 2007 when a number of orders were made by consent, including that it be adjourned to the Deputy Registrar sittings commencing 1 June 2007 and that the parities make themselves available for psychiatric assessment by a psychiatrist nominated by the Independent Children's Lawyer. The applications were otherwise contested.  I made a number of orders which included that the child live with the wife and that pending the further hearing, the husband spend time with her as being nominated in the orders made by me that day.

2. I recall the proceedings quite well and my reasons for judgment appear on the court file.  I need not record into this short judgment the background which is set out in paragraphs 2 and 3 of my reasons for judgment.  In those reasons, (paragraphs 40 to 44 inclusive) I set out the gravamen underpinning the orders that I made.  Apparently, since then, the husband has not seen his daughter.  I have before me a further affidavit filed by the wife on 22 October 2007 to which I have regard in approving the orders sought this day.

3. The wife deposed that since May 2007, the husband had not availed himself of any opportunity to spend time with his daughter albeit that she has ensured that the child would be at home to receive telephone calls from him.  Regrettably, and much to his discredit I might add, he elected to telephone on only three out of 47 occasions.  He is the master of his own situation.  The wife further deposed that she has not received any child support for either the child or S, who is the husband's child of a former marriage.  She understands the husband is in employment.  The wife said that the husband is completely “distancing himself” from S and does not have any interaction with her at all.  He did not even acknowledge her 16th birthday and has not played any part in supporting her either emotionally or financially after the separation.

4. In my view, the wife has demonstrated the utmost good faith.  She deposed that she has sent to the husband copies of recent school photographs and of all school reports, birthday cards and Father's Day cards on behalf of the children.  However, there was no acknowledgment of these generous gestures from him.  

5. The situation that was debated at the last sittings of this court prevails.  The child is still not prepared to travel to Melbourne to spend time with her father for the reasons set out in my judgment.  He, on the other hand, is not prepared to travel to M to spend time with her.  Such is the measure of his parental responsibility, if one could call it that.  It is disappointing that the husband has adopted this quite apparent indifferent stand and demonstrated by his inaction a disregard of his parental duties and obligations.  Perhaps with the passage of time he may carefully reflect upon this quite unacceptable situation and place his children’s best interests before his own lament.

6. Ms Toose continues to appear this day for the wife, Mr Watson for the husband, and Ms Bender for the Independent Children's Lawyer.  Mr Watson placed no dissent to the orders proposed.  Those orders are supported by Ms Bender.  In the circumstances, I mark the Minute of Consent orders Exhibit “A”.  I make orders in terms of Exhibit “A”.  The court will take out the orders.

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

Associate 

Date: 14 January 2008