Crawley & Crawley

[2007] FamCA 1559

FAMILY COURT OF AUSTRALIA

CRAWLEY & CRAWLEY [2007] FamCA 1559

FAMILY LAW – CHILDREN – Shared Parenting – Parenting orders made in absence of the husband who had notice of the proceedings – Wife charged alone with the care of the three children without any financial assistance from the husband – Satisfactory proposals advanced on behalf of the wife and orders made accordingly

Family Law Act 1975 (Cth)

APPLICANT: Ms Crawley

RESPONDENT: Mr Crawley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3392 of 2006

DATE DELIVERED: 13 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 13 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bott

SOLICITOR FOR THE APPLICANT: Cynthia A Toose & Associates

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Watson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watson & McLeod

Orders

1. THAT the Wife and Husband have equal shared parental responsibility for the long term care, welfare and development of the children of the marriage namely S born on the … day of January 1997, H born on the … day of November 1998 and G born on the … day of May 2002.

2. THAT the children live with the Wife.

3. THAT the children spend time with and communicate with the Husband as agreed between the parties.

4. THAT pursuant to Section 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.

5. THAT the Independent Children’s Lawyer be discharged.

6. THAT all extant applications be otherwise dismissed and the matter removed from the List of Cases awaiting final determination.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 3392  of 2006

MS CRAWLEY  

Applicant

And

MR CRAWLEY  

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 commenced by way of a Form 1 Application filed by the husband Mr Crawley on 13 December 2006.

2. By that application, the husband sought an order that previous orders made in the proceedings by his Honour Magistrate Von Einem on 18 May 2005 be discharged.  He sought an order that he and his wife, Ms Crawley share equal responsibility for the long-term care, welfare and development of their children, namely S, who was born in January 1997, H, who was born in November 1998, and G, who was born in May 2002.  It was the husband’s application that the three children live with him and that he have responsibility for their day-to-day care, welfare and development.

3. Orders were previously made by the learned Magistrate on 18 May 2005 by consent that the parties have joint responsibility for the long‑term care, welfare and development of the children.  Further, it was ordered that the children reside with the wife, who would have sole responsibility for their day-to-day care, welfare and development.  Specific orders were made for the time the husband was to spend with the children.

4. The wife caused to be filed a Form 1A Response on 1 March 2007 which was amended on 11 October 2007 in which she sought that the children live with her.  Each party has filed and served affidavits in support of their respective applications although dated somewhat in time, but it is the wife who has filed a more recent affidavit on 11 October 2007.

5. By way of minimalist background, the parties' relationship commenced in 1995.  They married in June 1997, and following unhappy differences between them, separated in 2004.

6. I am satisfied from the helpful explanation and overview provided by Mr Watson that the husband is aware that the wife's Form 1A Response is to be heard and determined at these current sittings.  I need not record into this short ex tempore judgment the explanation provided by Mr Watson, save to say that his office clerk recently had a conversation with the husband's current partner and further that there was a letter forwarded to the husband on 25 September 2007 advising of the proceedings.  That letter has not been returned as "Addressee unknown".

7. The husband has previously had the assistance of a local practitioner, who has caused to be filed in August 2007 a Notice of Ceasing to Act.  In the circumstances, I see no impediment with the matter proceeding this day.

8. The wife's affidavit filed in October 2007 is a helpful one. She deposed that the children remained in her full-time care following the separation between herself and her husband in 2004.  She has assumed all responsibilities associated with the parenting of the children.  She deposed that following the separation, the children spent time with the husband, at times what were agreed between them.

9. The wife referred to the orders made by his Honour Magistrate Von Einem on 18 May 2005, pointing out that the orders provided for a gradual increase in the contact regimen as a result of concerns that she held for the husband's mental health.  It is clear that following the making of those orders, the husband did spend time with the children in accordance with the provisions of those orders.  They were subsequently varied in a modest manner.

10. The husband, as I said, issued the Form 1 Application in the proceedings and on 13 December 2006 caused to be filed an affidavit.  I have read that affidavit.  The wife has denied the allegations made by the husband who is not here to support that which he alleges notwithstanding an opportunity to do so.  In the circumstances, I accept the evidence of the wife as uncontested.

11. Furthermore, arrangements were made for the husband and the wife to attend upon a Family Consultant on 31 July 2007.  This the wife did.  However, the husband failed to attend.  Subsequently, as the wife deposed, she became aware the husband had relocated to Adelaide, and it appears that he is no longer pursuing his application with respect to the children.

12. The wife deposed that since the husband's relocation to Adelaide, he has been contacting the children weekly by telephone, which is laudable in the circumstances.  However, it hardly equates to spending time with them.  There has been only two occasions since his relocation that the husband has spent time with the children.  That was on 6 October 2007 and 7 October 2007.  He is not paying child support and is currently approximately $8000 in arrears of his obligations.  I see that situation as quite reprehensible.

13. The wife deposed, and which I accept, that she is confident that she and the husband will be able to agree on matters with respect to the children's time to be spent with their father.  She said that she has always been accommodating of the children's time with him, and views the same to be “extremely important” to their sense of identity and their continued welfare and development.  I accept her evidence that she continues to promote a relationship between the children and their father. 

14. The wife currently resides in accommodation in the North-West Victoria area with the children.  She described the living arrangements in which she and the children live.  I accept that she shares a close relationship with them and that each of the children share a close relationship with the other.  The wife deposed as to the children's schooling arrangements, and which evidence I accept.  It appears to me the children are doing well under her care. 

15. She is the parent that is charged with the onerous responsibility for their general nurture, welfare and development.  She is clearly doing an excellent job and I congratulate her on her industry.  It is my expectation that the husband will do more than he does to contribute towards the children’s expenses and assist the wife in a proper and mature manner.  He is on notice.

16. I make orders in terms of Exhibit “A”.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 14 January 2008