CRAYTON & CRAYTON

[2011] FamCA 684

FAMILY COURT OF AUSTRALIA

CRAYTON & CRAYTON [2011] FamCA 684

FAMILY LAW – PROCEDURE – outstanding applications adjourned - leave to proceed on an undefended basis if failure to file and serve a response to an application

Family Law Act 1975 (Cth)

APPLICANT: Ms Crayton

RESPONDENT: Mr Crayton

FILE NUMBER: MLC 5146 of 2011

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hannan

SOLICITOR FOR THE APPLICANT: RNG LAWYERS

ORDERS

1. That all outstanding applications are adjourned to 3 October 2011 at 10.00am in the Judicial Duty List.

2. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

4. That if the husband fails to file and serve a response to the wife’s application together with an affidavit in support thereof and a financial statement that complies with Chapter 13 of the Rules by 26 August 2011, the wife have leave to proceed on 3 October 2011 on an undefended basis subject to any order of the trial judge to the contrary.

5. That the solicitor for the wife arrange service of this order upon the husband such order to be sent to the husband by post to B Street, Suburb C.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Crayton & Crayton 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 5146 of 2011

Ms Crayton

Applicant

And

Mr Crayton

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 14 June 2011 by Ms Crayton.  The respondent to the proceedings is her husband Mr Crayton.  Mr Crayton was called at just before 11 o’clock this morning and there has been no appearance.  On the file is an affidavit of service by a process server who, armed with a photograph of Mr Crayton, attended at premises at B Street, Suburb C, on 17 June at 11 in the morning and, using the photograph, identified Mr Crayton and had a discussion with him. 

2. Having given him the documents and drawn them to his attention, the process server asked Mr Crayton whether he would sign an acknowledgement of service and he in turn queried whether he had to.  The process server then told him that he did not and Mr Crayton’s response was, “Well, let’s leave it at that.”  That rather philosophical view of Mr Crayton indicates just how he perceives all of these things and, although the proceedings have only been in the Court for some two or three weeks, there is a rather unfortunate historical background in this case that permeates everything that seems to happen. 

3. There are very serious allegations against Mr Crayton, including matters that ended up in a prosecution.  There is an intervention order against him, which includes a child of the marriage who is only four years of age.  The Magistrate was not blessed with Mr Crayton’s attendance either.  So it would appear that even though Mr Crayton has got some problems with alcohol, he is either waiving away all of his rights to participate in proceedings that not only affect his child but also involve his own rights. 

4. I find that somewhat strange in the circumstances.  In any event, Mr Crayton has also been made aware of the request of his wife to sell the former matrimonial home in Suburb D and, although he is not here today, I am told he has signed the necessary authority to agent, which indicates that he is at least aware of what she desires to do.  I am satisfied in the circumstances that it is appropriate not to be too troubled about Mr Crayton’s absence and to proceed accordingly. 

5. The interim orders sought can be categorised into two parts.  The first relates to parenting orders concerning the child of the relationship, E, who was born in 2007.  The intervention order to which I have referred was made in September 2010.  We are getting very close to 12 months since that order was made and Mr Crayton has shown no interest in the child at all.  He apparently sent some gifts at Christmas and the child’s birthday but they are a poor substitute for having a responsible and caring parent in a child’s life, particularly one of the child’s age.

6. From the child’s perspective, that is very sad but there is not anything I can do to force a parent to be a responsible person.  In this case, it is appropriate that the wife have the sole parental responsibility on a long term basis for the child’s decisions and that he live with her.  I do not propose to make any orders in relation to Mr Crayton’s time with the child, predominantly because I am not at all comfortable about knowing why the Magistrate made the order and if Mr Crayton wanted to have a serious, responsible part in the child’s life, he would no doubt be here today and he could make an application for me to exercise my power to override the Magistrate’s order.  Again, we have deathly silence.

7. In respect of the property proceedings, it is clear the marriage has come to an end and the parties need to move on.  There is a house in Suburb D that is in joint names and it is quite clear that it needs to be sold.  It has mortgage commitments and debts of some substance and I am told that it is in the market range of about $800,000-plus with a mortgage in the 300,000-plus range.  There is, therefore, $400,000 to $500,000 in equity that needs to be disposed of in due course.

8. I am not making final orders today.  I am simply making an order for the property to be sold and I propose to have the matter resumed in October, by which stage it will be clear just what equity the parties have between them. 

9. If Mr Crayton does not attend on the court date and also file the necessary documents that would enable the Court to make a proper determination of each party’s rights, then I will give the wife leave on that date to proceed on an undefended basis.  Making an order in those terms does not mean that the wife gets the order by default.  She still has to prove her case, but there are cost consequences for parties who do not assist the Court and their other partner in sorting those matters out, because it means that she has to go to the extraordinary lengths of proving every issue. 

ORDERS DELIVERED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 July 2011.

Associate: 

Date:  14 July 2011