Hearn and Hearn
[2008] FMCAfam 242
•12 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEARN & HEARN | [2008] FMCAfam 242 |
| FAMILY LAW – Parenting – final undefended parenting orders – child live with the mother and mother to have sole responsibility for child – father to spend time with child at sole discretion of mother – father has effectively abandoned the child and left the care of child to the mother. FAMILY LAW – Property – final undefended property orders – there is no property or superannuation the wife is aware of. |
| Family Law Act 1975 (Cth), ss.60CC(2), (3) & (4), 65DA(2), 79 |
| Applicant: | MS HEARN |
| Respondent: | MR HEARN |
| File Number: | AYC 515 of 2007 |
| Judgment of: | Henderson FM |
| Hearing date: | 12 February 2008 |
| Delivered at: | Albury |
| Delivered on: | 12 February 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Hill, as amicus |
| Respondent: | No appearance |
ORDERS
The child T born in 1996, live with the mother.
The mother have sole parental responsibility for the child.
The father to spend time with the child as agreed between the parties and at the sole discretion of the mother.
By way of property settlement:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
Pursuant to section 65DA(2) 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 are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hearn & Hearn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALBURY |
AYC 515 of 2007
| MS HEARN |
Applicant
And
| MR HEARN |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother for property and parenting orders, which application was amended on 28 November 2007. The husband has taken no part in these proceedings. He has been served with the application, and affidavit. I have read there an Affidavit of Service and I am satisfied he is aware of today’s hearing.
His failure to attend Court today is consistent with the description the wife gives of the husband's behaviour and attitude during the marriage.
The husband has had property in the past consisting of real estate, various motor vehicles and trucks. The husband is an interstate truck driver. He continues to pay child support for the parties' child, T, born in 1996 in the sum of $600 per month or thereabouts. The child does obtain support from her father.
On the mother’s own material the father has had nothing to do with T for some time, certainly since separation.
The parties were married in August 1999. They separated in 2002, but finally separated in June 2003. Their daughter was born in 1996.
The father has not attended the child's birthday party for the last three years, despite invitations. He has not attended her school at S School. He did not attend her Holy Communion or last dance concert. He has taken no part in these proceedings. Thus on the evidence he has abandoned the child’s care to her mother.
In relation to the property, the mother says in para.32 of her affidavit filed 28 November 2007 she believes that since the commencement of the proceedings the father has sold all his real property at Property L and all vehicles.
There is no property in existence on the mother’s evidence upon which I could exercise my discretion under s.79 of the Family Law Act 1975 (Cth) to make a property order.
If the wife is able to determine that the husband has property at a later stage and he has failed to disclose that property the wife can bring the matter back to the Court. The matter needs finality, both as to parenting and property. The mother does not have a grant of Legal Aid.
In those circumstances I will finalise this matter.
I can make no order as to property.
As to parenting I can make no order for the child to spend time with the father as I have no idea of his proposal or living arrangements. I must leave that to the discretion of the mother.
I must give the mother sole parental responsibly as she is the only parent the child has at this time who has any interest in her education and well being in general.
At this time the child does not have a meaningful relationship with her father and thus I cannot asses the benefit to her of such a relationship.
I will finalise this matter and make final undefended orders on the basis of the above findings.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: Maryrose Portelli
Date: 18 March 2008
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