Tillman and Tillman (No 2)

[2016] FamCA 35

FAMILY COURT OF AUSTRALIA

TILLMAN & TILLMAN (NO 2) [2016] FamCA 35

FAMILY LAW – Parenting and property – undefended final hearing because wife chooses not to attend.

Family Law Act 1975 (Cth)

APPLICANT: Mr Tillman

RESPONDENT: Ms Tillman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1102 of 2014

DATE DELIVERED: 18 January 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCreadie

SOLICITOR FOR THE APPLICANT: Kenna Teasdale

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dos Sanjh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

Orders

1. That the application filed 26 October 2015 is struck out.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tillman & Tillman (No 2) 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 1102 of 2014

Mr Tillman

Applicant

And

Ms Tillman

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the first day of the final hearing between Mr and Ms Tillman that had been begun by proceedings in 2014.  The proceedings relate to both property and parenting.  The parenting proceedings concern two children:  E, who is about to turn 16, and N, who is not far off turning 13.  A cursory examination of the documents on the Court file would show that both of these children are primarily cared for by their father.

2. I have had the advantage of reading a family report and also an affidavit by Dr R, who is a psychiatrist.  The advantage that I gain from reading Dr R’s report is that he is of the view – and it does not seem to be contentious – that the wife suffers from Autism Spectrum Disorder and has a problem with alcohol.  Both of those matters can be seen to have impacted upon her behaviour resulting in the children predominantly being cared for by their father.

3. This case was conducted under the docket of Macmillan J up until this morning when it was handed to me and her Honour has made various orders along the way.  There can be no doubt that the wife was aware that the proceedings were to be dealt with today.  The evidence of the husband is that it was brought to his attention that the wife was indicating, both in text messages and also by an intimation to a valuer, that she was not going to attend court.  That was corroborated today because E received a message from her mother over the weekend indicating that she held tickets for the two of them to go to an adventure park in Geelong for today.

4. It is the husband’s evidence that the wife could not be contacted by telephone but that may be explained by the fact that she does not generally respond to people whose numbers she does not recognise.  Be that as it may, there has been no indication by E other than that she has gone with her mother to the adventure park in Geelong.  All of that enables me to conclude that the wife was aware that the proceedings were listed today because of the history of the proceedings and has chosen not to participate.  That is how she explained the matter to the children in text messages and her explanation to the valuer.

5. On that basis, I can conclude that the wife has had an opportunity to participate and did so by filing her trial affidavit of evidence-in-chief in October and her amended response seeking final orders.  She has not attended today when called and it is now 12.35 pm and she has not attended the Court.  On that basis, I conclude that she does not intend to participate notwithstanding matters that would have an impact on her financial position.  Indeed, one of the orders that she sought was a maintenance order for herself.

6. I note that there is no extant maintenance order but the husband has been, in fact, providing support for her.  On the basis that the wife has had an opportunity to be heard and has chosen not to be here, the appropriate course of action is to simply strike out her application.  Accordingly, the order I make is that the application filed 26 October 2015 is struck out.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2016.

Associate: 

Date:  1 February 2016