Camino and Camino

[2007] FamCA 802

FAMILY COURT OF AUSTRALIA

CAMINO & CAMINO [2007] FamCA 802

FAMILY LAW – CHILDREN – Parenting orders – Final orders
FAMILY LAW – PROPERTY – Non-appearance by husband - Adjourned

Family Law Act 1975 (Cth)

APPLICANT: MR CAMINO

RESPONDENT: MRS CAMINO

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3259 of 2006

DATE DELIVERED: 2 AUGUST 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 2 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS SPRY

SOLICITOR FOR THE APPLICANT: PEARSONS SCHETZER & ASSOCIATES

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MS ELSUM

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: FORTE LAWYERS

ORDERS

UPON THE COURT being satisfied that the husband is aware of the child and parenting issues listed for hearing this day:

1. THAT the child J born in July 1996 live with the wife.

2. THAT the husband and wife retain the equal shared parental responsibility for J and the wife have day to day care and responsibility.

3. THAT J spend time with the husband on each Sunday from 10.00 a.m. to 7.00 p.m. (inclusive) and on such further holidays, special occasions and other dates and times as may be agreed between the parties.

4. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

5. THAT the order requiring the preparation of a Family Report be stayed.

6. THAT otherwise all child and parenting applications now before the Court be dismissed.

7. THAT the Form 2 application in a case filed 27 November 2006 be dismissed.

8. THAT otherwise all extant applications be adjourned in the Judicial Duty List to Thursday 6 September 2007 at 10.00 a.m.

9. THAT the solicitors for the wife forthwith serve a sealed copy of this Order upon the husband and thereafter make, file and serve an affidavit of service thereof.

10. THAT on or before Friday 24 August 2007 each of the husband and wife make, file and serve an updated Form 13 statement of financial circumstances.

11. THAT the solicitors for the wife forthwith give full and proper notice to the Trustee of the STA Superannuation Fund requiring full disclosure and particulars of the benefits of both husband and wife and otherwise complying with the Family Law Rules.

12. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and to the husband.

IT IS NOTED:

A.THAT the e-mail sent by the husband to the Independent Children’s Lawyer on 1 August 2007 indicating his knowledge of the Court hearing this day and his consent on child and parenting issues be marked as exhibit “A” and remain upon the Court file.

B.THAT the letters dated 30 July and 31 July 2007 from legal practitioners to husband be marked as exhibit “B” and remain upon the Court file.

C.THAT subject to service if the husband elects not to attend Court on the adjourned hearing date then the wife be at liberty to persuade the Court to proceed to determine property and financial issues on an undefended basis.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3259 of 2006

MR CAMINO

Applicant

And

MRS CAMINO

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Camino, MLF 3259 of 2006, there are children, property and financial issues for determination in the judicial duty list this day.  Ms Spry, solicitor, appears for the respondent wife, Ms Elsum, solicitor, for the independent children's lawyer.  There is no appearance by or on behalf of the husband.  As to the attendance of the husband and issues of service, he was first called out at court and did not appear. 

2. I observe from the court correspondence file that a letter dated 30 May 2007 was written by client services to each of the wife and the independent children's lawyer advising of an administrative adjournment to this day.  For some reason that wholly escapes me the husband was not notified by letter from the court.  Subsequently, I have been provided with correspondence from both the wife's solicitor and the solicitor acting as the independent children's lawyer indicating that on 30 July and 31 July of this year the husband was independently notified of the adjourned hearing of this day.  Of more significance is an email sent by the husband to the independent children's lawyer yesterday indicating his withdrawal from the case, identifying a telephone discussion that occurred yesterday, and which said that he was not proceeding with any application in relation to the child J, born in July 1996 and now 11 years of age.

3. On the basis of that email from the husband I am prepared to accept that he has made a decision in relation to issues of and concerning his child and he has withdrawn from the proceedings on the basis of an order being made that the child is with him each and every Sunday.  I will, however, reserve to the parties all questions of holidays and other special occasions, and I do not intend to exclude the husband from any of those occasions.

4. It is intended that the orders be final, and that is appropriate.  I will discharge the independent children's lawyer, and in reality it means that the preparation of the family report, which currently is under way but has stalled awaiting the husband's payment of his share of the costs of that report, will not proceed. 

5. The solicitors for the wife would ideally like to proceed with final property orders, and they seek orders whereby the husband remains the owner of the T property, the wife remains owner of the L property, and the husband's superannuation be split equally with the wife, and otherwise each of them retain all other assets in their power, possession or control.  I will not make that order.  I first have no evidence of the proper notification to the Trustee of the STA superannuation fund.  Otherwise, I have no confidence that the husband knows that final property orders are before the court today.  It may be appropriate to update the financial material which has been filed in about January and February of this year.  I do record that the parties have attended unsuccessfully a financial conciliation conference.

6. What I will do is to adjourn the property proceedings to a date in the judicial duty list upon which time the wife will have to satisfy the court as to service on the husband and the Trustee and otherwise as to the accuracy and completeness of all financial information and that the proposed orders are just and equitable.  I do not prejudge whether the matter will proceed on an undefended basis but the husband must have the opportunity to be heard on all financial issues.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 9 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CAMINO & CAMINO