Khalif and Khalif

[2018] FamCA 413

FAMILY COURT OF AUSTRALIA

KHALIF & KHALIF [2018] FamCA 413

FAMILY LAW – CHILDREN – PARENTING – Where parenting orders are made without the father’s participation in the proceedings – Where the father has leave to relist the parenting proceedings on 28 days notice before parenting orders become final.

Family Law Act 1975 (Cth)

APPLICANT: Ms Khalif

RESPONDENT: Mr Khalif

INDEPENDENT CHILDREN’S LAWYER: Ms Weate

FILE NUMBER: SYC 6144 of 2016

DATE DELIVERED: 31 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 31 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jordan Djundja Lawyers

SOLICITOR FOR THE 1^ST RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

Parenting

1. All prior parenting orders are discharged.

2. The wife have sole parental responsibility for the children of the marriage, E born … 2006, F born … 2008 and G born … 2011 (“the children”) and that the children live with her.

3. The respondent husband spend time with the children as agreed between the parties.

4. These orders are pending further order but will become final orders after the expiration of a period of 28 days from service upon the respondent, if he files no further application in a case seeking to have the matter relisted with a supporting affidavit in that period.

5. As soon as is practicable, the lawyers for the wife are to serve a copy of these orders upon the husband at his residential address at H Street, Suburb D and his email address, ... A covering letter should indicate to the husband that the effect of the orders is that they will become final orders if he does not file an application in a case with a supporting affidavit seeking to have the matter relisted within a period of 28 days from today’s date.

6. Leave granted to the Independent Children's Lawyer to make an oral application for the parties to pay the Independent Children's Lawyer’s costs in the sum of $3,200. I do not intend to finalise this application today because I do not know what the final position will be in relation to the wife’s financial position. That may need to await the outcome of any benefit the wife receives from the property proceedings which involve the 2^nd respondent. The lawyer for the wife is to inform the Independent Children's Lawyer at the conclusion of the financial proceedings as to the result of those proceedings and attempt to reach an agreement with the Independent Children's Lawyer in relation to any claim for fees. Should that claim not be able to be resolved, the Independent Children's Lawyer will be at liberty to relist the matter before me on 14 days notice for a hearing in relation to that application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalif & Khalif has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6144  of 2016

Ms Khalif

Applicant

And

Mr Khalif

1^st Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the applicant wife makes an application to the court for the following orders:

   1.1.All prior parenting orders are discharged;

   1.2.The wife have sole parental responsibility for the children of the marriage, E born in 2006, F born in 2008 and G born in 2011 (“the children”) and that the children live with her;

   1.3.The respondent husband spend time with the children as agreed between the parties.

2. No formal notice was given to the husband that that application would be made today. The application is supported by the Independent Children's Lawyer subject to any issue of procedural fairness that might arise.

3. The background to this matter before me is that the respondent husband failed to appear in proceedings before me on 11 April 2018. On that day I made an order that on 31 May I would consider what is to happen in relation to outstanding parenting applications and I indicated I might bifurcate them from the applications in relation to financial matters which involve the 2^nd respondent. I ordered that the solicitors for the wife serve a copy of the orders by electronic means, inter alia, on the respondent husband. The lawyer for the wife has filed an affidavit on 30 May 2018. At page 16 of the exhibits to that affidavit there is a copy of a letter forwarding a copy of the orders to the husband on 12 April 2018, both by sending that letter to the residential address for service that is the husband’s address for service he has provided to the court and also by email to what I accept is the husband’s ordinary email address.

4. The husband filed an affidavit on 21 May 2018. That affidavit chronicles a list of the husband’s grievances but at the end of it he concludes in the following way:

   Your honour as I clearly stated to Judge Harper on 12 March 2018 I will not be part of this charade any further. I made it clear the applicant can have full custody of the children and I have removed myself from all court proceedings and will not be attending anymore.

5. The husband has been called today and has not appeared today.

6. What the husband writes in his affidavit filed 22 May 2018, sworn 21 May 2018, is consistent with a statement that he made to Judge Harper on 12 March 2018 which was in the following terms:

   His Honour: [Mr Khalif] you have heard what I have said I presume?

   Husband: Yes remove me from the proceedings. She can have the children. I don’t want any more involvement with it any more please, thank you.

7. In those circumstances, it is appropriate that I make orders which shall become final subject to giving the husband the right to reconsider or come back to the court in relation to any matter that arises from the proposed final orders that will be made. If the husband makes no application to relist the matter within 28 days after service of these orders, those orders will become final.

8. Having regard to the general history of the matter and particularly the evidence that is contained, for example, in the wife’s affidavit of 20 September 2016. I accept that she has been and it seems uncontroversial, currently is, the primary carer of the children.

9. Given the husband’s indication that he seeks no involvement with the parenting proceedings whatsoever, there really is only one outcome that is possible, an outcome that I find is in the best interests of the children on the information that I have.

10. Accordingly I make orders as sought by the wife today. Those orders are provisional orders until the expiration of a period of 28 days from service and the lawyers for the applicant wife are to serve the husband in the same way that he was previously been served, that is, at his residential address at H Street, Suburb D and his email address, …. The covering letter should indicate to him that the effect of the orders is that they will become final orders if he does not file an application in a case with a supporting affidavit seeking to have the matter relisted within a period of 28 days from today’s date. That service should happen as soon as is practicable. 

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 31 May 2018

Associate: 

Date:  7.6.18