Mansoor and El Camal

[2007] FamCA 329

FAMILY COURT OF AUSTRALIA

MANSOOR & EL CAMAL [2007] FamCA 329

FAMILY LAW - CHILDREN - No appearance by or on behalf of the husband - Final orders made

Family Law Act 1975

Applicant: MR MANSOOR

Respondent: MS EL CAMAL

File number: MLF 3808 of 2002

Date Delivered: 29 March 2007

Place delivered: Melbourne

Judgment of: Carter J

Hearing date: 29 March 2007

Representation

Solicitor for the applicant: Randles Cooper & Co Pty Ltd

Solicitor for the respondent: Pearsons

Orders

IT IS DIRECTED

1. That the Court provide to the husband care of his solicitors on the record with a sealed copy of these orders and further that the Court provide a sealed copy of the orders to the husband, care of his parents, Mr and Mrs Mansoor at T, Victoria and enclose with that order a letter requesting the husband’s parents to bring the orders to the attention of the husband in these proceedings.

2. That the child, a daughter, born in July 2000 (“the child”) live with the wife and she have sole parental responsibility for the care, welfare and development of the child.

3. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. For case management purposes it should be noted that these are final orders relating to children’s issues.

5. That all extant applications be dismissed and removed from the list of cases awaiting determination.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3808  of 2002

MR MANSOOR

Applicant

and

MS EL CAMAL

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced, as far as the current round is concerned, on 4 April 2005 when the husband filed applications seeking both final and interlocutory orders.  The wife responded to those applications.  A number of orders have been made along the way.  That husband has been represented by legal practitioners and in so far as there has been no notice of ceasing to act, technically he still is.

2. It is clear on the material before me that whatever had been the situation in the past he is not prosecuting his application.  That application concerns a child, a daughter, who was born in July 2000.  She is therefore not quite seven.  The application that the husband had sought related to the child and in it he proposed that he should have face-to-face contact with the child - "contact" being the word used at the time - on alternate weekends, one week in each of the school term holidays, one-half of the long summer school holidays together with special days.  He did not propose that the child should live with him and on the evidence, the child lives with her mother.

3. On 22 March 2007 the wife filed an Amended Application by way of Form 1A seeking final orders.  I accept Ms D's advice from the Bar table that that was served on the husband.  He was called and did not respond today.  I am also satisfied that the husband knew of these proceedings given that he was represented by a lawyer on 19 March 2007 when the matter came before Registrar Lethbridge, at which time it was adjourned until today.  I say that even though the bench sheet notes that the husband was called and did not respond.  Nonetheless, I repeat he was represented by a lawyer and therefore should have known by virtue of that fact that the matter was coming on today.

4. The orders that are sought merely reflect the current arrangements for the child.  I note that one of those orders specifies that the husband not spend time nor communicate with the child. That is, of course, a matter which is contrary to the expectation and hopes of the legislation and indeed, most people.  However, if a party does not take the necessary steps to have the matter brought to Court for final determination then the Court cannot really take it any further.

5. That, of course, does not mean that the mother could not, if she wished in the future, come to some independent arrangement with her former partner in relation to the child spending time with him.  In the meantime the matter needs to be resolved and I will resolve it by making orders in accordance with the Minute of Proposed Orders kindly prepared on behalf of the applicant wife.

6. I am satisfied in all the circumstances that the proposed orders represent the best available outcome for the child.

7. I will direct that a copy of the order be served on the husband's solicitors who are still on the record.  But I will also make a further order that a further copy be served on the husband care of his parents.  I am told that he normally resides with his parents and the order will be accompanied by a letter seeking that his parents or one or other of them bring the order to his attention.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter

Associate:     

Date:              19 April 2007

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