Mitty & Mitty

[2008] FamCA 297

FAMILY COURT OF AUSTRALIA

MITTY & MITTY [2008] FamCA 297

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Appointment of single expert psychiatrist to report on matters referred to in s 60 CC

FAMILY LAW – MAINTENANCE – Interim spousal maintenance

FAMILY LAW – Costs  

Family Law Act 1975 (Cth)

APPLICANT: MRS MITTY

RESPONDENT: MR MITTY

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 12 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: LOUGHNAN JR

HEARING DATE: 12 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Peter Campton

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr John Levy

SOLICITOR FOR THE RESPONDENT: McIntosh McPhillamy & Company

Orders

1. That unless the parties agree to the contrary the provisions of the interim parenting orders made on 4 December 2007 by the Local Court at … are to continue until further order.

1. That until further order the husband pay to the wife or as she may direct $350 per week payable monthly in advance commencing within 7 days from today’s date and payments being made monthly thereafter.

1. That the document titled Orders is Exhibit A and orders are made operative from today’s date in terms of that document as set out hereunder:-

BY CONSENT IT IS ORDERED:

That the husband pay or cause to be paid as and when payment is made by him or on his behalf to his lawyers any amount for legal costs incurred in these proceedings an equivalent amount to the wife or the wife’s lawyers.

1. That the parties attend a conciliation conference at 9:30 am on 23 June 2008.

1. That the parties join in the appointment of a single expert being a psychiatrist to report on the matters referred to in s 60CC and in particular the capacity of each of the parents to provide for the needs of the children including emotional and intellectual needs, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent, the attitude to the children and responsibilities of parenthood demonstrated by each of the parents within 14 days from today’s date.

1. That the solicitor for the mother is to provide a list of three names to the solicitor for the father within 7 days and agreement is to be reached within 14 days.

1. That leave is given to the parties to restore the proceedings to the list in relation to that issue and any other issue on giving 7 days notice to the Court and to the other parties.

1. That in the first instance the fees of the single expert relating to the preparation of a report and any other fees be paid by the husband, however in the event that the parties’ property is sold the wife is authorised to draw the fees for that expert from those proceeds.

1. That leave is given to the parties to issue no more than three subpoenas to produce documents as they may be advised.

IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty is approved pursuant to s 121 (9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MRS MITTY

Applicant

And

MR MITTY

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a number of interlocutory issues in the context of a marriage in 2002 and a separation in October of last year.  I understand the wife and husband are 30 and 40 years of age respectively.  The parties have three children, H, L and A, who are 5, 2 and 9 months and 14 months of age.

2. The evidence of the wife is that when they met she had a half interest in a business.  She says when it was sold the debts consumed the asset.  She said that the husband worked in property and she understood when they met that there was a claim in relation to personal injury.

3. I am asked to deal with issues to do with parenting arrangements, spousal maintenance, interim child support departure and interim costs.

4. In relation to the parenting orders; the husband wants an order that the wife cause the children to live in the T area in regional New South Wales and that the children spend equal time with each of the parents.  His application in the alternative seeks that while the wife resides outside 10 kilometres from T that he have the children overnight on alternate weekends, 5 pm Friday to 6 pm Sunday going to Monday on a long weekend and at other times by agreement.  He seeks time for telephone communication and some other orders. 

5. The wife seeks that the husband be restrained from removing the children from her care, that the parties have equal shared parental responsibility in consultation with each other for the children, that the children live with the wife predominantly and that the husband spend time with the children supervised at the Central West Contact Service and some other orders.

6. The legislation says that I am to make orders in the best interests of the children and how one divines that is set out in the legislation. Firstly and primarily I am to take into account the benefit of children having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm, being subjected to or exposed to abuse, neglect or family violence. 

7. In relation to those matters; each of the parties proposes that the children have some time with the other. It is difficult to see how the wife’s proposal would be a meaningful arrangement as it involves time at the Central West Contact Service for a 14 month old child.  So I do not think that proposal, with respect, is practical. 

8. Then there is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  It seems to be the case that each of the parties says that there was family violence and they seem to say that it was largely the responsibility of the other parent.  The wife sets out graphic details of a number of incidents over the years whereby the husband has grabbed her by the hair, torn her hair out in fact. In May 2002 and May 2003 that he punched a hole in the bathroom door. In January 2004 she says he grappled for a child and then pushed her in the face. There are clinical notes to support that allegation. She says that in February 2004, the next month, he pushed her head into a wall; that in March 2004 that he punched a dog and twisted her arm. She says that in April 2004 he pulled her hair and punched a door. She says that at Christmas 2005 he grabbed her hair and pushed her face into the steering wheel.  This was an incident where she says they were driving along and the assault caused her to veer off the road.  She says that she drove to a police station and the husband apologised and she did not pursue the matter with the police. She says that minutes later he denied there was an incident at all.

9. She says that she left in March of 2006 for four weeks, moving to her parents' place.  She says that they both went to see Dr B.  There is no objective evidence that supports that.  I think the husband's case is he effectively denies it.  The notes from Dr B are completely equivocal. He does not seem to be particularly asked to focus on anger management problem in the husband; probably more so in relation to a fragility in the wife.  Talks about a cycle whereby interrogation by the wife causes frustration in the husband causing her to be angry and I think the husband's case would be; he reacted to those incidents by leaving the house. 

10. The parties separated in October 2006.  The wife says that in July of 2007 her eye was injured in a violent incident with the father and there are clinical notes referring to that. I cannot make a finding that these things happened.  But because I cannot make a finding does not mean that they are not relevant to the case.  The problem with them is; they are unambiguously not in the best interests of a child.  They are not ambiguous incidents.  These things are damaging to a child.  If a child witnessed these things or was exposed to a person who had suffered these things or was exposed to a person who caused these things. They are absolutely harmful to a child. The younger the child is, the worse it is.  So it is the sort of thing that scares somebody in my position whose job it is to make sure that children are safe in the period before we can have a good look at what is going on.

11. If the allegations are completely false, that is almost as worrying.  If somebody has manufactured the substance of the allegations then that person is not doing too well.  So there are concerns every way you look. The parties have acted consistently - I know Mr Levy said something to the contrary - with the mother having primary responsibility for the children.  Things argued against that are that the father has made himself more available and the parties have arranged for assistance for the mother; an au pair for I think virtually all of the period when the children have been around.

12. But when the parties separated in March 2006 the children went with the mother.  This is not unusual of course.  The division of work in a household is often that mother’s have greater responsibility for young children but that is what happened in this household.  It was not the case that the wife went to her parent's place and the children stayed with the father. Nor is it a situation where the wife left with the children and the husband roared off to a Court and said: "Well, wait a minute, I am the primary care giver, they should be back with me."  Not unusual.  And the same sort of things happened since then.

13. The husband himself proposes the children be with the mother half the time unsupervised. I appreciate that there are complexities and difficulties in running litigation but I have to accept and assume that he means by that, that he thinks they are safe with her.  That is not the situation with the mother's case and it is not a situation where she says, out of the blue: "The children are not safe with the father."  She has given her evidence over time. It is not inherently incredible so it could be right.  It is a shame that there is not more independent evidence.  I think there may be records that would be of real assistance from other people that the parties have consulted. There has been reference to a Psychiatrist. The parties saw somebody at an early stage, somebody called, C and that person may well have some records that will be of assistance.  They might just report "he said, she said", but they may be of assistance.  And most importantly, there may be some records by way of a report prepared for the purposes of other litigation whereby in describing the impact of an assault or post-traumatic stress or of an injury caused to the husband there may be something identifying any impact on his personality. It is probable that those things exist and it would have been useful to have them. 

14. There is a way of handling this and that is; we get an expert on board to have a good talk to the parties, somebody qualified to do it, and that expert provides evidence to the Court and advice to the parties. That has not happened yet but has to happen soon because the orders that I am obliged to put in place are unnecessarily restrictive absent the concerns raised by the wife. 

15. Here the primary considerations are the main focus of the case. As to the additional considerations - the children are a bit young to express views. As to the nature of the relationship of the children.  There is not much evidence about that in the documents and the concerns are so significant that they would override the quality of such a relationship. To take a silly example - if a child had a nice relationship with somebody that hurt the child then you would still be obliged to protect the child.

16. The willingness and ability of the children's parents to facilitate a proper relationship between the children and the other parent is hotly in dispute here in relation to the mother.  The father says there have been a series of events whereby the mother uses her power in respect of the children to exclude him.  That she excluded him at the home, excluded him by a move to Sydney, excluded him in the conditions she sought be imposed by the Local Court, and excluded him by the proposals that she makes today.  And of course, as often happens, the flip side of that is the case of the mother in relation to money.  The mother says that the father is making arrangements that do not provide for her proper support or that of the children despite a capacity to do otherwise.

17. But coming back to the parenting issue; as to the likely effect of any changes.  Well there are changes everywhere and it this is a fairly recent separation so that is probably not a helpful thing to dwell on. As to the practical difficulties and expense - there are practical difficulties under the current arrangement because the parties live in T and K, I think in Sydney. The capacity of the parents is hotly in issue and I cannot make a finding about that.  As to the maturity, sex, lifestyle, background of the children, the critical thing about the children is their age.  They are young and vulnerable. The attitude to the children and responsibilities of parenthood demonstrated by the parents is hotly in issue. As to family violence, as I say, hotly in issue.

18. I was a bit unfair in relation to the father's proposals.  He has not sought an arrangement as I suggested that the children live week about with each of the parents.  He has sought equal time.  And that is a different thing.  And it may well be that he had in mind something relatively child-focussed in relation to that.  Our experience in relation to very young children is that you would not have them separated from a primary care giver for periods of seven days at a time.  Thus a week about arrangement would normally be inappropriate. But that is not what the father has suggested here.  Of necessity, his proposals in relation to the mother living outside 10 kilometres - I do not know why 10 kilometres - but outside 10 kilometres from T has the children not seeing him for a week and a half at a time which is a bit long.  Perhaps the 10 kilometres is a mistake.

19. As I say, the background facts suggest that the parties put in place an arrangement where the predominance of responsibility is vested with the mother.  The father's concerns about her do not stretch to him being afraid that the children are in danger with her on a daily basis.  The mother's concerns do raise those concerns for the children being with the father. On 15 November the father refused to have time with the children on the basis that he agree not to consume alcohol, to care for the children in a responsible manner and to ensure that they travel with him in a vehicle properly restrained. On 4 December, three weeks later, he agreed to those same things, exactly those same things in relation to having some time with the children. That is not explained but there may be a good explanation.

20. The important thing is that the children be kept safe.  I think that is best done by the orders that are proposed on behalf of the mother.  I accept that it has real disadvantages.  The children are put to a significant trip across the mountains or along the … Road and it is not pleasant.  I am not going to make all of the orders proposed by the mother.  It may not be practicable for the father to attend on a Wednesday. It seems to me that unpleasant as the arrangements are and in the absence of some other creative suggestion, the orders that the parties put in place at the Local Court should continue.

21. And of course if the parties agree to something else, well and good.  The parties need to agree on a single expert in relation to a Psychiatrist to see them as soon as possible.  If they cannot do that they can re-list the matter. 

22. In relation to spousal maintenance; that is a right that arises as a result of marriage.  A party that cannot adequately support themselves from their own resources can call on the other and the other is obliged to provide support to the extent of his or her capacity.  The case here really boils down to capacity of the husband to provide the support.  He says that the wife has done something that has added to her own costs.  That is, that she has moved to Sydney when she had cost-free accommodation at T or at the property. However, the parties have agreed that the property be sold.  It is on the market so that was not going to be available indefinitely in any event.  And the parties seem to contemplate an arrangement whereby the wife would have rental accommodation in T.   And I think the husband was proposing to assist. 

23. As to the wife’s capacity for self support - the person that the husband describes in his affidavit - albeit a person capable of caring for the children - I would not think is going to be a person terribly attractive to an employer.  The children are young and close in age.  That does not leave much room for paid employment.  There is not, I do not think, significant evidence about any efforts that have been made for paid employment but the parties arrangement was that the mother did not have paid employment.  There is nothing about the separation that makes her better able to take it up.

24. She has significant costs.  She has a shortfall in her weekly budget of the order that she seeks so I think the need is there.  The capacity is more problematic and it is tied up with the financial circumstances of the parties and they are something of a mystery.  The wife says that the husband has made representations to other people in her presence that he has a significant income earning capacity.  He has made representations to others and to her that he has had significant assets.  His evidence in this Court is different to the representations he made to the National Australia Bank in the not too distant past.  But I cannot get to the bottom of it. 

25. The wife says that she overheard something whereby - so as to avoid the impost of possible costs in the personal injury case there might have been a transaction within the husband's family to avoid him having significant assets.  So she has her suspicions.  I cannot get to the bottom of that. 

26. The husband’s evidence about his circumstances is odd.  He says his income is $3 a week.  He has no expenditure. He does not say that he has expenditure and he borrows the money for it. It is his evidence that he has no expenditure - no superannuation payments, no mortgage or rent payments, no rates, no insurance, no motor vehicles, no hire purchase, no other expenditure, no living expenses, no food, nothing. That is unlikely to be true. He says that H Capital, which is his company, pays $4000 a week and it pays living expenses and loan repayments. 

27. But H Capital is a company which has no value. Worse still, the husband owes it $200,740. That needs a bit of explanation.  But having said all of that, as I said to the parties during the course of submissions; the source of funds to make payments of this type does not have to be income.  Payments can be made out of borrowings, they can be made out of assets, they can be made out of financial resources.  The sub-text of interim spousal maintenance is to ensure that the parties live decently between the time when the matter comes in and when the matter can be examined by somebody. 

28. The husband is allocating some money to his own living expenses.

29. So there is a payment being made.  I hope I am not being unfair about this but I think it was contemplated by the parties that if the wife moved back to T at some point, she would receive assistance with rent.  I know in the course of submissions it was said that the wife can apply the money she is paying for a property in Sydney to the T rent and have some money left over.  I do not know that rent works that way. If the wife has signed a lease in Sydney she may still be obliged to pay rent there even if you move to T.

1. It seems to me that it is proper to make an order for a payment of $350 a week by way of interim spousal maintenance.  The husband is making arrangements for some payments.  The same arrangements can be made in relation to that it seems to me, as if the wife had moved. There is also an agreement in relation to a motor vehicle. As to interim costs; there is no capital fund that I can point to and I have to be careful about capital payments because the enforcement problem can be expensive and disastrous.  And I should not make an order unless I could be reasonably satisfied that it can be enforced.

2. In the alternative, an application is made for what is called a dollar for dollar order.  And I think that is appropriate.  The argument against it is; if the husband's getting funds from some source such as his family, his family may not be willing to advance him money for the purposes of it going to his wife.

3. Interim costs is a remedy that seeks to preserve the exercise of judicial power, to make sure there is not a bad outcome from a Court by reason of one party being adequately represented and the other not.  And this is a case where despite a dollar for dollar order the wife's costs are likely to be greater than those of the husband.  That is because in terms of cases such as Polletti, he controls the patrimony of the family.  He knows where the documents are, he knows where the accounts are, he has direct access to the accountants, he is the one who controls relevant entities and all of those things would have to be discovered by the wife rather than her just relying on her own knowledge.  So it will be a more expensive exercise for her but it seems to me that a dollar for dollar order should be made.

4. The parties have already agreed about the sale of the property.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  1 May 2008