Mouli and Mulham

[2008] FamCA 154

FAMILY COURT OF AUSTRALIA

MOULI & MULHAM [2008] FamCA 154

FAMILY LAW – Interim Children and injunctive orders

Family Law Act 1975 (Cth)

APPLICANT: Mrs Mouli

RESPONDENT: Mr Mulham

FILE NUMBER: MLC 1729 of 2008

DATE DELIVERED: 5 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 5 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS MacMILLAN

SOLICITOR FOR THE APPLICANT: HOGG & REID

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT until further order the children of the marriage M born … May 2006 and I born … May 2006 live with the wife.

2. THAT until the adjourned hearing the husband spend time and communicate with the said children each Saturday and Sunday between 12.00 noon and 4.00 p.m. and that either the husband's mother, father or sister be in substantial attendance during such time the husband spends with the children and be present at the commencement and conclusion of such time.

3. THAT until further order for the purposes of the time the husband spends with the children he punctually collect the children from the wife's parent's residence at 12.00 noon and punctually deliver the children to the wife's parent's residence at 4.00 p.m.

4. THAT until further order the husband and wife by themselves, their servants or agents be and are hereby restrained from removing, attempting to remove or causing or permitting the removal of the children M born … May 2006 and I born … May 2006 or either of them from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List until further order it the Court.

5. THAT as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper office of the Australian Federal Police at Melbourne AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

6. THAT until further order the husband and wife personally, their servants or agents be and are hereby restrained from removing the said children from the Greater Melbourne metropolitan area.

7. THAT until further order the husband personally, his servants or agents be and are hereby restrained from distributing, disseminating or in any way publishing such material as is contained in the letter marked husband's exhibit "H1” within the community of which the husband and wife are members or are involved.

8. THAT the husband personally, his servants or agents be and are hereby restrained from arranging settlement of the sale of the property known as and situate at S prior to the 8 April 2008 and subject to agreement in writing by the husband and wife or further order all of the proceeds of sale be held in trust in an interest bearing account for the husband and wife by the wife's solicitors Hogg and Reid.

9. THAT the wife file and serve any further affidavits upon which she seeks to rely by 4.00 p.m. on 13 March 2008.

10. THAT the husband file and serve a response to the wife's application and any affidavits upon which he seeks to rely and a Form 13 Financial Statement by 4.00 p.m. on 20 March 2008.

11. THAT the matter be otherwise adjourned for hearing in the Judicial Duty List at 10.00 a.m. on 26 March 2008.

12. IT IS CERTIFIED

13. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

14. IT IS FURTHER ORDERED BY CONSENT:

15. THAT without any admission of liability and until further order the husband personally, his servants or agents be and are hereby restrained from assaulting or harassing the wife and or the children of the marriage or from coming within 200 metres of any place at which they may reside save and except for the purposes of spending time with the children pursuant to an order of this Honourable Court.

16. THAT until further order the husband personally, his servants or agents be and are hereby restrained from applying for and/or obtaining an Australian passport in the names of the children or either of them.

17. THAT on or before the 12 March 2008 and weekly thereafter until further order the husband pay to the wife for her maintenance the sum of $200 per week, such payment to be made to the wife's account at the National Australia Bank, BSB No. … Account No. …, … branch.

18. THAT on or before 8 April 2008 being the date of settlement of the property at S, the husband deliver to the wife the items in "Schedule A" attached to these orders.

19. 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 the 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1729 of 2008

MS MOULI

Applicant

And

MR MULHAM

Respondent

REASONS FOR JUDGMENT

1. I have before me an urgent application issued by the wife.  She is represented by Ms MacMillan of counsel.  That application was filed with an abridgement of time on 27 March 2008, and in support thereof there was an affidavit and a Form 13 financial statement of the wife.  Those documents were required to be served upon the husband by 29 February.  There is some debate but it does seem that there were various attempts to serve the husband but, ultimately, he was only served yesterday, that is, 4 March.  I make no finding on the various issues of attempted service and they play no part in my interim determination of orders that will be made and which will operate only until Wednesday, 26 March 2008.

2. The husband appears in court today.  He has filed no response to the wife's application or affidavit and that is understandable given his service was effected only yesterday.  He has, however, produced to the court a carefully crafted and typed document which will, no doubt, form the basis of a subsequent affidavit.  That document does raise a number of personal issues and allegations both directed at the wife and her extended family and it would be very appropriate that the document not be circulated within the parties’ cultural community or other communities of Melbourne but that its contents be reduced to affidavit and filed with the court.  What I propose to do, hopefully to try and take some of the inflammatory issues out of this case, is to restrain the husband by himself, his servants, or agents from distributing that material generally within the community in which he or the wife are involved and that is an order which I find to be just and proper. 

3. The wife's applications seek various interim orders as to children and parenting matters, as to financial issues, and as to restraints by way of removal of the two young children, I and M both born in May 2006, from the Commonwealth of Australia.  As I have said, I have read the somewhat limited affidavit of the wife and the facts therein.  I understand that affidavit was prepared as a matter of some urgency to support interim orders but clearly there should be more substantial material included within that document as part of the wife's case.  I will allow the wife an opportunity to file a more extended affidavit provided that it is prepared and filed by Thursday, 13 March and forthwith served upon the husband so he can reply to all of the issues and matters raised by the wife.

4. The preliminary issues before the court that need some adjudication are, primarily, as to children, financial and injunctive issues.  As to the children, it is in their best interests that they continue to live with the wife until further order.  I propose to make no order in terms of shared parental responsibility at this stage.  The children will live with the wife and with the understanding that she is living at the home of her parents.  That is to be the principal residence of the children until the adjourned hearing date.  I make no restraint on what members of the wife's family can live with her in that home.

5. As for time to be spent by the husband with his two young daughters, it is proposed in the further draft of orders, which Ms MacMillan has tendered by way of an elaboration of the orders sought by the wife, that he should see them only between 5.00 p.m. and 7.00 p.m. on each Sunday, Tuesday and Thursday until the adjourned date and, more significantly, that a member of the wife's family should supervise that time and that the husband should attend unaccompanied.  On what I have read and having regard to the best interests of the children, that I regard as both too restrictive and inappropriate. 

6. What I propose to order is that until the adjourned hearing date the husband can spend time with and communicate with his two young daughters on each Saturday and Sunday between the hours of 12.00 noon and 4.00 p.m., that is, four hours on each Saturday and on each Sunday.  The husband has volunteered to the court that either his mother or sister, or both of them, will accompany him, and that is a requirement.  The husband is at liberty to take the children from the suburb the wife’s parents live in, though I can hardly see the benefit in having the children spend several hours in the car travelling.  Given we are in summer, and given good weather, hopefully there is some more child‑friendly activity that he and his mother and sister, or other members of his family or friends, can engage in to the benefit of the children.  The obligation upon the husband that will be recorded in the orders is that he must punctually collect the children at 12.00 noon and punctually return the children at 4.00 p.m. to the wife’s parents address over the next three week period.

7. Given the ages of the children I do not propose to make any other order for telephone contact.  I impose no particular supervision and, to make it perfectly clear, whilst the husband has volunteered his mother and sister, and whilst I require the attendance of one or both of them, I will not formally pronounce a supervision order and charge either of those persons with that obligation over the next three weeks.

8. The husband and wife each request an airport watch list order and a restraint on the children being removed from the Commonwealth of Australia.  Accordingly, there will be pronounced orders by consent on that basis and the obligation will be upon the wife to serve the Australian Federal Police with that appropriate order.  In the circumstances of this case, and given that the orders are being made for three weeks, I impose upon the husband and wife a further order, and that is that, as currently advised, I see no requirement for these two children to be removed from the Greater Melbourne Metropolitan area; that includes the wife’s parents’ home, it includes the husband’s residence and all the suburbs in between.  So there will be a further requirement which is not by consent of the parties but imposed by the court that neither parents, themselves, their servants or agents are to remove either of these children from what I loosely described as the Greater Melbourne Metropolitan area. 

9. As to injunctions, I propose until further order, and without making any finding of fact that the injunctions are required but merely to preserve or protect assets and to safeguard the well being of the wife and, in the context of the consent that I am informed to the orders contained in paragraph 5(a) and (c) of the further draft handed by Ms MacMillan to me representing not a consent situation, but that which her client requires, to make orders in terms of those two sub-paragraphs.  I have all ready indicated that the husband is to be restrained from distributing or circulating any material such as contained within this current letter which is now before the court and which I will mark as exhibit “A”, and retain upon the court file. 

10. The issue otherwise is the proceeds of sale of the property at 54 S.  That property is sold.  It is intended to settle on 8 April of this year.  The husband advises the court that the sale price was $375,000 and the title is encumbered by a mortgage to the Commonwealth Bank of Australia pursuant to which all monies have been paid.  That Commonwealth Bank mortgage will therefore have to be discharged on settlement but that should cause no issue.

11. The real matter that may be a dispute between the parties but it is not yet established on the wife's material, is that a total sum of $180,000 is owed to each of the husband's mother and father.  That matter requires further proof, identification and understanding but, given that my orders are being only made until 26 March and the property does not settle until a subsequent date, there will be a restraining order so that there can be no earlier settlement and that, subject to any further order pronounced by the court, all of the monies are to be held on settlement in an interest bearing account pending any further agreement by the parties or order of the court.  I carefully and specifically make no finding on the alleged debts or encumbrances and that is a matter that can only be considered when the husband has filed his material with the court.

12. There is a dispute as to chattels which the husband alleges are largely sold, and which the wife wants returned to her.  That is a matter that needs to be agreed out of court.  I will not entertain a chattel distribution argument at this time but clearly, if there are chattels there that assist the children such as their clothes, the cot, or indeed the wife's personal clothes or items, then they should be forthwith made available to or delivered up to the wife.

13. There is agreement before me that the husband will pay $200 per week to the wife and, again, that is an interim order only until the adjourned hearing date.  It may be increased or decreased on that date but I will provide for a spousal maintenance payment of $200 per week with the first payment to be made as soon as possible, and then on a weekly basis.

14. The structure of these orders is that the husband now will seek legal advice and must have the opportunity so to do.  The wife is to file a further, updated affidavit containing more substantial matters and facts by 13 March 2008.  The husband is to respond with his affidavit or those of such witnesses upon which he intends to rely plus a Form 13 financial statement and a document carefully detailing all orders he seeks on all issues.  They are all to be filed by 20 March in this court, in proper form, and forthwith then served upon the wife's solicitors, Hogg and Reid of Lonsdale Street, Melbourne.  Otherwise I will have these brief ex tempore reasons for judgment transcribed, placed upon the court file and made available to all parties. 

15. I will adjourn each of the Form 1 and Form 2 applications of the wife now before the court to 26 March 2008 in the judicial duty list for hearing at 10.00 a.m.

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

………………………………………………………..
Associate:          
Date: 13 March 2008