Mouli and Mulham (No. 2)

[2008] FamCA 201

FAMILY COURT OF AUSTRALIA

MOULI & MULHAM (NO. 2) [2008] FamCA 201

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court – Interim children’s orders

Family Law Act 1975 (Cth)

APPLICANT: Mrs Mouli

RESPONDENT: Mr Mulham

FILE NUMBER: MLC 1729 of 2008

DATE DELIVERED: 26 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 26 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS DOWLER

SOLICITOR FOR THE APPLICANT: HOGG & REID

COUNSEL FOR THE RESPONDENT: MR INDOVINO

SOLICITOR FOR THE RESPONDENT: ZOLIS LAWYERS & CONSULTANTS

Orders

1. That all outstanding applications be forthwith transferred to the Federal Magistrates Court of Australia for listing in a directions list as soon as practicable.

2. That paragraphs 2 and 3 of the orders made on 5 March 2008 are discharged.

3. That until further order, the husband spend time with the children M and I both born in May 2006 on each Saturday and each Sunday from 10.00am to 5.00pm commencing on 29 March 2008.

4. Until further order, the husband collect the children from outside of the wife’s residence at the commencement of the period and return them there at the conclusion of the periods referred to in paragraph 3.

5. Until further order, the husband call upon his extended family at any time he feels uncomfortable about his capacity to adequately care for the children.

6. Until further order, should the husband be unable to care for or cope with, the care of the children during any period referred to in these orders, he shall immediately contact the wife and request that arrangements be made for her to take over that care.

7. Until further order NOTING THAT THE WIFE denies any need for such an order, the wife is restrained from leaving the said children alone in the care of her father.

8. Immediately upon the birth of the child that the wife is currently carrying, the wife or her agent, shall notify the husband of such birth.

9. That the parties attend a conciliation conference upon a date to be advised by the Registrar of the Federal Magistrates Court of Australia.

10. That each party provide to the other by 4.00pm on 4 April 2008, a list of all documents that that party wishes to inspect.

11. That upon receipt of the list referred to in paragraph 10 of these orders, the recipient shall, subject to any claim for privilege, provide all such documents for inspection by 4.00pm on 18 April 2008.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. All interim applications are otherwise dismissed and removed from the list of cases awaiting a hearing.

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

MRS MOULI

Applicant

And

MR MULHAM

Respondent

REASONS FOR JUDGMENT

1. This matter came to me in the Judicial Duty List today.  It was transferred after a short hearing in a similar list before Young J on 5 March 2008.  On that day, Young J made a number of orders and delivered an extempore judgment.  I have told the parties what orders I have proposed to make this day and have made them on the basis that I will give written reasons later.  These are those reasons.

2. It is fair to say that there is much heat in this case and the parties are facing an extra dilemma shortly with the wife due to give birth to a third child of the relationship in May 2008.  The other complicating factor is that the two children who are the subject of these reasons are twins aged only one year and ten months.

3. The major issue before me has been the question of what time the husband should spend with the two children and what should happen to an otherwise modest financial dispute.  There was general consensus amongst the parties that the case should be transferred to the Federal Magistrates Court of Australia having regard to the fact that it is still in its infancy stage and it is most likely that the financial issues will become clearer after the parties exchange information and attend a conciliation conference.  Although I am transferring the case to the Federal Magistrates Court I have also ordered a conciliation conference to be organised by the Federal Magistrates Court as soon as practicable so that the parties can make a concerted effort to resolve all of the issues with the assistance of an independent conciliator.  To that end, I have sent a request to Federal Magistrate Hartnett to keep an eye on the file and to note that I have made the order so that it may not necessarily have to be made again when the matter comes into the Federal Magistrates Court duty list. 

4. The major issues between the parties relate to parenting matters. 

5. The husband is 32 years of age and has commenced his own business as a tradesman.  He has a qualification for that.  On what I have been told, his financial position is precarious because of the fact that he has only just started the business.  On the last occasion before Young J, the husband appeared unrepresented and agreed to pay spousal maintenance of $200 per week.  Mr Indovino on behalf of the husband has told me today that at least in the immediate future, the husband does not dispute that the wife meets the threshold for entitlement to spousal maintenance but the issue will be his capacity to pay.  The dilemma I face is the fact that the husband consented to the arrangement.  I have noted on the order that the husband says that that concession was made on the basis that he was going to be getting assistance from his family and that will continue into the foreseeable future.  I have accepted that that is still a live issue between the parties. 

6. I also pointed out to the parties that in the event that the business is barely sustaining the husband, it may be that he has to look to other pastures for appropriate employment which would support a burgeoning family of three very young children as well as the wife having regard to her future responsibilities for the care of three very young children. 

7. The wife is aged 28 years and has not been in the workforce for some time. 

8. The two children about whom this application continued are I and M both of whom were born in May 2006. 

9. There is no dispute that the wife has been the predominant carer of the children all of the way through the lives of those children including when the parties lived overseas for some time.  There is much argument between the parties about what occurred between them and as I have pointed out to them in the courtroom, I am not in a position to make determinations of fact.  There are significant arguments about violence and those matters do not figure high in my determination today. 

10. The parties married in November 1999 and separated on 12 February 2008. 

11. The husband remained in the home in S.  That home is currently on the market for sale.  Orders have already been made in respect of the conduct of that sale and the use of its proceeds.  I was told that there is a significant argument between the parties about a contribution made towards the acquisition and the building of the home from the husband’s mother.  It is not clear at all at this stage just what the mother’s position is and it may very well be that she has to intervene in the proceedings.  That would be unfortunate if what I have been told is right about the equity of the parties in the home one way or the other.  To that end, I have made orders that the parties exchange information so that they will have ample opportunity to have a serious attempt to resolve the matter at the conciliation conference. 

12. The wife filed her application for final orders relating to both parenting and property matters on 27 February 2008 and the matter came on before Young J as I have indicated on 3 March 2008. 

13. His Honour made a number of orders which I will not repeat here.  His Honour took a broad brush approach including rejecting a suggestion put by the wife at that time about how limited a role the husband should have in the lives of the children.  His Honour seemed satisfied however that the husband should have his time monitored by the substantial attendance of an unnamed family member.  The husband has had all of the time available to him under the orders save for one period when he could not find the available family member. 

14. I was told that the basis upon which the “supervision” was actually sought still by the wife was the fact that the husband had not had sufficient experience to care for the children on his own and his parenting capacity was very much in question.  The wife said that the husband is a volatile person as well as dominant.  The husband denies all of that.  None of those matters have figured in my determination.  What has affected my decision today is the fact that the husband has had limited experience in caring for the children by himself both during the marriage and subsequent to the separation.  There seems common ground that although the husband was in the house at the same time as the wife and children, she was sufficiently responsible for them to the extent that she even slept with them to get them settled.

15. It is clear therefore that the evidence about the husband’s capacity as a parent is unknown.  For the wife however to point to his inexperience is of little assistance because experience can only come with an attempt at the task. 

16. I have also very little information about the husband’s family although it was noted that they were sitting behind him in court.  All of the families seemed to be very much involved in the case.  My view is that the families might be better to offer assistance but not necessarily be closely involved in the situation to give the husband an opportunity to tackle the parenting tasks on his own.  I have made orders that in the event that the husband feels that he is not coping with the extended time that I am prepared to order then he will need to call on his family for assistance and in the event that he is not able to cope personally rather than pass the responsibility to the family, I have ordered that he return the children to the wife.  Much also depends on where the new child fits into this regime.  The wife is due to give birth in May and it is already a difficult period of time for her to attend to court obligations as well as care for the two children.  Accordingly, weekend times will provide her with some respite.  It is my intention that although the matters are to be transferred to the Federal Magistrates Court of Australia, they should not be listed until after the middle or end of May to enable the wife to settle down again.

17. Part of the matter that was determined before Young J related to a rather unfortunate incident in the wife’s earlier years.  His Honour made orders about the husband disseminating material which at best was unpleasant and at worst outrageous.  The wife has filed a subsequent affidavit indicating that the husband has not complied with that order.  I was not able to discern what has occurred there because the evidence was not tested. 

18. For his part however, the husband has today sought an injunction against the wife’s father.  I have treated the injunction application more as being sought against the wife leaving the children in the care of her father.  Mr Indovino candidly conceded as he must, the evidence related to an incident when the wife was a child.  Not only is there no evidence of any misconduct by the wife’s father subsequent to that time but it is also clear that the wife’s father has had an involvement in the lives of these children of some substance and the husband does not complain about it up until now.  That may very well be because there was always some other person caring for the children and the wife’s father was never alone.  Counsel for the mother candidly conceded that it would be rare for the wife to leave the two children alone with any person other than persons that she could trust and she was content on the basis that there was absolutely no reason to make the order, to agree to it at least on an interim basis to give the husband some comfort.  I am not at all sure how much comfort the husband can or even should draw from that offer but I am satisfied that there is at least a basis to take some heat out of the case pending a further hearing.  As I have indicated to the parties had that concession not been made, I would doubt very much whether I would have been prepared to make the order based upon the evidence presented by the husband. 

19. The husband’s position was that he wanted the children from Friday night to Sunday night.  He said that there ought to be no supervision of his time with the children.  The wife’s position was that she was prepared to extend the time set out by Young J but on the basis that the supervision contemplated by his Honour continued. 

20. With very little information and without the evidence being tested, the only sensible approach would be to determine the matter on the basis of commonsense.  It would be inappropriate to make an order for the duration sought by the husband at this stage having regard to the fact that these children are babies and have never been away from the wife in her predominant carer role for anywhere near the period of time sought by the husband.  He needs to get some experience as a sole parent before that sort of order could be contemplated.  Equally, for the wife to continue to seek some sort of supervisory role by the husband’s family does not give him the opportunity to develop a proper relationship with the children where he can develop his own style of parenting and gain experience. 

21. If the husband is unable to care for the children as I have pointed out, he will have the responsibility of contacting the wife and arranging their return.  It seems to me that the appropriate time with the husband and the children is day time on consecutive days where there will be family assistance available should it be needed.  I do not propose to continue the order made by Young J that there be substantial attendance because having regard to the ages of the two children, the wife would not be able to adequately know what was happening in respect of that attendance in any event.

22. The husband also sought that the wife’s family contribute to the travelling by travelling to C police station being the point he thought was halfway between the respective residences.  The wife countered that by saying that she did not know where the husband was living as he had given a number of different addresses and in any event, the S home is soon to be sold.  To make matters more difficult, the wife is obviously not in a capacity to travel too much at this stage because of the lateness of her pregnancy.  It seems to me having regard to the amount of time that I am proposing to order, the husband is in a much better position to do the travelling than is the wife or her family.  He will also have the children in the car with him for that period of time where he can talk to them and albeit it may test his endurance as a parent, those are matters that go to life’s experience as a parent anyway.

23. Having regard to the commonsense approach which I propose to take, I have ordered that the husband have each Saturday and Sunday until further order from 10.00am to 5.00pm commencing on 29 March 2008. 

24. The issue of equal shared parental responsibility was not a matter about which I could make any determination in this case because of the fact that this is an interim hearing.  It would be inappropriate for me to endeavour to embark upon that course of action and I propose not to do so.

25. I am however asked to make parenting orders in a contested environment.  On that basis, any decision I make must be with the best interests of the children as the paramount consideration.  To determine what order I should make having regard to that requirement, I am obliged by the Family Law Act 1975 (Cth) (“the Act”) to turn to s 60CC.

26. The two primary considerations set out in s 60CC relate to the benefit of the child having a meaningful relationship with both parents whilst at the same time monitoring the need to protect the children from physical and psychological harm.

27. In respect of the children having a meaningful relationship and benefiting from it, only time will tell but having regard to the fact that the wife was at least prepared to concede that the husband has a relationship with the children and that he has fulfilled his time obligations under the orders of Young J, I have concluded that it is in the best interests of the children for them to continue to have a relationship which is built up over a period of time.

28. Notwithstanding the accusations that the wife has made against the husband which are denied as to volatility and dominance, there is no evidence that I can say with any certainty points to the fact that the children need to be protected from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.

29. Section 60CC goes on to set out a number of other factors that I am required to consider. The children are clearly too young to express a view about what orders should be made.

30. The nature of the relationship between the husband and the children is a vexed question.  The husband says that he has been in the household up until the time of separation and participated in the parenting role.  I have a reservation about the extent to which the husband says that he has fulfilled those obligations.  That reservation is similar to the one expressed by Young J on 5 March 2008.  However, I am satisfied that it is appropriate to develop that relationship without the necessity for there to be someone hovering over the husband.  If the husband does not have the capacity, it should be evident from the way in which the children respond over the next few weeks.  In so far as there are problems, the matter will need to be revisited.

31. One of the considerations is the willingness and ability of the parents to facilitate and encourage the relationship between the child and the other parent.  The wife seems to be indicating her willingness to foster the relationship between the husband and the children and that is encouraging.  I have urged the parties to also talk to one another about the child yet to be born because each party has views no doubt affected by their religious and cultural views.  It seems to me that the parties who are both young need to rethink their relationship to ensure that the children understand that each party respects the other.  At this stage however, I am satisfied that the tensions within the relationship are such that there is some justification in the comments made by Young J about the husband’s conduct towards the wife within what is obviously a relatively small community.  If that situation continues, it must affect the finding of a court about the parent’s facilitation and encouragement of the relationship between the children and the other party.  I am not prepared at this stage to say that the two are inextricably linked but it may very well be that that is the conclusion that one draws after the evidence is comprehensively tested.

32. I am obliged to consider the affect of changes in the child’s circumstances including in particular, the separation of the child from the wife.  I do not have any evidence as to how the children relate to the husband other than what the wife has said.  It appears on the evidence that the wife thinks that the children can be away from her for the periods of time that I propose to order and therefore, I am satisfied that there is no disadvantage for the children in the orders that I propose.

33. There are no practical difficulties notwithstanding the husband’s assertion that the travelling is onerous.  The time he spends with the children in the car can still be usefully used and I see no reason to be concerned about the distance between the parties. 

1. I am satisfied that the wife has the capacity to provide for the emotional and intellectual needs of the children which is a responsibility she has largely fulfilled until now.  Although the husband espouses that he has participated, I do not know the extent of his capacity which is one of the reasons why I am not prepared to accede to the period of time that he has sought.

2. Section 60CC(3)(g) requires me to consider the lifestyle and background including the culture and traditions of the children. I do not know the full extent of the way in which each parent proposes to bring these children up into the future and that is a matter more appropriate for final hearing.

3. I have already expressed some concern about the attitude of the husband by virtue of what he has said within the community and the concerns expressed by Young J.  As I have pointed out, those matters spill over into the question of his attitude to the responsibilities of parenthood.  At this stage however, I am prepared to give him the opportunity to develop a relationship as a parent without interference.

4. There are significant arguments in this case about family violence but I am not satisfied that they are matters that I should take into account in a significant way having regard to the fact that I am asked to determine the matter on the basis of affidavit evidence which is untested. 

5. Section 60CC(4) requires me to look at how each party facilitates and takes opportunities in respect of their parenting role. I am satisfied that the wife has not made life difficult and has given the husband opportunities to participate in the parenting role subsequent to separation and equally, the husband has fulfilled those obligations. He has fulfilled them in circumstances where Young J made time limited and he had significant travelling obligations. I have extended those times and have been assured by his counsel that he will take every opportunity to participate in the lives of the children.

6. The other matters set out in s 60CC of the Act are otherwise not particularly relevant.

7. As I have pointed out, ultimately, it is a matter about which I have to be satisfied that the orders I make are best for these two children.  I am satisfied that the period of time I am giving the husband to spend with the children will give him an opportunity to participate in a meaningful way in the lives of the children as well as ensure that he gets an opportunity to convey to two very vulnerable and impressionable children all of the cultural values which he no doubt has and intended for his family in the future.  It is important that those cultural values be respected but that they not significantly clash with the views of the wife to the extent that the children become embroiled in a dispute which adversely affects them.  Accordingly I have urged the parties to think about the needs of the children rather than their own personal concerns. 

8. I propose also to order that the wife immediately advise the husband of the birth of the child.  As I have pointed out, the husband sought orders for specific names of the child.  I was told that there are religious and cultural reasons for those names but having regard to the period of time that that child will carry those names, it is not appropriate for me to make any determination at this stage.

9. In the circumstances, I was comfortable in saying that the orders that I made were in the best interests of these children.

I certify that the preceding Forty Two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 March 2008