MULLENS & MULLENS

[2014] FamCA 1203

FAMILY COURT OF AUSTRALIA

MULLENS & MULLENS [2014] FamCA 1203

FAMILY LAW – Interim adult/child maintenance –  Suspension of order.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mullens

RESPONDENT: Ms Mullens

FILE NUMBER: MLC 8314 of 2014

DATE DELIVERED: 5 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grant

SOLICITOR FOR THE APPLICANT: CE Family Lawyers

THE RESPONDENT: In person

Orders

1. That paragraph 1(b) of the orders made on 7 November 2007 be suspended until further order.

2. That paragraph 2 of the application of the husband filed 16 September 2014 is adjourned to the conciliation conference at 9.15am on 11 February 2015.

3. That each of the husband and wife file a financial statement by 4.00pm on 9 December 2014.

4. That each party have liberty to apply.

5. That the reasons this day be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8314 of 2014

Mr Mullens

Applicant

And

Ms Mullens

Respondent

REASONS FOR JUDGMENT

1. This is an application that was brought before the Court by Mr Mullens arising out of orders that were made by Dessau J by consent of the parties in 2007.  That included an adult/child maintenance order.  The order was specifically drawn on the basis that it continue after January 2009 and for so long as the child, B, remained enrolled as a full-time tertiary student or was certified as being medically unable to continue full-time study.  Prior to the completion of her tertiary studies, the applicant was to pay $175 per week until the completion of those tertiary studies.

2. Mr Mullens filed his application on 16 September and it was given a case-assessment date.  He also sought interim orders, which included an order for discovery, but also for the suspension of the maintenance order until the trial.  It seems common ground that he has not being paying since January 2013, although the Child Support Agency now seems to have stepped in to collect the money.

3. Mr Mullens’ complaints are set out in his affidavit that he has not been able to get adequate information.   On the basis that the wife has been struggling to get a lawyer representing her that is not really surprising.  This matter needs a hearing and reasonably soon, but in the meantime, it seems to me that Mr Mullens has got a point where he understands from effectively second-hand information that his daughter, with whom he has no relationship, is not actually studying full time.  He seems also somewhat uncertain about her medical condition, because at best, he has a medical certificate which is certainly short on detail. 

4. The power of the Court to make a maintenance order for a child over the age of 18 years lies in section 66G of the Act and the only rider to that is that the Court make such order as it considers proper.  That obviously includes the question of suspension and ultimately discharge of those orders.

5. The Court is to take into account the matters set out in section 66H.  In this case, I do not have any information provided by the wife about what is necessary for the maintenance of B, nor have I any information, because she has not filed any affidavit material, setting out the details about just what B is doing.  It seems to me in the circumstances that Mr Mullens has a point, bearing in mind that the order was made originally in 2007.

6. I am not prejudicing either party in this case by making a suspension of the order.  If, indeed, Mr Mullens is shown still to have the obligation notwithstanding the suspension, no doubt the wife and/or the agency can claw that money back.  On the other hand, as Ms Mullens says, she has not been paid any money since January 2013, although that may appear to be about to change.  There is a standoff that needs to be resolved.

7. I propose, therefore, to suspend the order until the further hearing, but I will give liberty to apply – suspend paragraph 1(b) of the order made 7 November 2007.  I will make orders also in terms of paragraph 2 of the application filed on 16 September 2014 and I will otherwise adjourn the substantive application filed 16 September 2014 to the conciliation conference on 11 February 2015 at 9.15 am.

RECORDED:   NOT TRANSCRIBED

1. Before 11 February 2015 – and I will give general liberty to apply.

RECORDED:   NOT TRANSCRIBED

1. Both parties file by 9 December 2014.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 November 2014.

Associate: 

Date:  22 December 2014