Marks & Marks

[2021] FamCA 156

FAMILY COURT OF AUSTRALIA

Marks & Marks [2021] FamCA 156

File number(s):

SYC 9295 of 2020

Judgment of:

REES J

Date of judgment:

25 March 2021

Catchwords:

FAMILY LAW – PARENTING – Interim – Application by the wife to spend increased time with the children – Where the husband argues the wife’s history of substance abuse poses risk to the children – Orders for the children to spend time with the wife not less than one day each week – Orders for the appointment of an ICL and engagement in family therapy – Orders for the wife to submit to drug and alcohol testing.

FAMILY LAW – INTERIM PROPERTY – Application by the wife for periodic spousal maintenance – Where the husband disputes the quantum of spousal maintenance – Competing applications by the parties for a partial property settlement – Orders for spousal maintenance and a partial property settlement to be paid to the wife only.

Number of paragraphs:

54

Date of hearing:

22 March 2021

Place:

Sydney

Counsel for the Applicant:

Mr Campton SC

Solicitor for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Ms Christie SC

Solicitor for the Respondent:

Barkus Doolan

ORDERS

SYC 9295 of 2020
BETWEEN:	MS MARKS Applicant
AND:	MR MARKS Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	25 MARCH 2021

THE COURT ORDERS PENDING FURTHER ORDER:

1.That the wife and husband will do all acts and things necessary to engage in family therapy with Dr B, clinical psychologist at C Psychology ("the Family Therapist") for the purposes of:

(a)discussing all relevant issues arising in relation to the nature of the relationships each of X, Y and Z have with each of the husband and wife;

(b)exploring options and ways to promote and improve the current relationships X, Y and Z have with the wife and the willingness of each child to spend time with the wife;

(c)discussing how the husband and wife each parent the children and to explore options and ways that might exist to assist the parties to parent the children and for each of them to promote, encourage and facilitate the children having and maintaining a meaningful relationship with each parent and spending time with the wife; and

(d)      such other matters as the Family Therapist considers appropriate.

2.That each of the husband and wife shall initiate contact with the Family Therapist and make their initial appointment with the Family Therapist at the earliest opportunity.

3.That each of the husband and/or the wife shall attend upon his/her treating general practitioner to obtain a referral and Medicare subsidised GP Health Care Plan referring them to the Family Therapist for family therapy.

4.That each of the husband and wife shall attend family therapy on dates and times as may be agreed between the husband, the wife and the Family Therapist.

5.That in the event that the Family Therapists requests the attendance of the children at family therapy, the husband and wife shall each take all steps necessary to facilitate the children's attendance at family therapy as required by the Family Therapist.

6.That all out of pocket costs paid by each party (after Medicare and/or private health insurance rebates) to the Family Therapist for family therapy shall be paid by the husband.

7.That, with the exception of information relating to the attendance of the parents and the children at appointments and any recommendation by the therapist that therapy continue or not continue, the family therapy (including individual sessions involving only one party and the Family Therapist), shall be non-reportable and each of the husband and wife are restrained from:

(a)issuing any subpoena for the Family Therapist to give evidence, or for the production of any of the Family Therapist's records, in these proceedings; and

(b)introducing into evidence in these proceedings anything that is discussed in the course of family therapy with the Family Therapist, without the leave of the Court first obtained.

8.That the wife shall submit to the following:

(a)chain of custody urine analysis once each fortnight to occur within 12 hours of receiving written notification from the husband or his solicitors in writing, with such urine analysis to occur in accordance with the Australia / New Zealand Standard 4308:2008 procedure for the collection, detection and quantification of all drugs and alcohol including but not limited to cocaine, opiates, benzodiazepines, amphetamines and cannabis, and within 48 hours of receipt by the wife of her urine tests results the wife shall provide a copy of the test results to the husband and/or the husband's solicitors; and

(b)drug and alcohol hair follicle testing at D Clinic (or other such organisation as agreed with the husband in writing) forthwith and then on not more than one occasion every three months and within 48 hours of receiving written notification from the husband or his solicitors in writing, with the results of such testing to be provided to the husband and/or the husband's solicitors within 7 days of receipt by the wife. The purpose of such hair follicle testing is to obtain drug and alcohol testing using the Drug Detection Agency's standard 18-Panel Hair Drug Test and alcohol test; and

(c)The wife shall be restrained by way of injunction from dying and/or removing her hair such that the hair follicle testing cannot be successfully carried out.

9.That the costs of the testing referred to in Order 8 above shall be met by the husband.

10.That the children spend time with the wife as agreed but on not less than one day each week.

11.That the husband and the wife do all acts and things required to instruct L Solicitors to pay to the wife, from the funds held by them, the sum of $250,000 by way of partial property settlement.

12.That the husband pay to the wife, by way of interim spousal maintenance, the sum of $2,100 per week and, in addition, pay in relation to the wife’s vehicle registration costs; comprehensive and third party insurance; costs of periodic servicing and costs of inspection for registration renewal.

13.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Rees J:

1. Ms Marks (“the wife”) and Mr Marks (“the husband”) commenced their cohabitation in 1999, married in 2001 and separated in April 2018. They have three children, X born in 2005 and twins Y and Z who were born in 2007 (“the children”). The children currently live with the husband and spend time by agreement with the wife.

2. Proceedings were commenced by the wife in December 2020 and her application for interim financial and parenting orders is now to be determined.

3. The wife relies on her application filed 23 December 2020, two affidavits sworn on 22 December 2020 and 18 March 2021 and a Financial Statement sworn on 18 March 2021.

4. The husband relies on a response filed 5 February 2021, two affidavits sworn by him on 5 February 2021 and 18 March 2021 and a Financial Statement filed 5 February 2021.

5. A Child Dispute Conference (“CDC”) Memorandum relating to a conference with the parties on 24 February 2021 has been prepared.

6. Each party has filed and relied on tender bundles. I will have regard to those pages of the tender bundles to which I was taken in submissions.

7. The parties agreed that an Independent Children’s Lawyer (“ICL”) should be appointed for the children. They also agree that they and the children should commence family therapy but do not agree about the identity of the therapist, or how the costs of therapy should be paid. They do agree that the therapy should be confidential except for information as to attendances by the parties and the children and whether the therapist recommends that therapy continue.

8. The issues for determination are:

   ·The identity of the family therapist and how the therapist should be paid.

   ·Whether the wife should be required to undergo random drug and alcohol testing.

   ·Whether orders should be made for the children to spend time with the wife.

   ·Whether interim property settlement orders should be made in favour of the wife alone or in favour of both parties.

   ·Spousal maintenance.

9. Senior counsel for both parties addressed each issue separately and I propose to deal with the issues in the same manner.

   The identity of the family therapist and how the therapist should be paid.

10. The wife proposed a therapist located in the CBD of Sydney. The husband proposed a therapist whose practice is close to the children’s home in F region.

11. There was no objection taken to the qualifications or suitability of either therapist.

12. There are no advantages to the children or to the parents in travelling from the Northern Beaches to the city and that travel may prove onerous, particularly to the children and might require them to be taken out of school in order to be in the city during business hours.

13. The therapist nominated by the husband is preferred.

14. It is anticipated by the parties that they will obtain a mental health plan from the general practitioner and that ten sessions of therapy will attract a subsidy from Medicare. In those circumstances, the costs will not be onerous. For the reasons that will be more fully explained when dealing with the financial applications, it is appropriate that the husband pay for the costs of the family therapy.

    Whether the wife should be required to undergo random drug and alcohol testing.

15. The husband proposes that the wife be restrained from consuming any non-prescription drug (including both legal and illegal substances) and from consuming alcohol within 24 hours of any period where the children are in her care and that she undergo chain of custody urine testing fortnightly and hair follicle testing every four weeks.

16. The wife opposes that application.

17. When the parents were interviewed for the CDC on 24 February 2021, the husband told the Family Consultant that he had no objection to the children spending equal time with the wife if they are “comfortable with this”. However he also alleged that the wife had a long term, serious addiction to alcohol.

18. I do not accept that the husband’s willingness to allow the children to spend half of their time with the wife is consistent with his having a genuine, current concern that she is using drugs and drinking to excess. The wife deposed that she is now a social drinker. If she is not being accurate, I have no doubt, based on the husband’s evidence, that the children will complain to their father and the regime of testing that I propose to order will provide evidence of her consumption. She would be well advised to continue to moderate her consumption of alcohol and I do not propose to order that she refrain from any consumption.

19. I accept the submission of senior counsel for the mother that the orders, as sought by the father, would restrain her from even taking pain relief if she has a headache unless she went to her doctor and obtained a prescription. As to the use of illegal drugs, such behaviour is against the law and I do not propose to make an order restraining the wife from breaking the law.

20. After the CDC, the husband obtained, on subpoena, records of the wife’s involvement with cocaine and with rehabilitation. Those matters had not been known to him.

21. The wife was admitted to the Addiction Unit at G Clinic on 25 May 2020, it would appear on referral from her psychiatrist. The admission document indicates that she had been diagnosed with depression, anxiety and alcohol misuse. The records state that the wife did not want the husband to know of the admission. The admission record notes the mother reported drinking half a bottle of gin or up to two bottles of wine daily. She reported some previous withdrawal symptoms such as sweats and shakes. The records note:

    Cocaine every fortnight-last on Sat23/5.

    Benzodiazepines from 2/52 ago… At most ½ tab per night. Never IVDU…

22. The notes record “significant cocaine dependence”.

23. A later note states that the wife used cocaine recreationally “2 times last week”. She had a blood alcohol level on admission of 0.083.

24. A blood test of a sample taken on 26 May 2020 was positive for cocaine and benzodiazepines.

25. The discharge summary is dated 9 June 2020. The mother did not follow up attendance at group sessions. A letter dated 9 September 2020 to Dr H, whom I assume was the wife’s treating psychiatrist, states that the wife had been “…discharged from the Wednesday Mood Disorders Day Program… due to conflicting obligations and finally non-attendance and an inability to be contacted regarding ongoing attendance”.

26. The husband deposed to a number of conversations with the children in 2018 and 2019 relating to their reports of the wife’s drinking.

27. There is objective evidence of the wife’s problematic consumption of alcohol and use of cocaine.

28. If, as the wife asserts, she is no longer drinking to excess or using illicit substances, then the most effective way of demonstrating that is by the testing that the husband proposes.

29. I propose to make the orders as sought by the husband except that hair follicle testing will be required forthwith and thereafter every three months.

    Whether orders should be made for the children to spend time with the wife.

30. The children are aged 15 and a half and 13 years. They are of an age where their views are important and will be given significant weight.

31. The mother deposed that she has not spent time with Y since 19 February 2021 and it appears that the children have not stayed overnight with her for some time.

32. Orders have been made for an ICL to be appointed for the children and the ICL will take steps to obtain independent evidence of their views. An option suggested by the Family Consultant in the CDC is a further, child inclusive conference. If the ICL is of the view that a child inclusive conference should be arranged, I assume that the parents will both agree.

33. Until there is evidence of the children’s views I propose to make orders that will ensure that the children spend time with the wife on at least one day each week but not overnight.

    Whether interim property settlement orders should be made in favour of the wife alone or in favour of both parties.

34. The wife seeks an order for the payment of a total of $250,000. Although her application at Order 4 specifies the payment to be “Interim Costs”, it is my understanding from the Outline of Case prepared by senior counsel for the wife that she seeks “Interim Costs in the sum of $328,000” and “Partial property alteration in the sum of $70,000”.

35. The husband seeks an order that each party receive $220,000 by way of partial property settlement.

36. It is agreed that $994,258 is held in trust from the proceeds of sale of a jointly owned property and is available for distribution.

37. On behalf of the wife, it is submitted that the husband has not demonstrated any need for a distribution by way of partial property settlement because he has had control of the whole of the matrimonial property and income and has been able to apply those funds to meet all of his obligations, including prepaying rent until August 2021, prepaying the children’s school fees until the end of 2021 and paying $71,511 to his solicitors.

38. The husband’s bank statements from 24 November 2020 until 3 February 2021 were tendered in the wife’s case. The opening balance was $171,453 after payment of $100,000 to the tax office and the closing balance was $152,001. In January 2021, the balance was more than $270,000 and the husband was able to pay $100,000 to the tax office. In addition, the husband appears to have transferred funds of some $44,000 to himself in that period.

39. The preservation of the funds in trust is a matter of some importance because the wife seeks, in the substantive proceedings, the whole of the trust fund.

40. Other than the half share owned by the Marks Family Trust in J Pty Limited, the trust fund is the parties’ most significant asset. Of the remainder of $382,266, $129,985 is held by the husband in Bitcoin. In addition, the parties have $750,578 in superannuation. The husband, in the substantive proceedings, concedes that the wife should receive 42.5 per cent of the net property and $108,000 in superannuation. If the net property is, as estimated by the husband, $1,262,000, then the wife will receive, on his application, $536,350 and the most likely source of those funds will be the trust fund.

41. The ultimate value to be ascribed to the assets of the BFT is not known and it may be that the value will be nil. The sole customer of J Pty Limited has indicated its intention to terminate the relationship. If that eventuates, then the shares in J Pty Limited may have no value.

42. There is no principle of law that mandates a payment to the husband for no other reason than that the wife will receive a payment.

43. It is not just and equitable that the husband, who presently has an income in excess of one million dollars per annum, and $152,258 in the bank and $129,985 in Bitcoin, should receive any more funds.

44. The orders will provide for the payment to the wife of $250,000 by way of partial property settlement. It will then be a matter for her to determine how much of her own funds she wishes to use to pay legal fees.

    Spousal maintenance.

45. The husband has been paying, without any order, $800 per week to the wife. 

46. The wife seeks an order that the husband pay $3,666 per week by way of spousal maintenance and, in addition, that he pay all of the costs associated with her motor vehicle 1.

47. The husband concedes that he will continue to pay the sum of $800 per week for as long as the BFT continues to receive income at its current level.

48. Whilst that income continues, the husband concedes that he has the ability to pay the amount sought by the wife.

49. Further the husband agrees that he will continue to ensure that the wife’s motor vehicle is available to her and he will pay registration, insurance, servicing costs and the cost of motor vehicle inspections for the purpose of renewing the registration. He does not agree to paying the wife’s toll charges.

50. The wife claims that her necessary personal expenditure is $2,085 which includes her rent of $650 per week and her Part N expenses are $1,435. There was no serious challenge to the reasonableness of those expenses.

51. In her affidavit sworn 22 December 2020, the wife claimed that her reasonable personal expenditure would be $3,666 which included rent of $1,500; $180 per week for dining out; $96 per week for cosmetic procedures; $201 per week for hairdressing and toiletries; $231 for holidays and $96 for “professional fees – tax and advice”.

52. There was no real attempt to justify those claims.

53. I propose to order that the husband pay $2,100 per week by way of interim spousal maintenance.

54. It may be that, at some future time, the BFT will stop receiving the income currently generated by J Pty Limited. In that event, the husband can make an application to vary this order.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       25 March 2021