Regan & Regan
[2021] FedCFamC1F 159
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISON 1)
Regan & Regan [2021] FedCFamC1F 159
File number(s): BRC 7426 of 2021 Judgment of: BAUMANN J Date of judgment: 28 October 2021 Catchwords: FAMILY LAW – PROPERTY – INTERIM – Where interim consent orders were made for the husband to pay to the wife weekly spouse maintenance – where the interim consent orders made provision for payments to the wife to cease upon an external controller being appointed to any entity within a Group – where 14 days after the making of those orders the husband caused two entities within the Group to have a liquidator appointed – Wife seeks urgent orders for spouse maintenance – Court finds the husband has capacity to pay – Spouse maintenance orders made Legislation: Family Law Act 1975 (Cth), ss 83, 72, 75 Cases cited: Regan & Regan [2021] FamCA 586
Drysdale & Drysdale [2011] FamCAFC 85
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 21 October 2021 Place: Brisbane Counsel for the Applicant: Mr Hackett Solicitor for the Applicant: Hirst & Co Counsel for the Respondent: Mr Moxon Solicitor for the Respondent: HopgoodGanim Lawyers ORDERS
BRC 7426 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REGAN
Applicant
AND: MR REGAN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS:
1.That on an interim basis pending further order, and in circumstances where Orders 3, 6 and 7 made 19 August 2021 have ceased to apply:
(a)Orders 3, 6, 7 and 14 made 19 August 2021 are discharged;
(b)the husband pay to the wife by way of spousal maintenance until further order the amount of $1,750 per week by payment to a bank account as nominated by in writing.
(c)the husband pay or cause to be paid the following expenses:
(i)In relation to the Motor Vehicle 1 in the wife’s possession:
A.the finance payments/lease payments or repayments relevant to any finance applicable to the vehicle;
B.registration fees; and
C.insurance.
(ii)Costs necessary to maintain the current S Fund private health insurance policy for the family.
(d)The wife’s application for partial property payment of $50,000 is dismissed; and
(e)The wife’s application for an interim injunction be dismissed.
2.That the costs of the parties are reserved.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Regan & Regan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 19 August 2021, in the midst of competing applications under s 79 of the Family Law Act 1975 (Cth) (“the Act”), the Court made a number of Orders by consent, as set out at Appendix One to these Reasons (“the said interim Orders”).
The Orders were made after lengthy negotiations with the husband, Mr Regan, being represented by senior counsel and a well-known firm of specialist family lawyers. The wife, Ms Regan, similarly, was represented by quality representation.
I make these comments because, within 14 days of the said interim Orders, the husband elected not to continue to pay to the wife interim spouse maintenance of $1,750 per week (Order 6) or the partial property settlement sum of $50,000 (Order 3), payable on or before 31 August 2021.
As a result of these elections by the husband, the wife commenced urgent proceedings for fresh orders, which were articulated in the Amended Application in a Proceeding filed 18 October 2021, as follows:
1.That the matter be listed on an urgent basis and that any time for service be abridged.
2.That the Husband pay to the Wife by way of spousal maintenance until further order the amount of $1,750 per week by payment to a bank account nominated by her in writing.
3.That the Husband pay or cause to be paid the following expenses:
a.In relation to the Motor Vehicle 1 in the Wife’s possession:
i.The finance payments/lease payments or repayments relevant to any finance applicable to the vehicle;
ii.Registration fees; and
iii.Insurance.
b.Costs necessary to maintain the current S Fund private health insurance policy for the family.
4.That the Husband pay or cause to be paid to the Wife by the payment to her solicitors Hirst & Co forthwith the amount of $50,000.
5.The Husband be restrained personally and by his servants and/or agents from dealing with paying or applying the proceeds of sale of any plant and equipment owned by D Pty Ltd, D1 Pty Ltd and D2 Pty Ltd without first obtaining the Wife’s consent or an Order of this Court.
6.That the Husband be restrained personally and by his servants and/or agents from reconstituting any legal entity through which the business known as ‘J Company’ is operated and further that he be restrained from proceeding with any arrangements with Mr Neagle (or any legal entity controlled by Mr Neagle) to do so including but not limited to commencing the operation of a business known as ‘T Company’ without first obtaining the Wife’s consent or an Order of this Court.
7.That the Husband make disclosure of the following documents and information to the Wife within seven days of the date of these orders:
a.Copies of the Husband’s personal income tax returns and notices of assessment for the years ended 30 June 2018, 30 June 2019, 30 June 2020 and (if available) 30 June 2021, and if those documents are not available, copies of the Husband's three most recent income tax returns and notices of assessment, together with an explanation as to why the Husband has not lodged personal income tax returns up to 30 June 2020;
b.Copies of all credit card statements for all credit cards used by the Husband for the 12 months prior to 16 May 2021 to date and monthly thereafter by no later than the 10th of each month;
c.Copies of bank statements for all bank accounts operated by the Husband in his sole name for the 12 months prior to 16 May 2021 to date and monthly thereafter by no later than the 10th of each month;
d.Copies of bank statements for all bank accounts from which the Husband meets his personal living expenses and/or legal costs and disbursements for the period 1 June 2020 to date and monthly thereafter by no later than the 10th of each month;
e.A copy of the safe harbour advice referred to in the Husband’s affidavit of 12 July 2021 and the letter from Hopgood Ganim to Hirst & Co dated 31 August 2021;
f.Copies of communications passing between the Husband and/or his agents and the Australian Taxation Office with respect to negotiations to enter into a payment arrangement and/or the rejection of the Husband’s proposed payment arrangement as referred to in the Husband's Affidavit filed on 12 July 2021 and 18 August 2021 and the letter from Hopgood Ganim to Hirst & Co dated 31 August 2021;
g.Confirmation of the corporate structure for the business trading as T Company (formerly J Company) including but not limited to the constitution, share register and/or trust deed for the legal entities involved;
h.Any partnership or shareholders agreement entered into by the husband and Mr Neagle (or any relevant entities) with respect to the business trading as T Company;
i.Any documents evidencing the profit share arrangements between the Husband and Mr Neagle (or any relevant entities) with respect to the business trading as T Company; and
8.That the Husband pay the Wife’s costs of and incidental to this application.
9.Such further or other order as this Honourable Court deems necessary.
The husband, in a Response to the Application in a Case filed at 5.22pm on 20 October 2021 (the night before the wife’s Application was listed for hearing), seeks that the wife’s Application be dismissed and further orders are sought.
Because of the urgent manner in which the proceedings were listed, not all applications were considered on 22 October 2021, when Mr Hackett of counsel appeared for the wife and Mr Moxon of counsel appeared for the husband. Before dealing with the competing positions, which were helpfully illuminated by both oral and written submissions, it is appropriate to provide a succinct contextual background.
BACKGROUND
The parties separated finally in June 2021 after a marriage of over 13 years which bore five children. Legal proceedings were filed by the wife within days of the separation, and the matter has been before the Court for interim property relief on 15 July 2021 and 19 August 2021, before the most recent interim hearing. Although parenting issues are also before the Court, these Reasons only deal with the urgent property and spouse maintenance issues.
In short it is clear that:
(a)although a professional with his own business, said by the husband to previously having been profitable, the husband had ventured into other business pursuits in the building and construction industry;
(b)these pursuits involved securing substantial borrowings to maintain the business activities – and on any assessment were highly geared;
(c)the wife, whilst aware of the nature of the activities, left the business development broadly to the husband to manage, whilst she was committed to the care and welfare of the five children who’s ages span from 14 years to the twins now aged four years;
(d)the husband did not honestly keep the wife appraised of what is now evident – namely that the mix of business activities (involving at least 34 separate but related entities) were in financial peril with at least two major creditors – the Commonwealth Bank of Australia (“CBA”) and V Finance each owed many millions of dollars;
(e)the family home had to be sold quickly (with no return to the parties), causing post separation the wife and five children to rely upon her mother for accommodation. The husband rented an apartment;
(f)although I accept there is a complex network of entities, and the husband says he is trying to avoid personal bankruptcy and trying to manage an orderly sale of assets to prevent further legal proceedings by creditors, it is clear that complete discovery to the wife by the husband has not occurred in a timely manner. The husband’s actions have not assisted in giving the wife any confidence that the husband’s earlier assertions (before separation) that the parties were in a healthy financial position, is incorrect. She is trying to come to grips with what appears to be a virtual collapse of their financial position;
(g)This lack of confidence and trust has not been assisted by the positions adopted by the husband, retaining senior counsel on two previous occasions to submit, in short, that:
(i)in July 2021, the CBA had to receive some available funds of $3,000,000 otherwise a catastrophe would occur. For reasons set out in my Reasons for Judgment delivered 15 July 2021 (Regan & Regan [2021] FamCA 586), I did not accept that submission and essentially injuncted funds until August 2021, whilst ordering the wife to receive $100,000 as a partial property settlement;
(ii)in July 2021, the husband’s position was that overall debts exceeded assets by some millions of dollars;
(iii)when the matter returned to the Court on 19 August 2021, the Court was informed that Supreme Court proceedings launched by V Finance necessitated the injuncted funds to be paid to that company, not the CBA. The said interim Orders facilitated that payment, and those Supreme Court proceedings have now been settled;
(iv)the CBA has made demand upon the parties’ entities for repayment of various debts totalling in excess of $8 million. The CBA has, it seems, some security over business equipment and a sale of various items has allowed nett proceeds to be paid to the CBA as each piece of equipment is sold, the husband claims, in an orderly manner. On 19 August 2021, the husband deposed to the aspiration that with an orderly sale of equipment, rather than having a deficit, it was his hope that a nett balance of around $950,000 would be available;
(v)it now appears that the husband and a Mr Neagle who is involved in the husband’s previous business (and some early real property transactions), have decided to commence a business partnership from 1 November 2021 to be known as T Company. Hardly surprising, the wife is suspicious about the true motivation of the husband for this new business entity, and is concerned about what is to happen with the old business operated by the husband (“J Company’) and, in particular, the debtors of that business and the accumulated but not recovered Work in Progress (“WIP”)
THE ISSUES TO BE DECIDED URGENTLY
Although the said interim Orders provided for pay by the husband to the wife of weekly spouse maintenance and a further partial property payment, Order 14 provided that:
That the obligations under Orders 3, 6 and 7 herein shall cease upon an external controller being appointed to any of the entities within the Regan Group.
(Emphasis added)
On 31 August 2021, the husband, he says after receiving “safe harbour” legal advice, caused two entities within the Regan Group to have a liquidator appointed, namely:
(h)D3 Pty Ltd; and
(i)U Pty Ltd.
The appointment of this “external controller”, by operation of Order 14, meant the obligation of the husband to pay to the wife the spouse maintenance and partial property sum, ceased.
However, this action did not mean, in my view, the husband had to cease payments – at the very least the weekly spouse maintenance payments – just that he could. The impact on the wife, and I infer, the children (where otherwise the husband pays modest child support of around $90 per week to the wife for the four children in her case – the eldest child having elected to currently live with the husband), is obvious. She relies on an income tested pension or commonwealth benefit.
In my view, the spouse maintenance Orders ceased to be enforceable by the wife from 31 August 2021. This means, when now considering how to approach the wife’s urgent interim application for spouse maintenance, it must be considered as a fresh application rather than as an application applying the principles prescribed by s 83 of the Act.
Without properly testing the evidence, I choose not to make a finding about the husband’s behaviour in agreeing to the said interim Orders and within 14 days taking steps that enabled him to cease payments. The wife points, in submissions, to the fact that the two entities placed into liquation do not seem to have been the source of any income or available capital to the husband. The husband now says that of the 34 entities described as forming “the Regan Group”, only J Company trades.
I now deal with the three urgent applications which I heard on 21 October 2021.
SPOUSE MAINTENANCE
The husband deserves little credit for initially instructing his legal team to contend that the wife could not establish the threshold test under s 72 of the Act – namely that she is unable to adequately support herself. Her evidence is that her only income is child support and her government benefit (which is to be ignored – s 75(3)). Mr Moxon ultimately did not press that argument.
I am satisfied, as I infer the husband was and conceded by consenting to the said interim Orders, that the wife’s claim for $1,750 per week in the circumstances is reasonable. She continues to rely on her Financial Statement filed 7 June 2021. In the urgent circumstances of this interim application, the Court is not required to conduct an exhaustive examination – even if time permitted, which it does not (see Drysdale & Drysdale [2011] FamCAFC 85). It is important to note that the wife’s claim does not include an allowance for any housing, as the wife is not meeting any rental obligations at present by the children and herself living with her mother.
The Court is required to assess the husband’s capacity to pay. The husband says he has no capacity to pay the sum of $1,750 per week or anything like that sum. In my view, the husband’s assertions are challenged by the wife, in circumstances where the complexity of the husband’s business dealings makes unravelling his true income position difficult, by submitting that:
(a)the husband’s true financial position has not materially changed since the said interim Orders;
(b)the husband continues to pay rental accommodation of $2,250 per week; and
(c)the husband has paid more than $109,000 to his family law solicitors (relating to past fees incurred and noting a “dollar for dollar” order has been made for fees incurred since 19 August 2021).
There is merit in these submissions. The husband’s position was further less opaque by his assertion (made through solicitors he continues to retain and to incur costs with, including Counsel’s fees) that bank statements should be redacted in part for confidentiality purposes. As a professional, he ought to have known that his obligations to make discovery about his current financial situation did not empower him to unilaterally “redact” parts of the material in the way he attempted. The persistence of the solicitor for the wife demonstrates the husband did not, I infer, wish to disclose to the wife some of his discretionary expenditure related to entertaining clients at restaurants etc.
I am persuaded that the husband has capacity to make choices about some of his expenses, and attach lower priority to some expenses, so as to meet his legal duty to provide support to the wife.
In the circumstances, I will make again Orders 6 and 7 as set out in the said interim Orders, without Order 14 of those Orders, which shall be discharged. In this respect, I note the husband’s evidence that the financier of the family car (the Motor Vehicle 1 in the possession of the wife) was entitled to obtain payment of the final instalment under the lease, but that the husband has negotiated an arrangement with the financier so as to prevent the car being repossessed.
PARTIAL PROPERTY PAYMENT
The wife seeks, in effect, the reinstatement of Order 3 of the said interim Orders. Because the parties agreed with those Orders, the Court was not required to undertake on that date a close examination of the evidence before applying the principles, not controversially enunciated in the parties’ submissions. I note that from the initial partial property payment order of $100,000 made in July 2021, the wife paid $30,000 to her lawyers and has used the balance (save for a sum remaining of slightly in excess of $20,000) towards living expenses. In this matter, the husband’s attempts to criticise the wife’s use of those funds as she has detailed, was unfair – particularly when his expenditure choices are considered.
However, at this stage, I am not satisfied that there is a source from which a sum of $50,000 to the wife can be paid. I accept the only trading entity (on the husband’s case), namely his J Company, has substantial debt and seems to have offered collateral security for the Group. It is simply not possible to be satisfied, on an interim basis, that management reports for the business allows the husband to access a sum of $50,000 at this time.
In the circumstances, I am not prepared to make an order for partial property relief as sought by the wife.
INJUNCTIVE RELIEF
The relief now sought by the wife at order 6 of the Amended Application must be seen within the context of:
(a)the undertakings A, B, C, and D given by the husband from which he is not released;
(b)the husband’s evidence that from 1 November 2021 his business will take place within a partnership constituted by an agreement with Mr Neagle and to be known as T Company.
Within the limited opportunity offered to examine the husband’s affidavit filed, as already noted, the night before the recent hearing before me, the transactions which may occur between J Company and T Company so that the interests of clients of J Company are protected, are very unclear.
Certainly the husband’s case is that J Company is also in financial difficulties; may have difficulties meeting its obligations to its landlord and, at least, is also in some way charged with some of the liabilities owed to the CBA by the broader Regan Group.
For these reasons, it appears that T Company is an entirely new legal entity. Only with full discovery of the manner in which transactions like:
(a)invoicing or “transfer” of WIP to the new entity;
(b)use of recovered debtors of J Company;
(c)future use of furniture and equipment of J Company;
(d)payment of creditors by J Company,
will a clearer picture emerge.
However, as an officer of the Court and at least as importantly, as a legal practitioner bound by a range of legal and ethical restrictions, I am not prepared to accept at this stage that the husband would put at risk his capacity to earn an income as a professional. At this stage, his ability to do so remains the only identifiable source of income for the family (because of the extensive debts in the Regan Group, significantly supported by the husband’s personal guarantees) and I am, on balance, not persuaded to make the injunctions sought as widely as they are currently sought, in circumstances where to do so may substantially restrict his capacity to work.
The principles to be applied in considering these injunctions are properly set out in the written submissions of Mr Hackett, and not disputed by Mr Moxon.
In the exercise of my discretion, I refuse to make order 6 at this time.
I am aware this matte returns to my list on 3 November 2021. I was informed last week that discovery orders were substantially agreed. More importantly, on 3 November2021, as a result of these urgent orders, the parties’ attention can, and should, be directed to parenting issues. They should have, by then, the family report prepared and available from Mr O.
I will reserve the costs of the applications heard on 21 October 2021.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 October 2021
APPENDIX ONE
UPON THE UNDERTAKING OF THE HUSBAND TO, UNTIL FURTHER ORDER:
A. subject to the undertaking in paragraph B herein, not to pay or cause to be paid any amount from the entities in the Regan Group other than in the ordinary course of the business of such entities;
B. not to draw in excess of $1,750 per week from the entities in the Regan Group for the purposes of his living expenses including accommodation;
C. the undertakings in paragraphs A and B herein do not apply to:
a. any payment otherwise provided for in these Orders;
b. any amount payable in respect of the lease of the property situated at BB Street, Brisbane;
c. costs associated with testing for drugs or alcohol use by either of the parties;
d. legal fees of the parties or the entities in the Regan Group;
e. educational costs for the children of the parties;
D. account monthly to the wife, via her legal representatives, in relation to all asset sales by the entities in the Regan Group, including with respect to the application of net sale proceeds after selling costs;
E. not commence acting for himself in these proceedings without having given the wife twenty eight (28) days’ prior written notice.
AND UPON THE UNDERTAKING OF THE FATHER ON A WITHOUT ADMISSION BASIS TO, UNTIL FURTHER ORDER:
F. not consume alcohol for the period commencing twelve (12) hours prior to, and concluding at the end of, the time when the children other than V are to spend time with the father pursuant to these Orders;
G. refrain from consuming any illicit substances.
AND UPON THE UNDERTAKING OF THE MOTHER ON A WITHOUT ADMISSION BASIS TO, UNTIL FURTHER ORDER:
H. not consume alcohol for the period commencing twelve (12) hours prior to, and concluding at the end of, the time when V is to be encouraged by the parents to spend time with the mother pursuant to these Orders.
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
Definitions
1. That for the purpose of these Orders:
a. Regan Group means all legal entities (companies, trusts and partnerships) in which the husband has an ownership interest, being:
i.AA Pty Ltd ACN …
ii.CC1 Pty Ltd ACN …
iii.CC2 Pty Ltd ACN …
iv.CC3 Pty Ltd ACN …
v.CC4 Pty Ltd ACN …
vi.CC5 Pty Ltd ACN …
vii.CC6 Pty Ltd ACN …
viii.CC7 Pty Ltd ACN …
ix.CC8 Pty Ltd ACN …
x.CC9 Pty Ltd ACN …
xi.EE Partnership
xii.FF Pty Ltd ACN …
xiii.DD Pty Ltd ACN …
xiv.DD Trust
xv.GG Pty Ltd …
xvi.LL Pty Ltd ACN …
xvii.LL Trust
xviii.MM Company ACN …
xix.J Pty Ltd ACN …
xx.JJ Trust
xxi.H Pty Ltd ACN …
xxii.H Trust
xxiii.K Pty Ltd ACN …
xxiv.K1 Pty. Ltd. ACN …
xxv.K1 Trust
xxvi.K Trust
xxvii.NN Pty Ltd ACN …
xxviii.NN Trust
xxix.U Pty Ltd ACN …
xxx.U Trust
xxxi.D3 Pty Ltd ACN …
xxxii.D1 Pty Ltd ACN …
xxxiii.D2 Pty Ltd ACN …
xxxiv.D Pty Ltd ACN …
Injunction
2. That subject to Order 4 herein, the husband, both in his personal capacity or as a director of H Pty Ltd ACN … be restrained, whether by himself, or his servants or agents from dealing with the sum of $2,958,377.03 held in the trust account of Hopgood Ganim Lawyers pursuant to the Orders dated 15 July 2021.
Payment to the Applicant
3. That on or before 31 August 2021, the husband shall pay or cause to be paid to the wife the amount of $50,000 by payment to a bank account as nominated by her in writing by way of partial property settlement.
Payment to John Deere Finance
4. That upon entry into a deed of settlement between V Finance and the defendants to Supreme Court proceedings …/2021 the effect of which is to finalise all claims by V Finance, the Husband cause the sum of $2,958,377.03 held in the trust account of Hopgood Ganim Lawyers pursuant to the Orders dated 15 July 2021 be paid to V Finance upon such terms as set out in that deed of settlement.
5. That this Order acts as authority to Hopgood Ganim Lawyers to pay from the funds referred to in the Orders dated 15 July 2021 the sum referred to above to V Finance or as otherwise directed by V Finance.
Interim spousal maintenance
6. That the husband pay to the wife by way of spousal maintenance until further order the amount of $1,750 per week by payment to a bank account as nominated by her in writing.
7. That the husband pay or cause to be paid the following expenses:
a. In relation to the Motor Vehicle 1 in the wife’s possession:
i.the finance payments/lease payments or repayments relevant to any finance applicable to the vehicle;
ii.registration fees; and
iii.insurance.
b. Costs necessary to maintain the current S Fund private health insurance policy for the family.
Legal fees
8. That the husband be restrained from paying or causing to be paid on his behalf any funds to his solicitors on account of his legal costs and outlays for services provided on and from 20 August 2021 in respect of these proceedings other than outlays paid in the first instance on behalf of both parties (relevant legal costs) without first paying the same amount to the solicitors for the wife.
9. That all money paid to the husband’s solicitors by or on his behalf being relevant legal costs be held in trust by his solicitors and not be applied in payment of his legal costs and outlays until such time as the same amount has been paid by or on behalf of the Husband to the wife’s solicitors and in the event that such payment to the wife’s solicitors is not made within two (2) days after the payment by or on behalf of the husband, the husband direct his solicitors to pay 50% of the amount/s held by them in trust to the wife’s solicitors.
10. That the relevant legal costs paid by or at the direction of the husband to the wife’s solicitors pursuant to these Orders be applied by them in payment of the wife’s legal costs and outlays incurred and to be incurred by her in the conduct of these proceedings.
11. That the payments of relevant legal costs made to the wife pursuant to these Orders be treated as part of the wife’s entitlement to property settlement.
Disclosure
12. That the husband cause disclosure to be made of all documents reasonably requested by the wife to be made by causing copies of the relevant documents to be uploaded a Dropbox folder which the Husband shall cause to be established and which the husband shall cause reading and printing access to be provided to the wife and the wife’s solicitors.
Indemnity
13. That the husband indemnify the wife and keep her indemnified in relation to any liability howsoever arising in relation to the V Finance proceedings, save and except for legal costs incurred by the wife in relation to same.
External administration
14. That the obligations under Orders 3, 6 and 7 herein shall cease upon an external controller being appointed to any of the entities within the Regan Group.
Parenting
Family report
15. That Mr O be appointed a single expert witness pursuant to Rule 15.45 of the Family Law Rules 2004 (“Cth) (“the Rules”) for the purpose of preparing a family report in this matter on the first available date (“the family report writer”).
16. That the parents attend and make the children available to attend any scheduled appointments with the family report writer to facilitate preparation of the family report.
17. That in jointly instructing the family report writer, the parents (via their legal representatives) are to confirm that the engagement is on the basis of a family report being prepared urgently, irrespective of whether that impacts the cost associated with preparation of the family report.
18. That pursuant to Rule 15.47 of the Rules, the cost of the preparation of the family report be met equally by the parents.
19. That the parties shall confer and agree on what necessary background facts from the affidavit material should be placed before family report writer and if they are unable to agree, the parties be at liberty to apply.
Parental responsibility
20. That the mother and the father (collectively “the parents”) have equal shared parental responsibility for the major long-term issues of the children:
a. V born … 2007 (“V”);
b. W born … 2009 (“W”);
c. X born … 2011 (“X”);
d. Z born … 2017 (“Z”); and
e. Y born … 2017 (“Y”).
(collectively “the children”).
21. That the mother and father shall each be separately responsible for the day-to-day decision making concerning the children’s care, welfare and development while the children are in the respective care of each of the mother and father.
Living and time arrangements
22. That the child, V, spend time and communicate with the parents in accordance with his wishes and, insofar as these Orders for time and communication are inconsistent with V’s wishes, the Orders are suspended and apply only to the children W, X, Z and Y.
23. That V live with and spend time with the father and the mother in accordance with his wishes and the parents shall encourage V to spend time with the mother each alternate weekend commencing 27 August 2021 from after school Friday and concluding at 5.00pm on Sunday.
24. That W, X, Y and Z live with the mother and spend time with the father each alternate weekend commencing 21 August 2021 from 8.00am Saturday to 5.00pm Sunday.
25. That subject to Order 26 and other than in respect of V, the children’s time with the father occur in the company of the paternal grandmother.
26. That if the paternal grandmother is unavailable on a weekend that the children other than V are scheduled to spend time with the father, their time with the father shall instead occur from 8.00am to 5.00pm on each Saturday and Sunday.
27. That for the purpose of the children’s time with the father pursuant to these Orders:
a. the mother will deliver the children to the father’s residence at the commencement of their time together and the father will deliver the children to the mother’s residence at the conclusion of their time together;
b. the father will have use of the Motor Vehicle 1 while the children are spending time with him, during which period the mother shall have use of the motor vehicle usually driven by the father.
28. That during the time that children are with either parent, the parents will:
a. respect the privacy of the other parent and not question the children about the personal life of the other parent;
b. speak of the other parent respectfully;
c. not denigrate or insult the other parent (or the other parent’s family) in the children’s presence or hearing, and use their best endeavours to ensure that others do not denigrate or insult the other parent (or the other parent’s family) in the children’s presence or hearing; and
d. refrain from discussing adult issues (including parenting matters, financial matters and Court proceedings) with the children or in their hearing, or otherwise exposing the children to or involving them in parental conflict.
Drug and alcohol testing
29. That if they have not already done so, each party submit to hair follicle testing with N Testing Services (NTS) at a location of their choosing (the testing service) for the detection of both drug and alcohol use within forty eight (48) hours of the making of these Orders.
30. That for the purpose of the hair follicle drug testing, the following will apply:
a. Until the testing is complete, neither party will cut their hair or, in the case of the mother, will not cut it shorter than three (3) centimetres, and will not apply any product to their hair, including colour, that will hinder the drug testing until further order;
b. The test is to be conducted at NTS or other service provider as agreed in writing between the parties.
c. Each party must provide the testing service agent with photographic identification to be recorded before each test;
d. The test shall be for the detection of:
i.amphetamine type substances, cannabis, opiates, sedative type drugs, cocaine, marijuana, methamphetamine, chronic alcohol use and other drugs of abuse; and
ii.benzodiazepines;
e. the husband will pay the costs of such tests or cause such costs to be paid.
31. That non-compliance with the hair follicle drug testing pursuant to this Order will be deemed a positive test result for illicit drug use and/or chronic alcohol abuse.
32. That the parties must direct and authorise NTS or the agreed testing service to provide a copy of the parties’ drug testing results to both parties’ solicitors.
33. That both parties must attend upon NTS or such other laboratory as agreed in writing by the parties for a Carbohydrate Deficient Transferrin (CDT) testing within forty eight (48) hours of receiving a written request from the other party’s solicitor, provided however that the testing will not be more than monthly.
34. That the parties must direct and authorise the testing service to give both parties’ solicitor the results of the parties’ CDT testing.
Costs
35. That the parties’ costs be reserved.
THE COURT ORDERS UNTIL FURTHER ORDER:
36. That each party file and serve by no later than 4.00pm on 27 October 2021, a case outline in respect of the Interim Hearing to be conducted on 3 November 2021 setting out what orders they will be seeking (be that property/financial or parenting) and what material they rely upon.
37. That these proceedings be adjourned for Interim Hearing at 10.00am on 3 November 2021 in the Family Court of Australia at Brisbane.
38. That the parties be at liberty to apply.
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