Sellers and Burns

[2019] FamCA 662

FAMILY COURT OF AUSTRALIA

SELLERS & BURNS [2019] FamCA 662

FAMILY LAW – INTERIM – Where the matter was listed to determine outstanding interim applications – Where the applications were for interim parenting, interim property and spousal maintenance – Where the husband did not file any updated financial material – Where applications for interim property settlement and spousal maintenance could therefore not be heard – Where leave was granted for an application for urgent spousal maintenance under s 77 of the Family Law Act 1975 (Cth) – Application dismissed –Where application was made for Christmas holiday time with the children – Orders made – Where allegations have been made about the mother using illicit drugs – Orders made for the mother to undergo drug testing.

Family Law Act 1975 (Cth) s 77
Family Law Rules 2004 (Cth) r 19.04

APPLICANT: Mr Sellers

RESPONDENT: Ms Burns

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 5854 of 2016

DATE DELIVERED: 13 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Taperell Rutledge Layers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

Orders

IT IS ORDERED BY CONSENT

1. That pursuant to Division 15.5.2 of the Family Law Rules 2004, Ms MM, Forensic Clinical Psychologist, be appointed as a Single Expert Witness to inquire into and prepare an updated report pertaining to the welfare of the children:

   (a)       F born … 2010;

   (b)       D born … 2013.

2. That the parties shall:

   (a)       Attend all appointments made with Ms MM;

   (b)       Ensure the attendance of the children at such times as the children are in the care of either of the parties;

   (c)       Comply with all reasonable directions and requests made by Ms MM to assist in the preparation of the Report.

3. That in preparing the Report, Ms MM be requested to consider the following matters:

   (a)       whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

   (b)       any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

   (c)       the relationship between the children and each other and with each of their parents and any other relevant person;

   (d)       The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent ­and other relevant people in the lives of the children;

   (e)       the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

   (f)       the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

   (g)       the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

   (h)       the effect on the children of any family violence to which they may have been exposed;

   (i)        the effect on the children of spending substantial or significant time, with each parent having regard to the parent’s current and future capacity to:

   (j)        implement such an arrangement, and

   (k)       communicate with each other and resolve difficulties that might arise;

   (l)        the mental state of the parents in so far as it relates to parenting issues;

   (m)      the mental health/special needs of the children and any recommendations in relation to the management of those identified issues;

   (n)       Any other matter the Expert considers relevant.

4. That leave be granted to the Independent Children’s Lawyer (“ICL”) to have photocopy access to material produced under subpoena for the purpose of providing same to Ms MM and that the fees in respect of that photocopying be waived.

5. That the ICL shall provide to Ms MM a copy of all material produced on subpoena in relation to the parenting issues.

IT IS FURTHER ORDERED

1. That the husband forthwith pay to Ms MM the sum of $6,600 being her fees for the preparation of an updated report and that, from any money received by the wife by way of property settlement, the sum of $3,300 be reimbursed to the husband.

2. That, without admissions, the wife shall submit to a chain of custody urine analysis as follows:

   (a)       The urinalysis to be conducted within 24 hours upon the ICL requesting same with such requests to occur not more than two (2) occasions per calendar month;

   (b)       That testing shall occur in compliance with the Australia/New Zealand Standard AS/NZ 4308:2008 including supervised collection, storage and transport of the sample;

   (c)        Testing shall be broad spectrum drugs including but not limited to methadone metabolite, Opiates, Amphetamine type substances, Benzodiazepines, Cannabis, Metabolites and Cocaine Metabolites;

   (d)        The wife must and on a continuing basis authorise and keep authorising the Pathology Service to supply the testing result to the ICL and other parties’ solicitors, or the Husband if self-represented.

3. Notice to the wife is deemed to be served pursuant to Order 7(a) above by the ICL forwarding such request by email to the wife and the wife’s legal representatives and upon a delivery receipt being received by the ICL.

4. In the event the wife is not legally represented, notice pursuant to Order 7(a) above is deemed to be served by the ICL telephoning the wife on her mobile telephone number ….

5. That, unless otherwise agreed, the urinalysis testing regime provided in Orders 7 to 9 shall be implemented as follows:

   a.   Prior to the ICL requesting the mother to give a sample pursuant to order 7(a), the ICL shall give notice to the husband and require him to attend to payment of any fee or cost for the forthcoming test;

   b.   The husband shall pay that fee or cost directly to the laboratory and shall provide the ICL with proof of payment;

   c.   Upon the ICL receiving proof of payment pursuant to order 10(b):

   (i)The ICL shall request the wife to provide the sample;

   (ii)The 24 hour period in order 7(a) commences to run from the time the request is made in order 10(c)(i).

   d.   From any money received by the wife by way of property settlement, she shall reimburse the husband for one half of the costs of the testing.

6. That the wife make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:

   a.   The wife is required to maintain her head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

   b.   Within seventy-two (72) hours of the date of these orders, the wife is required to make an appointment with AWDTS by telephoning … for the purpose of providing a hair sample for hair drug testing purposes;

   c.   Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;

   d.   The wife is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Wife at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the Independent Children’s Lawyer; provided that such requests are not made more than once in every 3 calendar months;

   e.   Written notice to undertake hair collection for hair drug testing purposes may be sent to the wife care of the email address … and shall be deemed to have been received by the wife at the date and time it is sent via email;

   f.   The wife is to provide the collector with photographic identification to be recorder before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the Husband, the Independent Children’s lawyer and the wife’s legal representatives upon receipt of such test results;

   g.   The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, and opioids and metabolites;

   h.   AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with the International Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.

7. That the husband pay the costs of the hair follicle testing referred to in Order 11 and that, from any money received by the wife by way of property settlement, she reimburse the husband for one half of those costs.

8. That the children live with the husband during the 2019/2020 school holiday periods as follows:

   a.   From conclusion of school on the last day of the school term in December  2019 to noon on 25 December 2019;

   b.   From 10am on 30 December 2019 to 10am on 6 January 2020;

   c.   From 10am on 13 January 2020 to 10am on 20 January 2020;

   d.   From 10am on 27 January 2020 to 10am on 30 January 2020.

9. That the children live with the wife at all times when they are not living with the husband.

10. That the husband’s school term time with the children pursuant to Orders made by the Family Court on 21 June 2017 shall re-commence Friday 7 February 2020.

11. That leave is granted to the wife to make an oral application for urgent spousal maintenance.

12. That the application for urgent spousal maintenance is dismissed.

13. That the wife’s applications for interim spousal maintenance and partial property settlement are listed for hearing before the Honourable Justice Rees on 10  October  2019 at 10am.

14. 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 of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5854 of 2016

Mr Sellers

Applicant

And

Ms Burns

Respondent

REASONS FOR JUDGMENT

1. Mr Sellers (“the husband”) and Ms Burns (“the wife”) separated in January or August 2016 after a relationship of some seven years. They remained living together until the husband moved out of their rented home in October 2016.

2. They have two children, F aged nine years and D aged almost six years. Since separation, the children have lived in the primary care of the wife and spent time with the husband.

3. The proceedings now before the Court relate to parenting and financial matters.

4. In relation to parenting, both parents now seek orders that the children live with that parent.

5. The wife seeks a settlement of property against the husband and, in the interim, orders for a partial property settlement and for spousal maintenance. A third party has been joined in the property proceedings, he being a person with whom the husband has entered into a Deed relating to the use and occupation of a property. The wife, inter alia, seeks to set aside the Deed.

6. The litigation between the parties commenced in 2016.

7. The file contains nine judgments of a single judge in separate interim applications and two judgments of the Full Court in three appeals. Two of the appeals were heard together.

8. The matter comes before me as a result of the husband’s successful appeal against orders for spousal maintenance and partial property settlement. The matter was remitted for rehearing before a single judge.

9. On 22 August 2019, Loughnan J directed that all outstanding applications be listed before me on 4 September 2019 and that the wife file and serve any amended application and updated affidavit by 29 August 2019. The husband was directed to provide to the wife’s solicitors an answer to a letter of 17 April 2019 by 29 August 2019.

10. The wife’s material was filed after close of business on Friday 30 August and the exhibits to her affidavit, which were extensive, were not made available until the following Monday.

11. The husband’s response to the letter of 17 April was not provided until 30  August.

12. The husband did not file any material in relation to the wife’s applications for interim property settlement or spousal maintenance despite the fact that he knew, on 22 August 2019, that those matters were listed for hearing on 4  September  2019 and that the financial material already filed by him related to his position in 2017 and was therefore out of date.

13. When the matter came before the Court on 4 September, the husband sought an adjournment of the financial proceedings in order to file evidence but he wanted to proceed with his parenting application.

14. The Independent Children’s Lawyer (“ICL”) proposed that the parenting proceedings also be adjourned to allow the Single Expert Psychologist, Ms MM to prepare an updated report. Ms MM had previously prepared a report dated 28 August 2017. The ICL has arranged appointments with Ms MM in November 2019 in anticipation of a report’s being available in December. Ultimately, the ICL’s proposal was accepted. However, other orders sought by the ICL, in relation to payment for Ms MM’s report, drug testing and the arrangements for the Christmas holidays in 2019/2020 were the subject of dispute.

15. In relation to the financial proceedings, the application for an adjournment to allow the husband to file evidence was irresistible.  The issues in those proceedings are, firstly, the income of the husband from an investment trust via consultancy fees and his beneficiary loan account. Secondly, the value of the asset pool which consist largely of the investment trust. Thirdly, the husband asserted that the wife, who is a professional, was able to work and support herself.

16. Only the husband was able to provide to the Court evidence of his financial positon such as to allow the Court to determine the wife’s applications.

17. However, in circumstances where the wife asserted urgency in relation to maintenance, counsel for the wife made an oral application to proceed pursuant to section 77 of the Family Law Act 1975 (Cth) (“the Act”). The husband opposed the granting of leave. I indicated that I would deal with the issue of maintenance pursuant to s 77 and that my reasons would be provided in the judgment.

18. It is convenient to deal with the financial issues first.

Section 77 Maintenance

1. The application for urgent maintenance is made in circumstances where the wife’s application for interim spousal maintenance was listed to be dealt with and could not proceed because the husband had not filed his financial evidence.

2. Accordingly the wife’s application for interim maintenance and spousal maintenance has been adjourned.

3. The provision relating to urgent maintenance is found in s 77 of the Act in the following terms:

   Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

4. On behalf of the wife, counsel asserted that she was in need of immediate financial assistance. She has no relevant income (other than a parenting payment of $502 per week) and claimed expenses of $6,017 per week.

5. On behalf of the husband, counsel submitted that to allow the application to proceed constituted a denial of procedural fairness to the husband and, if the application were allowed to proceed, the husband would not participate.

6. Counsel for the husband asserted that no notice had been given of the proposed application.

7. I accept that no notice was given of the proposed s 77 application, but the husband was aware, from the proceedings before Loughnan J on 22 August 2019, that the wife’s application for interim maintenance was to be heard.

8. The husband chose not to file any evidence in relation to the financial aspects of the wife’s application. He cannot then rely on his own omission to frustrate the wife’s application.

9. It is appropriate that the wife have leave to make the oral application.

10. The onus then falls upon the wife to prove that she comes within the criteria of

    s 77. The wife must demonstrate:

    ·    That she is in immediate need of financial assistance.

    ·    That she has a reasonable need.

    ·    That the husband has the ability to pay.

Is the wife in immediate need of financial assistance?

1. Counsel for the husband, in relation to the issue of leave, submitted that the wife was not in immediate need of financial assistance because she has been able to borrow large sums of money from relatives.

2. The costs notification letter tendered on behalf of the wife indicates that the wife has paid legal costs of $514,991 using funds borrowed from family.

3. The wife deposed that she continued to borrow funds from family since January  2017. In her affidavit sworn 30 August 2019, she deposed to total borrowings of $791,031, the majority being lent by her sister.

4. She deposed:

   In March 2017, [my sister] and I entered into a loan agreement in relation to the funds she would advance to me to cover my legal and general living expenses.

5. The wife has also entered into a loan agreement with her brother.

6. I infer from the wife’s affidavit that she has entered into an arrangement with her sister, embodied in a document that her sister will provide her with support for her day to day living expenses.

7. I note that the wife moved from her sister’s home to a rented property in June  2019. The rent is $2,300 per week.

8. At the time of assuming the liability for the rent, the wife was not receiving anything by way of spousal maintenance from the husband. His appeal against the interim orders for spousal maintenance had been heard but judgment had not yet been delivered.

9. I can comfortably infer that she was prepared to take on the liability for rent because she had an agreement with her sister that her sister would pay the rent and be repaid from the wife’s property settlement.

10. In circumstances where an applicant has made arrangements for his or her day to day support, albeit from a person who has no legal responsibility to provide that support, that applicant cannot be said to be in immediate need of financial assistance for the purpose of s 77.

1. I therefore propose to dismiss the wife’s application for urgent maintenance.

2. However, that creates some urgency in dealing with the wife’s interim maintenance application. The husband’s financial affidavits are to be filed by 2  October 2019. The material to be canvassed in the spousal maintenance application and the application for partial property settlement is substantially the same so it is convenient to deal with both applications.

3. The wife’s interim applications for spousal maintenance and partial property settlement will be listed for hearing on 10 October 2019.

Payment of fees for the preparation of the updated report

1. The fees for the preparation of the report will be $6,600. Both parents want the report. The wife submits that she is unable to contribute to the cost but accepts that, if the husband were to pay the cost in the first instance, she would reimburse him from any money she receives by way of property settlement.

2. On behalf of the husband, it was submitted that they should equally share the cost.

3. Counsel for the husband submitted that, since both parties were borrowing to pay their legal costs, both should borrow a further $3,300 to pay Ms MM.

4. The costs disclosure notice tendered on behalf of the husband disclosed that, as at 30 January 2018, the husband had paid $30,000 in costs and $103,692.50 in disbursements. The source of those funds was said to be $26,030 from income; $50,000 from his mother’s estate and income and a loan of $120,000 from Company V. I am not aware whether Company V is a company related to the husband.

5. In addition, the husband’s solicitors had paid a total of $55,023 for a combination of spousal maintenance, rent and child support from their trust account.

6. As at 4 September 2019, the husband’s paid legal costs were $380,000 and his paid disbursements were $220,000. The disclosure notice states “Source of funds – client and third party loans”. The notice did not disclose how much came from the husband and how much from loans.

7. Accordingly I do not accept that the whole of the husband’s legal costs are funded from borrowing. The husband has an obligation to comply with the Family Law Rules 19.04(3) and 19.04(5) in relation to borrowed funds. He has not done so.

8. Because the husband has not filed his financial evidence, there is no current evidence as to his assets or income. However, I accept that the Financial Statements of the Mr Sellers Investment Trust (“the Investment Trust”) which is the husband’s investment vehicle, disclose that as at 30 June 2018, the Investment Trust held shares in X Limited which the Investment Trust valued at $2,962,217 and in Y Pty Limited valued at $451,847.

9. The husband’s taxable income in the year ended 30 June 2018 was $132,442.

10. On any interpretation of the available evidence, the husband’s financial position is superior to that of the wife.

11. There is no evidence that he cannot pay Ms MM’s fees and he will be ordered to do so.

12. The wife’s half share of those fees will be repaid to him from any entitlement she receives to property settlement.

Drug testing

1. There are two issues in relation to the testing proposed by the ICL. The first issue is whether urinalysis screening should be carried out until the hearing of the substantive parenting proceedings as the ICL proposes or for a limited period of six months as the wife proposes.

2. Counsel for the wife submitted that, if the tests are negative of substances for six months, no further tests should be needed.

3. I do not accept that submission. If the tests are negative for six months, the ICL might consider that they should be administered less frequently but it is important that results be available for the whole period up to the hearing.

4. The second issue is whether the wife should undergo hair follicle testing as proposed by the husband. The husband alleges a history of the wife taking cocaine.

5. That allegation is not denied in the wife’s affidavit where she states:

   I have never used cocaine or any illegal non-prescribed drug when the children have been in my care...

6. Both the wife and the ICL oppose hair follicle testing.

7. I do not accept the submission on behalf of the wife that a history of cocaine use is irrelevant to the parenting issues.

8. The ICL submitted that ordering the testing will increase the conflict between the parents to the detriment of the children.

9. I accept that this may be so but I am of the view that the issue is important and the evidence may be relevant to a final determination.

10. The order for hair follicle testing will be made as sought by the husband.

Who should pay for the drug testing?

1. For the reasons set out in relation to my decision about payment for Ms MM’s report, the husband should pay for the testing in the first instance and the wife should reimburse him.

ICL’s proposed restraining order 

1. The ICL proposed, and the parents agreed, an order that the wife be restrained from administering illicit or unprescribed drugs whilst the children are in her respective care, and/or 48 hours prior to the children coming into her respective care.

2. I do not propose to make that order. To do so implicitly condones the use of illegal substances.

Christmas holidays

1. There are no orders in place for the forthcoming Christmas holidays. There is a general agreement that the holidays should be equally shared by the parents.

2. The ICL has prepared a Minute of Orders which achieves that purpose. The dispute between the parents relates to Christmas Day and the first day of the school term in 2020.

3. As to Christmas Day, the ICL proposed the children would be with the husband until 10am. The wife wants them returned to her by 4pm on 24 December. The husband wants to return the children to the wife on Christmas Day at noon.

4. The children were with the wife on Christmas Day 2018. She puts forward no reason why they should not spend time with the husband on Christmas Day in 2019.

5. The orders will reflect the husband’s proposal.

6. The wife seeks to readjust the ICL’s proposal to ensure that the children will be with her for the last few days of the holidays so that on their first day at school they will go to school from her home.

7. The ICL submits that it is important for the children to be with each parent on “milestone” days such as the first day back at school and that the parents have to demonstrate that they are each capable of ensuring that the children are properly parented on such days.

8. There is no evidence to suggest that the husband cannot take the children to school on the first day of term.

9. Those orders will be made in the form sought by the ICL.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13  September  2019.

Associate:

Date: 13 September 2019