Shields v Shields
[2022] FedCFamC1F 449
•28 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shields & Shields[2022] FedCFamC1F 449
File number(s): SYC 6722 of 2021 Judgment of: REES J Date of judgment: 28 June 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the father seeks to increase his time with the children – Where the father has a history of drug abuse and relapse – Risk posed to the children – Orders to remain the same.
FAMILY LAW – INTERIM FINANCIAL RELIEF – Where the wife seeks an increase in spouse maintenance and interim property settlement – Where the husband has capacity to meet the wife’s reasonable expenses – Order for the husband to pay the wife $40,000 per calendar month – Order for the wife to receive $500,000 interim property settlement.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.03, 7.10, 7.11 Division: Division 1 First Instance Number of paragraphs: 91 Date of hearing: 21 June 2022 Place: Sydney Counsel for the Applicant: Mr Henry SC and Ms Carter Solicitor for the Applicant: Barkus Doolan Counsel for the Respondent: Mr Dickson QC Solicitor for the Respondent: Farrar Gesini Dunn Sydney ORDERS
SYC 6722 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHIELDS
Applicant
AND: MS SHIELDS
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS, PENDING FURTHER ORDER:
1.That the parents have equal shared parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”).
2.That notwithstanding the time which the children spend with each parent in accordance with any other order, unless otherwise agreed between the parties, the children shall spend time with each parent as follows:
Easter
(a)With the wife from 5.00 pm on Good Friday to 5.00 pm on Easter Sunday in odd numbered years, and from 5.00 pm on Easter Sunday to 5.00 pm on Easter Monday in even numbered years; and
(b)With the husband from 5.00 pm on Good Friday to 5.00 pm on Easter Sunday in even numbered years, and from 5.00 pm on Easter Sunday to 5.00 pm on Easter Monday in odd numbered years.
Father's Day
(c)With the husband from 9.00 am to 5.00 pm on Father's day;
Mother's Day
(d)With the wife from 9.00 am to 5.00 pm on Mother's day;
Children's Birthday
(e)With the parent with whom the children are not otherwise living on their birthday, as agreed between the parties and failing agreement, as follows:
(i)If a school day, then for a period of not less than two (2) hours and in default of agreement from 4.00 pm until 6.00 pm; and
(ii)If a non-school day (weekend day, public holiday, pupil free day or school holiday), then for no less than four (4) hours and in default of agreement from 4.00 pm until 8.00 pm.
Parents' Birthdays
(f)In the event that the husband's or the wife's birthday falls during a period when the children are in the other parent's care, the children shall spend time with the parent celebrating the birthday as agreed and failing agreement, as follows:
(i)If a school day, then for a period of not less than two (2) hours and in default of agreement from 4.00 pm until 6.00 pm; and
(ii)If a non-school day (weekend day, public holiday, pupil free day or school holiday), then for no less than four (4) hours and in default of agreement from 4.00 pm until 8.00 pm.
3.That Order 12 made 29 September 2021 is vacated.
4.That on any occasion when the children stay overnight in the care of the husband, either Ms C or Ms B is to be present in the home with the children from 7.00 pm until 9.00 am the next morning.
5.That the husband shall collect and return the children on days when they are spending time with him:
(a)On a school day from school.
(b)On a non-school day, from the wife’s home by telephoning the children’s nanny on arrival so that the wife or her nominee can bring the children to the husband’s vehicle.
6.That the wife be permitted to travel with the children to Country Q between 4 July 2022 and 17 July 2022 and for the purposes of implementation of this order, the husband will sign all documents and do all things required to facilitate the children’s travel.
7.That the husband’s application to vary Order 5 made 7 December 2021 is dismissed.
8.That the husband’s application to vary Order 7 made 7 December 2021 and Order 7 made 29 September 2021 is dismissed.
9.That neither party is permitted to rely on the affidavits of Professor D or Professor E.
10.That the husband pay the contracted costs of the employment of Ms C of $60,000 per annum and of Ms B of $43,800 per annum.
11.That, in addition to the amounts referred to in Orders 18, 19 and 20 made on 7 December 2021, the husband pay to the wife the sum of $40,000 per calendar month by way of periodic spousal maintenance.
12.That the husband pay to the wife the sum of $500,000 by way of partial or interim property settlement, such sum to be paid, unless otherwise agreed, by six equal monthly instalments of $83,333, the first payment to be made within one month of the date of these orders and thereafter monthly.
13.That the wife’s application for the use of the boat is dismissed.
14.That the wife’s application for the husband to pay $82,582.81 for travel to Country Q is dismissed.
15.That the wife’s application for payment of $598,927 by F Pty Ltd is dismissed.
16.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 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 Shields & Shields has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Shields (“the husband”) and Ms Shields (“the wife”) are the parents of two children, X born in 2015 and Y born in 2016. They separated in March 2021, the children remaining in the care of the wife in the former matrimonial home. They are parties in substantive litigation relating to both parenting and financial matters which were initiated on 15 September 2021.
They are also parties to a Binding Financial Agreement (“BFA”) which does not regulate spousal maintenance. One of the wife’s applications is to set aside the BFA. That application has not yet been determined.
On 7 December 2021, orders were made by consent in relation to parenting. Those orders provided, inter alia, for the children to spend time with the husband on one weekend each fortnight from Saturday morning until Sunday evening and also after school on selected weekdays. The orders provide for a nominated third party to be present when the children are in the care of the husband; made provision for a regime of testing for illicit substances and opioids for the husband; restrained each parent from having another adult, other than a family member, in the home when the children were with him or her and appointed Dr G as a single expert in the parenting proceedings.
In relation to financial matters, the orders, relevantly, provided for the husband to pay spousal maintenance in the sum of $20,000 per month together with specified outgoings and for the payment of $250,000 to the wife’s solicitors by way of interim property settlement.
The orders note that the husband will pay school fees and expenses and private health insurance premiums for the children and reimburse the wife for any other expenses in addition to paying $2,000 per month for their support.
The orders contain the following notation:
27.Each party consents to these orders without prejudice to their pending interim applications.
Before me, the husband now seeks, on an interim basis the following:
·An increase in the overnight time the children spend with him to four nights in each fortnight, block periods during school holidays and time on special occasions and time on religious holidays.
·An order that the children spend time with him on specific dates to accommodate his proposed overseas travel.
·Removal of the requirement for the third party to be present.
·An order permitting him to take the children overseas for holiday periods.
·That he be able to take the children to sporting events and training sessions if the wife is unable to take them.
·Variation of the regime for drug and alcohol testing.
·Discharge of the order restraining him from having another person stay overnight when the children are present.
·That he be required to pay for one nanny for the children at a salary of $60,000 and not two nannies as he currently does.
In addition, the wife seeks the following:
·An order for litigation funding in the sum of $500,000.
·Payment of an amount she asserts is owed to her in a loan account with a company.
·That the amount of spousal maintenance be increased from $20,000 to $46,478.
·That the husband pay $82,582.81 to pay for a proposed trip to Country Q with the children, such payment to be characterised as spousal maintenance.
·The wife seeks use of the yacht in which the husband has a time share interest.
The parties agree that there should be an order for equal shared parental responsibility and on orders relating to special occasions.
EXPERT EVIDENCE
The subject matter of the competing experts’ reports is the interpretation of urinalysis testing and CDT testing reports which show that the husband has consumed, on occasion, morphine, opiates and pseudoephedrine.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) make provision for the calling of expert evidence. Significantly, r 7.03 of the Rules provides:
7.03 Appointment of single expert witness by parties jointly
(1) If the parties agree that expert evidence may help to resolve a substantial issue in a proceeding, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
…
(2) A party does not need the court's permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
(3) A party must not communicate unilaterally with a single expert witness, except as permitted by these Rules.
(4) Any communication between a party and a single expert witness must, at the same time, also be provided to all other parties engaging that single expert witness, except as permitted by these Rules.
If a party seeks permission to rely on an expert, other than a single expert, then the provisions of rr 7.10 and 7.11 of the Rules apply:
7.10 Permission for expert’s reports and evidence
(1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, other than a single expert witness.
(2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.
7.11 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding.
(2) The affidavit filed with the application must state the following:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue;
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account the following:
(a) the purpose of this Part (see rule 7.02);
(b) the impact of the appointment of an expert witness on the costs of the proceeding;
(c) the likelihood of the appointment expediting or delaying the proceeding;
(d) the complexity of the issues in the proceeding;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only;
(f) whether the expert witness has specialised knowledge, based on the person's training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the proceeding.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
…
Neither party advances any basis upon which compliance with the Rules should be abandoned but expedience and, as the Rules make clear, that is insufficient.
Neither party will be permitted to rely on his or her nominated expert.
Increase in the overnight time the children spend with the husband to four nights in each fortnight, block periods during school holidays and time on special occasions
The husband puts forward two proposals. His preferred proposal is that the children spend time with him, during school terms in the first week of each two-week cycle on Tuesday afternoon until 7.00 pm and from Friday after school until Monday morning. In the second week, the children would spend time with him on Tuesday afternoon until 7.00 pm and on Thursday after school until Friday morning. The alternate proposal similarly provides for the children to spend four nights each fortnight with the husband.
The wife opposes any increase in the time the children spend with the husband.
The wife deposed that, since January 2021, the husband has missed spending time with the children as he was entitled because he was travelling overseas in February, April, May and June.
He proposes further overseas travel between now and the end of the year. The husband will travel to Country M and Country N in July 2022; to P City in August/September; to an unnamed location from 15 September 2022 until 10 October 2022; to P City and H City from
24 October until 7 November 2022; to P City from 21 November 2022 until 1 December 2022 and to P City and S Region from 13 December 2022 until 4 January 2023. Only the P City/H City trip is for business. The other trips are for pleasure.
The husband’s new partner, Ms J, who is expecting their child in 2022, lives in P City. She has a child of a previous relationship, Z aged six years. There is no evidence that Ms J intends to move permanently to live in Australia and I infer that the husband will continue to travel for significant parts of the year to spend time with her and their child.
There is no evidence that the husband is committed to spending regular and reliable time with the children. In his affidavit he deposed:
18.I am not intending to move to P City permanently but will be dividing my time between Australia and the UK. [Ms J] does not intend to move to Sydney, and cannot do so in any event as she has a parenting arrangement in place for Z with his father.
However, the greater concern is the husband’s long history of addiction.
His treating doctor, Dr K, has provided a number of reports indicating that he has been treating the husband since 2009, sometimes weekly. The current diagnoses are Opioid Use Disorder in remission and Major Depressive Disorder in remission.
It is not in dispute that, since, 2009, there have been a number of occasions when the husband’s addiction was not controlled.
The wife deposed to the husband’s history of substance abuse use since 2008 including his taking and consuming pain killers prescribed for her and over using pain killers prescribed for himself. He has been in rehabilitation on a number of occasions, in 2011 and again in 2015. In 2015 he was hospitalised twice as a result of overdosing.
The husband deposed that in 2019 “I suffered a temporary relapse and began self-medicating”.
The wife deposed that she witnessed the husband snorting cocaine in their home in 2020 and he admitted himself to a rehabilitation facility in June 2020. The wife deposed that the husband admitted using “Xanax, cocaine, suboxone and alcohol” in January 2021 and that she saw text messages on his phone where he was arranging to purchase drugs. In February 2021, the wife found an empty cocaine packet in the bathroom of their home.
The husband deposed that he has “not taken illicit substances nor taken medication other than as prescribed since about February 2021.”
He has, however, returned positive results from testing. In August and November 2021 he tested positive for codeine and in August 2021 he twice tested positive for morphine. His treating doctor explains those results by reference to the husband having been prescribed pain killers after injury however, in circumstances where the husband has in the past abused pain killers both prescribed and not prescribed and where he has relapsed on a number of occasions, those results must be treated with caution.
The husband has been attending his treating doctor regularly, between 26 November 2021 and 18 March 2022, he saw Dr K nine times. Dr K said in his last report that the husband consults with him weekly unless Dr K in unavailable or the husband is overseas.
One consequence of the husband’s frequent overseas travel is that he is not able to maintain his regular therapy with Dr K. The other consequence is that he cannot comply with the regime of testing that is presently in place. Thus there is no way of ascertaining whether the husband continues abusing substances during his frequent absences from Australia.
As recently as 24 March 2022, Dr K was of the opinion that the husband’s Substance Use Disorder was in remission. However, his condition has been in remission before and he has relapsed, as recently as February 2021.
I accept that the children enjoy their time with the husband and that the wife has not sought to reduce his time with them. However, having regard to the concerns about the husband’s history of substance use which continued after the children were born and in the home where they lived, I am not satisfied that he has demonstrated that there is no possibility of another relapse. The risk to the children if the husband should relapse is serious.
It is not in the children’s interests at this time to increase the time they spend with the husband.
For the same reasons, I am not satisfied that it is appropriate to increase the times the children currently spend with the husband during school holiday periods. In any event, it does not seem that he intends to be in Australia for most of the school holiday periods in 2022.
The parents have agreed to orders relating to the time the children spend with each of them at Easter, Christmas, children’s birthdays, parents’ birthdays, Mother’s Day and Father’s Day.
The husband also seeks the allocation of time on religious holidays but there is no evidence in support of this application and it is conceded that there is no basis upon which to determine what orders are appropriate.
Specific dates to accommodate the husband’s proposed overseas travel
Rather than a routine where the children spend time with the husband on a regular basis, the husband proposes that they spend time with him when he is not travelling outside Australia.
The wife opposes the husband’s proposal and seeks an arrangement that is reliable, predictable and allows the children to develop a routine.
The husband advances no reason that he is not able to organise his discretionary travel to maximise the time he spends with the children, rather he expects the wife and the children to organise themselves around his discretionary travel.
He has not demonstrated that to be in the children’s interests.
Taking the children overseas
The husband deposed that the children regularly travelled overseas while the parents were together, however, they travelled with both of their parents. There is no evidence that the children have ever travelled overseas without the wife or that they have ever been separated from her for any length of time. I understand it to be conceded that the children have not travelled without the wife or been separated from her.
The husband deposed that he wants to take the children to Country M for his sister’s wedding in 2022; to P City for approximately 20 days in September/October 2022 and again in the Christmas holidays in 2022/23. He wants to take the children to Country N to see their paternal grandfather who is ill, and again for 22 days to P City and to Country R in S Region in the Christmas holidays in 2022/23.
He proposes to engage their nanny, Ms C, to assist with the care of the children while travelling.
However, that does not address the problem of the children’s being separated from the wife for a lengthy period in circumstances where it is not possible, if they are distressed, to return them to her care.
The children have not met Ms J or Z although they have had electronic interaction with them. It is yet to be seen whether the children will enjoy their company and develop a relationship with them. That is best done in circumstances where the children spend, initially, small amounts of time with them, gradually increasing.
I do not propose to permit the husband to take the children overseas at this time.
The husband does not object to the children travelling overseas with the wife.
Removal of the requirement for the third party to be present
There was no requirement for supervision of the husband’s time with the children between separation and September 2021, but the children’s nannies were present when the children were with him and until July 2021, he spent time with them in their home. He did not spend overnight time with the children.
On 7 September 2021, the wife saw a message on X’s iPad which is linked to the husband’s email account that she interpreted as relating to the acquisition of drugs by the husband. The husband has explained that the message was innocent and his explanation is corroborated by a third party. However, I accept that the wife’s concern about the message arose from her lived experience of the husband’s drug use and his methods of acquiring drugs during the time they were together.
Supervision cannot continue indefinitely but there is no evidence that the husband has ever cared for the children without assistance.
These children have had live in nannies since they were born. For the whole of the time they lived together, the husband and the wife parented the children with the assistance of the nannies.
On behalf of the husband, it was submitted that although he may choose to have the nanny present when the children are with him, her presence should not be imposed.
I consider that it would be appropriate for the nanny to be present when the children stay overnight with the husband but there is little risk in his spending unsupervised time with them during the day, having regard to the drug testing regime.
The orders will provide that the nanny is to be present from 7.00 pm until 9.00 am when the children stay overnight with the husband.
Otherwise, his time can be unsupervised if he wishes. That will enable him to collect the children from school without the nanny.
The husband proposes Ms L as the nanny during those periods. The wife objects to
Ms L’s suitability and her solicitor has set out her concerns in correspondence.
Ms L has not sworn an affidavit in the proceedings. On the limited evidence available, I am not in a position to assess Ms L’s suitability as a nanny for the children.
Sporting events and training sessions if the wife is unable to take the children
There is no evidence in support of this application.
Discharge of the order restraining the husband from having another person stay overnight when the children are present
Both parents have formed new relationships. The husband seeks to have the restriction on his partner staying overnight in the home with the children discharged but to maintain that restriction in relation to the wife’s partner.
There is no evidence that the wife’s partner poses any risk to the children and no basis is put forward to support the husband’s application.
The order restraining each parent’s partner from staying overnight will be discharged.
That the husband be required to pay for one nanny for the children at a salary of $60,000 and not two nannies as he currently does
When the husband and the wife were living together, they agreed that two nannies were needed. There is no evidence that anything has changed other than that the husband no longer lives in the house with the children. The nannies have been with the children since their births and it is reasonable to assume that the children have some attachment to them.
The husband advances no evidence that he is unable to afford to pay the nannies or any other reason for one of them to be dismissed.
The status quo should continue.
Variation of the regime for drug and alcohol testing
The husband relies on his extensive overseas travel and asserts that he cannot comply with a request for testing while he is out of Australia. I accept that is so. However, in January 2022 when he was out of Australia, he received a request for testing when he returned on 10 January 2022 but did not have the test until 17 January 2022.
Further, he asserts that on one occasion in March 2022, when blood was taken for a CDT test, his arm bled profusely.
I do not accept either situation to indicate that the testing regime is inappropriate. Dr K does not recommend that it be changed.
The orders will not be varied.
Order for litigation funding in the sum of $500,000
It is conceded that the wife has an entitlement to property settlement, notwithstanding the existence of the BFA. She is entitled to half of the jointly owned property of the husband and the wife. The BFA affects her claim to other assets in other ownership. It is also conceded that her entitlement pursuant to the BFA significantly exceeds $500,000.
On behalf of the husband, senior counsel submitted that the wife has not established that she needs $500,000 and contends for an unspecified, lesser amount.
However, the wife is entitled to spend her own money as she chooses and she deposed to needing the funds to pay legal fees.
The husband cannot raise the funds immediately but it is conceded that he can do so by instalments within six months.
Orders will be made accordingly.
The loan account
The wife asserts, but has not proved, that she has a credit loan account with F Pty Ltd of $598,927 and seeks payment of the loan.
The husband denies that the wife has a loan account as she asserts.
There is no evidence to support her assertion.
That application will be dismissed.
Variation of the amount of spousal maintenance from $20,000 to $46,478
Whilst the husband opposes the variation of the existing order, he does not give evidence that the standard of living that the wife claims in her application is any greater or more lavish than that which they enjoyed when they were together.
Nor could he suggest that he is unable to pay the amount she seeks.
It is instructive to compare the wife’s claimed Part N expenses to those of the husband. That task is complicated by the fact that the wife’s expenses are calculated on a yearly basis.
For example, while the husband submits that the wife’s claimed donations and gifts of $14,735 per annum is excessive, his claim for gifts and donations is $3,000 per week or $156,000 per annum.
The wife’s claimed expenses for food and groceries, including restaurant meals, is $66,150 or $1,272 per week. The husband’s claim is $1,700 per week.
The husband’s claimed Part N expenses are $42,134 per week.
I accept, however, that some of the wife’s claims cannot be accepted as claims relating to maintenance. I will disallow her claim for $33,119 per annum for the purchase of artwork; her claim for $37,018 for consulting and accounting in circumstances where she is not employed and her finances are relatively straight forward and her claim that she pays bank fees of $12,338 per annum. I assess her reasonable expenses to be $475,265 per annum or $39,605 per month which I will round up to $40,000 per month.
As a comparison with the husband’s discretionary expenses, her expenses equate to a little more than $9,000 per week.
$82,582.81 to pay for a proposed trip to Country Q with the children, such payment to be characterised as spousal maintenance
The wife cannot, by way of an order for spousal maintenance, seek an order that the husband pay the children’s travel costs which are a component of the sum she seeks.
I have already made allowance of $44,369 per annum for the wife’s travel costs in assessing her reasonable need for spousal maintenance.
This application will be dismissed.
Use of the yacht
The husband is entitled to use the yacht on 40 days of each year. There is no evidence about the number of days on which he actually uses it or the costs associated with its use.
The evidence is insufficient to determine what orders should be made.
This application will be dismissed.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 28 June 2022
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