Billing & Billing [2015] FCCA 2737 (29 September 2015)

Last Updated: 21 October 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

BILLING & BILLING

[2015] FCCA 2737

Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – appointment of independent children’s lawyer – parental responsibility – equal shared parental responsibility. FAMILY LAW – Maintenance – spousal maintenance – urgent spousal maintenance – lump sum payment.

Legislation: Family Law Act 1975 (Cth), ss.11C, 60B, 60CA, 61DA, 65DAA, 68L, 77, 117

Applicant:

MR BILLING

Respondent:

MS BILLING

File Number:

LEC 485 of 2015

Judgment of:

Judge Scarlett

Hearing dates:

25 and 29 September 2015

Date of Last Submission:

29 September 2015

Delivered at:

Sydney

Delivered on:

29 September 2015

REPRESENTATION

Solicitor for the Applicant:

Mrs Tanner

Solicitors for the Applicant:

Coffs Coast Family Law

Respondent:

Ms McKinnon (on 25 September) Respondent in person on 29 September)

ORDERS

UNTIL FURTHER ORDER

(1) As provided by Section 11F of the Family Law Act 1975 the Applicant and the Respondent are to attend a Child Dispute Conference with a Family Consultant at the Sydney Registry of the Court at 10:00 am on 26 October 2015 or such other time as may be appointed and in accordance with Section 11C of the Family Law Act 1975 the Conference is to be reportable.
(2) The Applicant and the Respondent are to contact the Family Relationship Centre at (omitted) as soon as possible and complete all requirements for them to complete Family Dispute Resolution as soon as reasonably possible.
(3) Both the Applicant and the Respondent are to attend Family Dispute Resolution as arranged by the Family Relationship Centre at (omitted).
(4) The Applicant and the Respondent are to have equal shared parental responsibility for the child X born (omitted) 2012.
(5) The child X is to live with each of the Applicant and the Respondent on a week about basis as follows:

• (a) with the Father from the date of these Orders until 3:00pm on Friday 2 October 2015 and each alternate week thereafter;
• (b) with the Mother from 3:00pm on Friday 2 October until 3:00pm on Friday 9 October 2015 and each alternate week thereafter.

(6) Changeover where the child X goes from the care of one party to the care of the other in accordance with these Orders is to take place at the McDonald's (omitted) on the (omitted).
(7) In accordance with Section 68L of the Family Law Act 1975 the interests of the child X born (omitted) 2012 are to be independently represented by a lawyer and for this purpose Legal Aid NSW is requested to arrange such representation.
(8) Within seven (7) days from the date of these orders the parties are to forward to Legal Aid NSW at (omitted) copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.
(9) The Independent Children’s Lawyer when appointed is granted leave to issue up to ten (10) subpoenas without charge.
(10) The Respondent Mother is to file and serve a Response, an affidavit stating the facts upon which she seeks to rely and a Financial Statement within fourteen (14) days.
(11) THE COURT NOTES that the Respondent has paid the sum of $15,000.00 to the Trust Account of the Applicant’s solicitor.
(12) The Application is adjourned to the sittings of the Court at Coffs Harbour on Monday 23 November 2015 for further mention at 11:30 am.

IT IS NOTED that publication of this judgment under the pseudonym Billing & Billing is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR

LEC 485 of 2015

MR BILLING

Applicant

And

MS BILLING

Respondent

REASONS FOR JUDGMENT

Applicant

1. This is an Application by the Husband for parenting orders and maintenance orders. It has been brought on in circumstances of claimed urgency, and in instalments.
2. The original Application was filed electronically at 6:19pm on Wednesday 23^rd September 2015. I gave consent to the Application being made returnable on Friday 25^th September. After some submissions, I adjourned the proceedings to Tuesday 29^th September in Sydney and granted leave to attend by telephone.
3. On 28^th September the Husband filed an amended Application seeking parenting orders relating to the parties’ young daughter X. I might note that Ms McKinnon, solicitor, who appeared for the Respondent Wife on 25^th September, made an oral application for parenting orders.

The Orders Sought

4. The Husband’s earlier Application only sought the following Orders:
   • 1. That within 2 business days pursuant to section 77 Family Law Act 1975 an order be made for the respondent Ms Billing to pay the applicant Mr Billing the lump sum amount of $70,000 from the marital assets.
   • 2. That within 7 days pursuant to section 117(2) Family Law Act 1975 an order be made for the respondent Ms Billing to pay to the applicant Mr Billing the amount of $30,000 to fund litigation in relation to a property settlement.
5. The Amended Application of 28^th September made no change to the financial orders sought but added four parenting orders:
   • 3. That the child X born (omitted) 2012 live with the Applicant Father.
   • 4. That the child spend time and communicate with the mother as agreed between the parties.
   • 5. That both parties contact the Family Relationship Centre (omitted) as soon as possible and complete all requirements for the parties to complete Family Dispute Resolution (FDR) as soon as possible.
   • 6. That each party attend the FDR as arranged by the Family Relationship Centre (omitted).
6. The Wife has not filed a Response but she produced a draft affidavit, a copy of which had been provided to the Husband’s solicitor.

The Proceedings on 25 September 2015

7. The Husband’s solicitor told the Court that her client relied on his affidavit of 22^nd September 2015 in which he deposed that both he and the Wife had received substantial sums of money, amounting to a total of about $2,000.000.00, as payouts from the (employer omitted) for disability. He deposed that the Wife had control of virtually all of the parties’ money and assets except for a property at (omitted), which was the only asset in joint names.^[1]
8. The Application was brought because the Husband deposed that the Wife abruptly ended their relationship on 14^th September, after an argument about the Wife’s wish to sell the (omitted) property.
9. The Husband claimed that he had been left without money. He deposed:
   • 23. The next morning I realised that I had no money and no access to any joint money. Everything we had as a family was and is under Ms Billing’s control.
   • 24. I am not able to obtain any government benefits because of my large compensation payouts and I am not able to access any of the money I was paid out as Ms Billing has full control of it. I have no way of gaining any income due to my workers compensation payment and because I care for X.

...

• 26. I have not held a job since I was discharged from (employer omitted) and my role is to care for X while Ms Billing worked and attended her horses and other activities.
• 27. I need the release of money to support myself, Y^[2] and X.^[3]

10. Ms McKinnon, who appeared for the Wife, was not able to draw and file any pleadings in the limited time available but sent an email to the husband’s solicitor on 24^th September. In that letter she said, inter alia:
    • The parties have lived off their payouts over the last few years and are now living off a mortgage. The (omitted) property had sold last week which would have given both of them access to liquid asset. I understand that Mr Billing will not agree to that sale.
    • It seems that the parties need to liquidate the Harley^[4] or some of the vehicles. I did an analysis last night that in summary suggested, that at the date of cohabitation, Ms Billing’s net worth was approximately $1.3 million. Ms Billing’s total payouts and inheritances during the relationship amounted to $437,000.00. Ms Billing’s total capital contributions were therefore in the vicinity of $1,737,000.00
    • Mr Billing had three payouts which netted $675,000.00. I indicated to Ms Billing that I thought Mr Billing was worth approximately 35% of the asset pool on that basis.
    • Of the $2.3 million in capital the parties received they now have approximately $1.2 million left. Ms Billing describes an extravagant life style where they travelled overseas and regularly eaten at restaurants and spent a lot of money on lifestyle. Both parties appear to have diagnosis of PTSD and no doubt their lack of financial acumen combined with their mental illnesses did not bode well for financial management.
11. Ms McKinnon then set out a list of motor vehicles and other items which the Wife suggested could be immediately liquidated, totalling $190,000.00.
12. Ms McKinnon then went on to raise the subject of the parties’ daughter, X, saying:
    • While that happens your client needs to make arrangements to bring X back to her mother.
    • ...
    • I know that you will explain to Mr Billing why X’s need to see her mother must outweigh Mr Billing’s desire to settle financial matters first.
13. Ms McKinnon told the Court that on her instructions there was a sum of only about $30,000.00 in liquid assets. She also raised the question of the child X, saying that the child had been separated from her mother for over a week.
14. It transpired that the Husband had actually brought the child back to (omitted) with him but was planning to return the following morning.
15. I suggested that the child could spend time with her mother that afternoon and evening between the hours of 4:00pm and 7:00pm.
16. As to the maintenance orders sought, I directed that the Wife should make a payment to the husband of $15,000.00 under the provisions of s.77 of the Family Law Act 1975 (Cth). It was agreed that the payment should be made direct to the Trust Account of the Husband’s solicitor.
17. I then adjourned the proceedings to Tuesday 29^th September for an interim hearing on parenting issues and granted leave to attend by telephone, as the hearing was to take place at the Sydney Registry of the Court.

The Proceedings on 29 September 2015

18. On 29^th September the Husband’s solicitor attended by telephone, as did the Wife in person. However, the Wife told the Court that she did intend to instruct the firm of Slater & Gordon to act for her in the future.
19. The Husband’s solicitor, Mrs Tanner, confirmed that the amount of $15,000.00 had been made to her Trust Account, as directed by the Court.
20. The proceedings on that day were devoted to the question of the parties’ daughter, X. The parties only have the one child from their marriage, which commenced on (omitted) 2011.
21. X was born on (omitted) 2012, so she is now aged three years and four months. The Husband claims that he has always been the child’s primary carer, a claim which the Wife disputes.

Applications for Parenting Orders

22. The Husband seeks that the child should live with him and spend time and communicate with her mother as agreed between the parties.
23. The Wife has not filed a Response, but she does not agree with those proposed orders.
24. When a court is deciding whether to make a parenting order, it must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).

Conclusions

25. The situation is still in a state of flux as the parties have only separated in the last fortnight. The Court needs more information before it can make any long-lasting Orders.
26. The parties need to attend a Child Dispute Conference with a Family Consultant as soon as possible. There is quite a delay in obtaining such conferences in the (omitted) area, especially since the Court has recently conducted a busy circuit and made a number of such directions already. However, an appointment is available for a Child Dispute Conference at the Sydney Registry on 26^th October and the parties should attend then, either by telephone preferably in person.
27. I also consider it necessary for the interest of the child to be separately represented by a lawyer under s. 68L of the Family Law Act 1975.
28. In the meantime, the child can spend equal time with each parent on a week about basis.
29. The Wife would be well advised to obtain legal representation.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 8 October 2015

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^[1] Affidavit of Mr Billing 22.9.2015 at paragraph [22]
^[2] Y is the husband’s child from a prior relationship, who was born on (omitted) 2004
^[3] Affidavit of Mr Billing 22.9.2015 at [22]-[24], [26]-[27]
^[4] A Harley Davidson motor cycle