GADLEY & HACKSHAW

[2020] FCCA 2205

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADLEY & HACKSHAW [2020] FCCA 2205

Catchwords:
FAMILY LAW – Parenting and property – interim hearing – care arrangements for the children pending final hearing – school holiday time – preparation of the financial issues for final hearing – discovery – valuation of property.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA, 65DAA(5)

Federal Circuit Court Rules 2001(Cth), r.24.03

Cases cited:

MRR v GR (2010) FLC 93-424

Applicant: MR GADLEY

Respondent: MS HACKSHAW

File Number: ADC 108 of 2019

Judgment of: Judge Brown

Hearing date: 6 April 2020

Date of Last Submission: 6 April 2020

Delivered at: Adelaide

Delivered on: 9 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Jordan

Solicitors for the Applicant: Jordan & Fowler Lawyers

The Respondent appeared in person.

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER:

These orders are to be read in conjunction with the orders made with the consent of each of the parties on 17 March 2020.

School holiday care arrangements

1. That the children spend time with the father during the April 2020 gazetted South Australian school holidays as follows:  Following on from the time specified in order 4.1.2 of the orders of 17 March 2020 from 3:00pm on Tuesday, 14 April 2020 until 3:00pm on 20 April 2020.

2. During all subsequent short (2 week) school holiday periods as follows:

   (a)For the 1st week, from the conclusion of school or 3.00pm on the final day of terms 1 and 3 until 3.00pm on the following Saturday with the father; and

   (b)For the 2nd week, from 3.00pm on the Saturday (at the end of the first week of the holidays) to the commencement of school with the mother.

3. During the 3 week mid-year school holidays as follows:

   (a)From the conclusion of school or 3.00pm on the final day of term 2 to 3.00pm Friday of week 1 of holidays with the father;

   (b)With the mother for the next 7 nights until 3.00pm on the Friday week 2 of the holidays;

   (c)With the father from 3.00pm on Friday of Week 2 of the holidays to 3.00pm Wednesday of week 3 of the holidays; and

   (d)From 3.00pm on Wednesday week 3 to the commencement of school with the mother.

Property

1. That within 7 days of this Order the wife provide the following by way of full and frank disclosure including the following:

   (a)Updated bank account statements (including credit card and home loan statements) for all accounts in the wife’s name (either solely or jointly with another or any account which she has access to) noting the last disclosure made by the wife by letter dated 2 August 2019;

   (b)Evidence of the current balance of all accounts referred to above (as at 8 January 2019);

   (c)Updated statement in relation to the wife’s current HECS/HELP liability (noting this can be downloaded as at the current date);

   (d)Updated statements in relation to the wife’s superannuation entitlements with Super Fund B, Super Fund C and Super Fund D as at 31 December 2019;

   (e)The wife’s 2019 personal income tax return and notice of assessment;

   (f)The wife’s pay slips from 7 April 2019 onward;

   (g)The most recent council rates notice for the Suburb E property.

   (h)Bank statements showing which bank account, or otherwise what payment method, the wife used to pay for:

   (i)The flights, car rental and accommodation for herself and the children on their July 2019 overseas holiday; and

   (ii)Electricity and other utility bills for the former matrimonial home for the last 18 months.

   (i)Commonwealth Bank issued statement for the wife’s Everyday Offset account number ...46 for the period of 1 January 2019 to 1 August 2019.

   (j)The 2018/2019 and 2019/2020 General Ledger for F Pty Ltd (“F Pty Ltd”) for the following headings in the financial statements:

   (i)client expenses;

   (ii)computer and software expenses;

   (iii)business development;

   (iv)entertainment;

   (v)fines;

   (vi)general expenses;

   (vii)light and power;

   (viii)meeting expenses;

   (ix)professional development;

   (x)rent;

   (xi)telephone;

   (xii)travel, accommodation and conference; and

   (xiii)website.

   (k)F Pty Ltd’s bank statements for the same period noting that if there is concern about client confidentiality, the wife is welcome to redact client names as the husband is only concerned about the expenditure and seeks to verify the general ledger disclosure sought above with the bank statements; and

   (l)A copy of the Lease Agreement for the premise that F Pty Ltd operates from for the last 2 years.

   (m)Advice from any accounting professional as to why F Pty Ltd is not registered for Fringe Benefits Tax and the reasoning/justification for such advice/decision.

2. That within seven days of this Order the husband provide complete financial statements for the financial year ending 30 June 2019 for G Pty Ltd.

3. That the husband do keep the wife fully appraised of any event impacting the future value of his holdings in H Pty Ltd, J Pty Ltd and any entities holding or held by the said companies.

4. That in preparation for the trial listed to commence on 14 October 2020, the parties do all such things as necessary to attend to the following:

   (a)Jointly instruct Mr K to prepare an up-dated valuation report with respect to the parties’ respective interests in the following businesses:

   (i)G Pty Ltd;

   (ii)J Pty Ltd;

   (iii)F Pty Ltd;

   (b)To provide Mr K with all relevant documents and documents/information as requested by Mr K to enable him to prepare his up-dated report; and

   (c)To share equally in the costs of Mr K’s report;

   (d)To jointly instruct L Real Estate to re-value the former matrimonial home at M Street, Suburb E at the equal cost of the parties with such report to be provided at least 8 weeks prior to trial.

5. That in relation to the joint furniture and effects contained within the former matrimonial home:

   (a)within 21 days, the parties agree upon a date and time at which the husband can attend at the former matrimonial home for the purposes of jointly preparing an itinerary of the items of joint furniture and effects;

   (b)if agreement as to a date is the husband can attend at the home is not reached, the husband shall be at liberty to attend at the former matrimonial home at 9am on 8 May 2020;

   (c)within 21 days from the date of the husband’s attendance at the home, the shall exchange their respective lists of the items they each wish to retain as part of the property settlement;

   (d)in the event that agreement cannot be reached as to the division of items, then the parties shall, within a further 14 days, jointly instruct Mr N from O Valuers to prepare a valuation of the items in the former matrimonial home (including the wife’s jewellery, clothing and shoe collection) and the husband’s bike (which the husband will make available to Mr N for inspection), at the equal expense of the parties; and

   (e)such valuation report be used for the purposes of the trial in October 2020.

6. No later than 31 August 2020 Ms P update her family assessment report at the joint expense of the parties.

7. The final hearing listed on 14, 15 & 16 October 2020 is confirmed.

8. The applicant file and serve all affidavit evidence he propose to rely on at trial together with a statement of his financial circumstances on or before close of Registry filing on 16 September 2020.

9. The applicant file and serve all affidavit evidence she propose to rely on at trial together with a statement of her financial circumstances on or before close of Registry filing on 30 September 2020.

10. On or before 16 September 2020 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

11. The applicant pay such daily hearing fee as required pursuant to the Federal Circuit Court Regulations 2000.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 108 of 2019

MR GADLEY

Applicant

And

MS HACKSHAW

Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally.  Given both the length of the reasons and the moment of the decision for each of the parties concerned, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

Introduction

1. These reasons for judgment are being delivered on Thursday following an interim hearing on the preceding Monday.  One of the issues to be determined concerns arrangements for the forthcoming April school holiday.  Accordingly, some expedition is required.  Unfortunately, due to the pressures of time and work there has been no opportunity to reduce the reasons to writing and so they must be delivered orally.  I appreciate the burden this places on all concerned. 

2. The main issues in the case concern, firstly, how the matter should be readied for trial, principally how items of property should be valued, and issues of disclosure managed and, secondly, care arrangements for two children. 

3. These issues are not unduly complicated in themselves, but have been complicated by the fact that the parties concerned do not communicate effectively with one another and currently, regrettably, view each other with a marked degree of suspicion and hostility.

4. In these circumstances, moving the case forward, it seems to me, has become a tortuous and difficult process.  In the proceedings, I have been given multiple documents and issues summaries, and it is difficult for me to grapple with what precisely is at stake and what has been agreed, but I have tried to do the best I can. 

5. If I make any mistakes of fact, in what follows, I hope that they are not of major significance and can be rectified at some stage in the future.  Mr Gadley, the husband, and Ms Hackshaw, the wife, are the parents of X, born in 2010, and Y, born in 2013. 

6. On 14 January 2019, the husband commenced proceedings in this court seeking both interim and final orders in respect of the parenting of X and Y and the settlement of matrimonial property between him and the wife.

7. These competing applications have been fixed for final hearing on 14, 15 and 16 October 2020.  Accordingly, that is a period of time of about six months away from today.  Whether the trial will proceed on those dates is unclear to me due to the current pandemic crisis.

8. However, I must proceed on the basis that the various things that have to be done to get the matter ready for trial can be done, notwithstanding the uncertainty that surrounds a great many arrangements for all sorts of families in this country due to the current state of emergency and the resulting lockdown.

9. At the final hearing, the husband wishes to pursue orders for what is commonly called an equal time arrangement or shared care, with X and Y living with each of their parents on a week-about basis moving between their parents’ respective homes after school on each Friday.  It is his proposal that this arrangement should continue during short school holidays and be extended to a longer period over the end of year holiday, subject to arrangements for special occasions.

10. The wife responded to this application on 25 February 2019.  On a final basis at that stage she proposed that the children, during school terms, on an alternate fortnightly basis, live or spend time with their father from 3.00pm on Friday until 9.00am the following Monday.  Significantly, in my view, she was open to an equal time arrangement, essentially week-about, for all school holidays. 

11. She proposed an arrangement on an interim basis whereby the children would spend time with their father from 3.00pm Friday until 7.00pm Sunday with a dinner catch up in the other week of the fortnight on each Tuesday and Thursday.  She advocated half school holidays on an interim basis. 

12. In respect of parental responsibility for the children, the husband sought that the application of equal shared parental responsibility should be applied.  The wife was silent in respect of the application of parental responsibility. 

13. By way of background, the wife is 41 years of age and a self-employed professional who has disclosed in her statement of financial circumstances an annual income of around $75,000.  The husband is 43 years of age and is also self-employed in public relations .  He is also a director of a company which, from the wife’s perspective, has potentially valuable interests in a land redevelopment proposal.  The husband has disclosed an annual income of $113,000. 

14. The parties married in mid-1998 and separated in late 2017.  It seems to be the case that since separation they have engaged in mediation and a complex process of co-parenting counselling which, by necessary implication, broke down because the husband saw fit to institute these proceedings.

15. Fortunately, this is not a case concerned with allegations of family violence, neglect and abuse, as are many cases which come before the Court.  This is clear from the notices of risk which each party have filed which contain no allegations that the children are at risk in the care of the other to any significant degree.

16. What is the only black cloud, really, on the horizon so far as these children are concerned is that their parents have essentially agreed to disagree in respect of very many issues in respect of the parenting of the children and, necessarily, each assumes that the other parent is just being difficult for the sake of being difficult. 

17. From the husband’s perspective, he feels that the wife is always wishing to have the upper hand to him and dictate what should happen.  The wife feels that the husband is fixated on what he perceives as his rights as a parent rather than what is best for the children and, essentially, his lifestyle and work commitments are not suited for shared care, whilst her work, which she can do from home, does suit the current parenting arrangements she proposes and is child-focused.

18. The parties’ major asset is their former family home located at M Street, Suburb E.  At separation the husband moved out and into rented accommodation.  The parties seem to agree the house is worth about $990,000 and is subject to a mortgage of around $300,000. 

19. The wife wishes to retain it.  Each party has superannuation but not in very significant amounts, but the husband does have double that of the wife.  There are cars and credit card debts and other consumer durables, it would seem. 

20. In short, from that brief summary, there is nothing particularly exceptional about the likely property pool other than the value of each parties’ business and the income those businesses generate for each of the parties which may possibly be relevant for the calculation of child support, however, that is unclear to me.

21. Putting those issues aside, the wife has asserted that the husband has an interest in an enterprise called the Q Project which apparently relates to the redevelopment of a parcel of land, which she asserts could possibly be worth millions of dollars and in respect of which she asserts that the husband has not been completely frank. 

22. From the husband’s perspective, he asserts that the wife has utilised the benefits of self-employment so that she can maximise the personal expenses she can take out of the business and minimise her income.  As I say, each of the parties essentially mistrusts the other and thinks that he or she is intent to gain advantage over the other in respect of financial matters.

23. The case came into Court for the first time on 26 February.  On that date the parties agreed that they would have equal shared parental responsibility for the children.  It was also agreed that the children would live mainly with their mother and spend time with their father on an alternate fortnightly basis; in the first week of the fortnight, from the conclusion of school on Friday until 6.00pm the following Sunday and, in the other week of the fortnight, from 3.00pm on Wednesday until school recommenced at 9.00am the following day.

24. Significantly in the context of these proceedings, the parties agreed on some arrangements for the Easter holiday.  The father or the husband was to spend time with the children from Friday, 12 April until Good Friday and then the children were to be with the wife for the remainder of the holiday.  At that stage it was also agreed that during the 2019 school holiday period the regime of fortnightly time would continue and the case was adjourned.

25. The parties were referred for a conciliation conference and were directed to provide mutual discovery and, significantly, they agreed that they would appoint Ms P to do a family report.  Given that she was living in the M Street, Suburb E home, an order was made with the husband’s consent that the wife would pay the mortgage on the property.

26. As directed, the family report was prepared, and it was released to the parties towards the end of August, I think, or perhaps a little earlier.  I am not entirely certain now. 

27. With respect to the current arrangements, X reported to Ms P that it was “going not so well”.  He said he would like an extra night with his father but with less transitions between homes.  He told his mother that he would like a bit more time but she would not agree. 

28. In respect of Y, he said he had no issues in relation to either parent, reporting everything was “good”.  When asked about how he was managing sleepovers at his father’s home, Y reported it was “good”, and he would want to have another one.  He was unable to provide any further information regarding this preference.

29. The husband reported to Ms P that the children were managing better with a consistent care arrangement and with a court order things had settled down between the parties.  He further indicated that communication between the parties was conflicted due to the legal process but was conducted in a formal businesslike manner and was generally satisfactory.

30. Significantly – and I think it is significant – he said to Ms P that he considered Ms Hackshaw to be a good parent, but the parties had some mild disagreements at times due to different parenting styles. 

31. The wife indicated to Ms P that parental communication occurred via text and email and there was no face to face, which was her preference.  She said text messages provided clarity on simple issues but did not address complex issues about how the children’s world worked. 

32. It was her view that the husband had a facility to make ambiguous statements in writing whereas she preferred to ask cut and dry questions which she thought were amenable to precise answers.  Whether it is the case or not it is my suspicion that that might reflect the parties’ differing personalities and viewpoints.

33. In respect of parenting issues, the wife said she perceived the husband as experiencing difficulties connecting with the children because he did not have a warm, emotional vocabulary, but, rather, tried to win X over by favouring him, the implication being, I think, that she considers that she is the more emotionally available parent for the two children and is more insightful.

34. In terms of her recommendations, Ms P wrote as follows:

    “At the time of the assessment [the children] lived with their mother for 10 days and their father 4 days a fortnight.  This arrangement has enabled Mr Gadley to share meaningful time with the children via involvement in their school lives and sporting activities, but also requires frequent transitions between homes, a concern raised by both X and Ms Hackshaw.  Moving forward, the children spending time with Mr Gadley for a more consolidated period of time is advised, to reduce the disruption to their weekday routines.  No concerns of significance were raised by either parent regarding the children’s physical safety, or exposure to inter-parental conflict, however Ms Hackshaw expressed concerns regarding Mr Gadley’s emotional connection with the boys, attributed to his limited availability in the past.”[1]

    [1]  See Ms P’s report dated 31 July 2019 at 15

1. In terms of the children’s reaction, Ms P indicated that she regarded both children as viewing their parents as being equally important in their lives and the parents themselves, as I have summarised, experiencing a range of co-parenting difficulties, and when some psychometric tests were applied Ms P found that their co-parenting relationship was within the problematic range.

2. In terms of the children’s physical needs, both boys presented as well loved children and their physical and daily care impressed as having been appropriately met in each of their parents’ care.  

3. So against that background, Ms P recommended that the current arrangement of four overnights per fortnight, consisting of Friday after school until Monday morning on alternate weekends, and an overnight stay on the Wednesday or, in the alternative, Friday after school to Tuesday morning with an afternoon school visit on the intervening Wednesday, thereby minimising transition for the children. 

4. She said of Mr Gadley’s proposals for a five night fortnight that that could be considered in the future if the parties can achieve a more cooperative parenting regime.  She has opined that the time for an additional stay might not be until the commencement of the new school year in 2020 and, if this was adopted, it might be a block of three nights Friday to Monday morning in alternate weeks and two nights Wednesday after school until Friday morning in the intervening weeks.

5. In respect of school holidays, she said with respect to holidays and special occasions the parties generally were in agreement with the proposals documented in their respective applications in terms of week-about care during school holidays with extended time as agreed for interstate/overseas travel, sharing time over Christmas, Mother’s and Father’s Day, and the parents’ and children’s respective birthdays. 

6. They also agreed for Ms Hackshaw to have care of the children over Easter and for Mr Gadley to provide care for the same period of time over the long weekend in March.

7. So that was the background to the matter returning to court in August 2019 and on that occasion it was agreed that the school term arrangement should be from the conclusion of school Friday until the conclusion of school the following Tuesday, so four nights in a block but with the other week to be a catch up from after school or 3.00pm until 7.00pm. 

8. Significantly, in the context of what has to be decided today, the parties agreed, as Ms P indicated, that the children should have the significant days of Easter from today until Easter Sunday with their mother and then a period of time from Easter Sunday afternoon until Easter Tuesday with their father.  Some orders were made for Mother’s Day and birthdays, but the orders were silent about school holiday arrangements being changed other than the earlier orders which specified half at times to be agreed.

9. The parties also agreed that they would attend co-parenting counselling with Ms R and at that stage the matter was fixed for trial on 14, 15 and 16 October this year so that, at that stage, that was well over a year away, which is an indication of the pressures of time on the Court.  The case was adjourned until 21 November 2019 for directions. 

10. The parties also noted that they would obtain, at their joint expense, an updated valuation of their respective business interests.  In the lead up to the adjourned date, the wife brought an application to the Court.  Essentially, she sought that the relevant orders relating to time made in February 2019 and amended in August 2019 should continue. 

11. She wanted the parties to have equal shared parental responsibility for X and Y, other than she wanted to have sole responsibility for attending to their medical and psychological needs, issues to do with their passports, and the management of any Frequent Flyer points that they might have.  She had some proposals for special occasions.

12. She filed an affidavit in support of her application and it seems to be her position that the parties had not really experienced any great progress in respect of their co-parenting counselling and she found any exchanges between them to be unpleasant, unhelpful and resulting in voluminous communications. 

13. She raised concerns about how the husband had managed some of X’s health issues, particularly an allergic reaction, issues to do with the exchange of school uniforms, and the attendance of the children at extracurricular activities.  She had complaints about the physical discipline applied to the children particularly by their paternal grandfather and the husband’s reliance on his father for care.  She had complaints about telephone contact.

14. She also sought some orders in respect of the husband’s business interests, particularly that he provide complete financial statements for a company, G Pty Ltd, and that he keep her fully appraised of any developments regarding a company called H Pty Ltd, which seems to relate to the Q Project.

15. The husband responded to that application on 19 November, and essentially he seeks an extension of time for him to spend with the children so that during school terms it is from the conclusion of school on Friday or 3.00pm in week 1 until the commencement of school the following Tuesday in week 2, and in the other week from the conclusion of school on Thursday until the commencement of school the following Friday, so that would be five days out of 14.  In respect of the school holidays, he seeks an equal time regime. 

16. In terms of the preparation of the matter for trial, it is his position that things need to be done so that Mr K, who is a chartered accountant, can value a company called F Pty Ltd, which is the wife’s company. 

17. Essentially, what he wants is details and concrete records in respect of expenses that have gone through the ledger of that company in respect of client expenses, computing, light and power, rent, business, entertainment and so on and so forth.  

18. As I have indicated, Mr Gadley’s counsel, Mr Jordan, indicated that although the wife has asserted that she has provided summaries of these expenses what he wants is to look at the source documents to ascertain what potentially can be allocated to a private expense and what potentially could be allocated to a business expense and, from his perspective, those things need to go to Mr K.

19. He also seeks some orders which would deal with the valuing of furniture and effects within the M Street, Suburb E property, that some sort of inventory be prepared and then, if the parties cannot agree how those items are to be divided, they get a valuer from O Valuers to go through it down to such things as the wife’s jewellery, clothing and shoe collection and the husband’s bicycle.

20. The case came back to court in late December and the parties at that stage sensibly decided that they would attempt to mediate their issues and they retained Mr S, who is a retired Family Court judge, to do the mediation. 

21. They agreed on arrangements for the children to spend time with their father over the Christmas period and, as I understand it, the father spent Boxing Day and had two periods of one week with the children.  Significantly, again, the parties at that stage agreed that the children would have their own family therapy and they would continue on with their co-parenting counselling, and the case was adjourned to 17 March 2020.

22. At that stage I was advised that the mediation with Mr S had not been successful so that the trial would, presumably, be still required.  The parties, to their credit, agreed on some further arrangements, including arrangements for the significant days of Easter, and, again, they have agreed to follow what happened in 2019. 

23. They agreed arrangements for Father’s Day, Mother’s Day, so on and so forth, and, at that stage, that the existing school term arrangements should continue.

24. Obviously, at that stage the issues regarding the pandemic, particularly what was happening overseas, were coalescing and the parties agreed to abide by any Department of Foreign Affairs and Trade warnings, presumably, about overseas travel, it being the case that the children are comparatively well travelled.

25. Since the application in a case and response has been filed, neither party, as I understand it, have filed any further material.  Each of them has filed an affidavit in November.  The other significant thing that has occurred is that Ms Hackshaw is now representing herself.  In the parties’ November affidavits, for obvious reasons, there is nothing about the COVID-19 situation because, obviously, that was not an issue in November 2019.

26. So, as I say, if I have made any errors in respect of the orders and what has happened up until this stage I apologise, but my impression is that it has been a tortuous process to get to this point, which has involved multiple interventions involving all sorts of counsellors and experts, including Mr S, Ms P, and Ms R, which has resulted in some level of agreement.

27. In summary, it would seem this is not a case about protecting the children from risk.  The children are likely to have a comfortable and well-resourced childhood and have more than abundant educational, recreational and extracurricular activities, and they will be children who are much loved by both their mother and father.

28. What the case is really about is the husband’s aspiration for an equal time regime and whether the parties’ relationship as parents will sustain that and the prospects and the dangers for these children, if there are any dangers in their lives, of being exposed to parental conflict. 

29. So as best as I can glean it, the issues that are outstanding at the present time are:

    ·what should happen in the remainder of the end of term 1 holiday;

    ·what should happen in the midyear and third term school holidays;

    ·whether there should be a change to the existing arrangements for the care of the children during the school week;

    ·whether there should be an updated family report;

    ·what material Mr K needs in respect of the wife’s business;

    ·should there be a mechanism to value the household contents of the M Street, Suburb E property down to the wife’s personal effects; and

    ·more recently, again, in her oral submissions to the Court made last Monday and in some accompanying written submissions, the wife seeks orders that the parties do everything necessary to apply to their mortgagee, which is the Commonwealth Bank, to defer home loan repayments given the current COVID-19 crisis.

30. The parties also disagree about Christmas Day arrangements, but it being the husband’s perspective that as he did not get Christmas Day last year he should this year, but at this juncture if there is going to be a trial in October I do not think that is necessarily a pressing issue.

31. I have to go through some of the legal principles, and, in general terms, in terms of settling issues of matrimonial property, the Court is required to take a four step process, the first of which involves the valuing of items of property, and in a case like this one that is the home, superannuation and the businesses. 

32. It may also include some valuation of the financial resources, and that may be the husband’s interests in this property project.  Valuation is essential to the process because it leads on to the next steps which are an assessment of the parties’ respective contributions to the acquisition and preservation of those assets.  

33. Significantly, a party to a marriage can contribute to the accumulation and acquisition of assets both directly and indirectly by being a parent or a homemaker and allowing the other parent to go into the workforce.  That, of course, recognises the essential partnership of marriage.

34. The third step is an assessment of the parties’ prospective needs.  It is often said that the most valuable thing a person can take out of a marriage is a reliable income stream, so in that sense some appraisal of the income generated by the parties’ respective businesses may be central. 

35. All these steps have to be conducted in a way that is just and equitable.  Whatever orders that the Court makes, it has to be satisfied that they are just and equitable and really that is a process that informs each step of the way.

36. So in that context, the Court’s Rules require parties to make a full and frank disclosure of their financial circumstances, and that rule is expressed in rule 24.03 of the Federal Circuit Court Rules 2001,[2] and, for obvious reasons, if a person does not make such full and frank disclosure, it has the potential to undermine the whole process.  

    [2]  Hereinafter referred to as the “Rules”

37. In a case like this one where the parties do not trust one another it would seem it will have to be done with some rigour because if there is not full and frank disclosure there may be considerable doubts that the process itself is a just and equitable one. 

38. As a general principle, if the Court is ultimately satisfied that one party has not been full and frank in their disclosure, it is entitled to err in favour of the party whom it feels has been the victim of the failure to be frank in any orders it makes dividing property. 

39. In the Rules at rule 24.03 is a list of the matters in respect of which a party is required to disclose in a full and frank way. It includes vested or contingent interests in property, income from all sources, including any benefit received in relation to or in connection with the parties’ employment or business interests, the other party’s financial resources and moneys or assets held by trusts. The list is an exhaustive one.

40. On Monday, as I recall, the wife indicated that she had some concerns that the husband may not use the documents in a fair way if they were disclosed to him or that they were of a personal and confidential nature to her. 

41. As a matter of law, there is an implied undertaking that any document disclosed in legal proceedings is to be utilised only for those legal proceedings and not for any other proceedings.  That is commonly called a Harman undertaking.

42. In respect of issues to do with the children this is, of course, an interim hearing.  Although the parties agree on many things, they disagree on other things which principally relate to their respective parental capacity and level of insight.  I am not in a position to resolve these factual issues between them. 

43. If necessary, if there is a trial, I will be given an opportunity to make findings of fact about those issues.  But although the interim hearing stage is truncated and does not allow cross-examination and so the finding of fact, the legal principles to be applied are the same. 

44. Essentially, in determining to make any particular parenting order, I must regard the interests of the child or children concerned as the most important consideration.

45. In determining how a child’s best interests are to be served under the Family Law Act 1975 (Cth) (‘the Act’), I have to look at a list of matters in section 60CC. That creates a long list of considerations. There are two primary considerations which are as follows:

    ·Firstly, the benefit to the child of having a meaningful relationship with each of the child’s parents; and

    ·Secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

46. These considerations tie in with the overall objects and principles of the Act, which are contained in section 60B and emphasis the rights of children to maintain relationships with those who are significant to them but also to protect children from coming to harm.

47. There is a longer list of additional considerations. There are 14 of them contained in section 60CC(3). I am authorised pursuant to section 60CC(3)(m) to consider any other factual circumstance which I consider relevant. In short that is to ensure that every myriad aspect of the child’s life can be taken into account so that an idiosyncratic order can be made.

48. In a case like the present one, the husband emphasises the benefits the children are likely to derive from having a meaningful relationship with him.  From his perspective, no doubt, it is necessary for the children to spend sufficient temporal periods so that the relationship can be meaningful. 

49. Although he does not put it in such terms, it is implicit from Ms P’s report that he wants to be involved in mundane aspects of the children’s lives as well as fun activities on weekends and holidays and so on and so forth.

50. From the wife’s perspective, I suspect she points to some of the additional considerations which concern changes in the children’s circumstances which may, from her perspective, be too abrupt and dramatic if the husband’s application is granted.  In addition, it is her position that she is the superior parent in respect of issues to do with parental insight.

51. The Court is directed to consider the wishes or views of any child subject to the maturity of the child concerned, and the level of insight.  No doubt from the husband’s perspective, he points to what X said to Ms P in the assessment of August last year. 

52. It is also necessary for me to point out what follows from the presumption of equal shared parental responsibility. Pursuant to section 61DA of the Act, the Court is directed to apply a presumption that the parents concerned should have equal shared parental responsibility for their child because it will be in the best interests of the child for it to be applied. In this case, the parties seem to agree that it should be applied.

53. If it applies, pursuant to section 65DAA, I am required to consider the child concerned spending either equal periods of time with each of his or her parents or if that is not in the child’s best interests or is not reasonably practicable, that the child spend substantial and significant periods of time with each parent.

54. So in a case like this one, no doubt it will be the husband’s position at trial that the presumption applies and that the Court is mandated to consider equal time, or failing that, substantial and significant time.

55. Substantial and significant time is defined in the Act as consisting of the time during the week, time during holidays and time on special occasions. The significant section in respect of section 65 and its application is whether it is reasonably practicable.

56. Issues of practicality are dealt with by section 65DAA(5). The Court is directed to consider how far apart are the parties’ homes, the parties’ current and future capacity to implement shared care type arrangements, the parties’ ability to communicate with one another and solve parenting problems consensually, and more importantly, the likely impact of such an arrangement on the child concerned.

57. In a case called MRR v GR,[3] the High Court said the question of whether it is in a child’s best interests to spend equal time with each parent or substantial and significant time, and the question of whether such outcomes are reasonably practicable, really depends on a consideration of the reality of the situation concerned. 

    [3]  MRR v GR (2010) FLC 93-424

58. In a case like this one it would seem to be the wife’s position that the parties just simply do not – although they may live fairly proximate to one another in the inner suburbs of Adelaide – have the capacity to solve parenting problems, that their parenting approaches are not congruent and if there is an issue, they will not be able to resolve it.  Again, that is likely to be a central evidentiary issue at trial.

59. From the husband’s perspective, although he does not resile from the fact that there are difficulties, no doubt it is his position that in the greater scheme of things the children will benefit from having the best possible relationship with him and the court is mandated to consider equal time.

60. To come to the issues at hand, it is the wife’s position that since the pandemic emerged the parties have verbally agreed that they will do whatever is recommended by the government in terms of social distancing and so on, regardless of whether that is formalised in legislation. 

1. In that context she says it is agreed that, essentially, the current regime with some minor modification should continue, which she wishes to continue during the school holidays.  It is her position, as I recall, that school holidays have become somewhat academic in terms of the current crisis with many children being educated at home or online and that situation being likely to continue for the foreseeable future.

2. In this context, I think it is noteworthy that I have not got any updating material and it was clear, I think, from the husband’s submissions through his lawyer, Mr Jordan, on Monday that he does not necessarily agree that there has been an agreement reached.  From my point of view, what is a significant factor is that from the beginning of the proceedings until fairly recently there was a general recognition that the school holidays should be shared. 

3. With that in mind I am going to make some orders which will see the husband having time with the children after his period on Easter Monday until 3.00pm on 20 April. 

4. So this year, of course, the gazetted school holidays abuts the Easter period and, I think, it will be in the children’s best interests in terms of developing a meaningful relationship with their father, albeit in these crisis situations, during those periods. 

5. Similarly, I am going to make the orders that are proposed by the husband in respect of the mid-year and later year school holidays.  At this juncture, given Ms P’s rider that any change of the school term arrangements should be dependent on the parties having a better parenting relationship or a more easy parenting relationship, and given the issues in controversy between them and bearing in mind that the trial is hopefully in October, I am not going to change the current arrangements for school term arrangements.

6. In respect of the disclosure orders sought by the husband, I am going to make the orders proposed in respect of the accounts of F Pty Ltd so that Mr K can value that business and also the two entities relating to the husband: G Pty Ltd and H Pty Ltd. 

7. It seems to me that the husband does need to keep the wife apprised in respect of any issues to do with H Pty Ltd because potentially, that may be a very significant asset or financial resource, I do not know at this juncture. 

8. In respect of the valuation of the chattels at M Street, Suburb E, it is always a very distressing experience to have the contents of a person’s home valued because inevitably what is revealed is that the items have been valued dramatically less than what was paid for them.  The prospect of having shoes valued just troubles me a great deal unless, I suppose, the shoes have some special, idiosyncratic value, or they are collectors’ pieces, I do not know. 

9. But I would hope that the parties could make some sensible accommodation with one another as to what they are going to take rather than go through the terrible experience of having it valued.  But if it has to be done, it has to be done and I will make some orders that deal with that.  It also seems to me that given that Ms P needs to update her family assessment report. 

10. This matter has troubled me to some extent because of the artificiality of the situation at the present time.  The parties certainly seem to have gone to a great deal of effort to try and resolve all the issues between them in a consensual and civilised way and, I suspect, spent a great deal of money to do that. 

11. It might be naïve of me to think so, but I see these cases as problems to be solved and the problem will be solved if the parties are as frank and candid with one another as possible. 

12. As I observed on Monday, putting aside the two businesses, there is not a significant degree of complexity about their situation in financial terms.  I mean no disrespect, but they have conventional property.  There may be some great complexities about these two businesses.  I have not seen what Mr K has done so I am in the dark.

13. I know Ms Hackshaw is representing herself, I do not know whether she will continue to do that.  That is a matter for her.  But from Mr Gadley’s point of view these cases have the potential to be very, very expensive indeed.  In terms of the arrangements for the children I suspect that at trial it will come down to what is reasonably practicable and what is in the children’s best interests given the topography of the parents’ relationship. 

14. He might say, well, it is in Ms Hackshaw’s interest to be as difficult as possible and to exaggerate the difficulties between us, so she retains the upper hand in respect of the care arrangements for the children.

15. Countervailing that, of course, is the emphasis that the legislation as a whole bases on the benefits children derive from having a significant level of relationship with each of their parents.  What I have put in place may have shortcomings in terms of how the time is ultimately cut and diced and the degree of handovers and so on and so forth. 

16. But at the end of the day, I am satisfied that the children will have a meaningful level of relationship, pending final hearing, with each of their parents, whom they will see reasonably frequently.  It cannot be said that the parents themselves have not had an opportunity to reach a consensus as to what suits them and what suits the two children whom they both undoubtedly love.

17. In respect of the holidays, I am not persuaded that I should do anything other than what was advocated from the beginning; that the holidays should be shared.  I am aware that there are issues about the pandemic.  How could I not be?  Everyone in this country is aware of the issues about the pandemic. 

18. But I do not think at this stage I should think anything other than each of the parents are well appraised of what they have to do and will keep the children safe in their respective care.

19. So for those reasons I have decided to keep the term time arrangements going, advance fairly modestly the school holiday arrangements, bearing in mind that the holiday is not that long away.  I have made orders that prepare the matter for trial and I will confirm that the trial of the matter is on 14, 15 and 16 October 2020 and make some orders about the filing of material. 

20. I have earnestly considered whether the matter should be transferred to the Family Court because to be frank with each of the parties, I have a very busy list which is composed of very many matters which deal with cases that do not deal with parents who are well resourced financially and who have issues to do with their mental health and drug abuse and so on and so forth. 

21. I have to think about their interests and their needs to have decisions made particularly in a context of triage and really serious safety considerations regarding children.  I am not well placed to deal with the intricacies of cases like this dealing with fine issues dealing with such things as frequent flyer points and issues to do with their school uniforms and so on.

22. But I have offered a date in October.  If the matter is transferred to the Family Court it may not come on in this year.  It may be deferred for a significant period of time and I do not think that would be fair.  Having said that, I really do not know what the future holds in terms of the pandemic and other aspects and whether Ms P can update her report, or Mr K can do what he is expected to do. 

23. I act on the assumption that these things can be done and I have gone to some trouble, I hope, to explain to each party their responsibility to be frank and candid about their respective financial positions.  The documents cannot be utilised willy-nilly.  Clearly in a case like this the parties do not trust one another so from my perspective that calls for more, rather than less, disclosure. 

24. So I am conscious that it has taken me about an hour and 20 minutes to deliver these reasons for judgment.  That is because, regrettably, they were fairly hastily prepared because I have had other calls on my time and that means necessarily I have not had time to edit them, and I apologise for the length and any mistakes I have made in terms of recounting the history of the parties which, as I say from my perspective, is somewhat convoluted.

25. I will publish the orders in a moment and they will be released to the parties electronically and in a formal sense will be as set out at this settled written document. 

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 10 August 2020