HELINSKI and BASSETT

[2021] FCWA 244

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HELINSKI and BASSETT [2021] FCWA 244

CORAM: DUNCANSON J

HEARD: 16 NOVEMBER 2021

DELIVERED : 22 DECEMBER 2021

FILE NO/S: 451 of 2019

BETWEEN: MR HELINSKI

Applicant

AND

MS BASSETT

Respondent

Catchwords:

PROPERTY - expert evidence - where a single expert witness has been appointed - where the respondent seeks permission to rely on a report of another expert - instructions to the single expert witness - conferral ordered

CHILDREN - where the report of the single expert witness has been published - where the applicant seeks to vary existing orders - where a cautious approach is taken to changing the children's arrangements

Legislation:

Family Law Act 1975 (Cth)
Family Court Rules 2021 (WA) Div 5, r 268, r 271, r 274, r 277, r 290, r 291, r 292

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Hooper SC
Respondent	:	Mr M Berry SC & Mr J Fickling

Solicitors:

Applicant	:	KDK Family Law
Respondent	:	O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

Marvel v Marvel (2010) 43 Fam LR 348

Simonsen v Simonsen [2009] FamCA 698

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helinski and Bassett has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1These proceedings concern the division of the property of [Mr Helinski], the husband and [Ms Bassett], the wife. They also concern the parenting arrangements for the parties' children.

2On 9 April 2021 the wife filed an application in a case seeking various interim orders with respect to financial matters. The husband filed a response on 20 May 2021.

3On 20 October 2021 the husband filed an application in a case seeking interim parenting orders. On 2 November 2021 the wife filed an amended application with respect to financial matters. She filed a response on 12 November 2021 in relation to parenting matters.

4The parties relied on various affidavits filed in support of their applications and also their trial affidavits. Senior counsel for both parties filed an outline of submissions prior to the hearing on 16 November 2021.

BRIEF BACKGROUND

5The husband was born [in] 1979 and is 42 years of age. He is a [businessman]. The wife was born [in] 1978. She is 43 years of age. She is a [doctor].

6The parties commenced cohabitation in 2007 and married [in] 2010. There are two children of the marriage, [Child A], born [in] 2012 (nine years of age) and [Child B], born [in] 2015 (six years of age).

7The children live with the wife and spend time with the husband.

8The parties separated finally in mid-2018.

9The husband commenced these proceedings on 15 January 2019 in relation to parenting matters. He subsequently amended his application to seek financial orders.

10The husband is a director and shareholder and/or beneficiary in a number of companies and trusts comprising [Group A] and [Group B].

11On 31 January 2020 [Ms A] of [Accounting Firm A] was appointed by a joint letter of instruction as a single expert witness. Ms A was instructed to value trading and non‑trading entities comprising the two groups.

12Ms A provided her report on 10 June 2020 valuing the entities as at 30 June 2019.

13The wife deposed that by engagement letter dated 1 October 2021 the wife commissioned [Accounting Firm B] to provide her with clarity in relation to matters arising from Ms A's report and her concerns with respect to financial aspects of Group A. [Ms B] swore an affidavit on 1 November 2021 annexing her report dated 1 November 2021.

THE ISSUES FOR DETERMINATION

14The issues for determination are as follows:

•whether the wife should have permission to rely on the report of Ms B dated 1 November 2021;

•the terms of instruction to be provided to the single expert witness and whether she should be instructed to prepare a valuation report in respect of Group A as at 30 June 2020 and 30 June 2021 as sought by the wife, or whether her instructions should be confined to a valuation as at 30 June 2021 as sought by the husband;

•whether the terms of injunctions made on 17 September 2019 should be varied; and

•parenting arrangements including whether the children should spend further time with the husband having regard to the terms of the report of [Dr C], the single expert witness.

The husband's position

15On 15 November 2021 the husband filed objections to the evidence of the wife and her witness. Specifically he objected to the affidavit of Ms B filed 2 November 2021 and to paragraphs of the affidavit of the wife, also filed on that date. Senior counsel for the parties had not conferred with respect to the objections. The husband pressed the objections. Senior counsel for the wife submitted that having regard to the main purpose of the rules the objections did not need to be dealt with. He submitted the husband's objections to the affidavit of Ms B should be put to one side as the wife's reliance on Ms B's report was part of the substantive argument.

16As to the husband's objections to the evidence of the wife, senior counsel for the wife said some of the paragraphs contain admissible material and some perhaps contained inadmissible material. Senior counsel submitted to the extent the evidence was inadmissible, I should treat it as a submission.

17Senior counsel for the husband said he would proceed to assume that every one of his objections were upheld on the ground of relevance. That was his assumption, it was not the basis on which I proceeded to hear the argument.

18When considering the evidence of the wife, I was mindful and took into account the husband's objections. In the absence of submissions, I did not rule on each and every objection. Instead my intention was that any ruling I made in relation to the objections would be included in these reasons.

19The husband opposed the order sought by the wife, that she have leave to rely on the report of Ms B in relation to accounting matters.

20It was not in dispute that Ms A should be instructed to provide a valuation of the entities as at 30 June 2021. It was in dispute as to whether a valuation as at 30 June 2020 should also be obtained.

21Senior counsel for the husband provided a proposed letter instruction to Accounting Firm A dated 16 November 2021 which became exhibit 1. Senior counsel explained that, having read the material filed by the wife, the husband proposed that Ms A should be given all of the material provided by the wife to Ms B. The husband's proposed letter enclosed various documents including financial statements and a notice to admit and responses.

22Senior counsel submitted the documents provide Ms A with the husband's explanation in relation to financial issues raised by the wife.

23Senior counsel submitted the husband proposed that Ms A should receive "a raft of relevant material which includes the material the wife gave to her partisan expert".

24Senior counsel for the husband referred to the summary of conclusions of Ms B as set out in her report. He referred in particular to the seven questions set out therein and proposed that those questions could also be asked of Ms A.

25Senior counsel referred to explanations already given to the wife, for example with respect to an alleged increase in wages to the husband. He explained the reason was an allocation of a higher income to the husband by way of a Division 7A loan type arrangement to payout a former partner, [Mr D].

26Senior counsel for the husband submitted the report of Ms B critiqued the report of Ms A which in itself was in respect of an accounting period of almost two and a half years ago and was pointless.

27The husband opposed the wife's attempt to "control the process" by which Ms A is provided with information. Senior counsel submitted that documents should be provided to Ms A by way of upload to her portal, to which all parties have access. He said no enquiries had been made that Ms A would accept an appointment on the terms proposed by the wife in her proposed letter of instruction dated 1 November 2021, there being no evidence that those terms would be acceptable to Ms A.

28Senior counsel compared the husband's proposed letter of instruction to Ms A dated 16 November 2021, with the letter of instruction proposed by the wife dated 1 November 2021, being Annexure A to her amended application in a case filed 2 November 2021. Upon senior counsel's comparison, the documents the husband proposed to provide to Ms A were much the same as those proposed by the wife.

29Upon production of Ms A's report the husband issued questions to her. The wife did not. The husband does not oppose the wife asking questions of Ms A out of time, nor does he oppose her asking the questions of Ms A that she asked of Ms B.

30The husband's position is that having regard to the likely date for trial Ms A's valuation should be updated to as at 30 June 2021. Senior counsel for the husband submitted that to obtain a valuation for 2020 would be a "pointless, cost creating exercise."

31In reply to submissions on behalf of the wife, senior counsel for the husband referred to the wife's criticism of the late provision of the constitution of entities. He pointed out that what was provided to Ms A was in fact a replacement document created after she had been instructed.

32He submitted Ms A would not ignore fluctuations in income and profit.

33Senior counsel submitted the report by Ms B is not a forensic report but a summation of queries about which she is unable to come to a conclusion. He submitted the provision of Ms B's report to Ms A would be to bias Ms A.

The wife's position

34Senior counsel for the wife submitted that the necessity to rely on Ms B's report arises because the husband controls the content and timing of delivery of financial information, in this respect referring to the production of finalised financial statements.

35Senior counsel for the wife drew attention to Ms A's introduction to her report dated 10 June 2020 where she confirms she has not externally verified information presented to her, nor carried out any activity in the nature of an audit or forensic investigation and she has assumed that information provided is reliable, complete and not misleading, and that no material facts had been withheld.

36At the time the wife filed her application on 9 April 2021, she had raised with the husband issues with Ms A's report in a letter from her solicitors dated 10 December 2020. Senior counsel submitted the husband responded with merely the provision of the 2020 and 2021 financial statements requesting an update of the report.

37Senior counsel submitted that the day of this hearing was the first time the husband proposed to provide documents to Ms A, including those agitated by the wife to be provided by her in December 2020.

38Senior counsel for the wife referred to Ms B's summary of conclusions where she reported as to an estimated amount of $1.85 million of understated direct labour costs (and thus overstated indirect labour costs) resulting in an understatement of the net profit in the financial year of 2021 of the same amount. Senior counsel submitted Ms A was not asked to analyse the treatment of indirect and direct labour costs for her single expert valuation as she does not undertake an audit or forensic investigation.

39Senior counsel for the wife submitted Ms B's report should be provided to Ms A who can place what weight upon it she sees fit, and there are matters referred to therein which are not the subject of the single expert witness' terms of reference.

40Senior counsel submitted that the evidence of Ms B does not overlap with that of Ms A but "excavates behind that purpose and that function".

41Senior counsel for the wife relied on r 277 of the Family Court Rules 2021 (WA) and referred in particular to paragraphs 42 to 55 of the wife's affidavit filed 2 November 2021 where she addresses the requirements thereof.

42I have not overlooked that the husband's objections to evidence pertain to several of those paragraphs. However, as discussed at [47] below I do not consider r 277 to be the applicable rule in the circumstances of this case where a single expert witness has been appointed.

43In relation to obtaining a valuation as at 30 June 2020, senior counsel for the wife drew attention to the timing issues when profit and expenses are recognised. Senior counsel submitted it has an impact on the profit of the entities and therefore valuation considerations. Senior counsel explained the wife's concern as to a deferral of profit being pushed out beyond the 2021 financial year.

44Senior counsel for the wife explained that the concerns raised in the wife's solicitors' letter dated 10 December 2020 have been restated in the wife's proposed letter of instruction before the court in the application filed 2 November 2021. He too compared this proposed letter of instruction to that provided by the husband dated 16 November 2021 and submitted that all of the material should be provided to Ms A including the reports of Ms B.

45As to the process of providing documents to Ms A, senior counsel submitted the wife did not have an opportunity to view or comment on documents before they were provided to her. By way of example, the [Company A] constitution dated 17 April 2020 was provided to Ms A after the joint letter of instruction to her. Senior counsel said the wife sought to have the provision of documents take place through the parties' legal practitioners who he said should control the briefing. The mechanism proposed by the wife is set out at paragraph 5 of her proposed letter of instruction dated 1 November 2021.

DISCUSSION AND CONCLUSIONS

46Rule 268 of the Family Court Rules 2021 sets out the purpose of Div 5 of the rules, and provides as follows:

The purpose of this Division is -

(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; and

(b)to restrict expert evidence to that which is necessary to resolve or determine a case; and

(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; and

(d)to avoid unnecessary costs arising from the appointment of more than 1 expert witness; and

(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

47In the circumstances of this matter where a single expert witness has been appointed, the relevant rule with respect to additional expert evidence is r 274 rather than r 277 as relied upon by the wife.

48Pursuant to r 274, if an expert witness has been appointed, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.

49Pursuant to r 274(2) the court has a discretion to allow a party to tender a report or adduce evidence from another expert witness if it is satisfied as to one or more of the matters identified in subparagraphs (a), (b) or (c). I was not addressed specifically as to any of these matters and upon the evidence I cannot be satisfied in that respect.

50Rule 290 makes provision for the clarification of single expert witness reports either by way of a conference pursuant to r 291 or by means of asking questions pursuant to r 292.

51Ms A was appointed by a joint letter of instruction on terms of reference which were agreed by the parties.

52That was not the case with respect to Ms B. Ms B was instructed solely by the wife on her own terms of reference into which the husband had no input. The grant of permission to the wife to rely on the evidence of Ms B gives rise to unfairness between the parties.

53The wife of course is not precluded from obtaining and using the assistance of Ms B as her own expert in asking questions of the single expert and informing her cross-examination.

54In Simonsen & Simonsen [2009] FamCA 698, it was said:

10.As r 15.49 makes clear, however, the circumstances in which an additional expert can give evidence or prepare a report, once a single expert has been appointed by the court, are somewhat truncated.

11.That is evident from the restricted nature of the two opening subparagraphs of r 15.49(2), and the requirement for the reason by which a court should be satisfied that the other expert witness or evidence is necessary, being "special".

12.The general thrust of the Rules has been referred to by the Full Court in Bass & Bass (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word "special" as used in r 15.49 has real meaning.

13.It is important to understand that Pt 15.5 of the Rules does not preclude a party from obtaining on their own behalf expert evidence, nor does it preclude a party from obtaining such expert evidence, (including from more than one expert, should they so choose), in respect of all matters relevant to the proceedings before a court, and all matters relevant to a report and/or evidence produced by a single expert.

55In my discretion I refuse the wife's application for permission to rely on the report of Ms B and to provide that report to Ms A. I consider that the rules should be applied and in coming to this decision I have taken into account the unfairness to which I have referred and also the matters set out below.

56It is not in dispute that a considerable amount of further information is now to be provided to Ms A. There is a significant overlap between the proposed letter of instruction of the husband dated 16 November 2021 and that of the wife dated 1 November 2021 in respect of the information and documents to be provided.

57Rule 271 sets out the orders that a court may make in relation to the appointment of, instruction of, or conduct of a case involving, a single expert witness. Pursuant to subparagraph (e) that may include an order that the parties confer for the purpose of preparing an agreed letter of instructions to the expert.

58I propose to make an order that the parties so confer.

59The many documents provided by the wife to Ms B can be provided to Ms A.

60Ms A can be asked questions by the wife and there is no objection by the husband to those questions being asked out of time. The wife is at liberty to ask Ms A the questions she asked Ms B, if she chooses to do so.

61Further, the wife is not precluded from asking questions of Ms A arising from Ms B's report and her summary of conclusions.

62As to the instructions to Ms A and as discussed above, r 271 sets out the orders a court may make in relation to the appointment of, or the instruction of a single expert witness, including that the parties confer for the purpose of preparing an agreed letter of instructions. I am of the view Ms A should continue to be instructed on the same basis as before bearing in mind the that she was engaged by a joint letter of instruction dated 31 January 2020. I am not persuaded that each and every document to be provided to Ms A should first go to the solicitors of the parties, when these documents can be uploaded to the portal, examined and if necessary, questions can be raised about them. There is no evidence that Ms A would conduct her duties as single expert witness on the terms proposed by the wife.

63I have considered carefully the question of whether a valuation should be obtained as at 30 June 2020, and I have concluded that it should. I have come to that conclusion taking into account the matters set out below.

64The wife deposed at paragraph 14 of her affidavit as to her concerns as to the apparent fluctuation in the revenue and profit of the Group A in the financial statements between 2019 and 2021.

65It is not in dispute that there is a deferral of profit from one year to the next depending on whether a job has been completed and whether the work in progress is converted into payment or transferred to the following year.

66It will go some way to addressing the concerns of the wife in the circumstances set out at paragraph 64 above. I do not consider it to be an unnecessary or pointless exercise having regard to the complexity of the matters at issue. If, after a defended hearing it is considered that the cost of obtaining the report was unnecessarily incurred, that can be the subject of an application for costs.

Injunctions

67The wife's application to vary the terms of injunctions made on 17 September 2019 was not dealt with at the hearing by reason of lack of time.

THE PROPOSED ORDERS

68Subject to hearing from senior counsel I propose to make the following orders.

1The wife have permission to rely on her amended Form 2 application in a case at the hearing scheduled 16 November 2021.

2The wife's application for permission to rely on the report of [Ms B] in relation to accounting matters is refused.

2By consent, the wife have permission to ask questions of the single expert witness, [Ms A] of [Accounting Firm A], out of time.

3The parties do all acts and sign all documents necessary to enable [Ms A] to revalue the [Group A] including, but not limited to the following entities:

(a)[Company B];

(b)[Company A];

(c)[Company C] ATF [Trust A];

(d)[Company D] ATF [Trust B]; and

(e)[Company E] in its own right and ATF [Trust C]

as at:

(a)30 June 2020 ("the 2020 valuation") and:

(b)30 June 2021 ("the 2021 valuation")

as soon as practicable.

4The 2020 valuation and the 2021 valuation be at the joint expense of the parties.

5The parties shall as soon as practicable confer for the purpose of preparing an agreed letter of instructions to the single expert witness.

6The wife have permission to issue subpoenas to:

(a)[Bank A];

(b)[Bank B]; and

(c)[Government Department A].

7The husband do all acts and things and sign all documents necessary to ensure the financial returns for the [Group A] are promptly completed after the end of the 30 June 2021 financial year.

PARENTING MATTERS

69The parties have been unable to agree the living arrangements for Child A and Child B pending trial.

70On 8 March 2019 orders were made that until further order, Child A and Child B live with the wife. It was further ordered that Child A and Child B spend time with the husband during the school terms as follows:

(a)every second weekend from 3.00 pm Friday to 12.00 pm Sunday;

(b)weekly on Mondays and Wednesdays from 3.00 pm to 6.00 pm; and

(c)at such other times as the parties may agree.

71It was ordered that the children spend time with the husband during the terms 1, 2 and 3 school holidays.

72On 19 June 2019, further parenting orders were made. These orders restated the earlier orders in respect of the school terms and the holidays at the end of terms 1, 2 and 3 in 2019.

73The orders provided, that commencing 2020, the children spend time with the husband in the term 1, 2 and 3 school holidays for six consecutive nights and at such other times as the parties may agree.

74It was ordered that during the school summer holidays commencing in 2019, the children spend time with the husband for three blocks of five consecutive nights.

75Relevantly the orders provided that during the Christmas period, the children spend time with the wife from 9.00 am Christmas Eve until 6.00 pm on Boxing Day in 2019 and each alternate year thereafter, and with the husband from 9.00 am on Christmas Eve until 6.00 pm on Boxing Day in 2020 and each alternate year thereafter.

76The said orders provided that in the event that the parties are in the same city during the Christmas period, then the non-resident parent would spend time with the children from 9.00 am until 12.00 noon on Christmas Day with that parent to collect and return the children. Various other orders were made with respect to special occasions.

77The husband seeks to discharge the orders with respect to the children's time with him during the school term. He seeks an order that the children spend time with him as follows:

•every second weekend from after school or 3.00 pm Friday until 5.00 pm Sunday;

•each Monday from the conclusion of school or 3.00 pm until the commencement of school or 9.00 am on Tuesday;

•each Wednesday from the conclusion of school or 3.00 pm until 6.00 pm (although his affidavit conflicts with his application, as he deposed he wishes to drop the Wednesday); and

•other times as may be agreed between the parties in writing.

78The husband proposes orders for handover, including that handover take place where appropriate at school, otherwise by delivery to the wife's residence.

79The husband seeks to discharge the orders with respect to Christmas time such that the children spend time with the parties as follows:

•with the wife:

•from 9.00 am Christmas Eve until 2.00 pm Christmas Day in 2021 and each alternate year thereafter; and

•from 2.00 pm Christmas Day until 6.00 pm Boxing Day in 2022 and each alternate year thereafter;

•with the husband:

•from 2.00 pm Christmas Day until 6.00 pm Boxing Day in 2021 and each alternate year thereafter; and

•9.00 am Christmas Eve until 2.00 pm Christmas Day in 2022 and each alternate year thereafter.

80The orders dated 19 June 2019 provide for the children to have telephone communication with the husband on Tuesdays and Thursdays at 6.30 pm for a maximum of 30 minutes during the school terms, and twice a week at times to be agreed during school holidays. The orders also provide that the children have telephone communication with the wife on Saturdays when with the husband at 6.30 pm for a maximum of 30 minutes, twice during the time they spend with him during the school holidays and other times as agreed.

81The husband seeks an order that the children have liberal telephone communication with the parent with whom they are not living, and the other parent is to facilitate that contact.

82The wife opposes all of the orders sought by the husband. She seeks an order that the husband's application be dismissed, and the children continue to spend time with him in accordance with orders dated 19 June 2019 until the matter is determined at trial, or orders are otherwise made by consent.

83On 27 April 2021, Dr C was appointed single expert witness and he provided a report dated 29 June 2021 to which I refer below. I observe each party has selected those parts of Dr C's report that support his or her position.

The husband's position

84The husband deposed the children have been spending time with him in accordance with the orders for some two and a half years. He seeks to increase their time with him, in line with the recommendations of Dr C, with the exception that rather than a weeknight in the middle of the week as recommended, the father seeks overnight time on Monday nights to avoid changing the children's routine more than necessary. At paragraph 82 of his report Dr C recommended the introduction of a weekly overnight in the middle of the week, such that the children's time with the husband would increase to four nights a fortnight. Dr C also recommended increased blocks of time during the school holidays.

85The husband referred to various paragraphs of Dr C's report including that where he reported that Child B spoke positively about both of his parents. The husband has commenced [Parenting Program A] recommended by Dr C and he completed [Parenting Program B] in 2019.

86The husband deposed he has attempted to resolve parenting matters with the wife. The husband is concerned that the trial in this matter may be many months away and he may have to wait a significant amount of time for consideration of an increase in the children's time with him. He wishes to be involved in the children's routine and deposed he has consistently thought that the children should spend more time with him rather than staying with nannies. The husband deposed that he feels the children's time with him could be more relaxed if the time is extended and he would have time to see their classrooms when he takes them to school. The husband deposed an extension of time will also give the children an opportunity to spend more time with the paternal family.

87The husband deposed that when the children are due to leave his care they regularly ask to stay longer, but the wife refuses.

88The husband wishes to spend time with the children on Christmas Day and seeks more liberal telephone communication with them.

89In response to the wife's evidence, the husband denied he has been violent towards the wife either in front of the children or otherwise. He disputed any suggestion that he was not a hands-on, involved partner, that he drank to excess, or that he has a mental health condition. The husband denied allegations made by the wife as set out in her affidavit for trial filed 30 June 2021.

90He asserted he does not have an alcohol problem, nor does he use steroids or other drugs.

The wife's position

91The wife is opposed to any change in the children's arrangements until all of the evidence, including that of Dr C, is tested at trial. The wife referred to and repeated various paragraphs of her said trial affidavit where she set out her concerns about the husband's attitude to parenting. Those concerns include that husband was violent to her and the children, he exposed them to violence, he was unwilling to foster the children's relationship with her and her extended family, he was insensitive and lacked insight to the children's needs and was unable to prioritise the children's needs above his own.

92The wife was critical of the husband having multiple partners who have been introduced to the children and deposed he used the women to babysit for him. The wife deposed the husband failed to supervise homework and that he failed to support the children financially at an appropriate level.

93The wife does not accept Dr C's recommendations to increase the children's time with the husband and seeks to cross-examine Dr C at trial.

94In Dr C's report he expressed concern that the husband would confront Child A about the report, and the wife alleged the husband did so. The wife opposed the orders sought for Christmas which she deposed are an example of the husband trying to frustrate the children spending time with her family. She is opposed to the children having unlimited telephone communication with the husband, which she says is disruptive and the children do not want to speak to him.

The children's best interests

95Dr C's report dated 29 June 2021 is of assistance to me. Dr C acknowledged the parties' conflicting views around a number of factual issues. His focus was on the psychological presentation and dynamics between the parties and issues relating to parenting and attachment with the children. I am mindful that Dr C's evidence, as with all of the evidence in the matter, has not yet been tested.

96These are interim proceedings only. I am unable to make any findings in fact and that cannot be done until the evidence has been tested at a final hearing.

97Child A and Child B's best interests is the paramount consideration. To determine what orders are in their best interests, I must consider the primary and additional considerations as set out in the Family Law Act1975 (Cth) to the extent that I consider them necessary and relevant. There is much contested evidence in these proceedings, and I can only therefore give limited consideration to these matters.

98It is likely that the children's relationship with both of their parents is a meaningful one and that it will be to their benefit that it continues.

99As to whether there is a need to protect Child A and Child B from harm in the care of either party, the wife alleged the husband was violent to her and the children and exposed the children to violence between himself and his girlfriends. The wife relied on numerous paragraphs in her trial affidavit as set out above. The wife's allegations are denied by the husband.

100I refer below to the parties' provision for the children's needs including their emotional needs.

101Dr C reported he was not satisfied the children to be at major risk of harm, nor that this is a family violence case.

102The evidence of both parties suggests that the children have been exposed to conflict between their parents. Dr C reported other than limiting time with his father he did not think this had an impact on Child B although there were aspects of the husband's parenting style (using gender shaming and stereotypical views of gender) which do impact Child B. With respect to Child A, Dr C reported:

61.[Child A], on the other hand, appears to be caught in some complex dynamics, in that she sees the father as mean, although she does recognise some aspects are enjoyable. She sees her mother as positive and feels safe with her mother. This type of dynamic makes it difficult for [Child A], in that she will be focusing on “safe” rather than getting on and exploring the world. It is a recipe for anxiety.

103As to the children's views, Child B spoke positively about both of his parents and indicated that when he was with his dad he will miss his mum, and when he is with his mum he will sometimes miss his dad. Dr C described Child B as a reasonably bright lad who is developing well. When asked about his living arrangements, Child B thought he would like them to stay as is and then started speaking about wanting five days at each house. Dr C reported Child B presented as reasonably happy with both houses, although Child B did have some concerns about his father's rough treatment with the dog.

104Dr C described Child A as having a fairly complex psychological presentation and opined that she was aware of some of the dynamics of conflict between her parents. Dr C reported her as loyal to her mother, but he noted a degree of concern about talking negatively of her father. Child A also said she did not like her father hurting the dog and spoke of her father being mean to her. Dr C stated the nature of Child A's presentation and sensitivity around issues indicated it was not easy for her transitioning between two homes, that it created some anxiety. He strongly recommended a continuation of therapy and encouraged both parties to support the same.

105Dr C reported Child A appears to struggle with the time the children currently have with their father and Child B is unable to offer clear views but has a number of expressed positions. Although the husband reported to Dr C that the children want more time with him, Dr C noted that did not match with his observations of the connection the children have with him or his discussions with the children. Dr C reported it was possible the children tell their father this as they feared repercussions if they disagreed.

106Dr C observed the children with both parents. He found the children more reserved with their father than with their mother. He reported that at an attachment level the children are quite secure with their mother, but there is not the same level of attachment with their father resulting in them being a lot more stilted, cautious and reserved.

107As to the parties' provision for the children's needs, the wife expressed concern about a number of aspects of the husband's behaviour. The husband denied the wife's allegations. Dr C reported the children feel secure with their mother but perceive their father's parenting style as authoritarian and punitive, and they are fearful of what they perceive as his mistreatment of the dog. Dr C reported this combination as having an impact on them psychologically. He recommended programs which the husband has undertaken. Dr C viewed the husband as lacking the necessary psychological skills to build up the children's emotional functioning and reported that at times he may do things which impact the children negatively at a psychological level.

108Dr C had no concerns about the wife's ability to meet the children's needs. His observation of the husband was that the children lack the same level of security, which suggested he was not making them feel emotionally safe and secure. Dr C was unsure if the husband had insight into the impact of his own behaviour.

109The proposal of the husband is to introduce an additional overnight each week and to extend weekend time to conclude at 5.00 pm on Sunday. Dr C reported as to the impact on the children of a significant change in their care arrangements. He found Child A to be a complex little girl who has a number of issues around family bubbling beneath the surface. Dr C reported:

75. A significant change away from where she feels safe, eg to be increased with her dad, is likely to spiral her into anxiety, which will then impact educational outcomes and so forth.

110Dr C reported Child B has a good time on current arrangements. He suspected sudden change for Child B would cause him to have a strong negative reaction if he was away from the mother base too long as Dr C was not satisfied the husband would necessarily compensate.

111Dr C reported it was not clear that either parent is promoting or supporting the children's relationship with the other parent. Dr C reported:

72. The mother's legal action is predominantly opposing the father having extended time, which, if the Court finds is based on objective reasons, then that would be appropriate; if the Court finds that it is based on spurious concerns, then this would be seen as lack of promoting.

112In the context of the husband's application for equal time, Dr C recommended an arrangement which is that now sought by the husband in these interim proceedings, with the exception that overnight time occurs on Monday rather than in the middle of the week, as noted above.

113As stated above I am unable to make findings about many of these matters. I am satisfied however that the parties' relationship is a conflictual one and many important factual matters require a determination.

114In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:

120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.

115An order was made by consent that the parties have equal shared parental responsibility for the children. It is not suggested in this interim determination that the children should spend equal time with the parties. The primary issue is whether the children's time with the husband should increase by a further night each week. The husband noted that the existing orders were made when Child A was six and a half and Child B was three and a half, that his time with them has not increased in two and a half years.

116I am not however persuaded that in the circumstances of Child A and Child B that the change in their arrangements as proposed by the husband would be in their best interests. I have come to that conclusion taking into account the matters set out below.

117The parties disagree as to whether the children want to spend more time with their father or not. Their views were however independently reported by Dr C and he concluded that Child A appears to struggle with the time the children currently have, and Child B was unable to offer clear views.

118Dr C was concerned that the children may be telling their father what they want him to hear, this being a common strategy that children use when conflict is high.

119I am not persuaded that further overnight time is what the children want at this time, having regard to Dr C's report as to their views.

120It is not easy for Child A to transition between two homes which creates anxiety for her. Dr C reported the children feel secure with their mother whereas there is not the same level of attachment with the father.

121In circumstances where there is a risk of anxiety to Child A and a risk of a strong negative reaction for Child B if there is a significant change in the children's care arrangements, a gradual increase in time would be one which is in their best interests.

122I am not persuaded that the children's time with the husband should be increased to the arrangement sought by him. I intend to take a cautious approach as I consider that at this interim stage, maintaining the stability of the existing arrangements, or close to those existing arrangements, is in the children's best interests.

123I do consider that the children's time with the husband at weekends could be extended to 5.00 pm. It seems to me that to conclude the weekend at 12.00 noon curtails the opportunities the children have for activities with the husband and it is likely their weekend with him would be more relaxed and enjoyable if it was to conclude at 5.00 pm on a Sunday. In that way the children have a full weekend with the husband and a full weekend with the wife on alternate weekends.

124As to Christmas, it is the wife's turn to have the children for the three-day period. Clearly at the time these orders were made, they were considered to be in the children's best interests. I make no comment on whether a division of time, including a sharing of Christmas Day, might be one which is preferable for the children in the future.

125As to telephone communication I can understand the difficulties that fixed times give rise to, especially when children are reluctant to talk on the phone for any length of time. I consider that an order providing that the children be at liberty to telephone the parent with whom they are not living in accordance with their wishes is one which is in their best interests. They have access to a shared mobile phone. The children will call their father if they wish to do so. Both parties alleged the other will not allow the children to make calls when with the other parent. I consider the call should be initiated by the children in accordance with their wishes rather than by the non-residence parent as the latter arrangement is likely to cause disruption and further conflict.

THE PROPOSED ORDERS

126Subject to hearing from senior counsel, I propose to make the following orders:

1Until further order, paragraph 4(a) of the orders made on 19 June 2019 be varied to provide that the time the children spend with the father during the school terms, every second weekend concludes at 5.00 pm on Sunday.

2Until further order of the Court, the children have telephone communication with the party with whom they are not living or spending time in accordance with their wishes with the call to be initiated by the children.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

21 DECEMBER 2021