Hemswold and Hemswold and Ors

[2020] FamCA 252

FAMILY COURT OF AUSTRALIA

HEMSWOLD & HEMSWOLD AND ORS [2020] FamCA 252

FAMILY LAW – Parenting – whether time with parent should be supervised or with a person in substantial attendance – location of time with father to facilitate child developing relationship with father – displacement of presumption in favour of equal shared parental responsibility – inconsistency with family violence order – property – restraints on withdrawing funds from business accounts.

Family Law Act 1975 (Cth) 60CA, 60B, 60CC, 61DA, 65DAA, 68P, 68Q, Division 7A

Family Law Rules 2004 Rule 13.04, Division 15.5.2

SS v AH [2010] FamCAFC 13
U & U (2002) 211 CLR 238
Morgan & Miles (2007) FLC 93-343

APPLICANT: Ms Hemswold

1st RESPONDENT: Mr Hemswold

2nd RESPONDENT: Mr Star

3rd RESPONDENT: Ms Star

FILE NUMBER: CAC 584 of 2020

DATE DELIVERED: 20 April 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Phelps Reid Foster Johnson

COUNSEL FOR THE 1ST RESPONDENT: Mr Dickson

SOLICITOR FOR THE 1ST RESPONDENT: Farrar Gesini Dunn

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS : Dobinson Davey Clifford Simpson

Orders

Parenting

1. That X (born … 2019) (the child) live with the Mother.

2. That the child spend time with the Father:

   (a)For one period of one hour each week, being from 5.00 pm until 6.00 pm on Thursday unless otherwise agreed; and

   (b)For one period of two hours each week, being from 11.30am until 1.30pm on Sunday unless otherwise agreed.

3. That for the time the child spends with the Father:

   (a)       For the first three sessions following the making of these orders:

   (i)Such time shall take place at the maternal grandparents’ home, in the front half of their residence;

   (ii)Such time is to be supervised by the Father’s sister, Ms C and the Mother’s sister, Ms K; and

   (iii)No other people are to be in attendance during X’s time with her Father.

   (b)       Thereafter:

   (i)Such time shall take place at the Father’s home; and

   (ii)The Father is to ensure that his sister, Ms C, is in substantial attendance.

   (iii)That handovers occur by the Mother (or her nominee) delivering the child to the Father’s home at the commencement of time and the Father (or his nominee) delivering the child to the Mother’s home at the conclusion of time.

4. That on or within three days of 4 June 2020, the Father undergo hair follicle testing (at his own cost) to test for cocaine, and shall provide the results of same to the Mother’s lawyer.

5. That the Father undertake blood tests to test for the presence of steroid drugs and provide the results to the Mother or her solicitor within 24 hours of receipt.  Such tests are to be undertaken within 48 hours of a request by the Mother or her solicitor and such requests may not be made more frequently than once per fortnight.  This order shall be discharged on the Father providing three consecutive tests where steroid drugs are not detected in the test results.

6. That within 28 days of the date of these Orders, the Father shall enrol in (and shall subsequently complete):

   (a)       A Men’s Behavioural Change Program.

7. That to the extent any of these Orders are inconsistent with any provision of a Family Violence Order, the Family Violence Order is (to that extent only) declared to be invalid pursuant to s 68Q of the Family Law Act 1975.

8. It is requested that the Canberra Registry of the Family Court of Australia arrange for copies of this order to be provided to the ACT Magistrates Court, a child welfare officer of the ACT and the Commissioner of the Australian Federal Police in accordance with s 68P of the Family Law Act 1975.

Restraints

1. That Orders 1-3 of the Orders dated 31 March 2020 be discharged.

2. That until further order and unless otherwise agreed between the parties, the Husband be restrained from withdrawing or accessing any sum of money from the bank accounts of J Pty Ltd (the Company), except in the ordinary course of business.  For the purposes of this Order:

   (a)withdrawing or accessing any sum of money to pay for building, development or any other works undertaken at the property at G Street, Suburb K is not within the ordinary course of business;

   (b)withdrawing or accessing any sum of money to make a Division 7A loan from the Company is not part of the ordinary course of business; and

   (c)       making personal drawings from the Company account.

Interim Support

1. That until further order, the Husband pay to the Wife the sum of $1,000 per week by way of spousal maintenance (such sum to be reduced by the amount of any child support assessment in force from time to time, provided the Husband is meeting such child support obligation and noting that the Husband has agreed to pay $450 in notional child support that was due last week).

Disclosure

1. That within 24 hours, the Husband ensure that the Wife has and maintains complete ‘view only’ access to the Administrative records of the Company.

2. That within 24 hours, the Husband ensure that the Wife has and maintains complete ‘view only’ access to the bank accounts of the Company.

3. That in accordance with Rule 13.04 of the Family Law Rules 2004, each party provide copies of disclosure documents as requested by the other party, within 14 days, including but not limited to the following documents:

   (a)the party's earnings, including income that is paid or assigned to another party, person or legal entity;

   (b)any vested or contingent interest in property;

   (c)any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

   (d)any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

   (e)the party's other financial resources;

   (f)any trust:

   (i)of which the party is the appointor or trustee;

   (ii)of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

   (iii)of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;

   (iv)over which the party has any direct or indirect power or control;

   (v)of which the party has the direct or indirect power to remove or appoint a trustee;

   (vi)of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

   (vii)of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

   (viii)over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;

   (g)any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

   (i)in the 12 months immediately before the separation of the parties; or

   (ii)since the final separation of the parties; and

   (h)liabilities and contingent liabilities.

Business Valuation

1. That Mr E of H Company be appointed as a Single Expert to value the Company (“the Report”).

2. That the Terms of Reference for the purposes of the Report shall be in accordance with the proposed letter of joint instruction to be agreed between the parties and failing agreement the matter to be relisted for the purposes of determination on this issue only.

   AND IT IS NOTED that the Expert is appointed pursuant to Division 15.5.2 of the Family Law Rules 2004.

3. That the Husband pay the costs of the Single Expert in the first instance, on condition that one half of such costs be deducted from any property settlement to which the Wife is otherwise entitled at the conclusion of the property matter.

F Company Money

1. That in respect of the $69,000 to be paid to the Company by F Company Insurance (the F Company Funds);

   (a)The Husband shall within 72 hours provide a copy of the quote provided to F Company Insurance to the Wife;

   (b)Otherwise, the parties agree for the issue of the F Company Funds to be withdrawn and the Court notes neither the Husband or Wife seeks an interim hearing about the application of those funds at this stage.

Wife’s Chattels

1. That in the event the Wife wishes to have any chattel located at the Husband’s home in her possession on an interim basis, she shall notify the Husband in writing, and within 7 days of same, the Husband shall either:

   (a)       Make arrangements to deliver the chattel to the Wife;

   (b)       Inform the Wife in writing he does not agree to her having the chattel; or

   (c)       Tell the Wife he cannot locate the chattel.

IT IS FURTHER ORDERED THAT

1. The matter be transferred to the Registrar’s list pending further application or removal from that list to prepare the matter for trial. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 584 of 2020

Ms Hemswold

Applicant

And

Mr Hemswold

Respondent

And

Mr Star and Ms Star

2^nd & 3^rd Respondents

REASONS FOR JUDGMENT

1. The parties to these proceedings are the Applicant Wife, Ms Hemswold, the Respondent Husband, Mr Hemswold, along with Mr Star and Ms Star, the parents of the Applicant who assert an interest in the property held by the parties.  The interim proceedings between the parties involve parenting arrangements for the parties’ seven-month-old daughter, X, born in 2019, along with issues pertaining to their property, maintenance and support for the Mother and X and injunctive relief in respect of the operation of the business that all four of the parties were, until the date of separation, involved in.

2. Temporary injunctive relief was granted in respect of the operation of the business on 31 March 2020 pending the listing of the matter for an interim hearing on 14 April 2020, by which stage each of the parties would have the opportunity to put on appropriate affidavit evidence.  By the proceedings on 14 April 2020 the issues in dispute between the parties had been narrowed, with the parties agreeing as to the bulk of the matters.  The dispute had been reduced in the manner indicated by the document contained at Annexure 1 of this judgment, with matters otherwise resolved by consent.  It is convenient to deal with the disputed matters by the subject matter of each. 

Parenting

1. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children.  That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA. 

2. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary[1] to:

   keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.

   [1]SS v AH [2010] FamCAFC 13 at [81]

3. Despite this limitation[2]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2]SS v AH [2010] FamCAFC 13 at [100]

4. In doing this the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation[3].

   [3]U & U (2002) 211 CLR 238

5. The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.

6. If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles[4] as “the careful exercise of a structured discretion to determine the appropriate order to be made”.  That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

   [4] Morgan & Miles (2007) FLC 93-343

7. The parties were unable to agree as to the allocation of parental responsibility on an interim basis.  The presumption in favour of an order for equally shared parental responsibility was rendered inapplicable by the evidence of family violence.  Although it is premature to make findings in respect of the issues raised by the parties in respect of family violence, the evidence lead was sufficient to conclude that there are reasonable grounds to believe that a parent of the child has engaged in family violence.  For example, the text exchange at page 59 of the annexures to the affidavit of Ms Hemswold dated 25 March 2020, as it related to the allegation that the Husband had choked the Wife, was sufficient to raise such reasonable grounds.  Accordingly, the presumption was rendered inapplicable.

8. The competing position between the parties was, on the part of the Husband, that an order for equally shared parental responsibility should be made and, on the part of the Wife, that there should be no order in respect of parental responsibility, which would then leave parental responsibility as jointly held between the parties. 

9. The allocation of parental responsibility falls to be determined in circumstances where there is significant conflict between the parties.  The Wife appears to be the undisputed primary carer of X, and the Husband has spent no time with X for a period of in excess of two months.  Under those circumstances the obligations that would attach, should an order for equally shared parental responsibility be made, would impose a burden of cooperation between the parties that at present they appear to be unable to discharge.  While at present there is no indication that a long-term decision is imminent in respect of X, to impose the requirement of cooperation between the parents under the circumstances alleged by each, would not be in X's best interests, due to the likely conflict that would be occasioned. 

10. Rather, it is preferable for X that the current circumstance of joint parental responsibility whereby each parent is empowered to make long-term decisions (noting that in a practical sense this will fall to the Wife) be maintained for the interim period.  The uncontested issue of the Wife having been X’s primary carer points to her capability, and it being appropriate that she be able to make decisions during this interim period in respect of X.  Accordingly, no order will be made as to parental responsibility.

11. The parties were able to agree as to the time that the Husband would spend with X, being limited at this stage to two short periods each week.  The parties were also able to agree that there would be another person who would be present for such periods of time.  What was not able to be agreed was the location at which the Husband would spend time with X, the identity of who would be present and the precise role of whoever would be present.

12. The first aspect of that dispute was as to whether or not the order should provide for a person being in “substantial attendance" or whether the time should be "supervised".  Despite the parties’ inability to resolve this particular aspect of the dispute I was advised that the difference was merely a matter of semantics.  I do not accept that it is a question of mere semantics.  It may be discerned that the implied obligations that arise where a person is conducting supervision may be distinguished from a person merely being present.  While it may be thought that in either case, such a person would be alert as to the interests of the child, the implications occasioned by supervision are stronger than those occasioned by an obligation of mere presence.

13. Here, the live issues that go to the question of supervision or presence, or location, or identity of the other persons present were said to be connected to a current lack of familiarity between X and her father, issues as to the Husband’s capacity, other risk issues posed by the Husband as observed against an alleged background of abusive behaviour, short temper and steroid abuse, and potential exposure to COVID-19.

14. In terms of the allegations of lack of capacity and other risk it may be observed that these are ameliorated by the periods of time provided for in the orders.  They are also adequately ameliorated whether the time is supervised or takes place merely in the presence of another person.  That sufficient amelioration points to the less onerous obligation as being the more appropriate, being that of “in the presence of".

15. The question of familiarity posed a more difficult question.  The Wife’s proposal is that the time take place at her parents’ home, where she and X currently reside.  Such surroundings are likely to be familiar to X.  She also proposes that it take place under the supervision of her sister, who also resides at that location.  She is a person with whom X would be familiar.  The Husband’s proposal is that the time take place in the presence of his sister, and at his home.  His home is where X has lived the bulk of her life, but is not a place that X has spent time at for a period of in excess of two months in her short life.

16. The Wife points to the benefits of familiarity for X in the reintroduction to her father.  She also submits that at this stage it cannot be accurately predicted how long it will take X to settle into time with her father.  There is some merit in this position.

17. On the other hand, it may be reasonably anticipated that the Husband spending time with X at the maternal grandparents’ home presents an artificial environment in which he is to spend time with X, particularly in the context of the high degree of discord between the parents.

18. A balance needs to be struck between these two positions even if it cannot be precisely ascertained when it is that X might be comfortable with the transition from one to the other.  Accordingly, orders will be made that provide for the first three sessions to take place in accordance with the regime proposed by the Wife (albeit with the term “in the presence of" rather than “supervised") which will assist in X's familiarity with her father and his sister before the regime transitions to take place at the Husband’s home.  This maximises the potential for X to derive benefit of meaningful relationship with her father, without an undue exposure to risk.

1. This does not disregard the concerns raised by the Wife in respect of COVID-19.  It was submitted for her that the former home of the parties is a display home and hence X would come into contact with a number of people.  The Husband’s evidence is that he has ceased allowing people to visit the home as a display home.  Accordingly, there is a limited subset of people that X might come in contact with, which is not such as to raise a significant concern about exposure to COVID-19.

2. It should also not be thought that this disregards the other concerns the Wife raises about steroid and cocaine abuse on the part of the Husband.  These will be dealt with by other aspects of the disputed orders.

3. The first of these related to whether there should be a regime in place in respect of testing the Husband in respect cocaine use.  It may be observed that he has conceded his use of cocaine although he disputes that it has been a use since November 2019.  His use of cocaine is also supported by a previous hair follicle test which is expressed, in terms of its results, in the following manner.

4. The hair follicle testing in respect of cocaine contained a page 17 of the Husband's tender bundle indicated negative result from the period 4 February to 4 March 2020 but with positive results for the portion of the hair that corresponded with the period 4 December through to 4 February 2020.  Without determining whether or not this is conclusive as to cocaine use outside the period conceded by the Husband it is sufficient as to point to the need for further testing as the spectre of more current use of cocaine is raised by the results.

5. It may be observed that the Wife’s case incorporates evidence that following the use of cocaine the Husband's parenting capacity deteriorates, as does his conduct towards those around him.  Under those circumstances it is appropriate that there be a further safeguard in respect of cocaine use (noting that such deterioration may be the subject of dispute on the part of the Husband).  The imposition of a further hair follicle test to take place in June 2020 (thereby retrospectively covering the current period) is not unduly invasive, provides a strong disincentive and accountability on the part of the Husband as to further cocaine use, and hence is protective in respect of parenting capacity towards X and other behaviour on the part of the Husband.

6. A further aspect that has been raised has been the steroid use by the Husband.  It appears that the past use of steroids is not disputed by the Husband, although the extent of such use is.  It is agreed between the parties that there will be a testing regime by means of administration of blood tests.  The Wife asserts that the blood testing regime should be open-ended and conducted at her nomination.  The Husband accepts that it should be at the Wife's nomination, but that the blood testing regime should come to an end once there are three clear blood tests.  At this stage, the ongoing potential to scrutiny posed by three blood tests acts as a sufficient safeguard without proposing an unduly invasive burden upon the Husband.  There may be circumstances that arise that cause a revisiting of this regime in the future, including, should any of the blood tests come back tainted by steroids, but this will be a matter for future resolution.  At present the regime as proposed by the Husband is sufficient for the protection of X.

7. The Husband agrees to attend upon a men's behavioural change program as sought by the Wife.  He has not at present agreed to either attending a parenting course or to enrol in for supervised time with L Services, a contact supervision service.

8. While, given the issues that have been raised in these proceedings, the completion of a parenting course by the Husband would have the potential to support a future contention made by him that is not lacking in parenting capacity, at present an order to compel him to do so against his wishes is not established to be in X's best interests.  Similarly, the use of L Services’ supervision service is not indicated at this stage, although a failure to engage in the enrolment process may mean that, should such be indicated at a future date in these proceedings, then there will be a delay in the time that the Husband might spend with X.

9. The parties agreed that to the extent that these orders are inconsistent with the provision of the Family Violence Order that they should override the operation of that order.  The limited extent to which the orders may do so, being confined in large part to the time that the Husband might spend with X and accordingly be approximate to the Wife, will take place with the protection of third parties being present and with a limitation in the nature of that proximity.

Interim support

1. The parties were able to agree as to this matter.

Disclosure

1. The parties were able to agree as to this matter.

F Company money

1. While this matter was initially in dispute the parties have withdrawn it as an issue to be determined on an interim basis.

Business valuation

1. The parties were able to agree as to this matter.

Wife's chattels

1. The parties proposed two regimes for the resolution of the Wife’s removal of items from the former matrimonial home.  I was not addressed as to why a particular regime might be seen as superior or more appropriate than the other, other than the previous failure of a cooperative approach.  Doing the best that I can, the Husband's regime commends itself on the basis that it provides an accountable process to identify what is either received by the Wife or alternatively, what it is that the Husband declines to provide to the Wife.  The mechanism proposed by the Wife does not have the same transparency and so the Husband's mechanism will be preferred.

Restraints 

1. The parties were largely agreed as to the restraints that should be in place, stating that the current temporary restraint put in place should be discharged.

2. What remained in contention was the capacity of the Husband to make personal drawings from the company account without the consent of the Wife and, in a context where the parties agree to permit the business to make drawings in its ordinary course, there was a dispute as to whether or not a particular project fell within the ordinary course of the business.

3. In general terms, the Husband's account of the business is of engaging in the construction of residences.  The company funds that construction by a means of billing progress payments, with the receipt of the progress payment funding the stage of the building.  This, he deposed, was the regular methodology adopted by the business which involved the construction only of residences by contract.

4. In contrast to this, the Husband notes that the company has acquired a property in Suburb K and he proposes to build a residence on that property on a speculative basis in the context of the current COVID-19 crisis.  This he says is justified as there either is, or is anticipated to be, a sharp drop off in the contracts that he is able to obtain for the company for the construction of residences.  His position is that the capacity of the company to build a speculative home provides ongoing work for the company.

5. In short, the Husband's position is that the construction of homes is the ordinary course of business and so this step should be able to be taken.  The Wife’s position is that while the construction of residences is the ordinary course of business it is not ordinarily conducted in this manner by the company.

6. It should be observed that in justifying this step of building the home on a speculative basis the Husband pointed to future circumstances that may arise to affect the company.  Those future circumstances may indeed justify such a course of action or it may prove in the face of those future circumstances that such a course of action is unwise in respect of the parties’ property.

7. At present, the construction of a residence on a speculative basis should not take place without the agreement of the parties.  The Wife's restraint should be in place.  It should not be thought this precludes a revisiting of the matter when or if the circumstances anticipated by the Husband arise such as to justify the step being taken as a mechanism to preserve the pool of property.

8. The Husband should also not be at liberty to draw from the company accounts for personal purposes without agreement from the Wife.  Restraining him from doing so is a reasonable measure for the preservation of the key asset of the parties, being an asset with large cash reserves.  Given the income that the Husband receives from the company, additional drawings should be the subject of mutual agreement.

Conclusion

1. Orders will be made in accordance with the agreement of the parties and as otherwise determined above. 

2. The provision in relation to the Husband spending time with X at the residence of the Wife is inconsistent with Order 1 of the current Family Violence Order in that it prohibits attendance at that residence.  The orders specify the three limited occasions for the attendance by the Husband at that residence.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 April 2020.

Associate: 

Date:  20 April 2020

Annexure 1

MINUTE OF INTERIM ORDERS
(BOLD INDICATES ORDERS NOT AGREED BUT SOUGHT BY FATHER)
(ITALICS INDICATES ORDERS NOT AGREED BUT SOUGHT BY MOTHER)

Parenting

1. That the parties have equal shared parental responsibility for the child, X (born in 2019).

2. That the child live with the mother.

3. That the child spend time with the father:

   a.For one period of one hour each week, being from 5.00pm until 6.00pm on Thursday unless otherwise agreed;

   b.For one period of two hours each week, being from 11.30am until 1.30pm on Sunday unless otherwise agreed.

4. That for the time the child spends with the father:

   a.Such time shall take place at the father’s home; and

   b.The father is to ensure that his sister, Ms C, is in substantial attendance.

5. That all handovers occur by the mother (or her nominee) delivering the child to the father’s home at the commencement of time and the father (or his nominee) delivering the child to the mother’s home at the conclusion of time.

6. That for the time the child spends with the father:

   a.Such time shall take place at the maternal grandparents’ home, in the front half of their residence;

   b.Such time is to be supervised by the father’s sister, Ms C and the mother’s sister, Ms K; and

   c. no other people to be in attendance during X’s time with her father.

7. That on or within three days of 4 June 2020, the father undergo hair follicle testing (at his own cost) to test for cocaine, and shall provide the results of same to the mother’s lawyer.

8. That the father undertake blood tests to test for the presence of steroid drugs and provide the results to the mother or her solicitor within 24 hours of receipt.  Such tests are to be undertaken within 48 hours of a request by the mother or her solicitor and such requests may not be made more frequently than once per fortnight.  This order shall be discharged on the father providing three consecutive tests where steroid drugs are not detected in the test results.

9. That within 28 days of the date of these Orders, the father shall enrol in (and shall subsequently complete):

   a.A Men’s Behavioural Change Program;

   b.A Triple P Parenting Course or equivalent.

10. That the Father do all things necessary to enrol with L Services supervised contact service within 7 days, including completing all necessary paperwork/intake information forms to ensure that the supervised time may commence.

11. That to the extent any of these Orders are inconsistent with any provision of a family violence order, the family violence order is (to that extent only) declared to be invalid.

Restraints

1. That Orders 1-3 of the Orders dated 31 March 2020 be discharged.

2. That until further order and unless otherwise agreed between the parties, the Husband be restrained from withdrawing or accessing any sum of money from the bank accounts of J Pty Ltd (the Company), except in the ordinary course of business.  For the purposes of this Order:

   a.withdrawing or accessing any sum of money to pay for building, development or any other works undertaken at the property at G Street, Suburb K is not within the ordinary course of business;

   b.withdrawing or accessing any sum of money to make a Division 7A loan from the Company is not part of the ordinary course of business; and

   c.making personal drawings from the Company account.

Interim Support

1. That until further order, the Husband pay to the Wife the sum of $1000 per week by way of spousal maintenance (such sum to be reduced by the amount of any child support assessment in force from time to time, provided the husband is meeting such child support obligation (and noting that the husband has agreed to pay $450 in notional child support that was due last week).

Disclosure

1. That within 24 hours, the Husband ensure that the Wife has and maintains complete ‘view only’ access to the Administrative records of the Company.

2. That within 24 hours, the Husband ensure that the Wife has and maintains complete ‘view only’ access to the bank accounts of the Company.

3. That in accordance with Rule 13.04 of the Family Law Rules 2004, each party provide copies of disclosure documents as requested by the other party, within 14 days, including but not limited to the following documents:

   (a)  the party's earnings, including income that is paid or assigned to another party, person or legal entity;

   (b)  any vested or contingent interest in property;

   (c)  any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

   (d)  any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

   (e)  the party's other financial resources;

   (f)  any trust:

   (i)  of which the party is the appointor or trustee;

   (ii)  of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

   (iii)  of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;

   (iv)  over which the party has any direct or indirect power or control;

   (v)  of which the party has the direct or indirect power to remove or appoint a trustee;

   (vi)  of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

   (vii)  of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

   (viii)  over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;

   (g)  any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

   (i)  in the 12 months immediately before the separation of the parties; or

(ii)  since the final separation of the parties; and

(h)  liabilities and contingent liabilities.

Business Valuation

1. That Mr E of H Company, be appointed as a Single Expert to value the Company (“the Report”).

2. That the Terms of Reference for the purposes of the Report shall be in accordance with the proposed letter of joint instruction to be agreed between the parties and failing agreement the matter to be relisted for the purposes of determination on this issue only.

   AND IT IS NOTED that the Expert is appointed pursuant to Division 15.5.2 of the Family Law Rules 2004.

3. That the Husband pay the costs of the Single Expert in the first instance, on condition that one half of such costs be deducted from any property settlement to which the Wife is otherwise entitled at the conclusion of the property matter.

F Company Money

1. That in respect of the $69,000 to be paid to the Company by F Company Insurance (the F Company Funds);

   a.The Husband shall within 72 hours provide a copy of the quote provided to F Company Insurance to the Wife;

   b.Otherwise, the parties agree for the issue of the F Company Funds to be withdrawn and the Court notes neither the husband or wife seeks an interim hearing about the application of those funds at this stage.

Wife’s Chattels

1. That in the event the Wife wishes to have any chattel located at the Husband’s home in her possession on an interim basis, she shall notify the Husband in writing, and within 7 days of same, the Husband shall either:

   a.Make arrangements to deliver the chattel to the Wife;

   b.Inform the Wife in writing he does not agree to her having the chattel; or

   c.Tell the Wife he cannot locate the chattel.

2. That the Applicant be permitted to have uninterrupted access to the former matrimonial home, located at M Street, Suburb N in the Australian Capital Territory, for one whole day, from 8am to 5pm, to collect various items, including linen and kitchen wear. 

3. That, within 7 days of the date of these Orders, the Applicant will provide the Respondent with a list of the items she wishes to collect.

4. That within 7 days of the date of these Orders, the Applicant shall nominate to the Respondent three days within the following 14 days which she is available to attend the property and the Respondent shall select one of those days.

5. That on behalf of the Respondent, Ms C may be present at the property for the day of collection.