HULLS & HULLS

FAMILY COURT OF AUSTRALIA

HULLS & HULLS

[2013] FamCA 943

FAMILY LAW – CHILDREN – Interim – Parental Responsibility – Where an Order is made for Equal Shared Parental Responsibility – With whom the children spend time – Time to be spent with the Father – Whether an order should be made for the Father to attend a psychiatrist for a psychiatric report to be used in the proceedings.
FAMILY LAW – PROPERTY – Interim – Preparation of financial statements.

Family Law Act 1975 (Cth) s60B, s60CA, s60CC, s61DA, s65AA, s65D, s69ZN, s69ZQ(c).

Goode & Goode (2006) 36 Fam LR 422.
Marvel & Marvel (No 2) (2010) 43 Fam LR 348.

APPLICANT:

Mr Hulls

RESPONDENT:

Ms Hulls

FILE NUMBER:

BRC

6292

2013

DATE DELIVERED:

4 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

11 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Simonidis Steel Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

Parenting

That the children B, born … 1999 and C, born … 2002, (“the children”) live with the mother.
That term time is suspended during any school holiday period and recommences on the day on which the children return to school.
That in the event that the Father is not able to care for the children due to work related events:
(a)the Father is to provide the mother with one (1) weeks notice of his unavailability; and
(b)the children are to live with the mother during any period that the Father is unavailable.
That changeovers shall take place as follows:
(a) during school time, at the school(s);
(b)during non-school time, at the parent’s residence who is commencing time with the children and at the conclusion of that time with the children, that parent shall return the children to the other parent.
That the Father and mother shall:
(a)keep the other parent informed at all times of their residential address and land and mobile telephone numbers;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorise that practitioner with information that they are lawfully able to provide about the children; and
(c)inform the other parent as soon as reasonably practical of any medical condition, significant health issue or illness suffered by the children.
That this Order is an authority for the Father and mother to obtain from the children’s schools, copies of school reports, school photographs and any other document regarding the academic progress or achievements of the children and notification of events such as parent/teacher events, sports day(s) and concerts.
That this Order is an authority for the Father and mother to obtain from any treating medical practitioner, hospital and/or health care professional information concerning the health of the children.
That the parties undertake to the Court that while the children are in their care:
(a)they will not denigrate the other party or their spouse in the hearing or presence of the children and will use their best endeavors to ensure that others do not denigrate the other party or their spouse in the hearing or presence of their children; and
(b)will not consume alcohol to excess or illicit drugs or remain in the company of people consuming alcohol to excess or illicit drugs;
(c) they will not discuss matters before this Court with the children; and
(d)they will ensure that the children are not exposed to any inappropriate images or content via any means including electronic media.

Family Report

That pursuant to section 62G of the Family Law Act 1975 (Cth) a Family Report be prepared by Mr D (“the family report writer”).
The family report writer is appointed to prepare a written Family Report to the Court and to the parents in relation to:
(a) identification of the issues for the children;
(b)a consideration of the relevant factors contained in section 60CC of the Family Law Act 1975 (Cth);
(c) any recommendations as to the parenting of the children; and
(d)any recommendations as to programmes that may assist the parties to establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.
That the family report writer be provided with a copy of all documents filed in these proceedings.
The parents make a genuine attempt to consult and agree upon a joint set of instructions to provide to the family report writer and in the event that the parties are unable to agree on a joint set of instructions, then each party provide a set of instructions to the family report writer with a copy of those instructions to be provided contemporaneously to the other party.
Any correspondence with the family report writer be in writing and contemporaneously provided to the other party.
The mother and the Father attend any appointments arranged by the family report writer and cooperate with the family report writer.
The mother and the Father ensure the attendance of the children at any appointments arranged by the family report writer whilst the children are in their care.
The family report writer is at liberty to request the attendance of any other related or significant person or persons for interviewing for the purpose of preparing the Family Report.
The costs associated with the Family Report will be shared equally between the parents.
That the mother provide the father with copies of the children’s passports and birth certificates.

Property

That the parties do all things necessary to cause E Pty Ltd to declare a dividend in the sum of $100,000.00 and pay same to F Pty Ltd as trustee for the Hulls Family Trust with payment of such dividend to be made from the term deposit held by E Pty Ltd (account no. 332485).
That, thereafter, the parties request that F Pty Ltd as trustee of the Hulls Family Trust distribute to each of them the sum of $50,000.00 by way of partial property settlement.
That subject to subparagraph (b) and pending further order, the Husband be prohibited from withdrawing any money from any account in the name of G Pty Ltd save for in the ordinary course of business and that for this purpose:
(a)until the Husband engages an accountant for G Pty Ltd, the Husband provide to the Wife, through the Wife’s solicitors, on a monthly basis, an accounting for monies drawn on any bank account conducted by G Pty Ltd;
(b)upon the Husband engaging an accountant for G Pty Ltd, the Husband hereby authorises the accountant to provide to the Wife, all bank statements for any bank account conducted by G Pty Ltd; and
(c)the Husband be restrained and an injunction issue restraining the Husband personally, or through his servants and agents from withdrawing or expending an amount greater than the sum of $250,000.00 in any one transaction without first receiving the Wife’s written consent.
That:-
(a)the parties immediately do all things necessary to authorise Westpac Bank to periodically draw upon account no. … for the purpose of payment of periodic loan repayments pertaining to H Street, Suburb I, more particularly described as loan numbers … and …;
(b)thereafter Westpac Bank joint account no. … only be operated upon the joint written authority of the parties, save for that the Wife be allowed to draw on that account for the following purposes:
(i)to periodically pay home and contents insurance policy premiums pertaining to H Street; and
(ii)to periodically make payments of rates and utility charges pertaining to H Street.
That, save for the purposes set out herein and for the purposes of compliance with statutory obligations, each of the parties be prohibited from withdrawing any money from any account in the name of E Pty Ltd, F Pty Ltd as trustee for the Hulls Family Trust, Hullsco Investments Pty Ltd as trustee for the Hulls Superannuation Fund without written agreement between the parties.
That the Husband cause G Pty Ltd to provide disclosure of the following documents (“the G disclosure documents”):-
(a)       operational billings;
(b)       invoices;
(c)       operational pay summaries;
(d)       payroll records;
(e)       original time sheets and/or electronic format time sheets; and
(f)       any registers held by G Pty Ltd,
for the years ended 30 June 2010, 30 June 2011, 30 June 2012 and 30 June 2013 with respect to each of the following clients:
(g)       J Stadium;
(h)       K Ground;
(i)        Woodford Folk Festival;
(j)        L Festival;
(k)       M Festival;
(l)        N Centre;
(m)      O Pty Ltd;
(n)       P Festival; and
(o)       Q Festival.
That the Husband provide a copy of the G disclosure documents referred to in paragraph 21 to R Chartered Accountants and the Wife within seven (7) days of their receipt.
That the parties jointly request R Chartered Accountants to:
(a) review the valuation performed by it and dated 7 June 2013; and
(b)provide a written report confirming the valuation remains accurate and if not, providing an updated valuation.
That upon provision of the report from R Chartered Accountants Mr S is appointed as Trustee for sale of the business “G” (“the sale”) being the business owned by the company G Pty Ltd (“the company”).
That for the purposes of the sale, the Trustee be entitled to adopt such sale method as he deems appropriate in the circumstances, including, but not limited to, a private sale, a sale using business brokers, or a sale by tender.
That the Trustee is authorized and empowered to:
(a)negotiate on behalf of the company with any prospective buyers of the business;
(b)liaise with the company accountants and any other expert that have previously been retained by the parties with respect to valuation of the Company and the business;
(c)retain lawyers for the purposes of preparation of any sale contract for the business and obtain advice on the terms and conditions proposed for any sale;
(d)engage business brokers or agents for the purpose of listing and advertising the business for sale;
(e)obtain advice from the company accountants in respect of any aspect of the sale process; and
(f)incur expenses on behalf of the company that are necessary for the sale process.
That the Director of the company and the Wife shall co-operate and provide assistance to the Trustee in all aspects of the sale process and in particular are to:
(a)make themselves reasonably available to provide any information required by the Trustee and provide the Trustee with all management and financial information with respect to the company and the business as requested by him from time to time;
(b)make themselves available for any meeting with prospective purchasers to answer any questions relating to the business and attend any meetings or conferences required for the sale process;
(c)notify the Trustee of any matter they become aware of that could materially affect the value of the business and/or the company or that would require disclosure to any prospective purchaser;
(d)immediately upon becoming aware of the identity of any possible purchaser, inform the Trustee and provide him with the name and contact details of any possible purchaser
(e)not have direct discussions with any proposes purchaser, without the prior agreement of the Trustee;
(f)sign any authorities required by the Trustee to enable the Trustee to hold himself out as the representative of the company; and
(g)maintain the confidentiality between themselves of any information obtained through the sale process.
That the Trustee is authorised to communicate directly with the parties relating to any aspect of the sale.
That the Trustee is authorised to charge for his services in accordance with his usual rates.
That the Trustee shall so far as practicable, consult with the Husband and the Wife during the sale process on matters of substance and take their views before decisions are made by him in the execution of the trust.
That the parties and the Trustee have liberty to apply on five (5) days’ notice, each to the others.
That within seven (7) days the Wife return the following property to G Pty Ltd:
(a)       Laptop 1;
(b)       Desktop 1;
(c)       Laptop 2;
(d)       Mobile phone;
(e)       Tablet;
(f)       Laptop 3; and
(g)all artwork located at H Street, Suburb I, save for the painting titled “Painting 1”.
That by way of partial property settlement the Wife receive:
(a) the “Painting 1” portrait at a value of $420.00; and
(b)the “bookshelves” (listed as unit number 56 of the All Asset Appraisals valuation of 6 June 2013) at a value of $1,140.00; save that in the event the Wife does not wish to retain the shelving then she is to return same to G Pty Ltd within seven (7) days,
without further claim against her by the Husband and G Pty Ltd.

IT IS ORDERED BY WAY OF INTERIM ORDER

That the Husband provide a copy of the G Pty Ltd disclosure documents referred to in paragraph 24 to R Chartered Accountants and the Wife within seven (7) days of their receipt.
That the parties cause T Accountants (formerly known as T Accountants) to be appointed to prepare taxation returns for the period up to the year ending 30 June 2013 for the parties personally, including for the husband if he so elects, F Pty Ltd (ACN …), E Pty Ltd (ACN …), the Hulls Family Trust and the Hulls Superannuation Fund.
That the mother and father have equal shared parental responsibility for the major long term issues of B, born … 1999 and, born … 2002, (“the children”) including:
(a)       education including primary, secondary and tertiary;
(b)       health care, medical and dental issues;
(c)       religious observance;
(d)       sporting, cultural and social activities;
(e)       travel, including the obtaining of a passport;
(f)any changes to the children’s living arrangement that make it significantly more difficult for them to spend time with either of the parents.
That the children spend time with the father:
(a)       from 4.00 pm 16 December 2013 until 4.00pm 20 December 2013
(b)       from 4.00 pm 30 December 2013 until 4.00pm on 10 January 2014;;
(c)       from 4.00 pm 20 January 2014 until 4.00pm 24 January 2014; and
(d)for the first half of the school holiday period at the conclusion of Term 1 2014.
That once school recommences in 2014, the children spend time with the father:
(a)each Tuesday from after school until 7:45 pm with the father to collect the children from school at the commencement of time and return them to the school at the conclusion of time; and
(b)each alternate weekend, commencing with the first weekend after Term 1 2014 starts, from after school Friday until school Monday.

IT IS FURTHER ORDERED

That the parenting component of this matter be adjourned for further interim hearing on 31 March 2014.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6292 of 2013

Mr Hulls

Applicant

And

Ms Hulls

Respondent

REASONS FOR JUDGMENT

The parents of B, born in 1999 (14 years), and C, born in 2002 (11 years), have been able to agree to a large number of matters relevant to both the interim parenting and interim property proceedings before the Court.
However they have not been able to reach agreement about the following matters:
a)whether an order should be made in respect of the allocation of parental responsibility and, if so, its terms; and
b)the extent of the time the children shall spend with the father during school term pending the receipt of a Family Report to be prepared following interviews in January 2014; and
c)the extent of the time the children shall spend with the father during the 2013/2014 Christmas school holiday period; and
d)whether the father should be required to attend upon a psychiatrist to the preparation of a psychiatric report prior to and/or in conjunction with the preparation of the Family Report or whether determination of this issue should await the recommendations of the Family Report writer; and
e)whether the accounting firm at which the mother now works should continue to prepare the 2013 financial statements for a number of the parties’ entities and/or trusts or whether such work should be undertaken by an “independent” accountant.

Parenting Issues requiring determination

In these proceedings, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act. In determining what is in the children’s best interests, I must consider the primary and additional considerations set out in ss 60CC(2) and 60CC(3) of the Act: s 60CC(1).
The determination of the outstanding interim parenting issues occurs within the context that the children’s parents are agreed that the children should live primarily with the mother. As I understand it, it is not in contest that:
a)the mother was the parent primarily responsible for the children’s care during the parties’ cohabitation;
b)the father assisted with the children’s care during cohabitation when he was not engaged in employment, the nature of which meant that he was often absent from the home at night time and on weekends, particularly during a certain sporting season;
c)after the father left the former matrimonial home on 17 November 2012 the parties agreed that the children would spend time with him each Tuesday afternoon from after school until about 7.45 pm and each alternate weekend from after school Friday until 5.00 pm Sunday.
d)the father will have the opportunity to engage with the therapist upon whom the children are attending in order to ascertain those issues or matters which can be addressed to assist the children to navigate the new regime of parenting by separated parents.
Whilst the parties have implemented the regime outlined in paragraph 4.c), the mother asserts that the father has returned the children to her care early on many occasions and that there have been only 22 days on which the children spent “the agreed time” with him – however, the breadth of this expression does not give me any clear understanding as to whether the children were returned, for example, 30 minutes early or a day early on each of these occasions.
Irrespective of this matter, the mother says that the children returned to her care on occasions earlier than would have been the case if paragraph 4(c) above was strictly implemented either because of the father’s work commitments or because they asked to return to her care.
The manner in which the Court is to approach a determination of interim parenting orders is well known: Goode & Goode (2006) 36 Fam LR 422 at paragraph 82.

The competing proposals

The parties are agreed that they will attend upon Mr D in January 2014 for interviews for the preparation of a Family Report. However, they differ in a number of respects as to the parenting arrangements which should be implemented pending the receipt of this report.

December 2013/January 2014 school holidays

The father has previously sought that the children spend additional block time with him during school holiday periods. It is not in dispute that, for whatever reason, agreement has been unable to be reached about this. For example, whilst the mother informed the father that she did not object “in principle” to the children spending block time with him during the June 2013 school holiday period, she said that the girls did not want to spend that amount of time with him.
In the September/October school holiday period of 2013 the father again sought that the children spend block time with him. The mother was agreeable to the children spending time with the father on consecutive days during that holiday period but on the proviso that they return to her care each evening. This requirement was based on the mother’s assertion that the children told her that they did not wish to spend overnight time in the care of the father. Accepting the mother’s evidence, this asserted position occurred despite the children spending overnight time on two consecutive nights with the father on alternate weekends.
In a not dissimilar way, the mother does not oppose the children spending time with the father from 30 December 2013 until 10 January 2014 on the proviso that they are returned to her care should they express a ‘strong desire’ for that to occur.
The father seeks simply that an order be made that the children spend time with him from 30 December 2013 until 10 January 2014 together with additional time in a block of no greater than seven consecutive nights so as to ensure that they spend half of the December/January school holiday period in his care. He also seeks that an order be made for the children to spend half of future school holidays with him.
I accept the submission of Counsel for the father to the effect that that there is a very real risk that an order framed in the terms sought by the mother would:
a)permit the children to exercise significant power in the operation of their care arrangements; and
b)provide the children with an opportunity to “play their parents off against each other”; and
c)suggest to the children that the time they spend with the father and the manner in which it occurs is subject to their ultimate determination and veto; and
d)potentially create a further issue in respect of which may well be parental disagreement – namely, whether the children have expressed a “strong desire” to return to the mother’s household during the holiday time with the father – given the mothers evidence that she thinks that the child C tells her one thing and conveys another view to the father about the same issue.[1]
[1] See for example the Mother’s Affidavit filed 8 November 2013, paragraph 73.
In addition to these matters, I consider that an order in the terms sought by the mother has the very real prospect that, rather than insulating the children from exposure to and involvement in the parental conflict about the extent of time it is in their best interests to spend with the father, the children will be likely to be the subject of enquiry – however expressed or undertaken– from each parent in order to ascertain whether they have a “strong desire” to return to the mother’s household. Given the anxiety issues with which C has historically struggled, it does not seem to me to be in her best interests that a situation is created where this possibility is more likely to become a probability.
I also consider it more likely than not that C’s anxiety is unlikely to be assisted by being placed in a circumstance in which the determination as to whether, and how, she is to spend block time with her father rests in her hands. I accept the submission of Counsel for the father that an order for time which does not accord to the children, at this stage, the permission to determine whether and for how long they spend time with the father is one which removes the possibility that they will be overly empowered at this delicate juncture in their dealing with the transition from intact family to one in which their parents live separately.
I take into account the contents of the report prepared by Dr U. In doing so, I must, I consider, also have regard to the fact that this report has been prepared without the benefit of any input from the father. He was not even aware that the child was seeing this practitioner until the receipt of the affidavit material. Whilst the mother makes the point that he failed to attend at an appointment she made with the practitioner for him, I consider that the combination of the lack of information and the limited notice of the appointment provides, at this stage, a reasonable explanation for such non-attendance. Of course, if the father demonstrates an unwillingness to engage with the child’s therapist in the future, conclusions can be drawn at a later stage from such behaviour.
I consider it beneficial that the children be afforded the opportunity during the long school holiday break to spend additional time with the father. This will assist them to continue to develop and maintain a meaningful relationship with him, particularly in the changed circumstances which have followed the parent’s separation.
In reaching this decision I have also taken into account that the only fetter proposed by the mother on the children’s time with the father is their expression of “wish” – that is, she does not seek to limit their time with the father for any other specified reason or in reliance upon any assertion that he is in any way a risk to them.
In framing the orders in the manner that I have, I have taken into account the father’s likely work requirements on weekends and note that the additional “block” times during this holiday (exclusive of the agreed 30 December 2013 to 10 January 2014 period) are limited to four consecutive nights and occur during the week. In this way the children will have, I consider, significant opportunity to engage in time with the mother and also their own activities.
Whilst the holiday time may not be shared completely equally as between the parents, the children will have the opportunity to spend significant time with each of their parents during this extended reprieve from the rigours of school attendance.

What time during school term?

The mother seeks that, until the parties receive the Family Report, the children spend time with the father in the manner that has occurred since separation: namely, from after school until about 7:45 pm each Tuesday evening and each alternate weekend from after school Friday until 5:00 pm Sunday.
In contrast, the father seeks that the children spend time with him:
a)in week one (and each alternate week) - from Wednesday after school until Monday at school; and
b)in week two (and each alternate week) - from after school Wednesday till school Thursday.
Counsel for the father submitted that the increase in time sought by the father was “relatively modest” in that it amounted to an extra overnight on the weekends – which permitted school changeovers – and an overnight during the week in circumstances where that time currently ceases at 7:45 pm.
The mother’s legal representative submitted that, in light of the contents of Dr U’s report, there should be no change to the time the children currently spend with the father, particularly pending the receipt of the Family Report which will provide additional information to the Court about the children’s wishes and the nature and extent of the relationship which they have with the father.
I consider that it is in the children’s best interests that there be a slight increase in the time they spend with the father during term. Such increase should be reflected in an extension of time until Monday morning. This will permit all transitions to occur via school. An extension of time in this manner is relatively modest and would enable the children to spend time with the father in a manner that is closer to the “significant and substantial” time provided for in s 65DAA(3) of the Act.
I am not, however, persuaded that the children’s time with the father should, at this stage, increase to include an overnight during the school week each week. I consider it more likely than not that such an increase would cause additional disruption to the children. Such a regime would, potentially, require the children to take additional belongings to school each week during the school week and may cause them to feel some resentment towards the father. I consider that the potential benefit to them of the maintenance of stability during the school week outweighs the potential benefit to them of the additional time with the father. I consider that an increase in the time to Monday morning coupled with an increase and imposition of an additional overnight during each school week would not, at this stage, be in the children’s best interests.

Should the interim order include a provision for “make up” time?

The father seeks an order that, in the event that he is unable for work reasons to spend time with the children as prescribed by the order, such time should be “made up”. It is submitted, in support of this Order, that it would, in essence, prioritise the children’s time with the father and ensure that they are provided with the opportunity to spend time with him irrespective of the imposition of his work commitments upon his ability to exercise the time provided for in the order.
Whilst it is understandable that the father would seek to put into effect arrangements to meet the foreseeable possibility that some of the time the children are to spend with him pursuant to the terms of the order may not occur because of his work commitments, I accept the submission of the mother’s legal representative that such an order would be likely to create an environment of instability for the children. I further consider it likely that the making of such an order at this interim stage of proceedings would potentially “create” a further area of conflict and disagreement for the children’s parents. The likely indirect consequence of this would be that the children may be drawn into disagreements about when and how any proposed make up time should occur. Such occurrence may be heightened given the children’s own personal commitments and requirements to have time to attend to and participate in interactions with their peers. I consider that it is in the children’s best interests, at this time, that they be afforded the opportunity of establishing a stable routine of time with the father and that they too are placed in a situation of knowing in advance what their care arrangements will be.

Parental responsibility

The mother seeks, on an interim basis, that the Court order that she have sole parental responsibility for the major long term issues for the children. In contrast, the father seeks that an order be made that the parents have equal shared parental responsibility for the major long term issues for the children.
In the event that they are unsuccessful in their primary submissions, both legal representatives submitted, on behalf of their respective clients, that the Court make no order in relation to the allocation of parental responsibility.
In Marvel & Marvel(No 2)[2] the Full Court said:
76. The significance of the presumption of equal shared parental responsibility (see s 61DA below) is readily apparent from a reading of that section. A court must when making a parenting order, as was sought in this case, unless there is child abuse or family violence or the presumption is rebutted as it is not in the best interests of the child, presume that the parents are to have equal shared parental responsibility for the child. However, s 61DA(3) contains a qualification in that it gives recognition to the fact in some interim parenting proceedings it may not be appropriate to apply the presumption.
…
78. At paragraph 56 in Goode the Full Court explained:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
[2] (2010) 43 Fam LR 348.
It is not suggested that the father has ever engaged in behaviour which amounted to physical abuse of either the mother or the children. However, the mother alleges that the father has “constantly subjected us to extreme verbal abuse” which involved swearing and making demeaning comments – the father denies this but accepts that he has acted in a direct and no-nonsense manner in the past. Whilst the mother’s evidence, if accepted, outlines behaviour capable of constituting “child abuse” or “family violence” for the purpose of s 61DA of the Act, it is impossible on an interim basis, where the factual substratum remains in dispute, to reach any positive conclusions in relation to the same.
Consequently, I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility for them (“the presumption”) unless I consider that it would not be appropriate in the circumstances for the presumption to be applied: s 61DA (3) of the Act.
In Marvel & Marvel(No 2)[3] the Full Court also said:
79.The Full Court also discussed s 61DA(3) in Goode and concluded at paragraph 78:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.
[3] (2010) 43 Fam LR 348.
And further, at para 107:
107. Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied.
In the present case, the father seeks that the Court make orders which would see the children spend substantial and significant with him: s 65DAA(3) of the Act. I am in two minds as to whether in the present case there are ‘numerous and complex factual issues which are incapable of determination at an interim hearing’. I consider that, whilst there are factual differences between the parties, such relevant differences are not particularly numerous nor complex. I also consider that whilst, as is the case in many interim hearings, there are some factual issues which are incapable of resolution because of the very nature of an interim hearing, binding authority contains a clear admonition that s 61DA(3) of the Act is not to be applied in a ‘broad exclusionary manner’.
Whilst a Family Report is likely to assist in the future determination of many of the issues between the parties, this does not of itself provide the basis for a conclusion that it is not ‘appropriate’ to apply the presumption at this stage of the proceedings.
I am not persuaded that it would not be appropriate in the circumstances for the presumption to be applied. Consequently I must apply the presumption that it is in the children’s best interest that their parents have equal shared parental responsibility for them unless it is rebutted by evidence which satisfies me that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act.
Both parents raise issues about the lack of trust between them and the negative impact this has had on their ability to communicate about matters relating to the children. It is clear that the mother has made arrangements for the children to attend on various practitioners to receive counselling and support and that she has done so without consultation with the father. It is also clear that the mother took no steps to inform the father about these interventions until she included this information in affidavit material.
Despite this significant event, the parents have shown themselves capable of communicating via email about matters relating to the children. Whilst they have not always reached agreement or seen ‘eye to eye’ about some issues, I am not satisfied, on the evidence before me at this stage, that it is in the children’s best interests that the presumption of equal shared parental responsibility mandated by s 61DA of the Act is rebutted.
Given my conclusion, I must consider making an order that the children spend equal time with their parents unless it is contrary to their best interests as a result of the considerations contained within s 60CC of the Act or is impracticable: s 65DAA(1). The father does not seek an order for equal time and for the reasons outlined above, particularly in paragraphs 22 and 23, I am not persuaded, at this interim stage, that it is in the children’s best interests that there be imposed a regime of equal time.[4] Such would amount to a very significant change to the past care arrangements.
[4] See also Family Law Act 1975 (Cth) s65DAA(5).
I am required, then, to consider whether an order should be made that the children spend substantial and significant time (as that term is defined in section 65DAA (3) of the Act) with the father unless the same is contrary to their best interests as a result of the considerations contained within s 60CC of the Act or is impracticable: s 65DAA(2). I consider that I have undertaken this exercise as outlined above and, for the reasons expressed above, have determined that it is in the children’s best interests, at this stage, that, pending the receipt of a Family Report, an order be made extending the time they spend with the father during school term to include each alternate Sunday night.[5]
[5] See also Family Law Act 1975 (Cth) s65DAA(5).

Should there be an order now that the father be psychiatrically assessed?

The mother raises issues about the father’s psychiatric history. She seeks that he be independently psychiatrically examined and that this examination occur so as to provide the Family Report writer with the benefit of its outcome. The father asserts that there is no necessity for such investigation but does not strenuously oppose it.
The mother takes issue with the father’s denial of the assertion that, in a two month period following separation in 2012, he threatened suicide on four (4) to five (5) occasions. She says that his denial of such behaviour causes her further concern and provides an additional basis for the necessity for psychiatric evaluation and investigation.
Psychiatric evaluation of parties in proceedings before this Court should not be regarded as a necessary prerequisite to the making of parenting orders. Issues of personality and functioning may or may not be relevant to the Court’s consideration of a parent’s capacity to “parent” children.
Whatever may have been the father’s actions in the period soon after separation, they were not then, and are not now, regarded by the mother as the basis for a request for the imposition of supervision over the children’s time with the father. Whether the father has or has not a personality in which narcissistic features exist or predominate is not, of itself, relevant to an assessment of his capacity to parent the children, to discharge the responsibilities of parenthood or to demonstrate a positive attitude in his parenting of the children.

In conducting child related proceedings, like the current proceedings, the Court must have regard to the principles prescribed in s 69ZN of the Act. In giving effect to those principles the Court must give directions or make orders about the timing of steps that are to be taken in the proceedings: s 69ZQ(c) of the Act.
I consider, in this case, that a decision about whether a psychiatric evaluation of the father is likely to assist the consideration and determination of those orders which are in the children’s best interests – where such consideration will occur in the context of the parties having agreed, already, that the children spend alternate weekend time with the father and the mother raises no opposition to block time other than that this occur on the proviso that the children do not express a “serious desire” to return to her care – will be usefully undertaken following the preparation of the Family Report. The interviews for such Report will enable the experienced report writer undertaking this task to form a view as to whether the Court is likely to be assisted by an exploration of the father’s mental health status or psychiatric functioning or whether such exploration is unlikely, really, to add much further to the overall investigation of matters relevant to a consideration, on a final basis, of the orders which are in the children’s best interests.

Property issues requiring determination

The mother seeks an order that the parties cause T Accounting (“the firm”) to be appointed to prepare the financial statements and tax returns of for the period up to the financial year ending 30 June 2013 for each of the parties, and the entities F Pty Ltd, E Pty Ltd, The Hulls Family Trust and the Hulls Superannuation Fund and that any tax assessed following the filing of the tax returns be paid by the party assessed to pay such tax.
The father opposes such a course on the basis that the mother is currently employed in the firm, having previously worked for it in 2008 when it was known as T Chartered Accountants. Counsel for the father points to email correspondence from the Principal of the firm wherein the firm asserts the position to the effect that it is “probably advisable” that accounting assistance be obtained from another firm.
The mother’s legal representative submits that this email correspondence was restricted to a reference to the firm completing the father’s personal tax returns and should not be regarded as a reference to the firm’s preference not to be involved further in the completion of the tax returns for the entities referred to above. It was also submitted that the firm has historically undertaken this work for the parties and that to change accountants at this stage would unnecessarily result in additional cost to the parties and delay.
I consider that the balance of convenience favours, at this stage, an order that the firm prepare the tax returns for all entities nominated in paragraph 49 above. In this way, the benefit of work already done will not be lost and, potentially, costs may be saved. The husband will, of course, be at liberty to engage his own accountant to verify the returns prepared by the firm and there will, no doubt, be sufficient historical data against which such task can be undertaken. Further, it will be a matter for the parties, as directors of the relevant corporate entities to satisfy themselves as to the contents of the returns prior to determining to execute them.
I am not persuaded, however, that there should properly be an order directing the husband to use the firm to prepare his personal tax return – that is, I think, a matter entirely for him.
Without the benefit of the draft returns, it is impossible for the Court to know and assess the consequences to the parties, both directly personally, and indirectly, of an order requiring that the entity assessed by the firm to pay tax should be responsible for it. I decline to make such order.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 December 2013.

Associate:

Date: 4 December 2013

[2013] FamCA 943

4 December 2013

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