HADAWAY & HADAWAY
[2013] FamCA 896
•19 November 2013
FAMILY COURT OF AUSTRALIA
| HADAWAY & HADAWAY | [2013] FamCA 896 |
| FAMILY LAW – PROPERTY – Contributions and adjustments - Initial contributions of the wife 55/45 in favour of the wife – at separation the overall contributions were equal – adjustment made in favour of the wife to meet her immediate accommodation requirements - 60/40 final division of assets in favour of the wife – husband to pay the wife spousal maintenance for a period of 2 years until the youngest child starts school - where the parties were in a relationship for eight years and separated under the one roof for a further four year period –– where the husband earns a high wage while the wife primarily looks after the children FAMILY LAW – CHILDREN – Parental responsibility – with whom the children shall live and spend time – parents to have equal shared parental responsibility - children to live with the mother – where the parties already had an agreement –slight increase in time that the father spends with the children after younger child starts school |
| Family Law Act 1975 (Cth) ss 75, 79, 106A |
| Stanford & Stanford [2012] HCA 52 |
| APPLICANT: | Ms Hadaway |
| RESPONDENT: | Mr Hadaway |
| FILE NUMBER: | (P)SYC | 7594 | of | 2011 |
| DATE DELIVERED: | 19 November 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 15, 16, 17 and 18 April, 14 June and 17 July 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | Clinch Long Letherbarrow |
| COUNSEL FOR THE RESPONDENT: | Mr Grieves QC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
Children
That the parties shall have equal shared parental responsibility for the children B born …2006 and C born … 2010 (“the children”)
That the children shall live with the mother.
That during school terms the children shall spend time with the father until the commencement of Term 1 in 2016 as follows:
(a)From 9.00 am on each alternate Monday until the commencement of day care/pre-school and/or school (or 9.00 am) on Tuesday and the mother shall deliver B to school and C to swimming at Suburb D Aquatic Centre or as otherwise agreed at the commencement of such time and the father shall deliver the children to school/pre-school/swimming at the conclusion of such time.
(b)Each alternate weekend from after school or 3.00 pm on Friday until the following Monday at 9.30 am / commencement of school in the case of B and the conclusion of swimming lessons in the case of C and the father shall collect C from the mother’s residence and B from school at the commencement of such time and deliver the children to school (B) and to the mother at swimming lessons (C) at the conclusion of such period.
From the commencement of Term 1 in 2016 and thereafter:
(a) Week 1:
from after school Friday/3.30 pm until the commencement of school on Tuesday;
(b) Week 2:
(i)from after school Monday/3.30 pm until before school Tuesday.
(c)The father is to collect the children from school at the commencement of each period and return them to school at the conclusion of each period.
BY CONSENT IT IS ORDERED:
That the children shall spend time with the Father until commencement of Term 1 in 2016 as follows:
(a)for a period of seven nights during each school holiday period at the conclusion of Terms 1, 2 and 3 and
(b)in the event that the parties are unable to agree upon dates, for the first week of each said school holiday period in even numbered years, commencing at the cessation of school hours on the last day of school term and the last week of each said school holiday period during odd numbered years commencing at 9.00 am on the second Saturday of the school holidays;
(c)for two one week block periods during the Christmas school holiday period each year and, in the event that the parties are unable to agree upon dates, for the first and third week of January;
(d)from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each odd numbered year;
(e)from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each even numbered year;
(f)on the children’s birthdays each year and:
(i)if such birthdays fall on a weekend, from 9.00 am to 2.00 pm; and
(ii)if such birthdays fall on a weekday, from 3.00 pm to 7.00 pm; and
(g) otherwise as agreed between the parties.
From the commencement of Term 1 in 2016 and thereafter the children shall spend time with the Father as follows:
(a)for one half of all school holiday periods and failing agreement as to the timeframe for the first half of each school holiday period in even numbered years and the second half of each school holiday period in odd numbered years, with the exception of the Christmas school holiday period when the children shall spend time with the Father for one 2 week block in January each year and failing agreement as to the dates, from 1 January until 15 January in even numbered years and from 15 January to 30 January in odd numbered years;
(b)from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each odd numbered year;
(c)from 2.00 pm on Christmas Day until 10.00 am on Boxing Day in each even numbered year;
(d)in the event that the children are in the care of the Mother then on the children’s birthdays each year and if such birthdays fall on a weekend, from 9.00 am to 2.00 pm and if such birthdays fall on a weekday, from 3.00 pm to 7.00 pm;
(e)from 9.00 am to 7.00 pm on Father’s Day each year; and
(f)otherwise as agreed between the parties.
Notwithstanding the Orders pertaining to the Father’s time with the children, the children shall additionally spend time with the Mother as follows:
(a)from 9.00 am until 7.00 pm on Mother’s Day;
(b)from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each even numbered year;
(c)from 2.00 pm From 2.00 pm on Christmas Day until 10.00 am on Boxing Day in each odd numbered year;
(d)in the event the children are in the Father’s care then on the children’s birthdays each year and if such birthdays fall on a weekend, from 9.00 am to 2.00 pm and if such birthdays fall on a weekday from 3.00 pm to 7.00 pm; and
(e)from 3.00 pm Orthodox Good Friday to 8.30 am on the Monday immediately following Orthodox Easter Sunday in respect of this Order:
(i)in the event that the Orthodox Easter falls on the first weekend of a school holiday period then the time that the mother spends with the children in that holiday period pursuant to these Orders will be exercised in the first week of the school holiday period (regardless of whether it is an “even” year);
(ii)in the event that the Orthodox Easter falls on the last weekend of a school holiday period then the time that the mother spends with the children in that holiday period pursuant to these Orders will be exercised in the last week of the school holiday period (regardless of whether it is an “odd” year).
That the Mother have responsibility for making decisions in relation to the day-to-day issues concerning the children when they live with her and the Father have responsibility for making the day-to-day decisions regarding the care of the children when they spend time with him.
That each of the parties be permitted to travel internationally with the children during all school holiday periods that the children are in their care, unless otherwise agreed as between the parties and neither party shall unreasonably withhold their consent to such travel on condition that the travelling party provide to the other within 14 days written notice of travel, copies of tickets and contact details for the children during the period.
Unless the Mother requires the passports to facilitate the children’s international travel, the mother will at least 21 days prior to any proposed travel by the father and the children, provide to the father the children’s passports and within 7 days of the Father’s return to Australia the Father will return the children’s passports to the Mother.
That each party facilitate and encourage communication by telephone in writing or other electronic means including, but not limited to, email between the children and other party, Skype and face time and each party shall ensure that the children are available for telephone time with the other party between 6.00 pm and 7.00 pm on each alternate evening the children are living with them pursuant to these Orders.
Each party notify the other as soon as possible and in any event within 12 hours of any serious injury or illness suffered by the children whilst with that party or any hospitalisation of the children whilst with that party.
Each party notify the other not more than 24 hours after any change in their address and/or landline and/or mobile telephone number and/or email address.
Each party provide to the other the names, addresses and telephone numbers of all medical professionals who may treat the children and authorise each of them in writing to provide copies of any test results, letters of referral, reports and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the children’s health with the other party.
That each of the parties are hereby restrained from:
(a)discussing these proceedings or parenting arrangements with the children or within the children’s hearing or presence; and
(b)making comments of a derogatory nature to or in relation to the other party or members of the other party’s family to or within the presence or hearing of the children.
That the Mother shall hold the children’s passports, birth certificates, citizenship certificates, medical and immunisation records and Medicare cards, on the basis that the Mother shall provide the children’s documents to the Father within 7 days of a request made by the Father in writing.
The parties shall do all things and sign all documents necessary to ensure that the children, at all times, have current passports (which in respect of B also includes a Country E passport).
That the Wife shall attend upon a clinical psychologist or psychiatrist nominated by her for the purposes of regular therapy and/or treatment and shall comply with any recommendations made by the said medical professional from time to time and shall cease such treatment upon the recommendation of the medical professional.
BY CONSENT IT IS FURTHER ORDERED:
That the Husband and Wife agree that they will both make arrangements to have their child C christened Orthodox with such christening to take place prior to the end of December 2013 with the Wife to select the godparents.
That the Husband and Wife agree that they will sign any enrolment forms for B and C to attend high school provided to them by the other parent provided:
(a)signing the enrolment is not taken as a sign of support for enrolment at that school in any child support or future proceedings;
(b)the parent requesting the enrolment pays all application fees;
(c)the parent’s signature is not evidence of either consent or capacity to pay fees.
Property
That the Husband within 28 days of the making of these Orders, do all acts and things necessary to place the former matrimonial home at F Street, Suburb G being the whole of the land in Certificates of Title Folio Identifiers … and … (“the Suburb G property”) on the market for sale by private treaty forthwith at the price agreed between the Husband and the Wife or failing such agreement, at a price equivalent to the mean of two valuations by registered valuers being members of the Australian Institute of Valuers, one obtained by and at the expense of the husband an done obtained by and at the expense of the Wife, such valuations to be made not more than two weeks apart from each other and in particular, are to:
(a)place the Suburb G property with an Real Estate Agent of the parties’ choice (hereinafter called “the Agent”) for the sale of the property by private treaty;
(b)execute all documents requested by the Agent to list the Suburb G property on the market for sale;
(c)request the Agent to recommend a listing price to be place on the Suburb G property for the purpose of the sale and accept such recommended listing price;
(d)give such instructions to independent solicitors of the parties’ choice for the preparation of an appropriate contract and other documents as are necessary for the sale of the property by private treaty;
(e)co-operate in every way with the Agent in relation to the marketing of the Suburb G property including making the key available and allowing inspection of the property at times requested by the Agent and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers;
(f)the Husband shall pay and be responsible for all outgoings over the Suburb G property pending sale.
That in the event the Suburb G property is not sold by private treaty within three months from the date of the making of these Orders the Husband is to forthwith do all acts and things necessary including the execution of all documents necessary for the sale of the Suburb G property by public auction and in the event that the Suburb G property is not sold by public auction when first offered for sale by auction, the Suburb G property shall thereafter be resubmitted for sale by public auction pursuant to the provision of these orders at intervals of not less than two months until such property shall eventually be sold and the Husband is to forthwith do all acts and things necessary, including the execution of all documents necessary for the sale of the Suburb G property by public auction and in particular is to:
(a)place the Suburb G property with an Auctioneer of the parties’ choice (hereinafter called “the auctioneer”) for the sale of the Suburb G property by auction at the earliest possible date;
(b)execute all documents requested by the auctioneer for the sale of the Suburb G property;
(c)request the auctioneer to recommend a reserve price to be placed on the Suburb G property for the purpose of the auction sale and the parties to accept such recommended reserve price;
(d)pay to the auctioneers any sum requested for advertising expenses in relation to the auction;
(e)give such instructions to independent Solicitors for the parties choice for the preparation of an appropriate contract and other documents as are necessary for the sale of the Suburb G property by auction;
(f)co-operate in every way with the auctioneers in relation to the auction of the Suburb G property including making the key available and allowing inspection of the property at times requested by the auctioneers and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers;
(g)attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached;
(h)accept the advice of the auctioneer as to the acceptance of a price less than the reserve price;
(i)execute all other documents necessary to complete the sale;
(j)pay and be responsible for all outgoings over the Suburb G property pending sale.
That the Husband shall do all acts and things necessary to procure that on completion of the sale of the Suburb G property the proceeds of sale shall be paid in the following manner and priority:
(a)in payment of agent’s commission and auction expenses (if any) due on the sale;
(b)in payment of legal costs of sale;
(c)in repayment of the mortgage number … to Westpac Banking Corporation; and
(d)in payment of the Wife of 62.5 per cent of the balance remaining;
(e)in payment to the Husband of the balance remaining.
That except as provided in these Orders, the Wife be solely entitled to retain:
(a)the property at H Street, Suburb I;
(b)motor vehicle 1;
(c)Wife’s bank accounts;
(d)stock relating to the business ‘J Pty Ltd’;
(e)a half share of the household contents from the Suburb G property;
(f)her jewellery;
(g)her superannuation; and
(h)all other assets of whatsoever kind and nature and presently in the name ownership or possession of the Wife;
That except as provided in these Orders, the Husband be solely entitled to retain:
(a)husband’s bank accounts;
(b)his superannuation;
(c)shares and options;
(d)motor vehicle 2
(e)boat together with mooring;
(f)all other assets of whatsoever kind and nature and presently in the name ownership or possession of the Husband.
That in the event the Husband or Wife refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, then a Registrar of the Family Court Sydney be appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the Husband or Wife and to do all acts and things necessary to give validity and operation to the said deed or instrument and such Registrar shall be satisfied upon affidavit evidence of the party alleging the refusal or neglect that a party is in breach of these Orders. The party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this Order, to be taxed if not agreed.
That by way of spousal support, the Husband do all acts and things to cause him to pay a direct weekly amount of $500 for a period of two years from the date of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadaway & Hadaway 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 SYDNEY |
FILE NUMBER: (P)SYC7594 of 2011
| Ms Hadaway |
Applicant
And
| Mr Hadaway |
Respondent
REASONS FOR JUDGMENT
Introduction
These are applications to alter interests in property and for limited specific orders in relation to parenting. The applicant wife/mother is Ms Hadaway, aged 45 years. The respondent husband/father is Mr Hadaway, aged 41 years.
By the conclusion of the hearing the parents had reached agreement on many aspects of the parenting arrangements and consent orders were made accordingly.
Short history
The parties met at work in mid 2000, began a relationship at the end of that year travelled overseas, and lived together from November 2001 in Country K.
The parties’ first child B (seven) was born in Country E in 2006. They married in 2006.
In 2008 the husband bought a property in Sydney while the parties were still overseas, living in Country L.
In 2009 the parties returned to live in Australia.
In 2010 the parties’ second child C was born.
There is a dispute over the date of separation.
The mother says it was in early 2010. She had discovered she was pregnant with the parties’ second child C in mid-2009 and asserts that in that circumstance the parties tried to put the difficulties they were experiencing behind them and struggled to do so, until finally separating under one roof just prior to C’s birth.
The father says separation took place in mid-2009.
After returning to Australia in July 2009, there were some initial disturbances arising from staying with the husband’s parents. The parties and their then three year old son soon moved into their newly acquired property at Suburb G, making it their family home.
The parties continued to live separate lives in the family home without reconciliation until, pursuant to Court orders, the father moved out of the family home on 1 March 2013. There is a difference of about six months between the parties as to the length of the relationship.
The difference of about six months makes no difference to the overall outcome of the property dispute. Accordingly I have approached the matter on the basis of a relevant relationship of approximately eight years with a further four years post separation.
There was no intimate relationship, but they otherwise lived as a family with the husband providing the financial support and the wife caring for their children and doing the domestic work of the household.
In March 2013 the husband moved out of the family home into rented premises in the area.
The parties were divorced in September 2013.
The Evidence
The applicant wife relied upon the following documents :
a)Initiating Application of wife filed on 14/12/2011;
b)Reply of wife filed on 11/02/2013;
c)Financial Statement of wife filed 15/04/2013;
d)Affidavit of wife filed 08/04/2013.
The respondent husband relied upon the following documents and witnesses:
a)Further Further Amended Response filed by husband on 11/04/2013;
b)Financial Statement of husband filed 08/04/2013;
c)Affidavit of husband filed 08/04/2013;
d)Affidavit of Ms Hadaway Snr (husband’s mother) filed 11/02/2013.
e)Affidavit of Mr M sworn 19/07/2013.
Application in a Case to Re-open
The matter was heard over four days in April 2013 with judgment reserved.
On 31 May 2013 an Application in a Case was made by the wife to re-open for a limited purpose. This was to lead evidence in relation to:
a)Certain funds received by the husband in May 29013;
b)A payment made by the husband into superannuation;
c)Receipt by the husband of a retained allocation in the N Plan.
The wife sought relevant amendments to the joint Balance Sheet[1].
[1] Exhibit 8
On 14 June 2013 this application was opposed.
On 15 July 2013 the parties advised the Court in writing of agreed facts with brief submissions about the implications of those facts[2]. This letter represented a resolution of the Application in a Case and judgment was once again reserved.
[2] Exhibit 19
I have taken those further matters into account.
The Applicant wife, Ms Hadaway
During her oral evidence, the wife displayed signs of stress from having lived in the family home with the husband whilst separated for almost four years. She is seeking professional assistance in that regard[3].
[3] Exhibit 7
In 2010 C was born into a strained relationship between her parents. Unfortunately the strain led to a lack of mutual respect for each other. The wife was offended by the way the husband treated her, particularly by his use of rude and offensive language in front of the children and in the presence of his friend, Mr M.
The husband refused to leave the home and the wife could not afford to move out. A Court order on 11 February 2013 gave the wife exclusive occupation. Accordingly by the date of this hearing, the parties had only lived separately for about two months.
The wife has been a devoted and attentive parent. She and the husband disagreed over issues of child raising such as toilet training and the curing of bed wetting. She created a structured life for the children with predictable times for meals, play and bed.
There is no dispute that she was the parent who attended to the day to day care of the children and the work associated with that care; meal preparation, bathing, washing and cleaning.
The husband felt some impatience with the children and resentment about the financial burden of providing for the family, which fell on him. He was also disappointed by the return to Australia[4]. Examples are as follows:
On the morning the mother came home from hospital with newborn [C], [B] was lying on the floor playing. The father directed him to stop what he was doing. [B] did not stop. The father put his foot on the child’s bottom and would not allow him up. The child cried and struggled. The mother said, ‘let [B] up”. The father responded, ‘stay out of it pig dog.’ In his own time the father released his foot.
[4] Affidavit of Wife filed 08/04/2013, p 16, par 45(3)
In June 2010 the parents argued over the need to have the air conditioner on. The husband at one point switched it off and the wife asserts that he said: “When you pay the bill you can have it on.” The husband could not remember saying that, but I accept that he did.
By September 2010 the husband was spending more of his weekends away; playing tennis, spending time with friends or inviting friends over to visit. No doubt the atmosphere in the household was hostile, but his decision left the wife with no respite and a growing belief that he was a reluctant father.
I do not consider that the husband has ever been indifferent to his children. The wife acknowledged that he loves them. I accept that he does. His behaviour towards them was intended to provoke the wife, which it did. The husband was immature and insensitive in this regard.
On 12 November 2012 the husband argued with B and said to the wife:
I wish he ([B]) was dead.
A few days later he said to B in the wife’s presence:
You’ve been a horrible little boy today, really mean. I hate you when you’re like this.
In April 2011 the husband said to the wife in front of C (then 12 months old):
[C] you are so smart you obviously have my brains.
He denied also saying:
What a shame you have your mother’s looks.
However it may well have been said. When C accidentally referred to her father as “mum”, he responded “Don’t insult me”.
The husband regularly referred to the wife as “lard” and “pig dog.” The wife asserts he would throw things at her and give her a “Chinese burn” on her arm. He called her a “mutant bitch”.
The wife was clearly hurt by the husband’s behaviour and increasingly anxious about protecting the children. At times she retaliated by calling the husband “baldy” and “loser”. The home environment became toxic for the children.
B unsurprisingly began to direct rude and offensive language towards his mother and his father, “get stuffed mummy” and “shut your pie hole”.
In March 2012 there was this exchange (B then six years old):
Father to [B]: Go fuck yourself.
[B] to father: You fuck yourself.
The husband acknowledged that his son was copying him. However he used a variety of grossly inappropriate and derogatory language directed at B[5],
[5] Affidavit of Wife filed 08/04/2013, p 24, par 48
B’s behaviour at pre-school was the subject of complaints, especially his foul language.
The husband now acknowledges that he should take a different approach to discipline. The wife acknowledges that she had outbursts of frustration which included; picking up a scooter, throwing it at the house and breaking a window; throwing objects at the husband.
In 2007 in Country L, the wife reached a low ebb in her mental health and wrote a suicide note. On balance it seems likely to have been a cry for help and depression. I accept that when the wife read the family report she was prompted to engage with a psychologist for assistance. She also attended a Parenting After Separation course.
I consider that the wife will be able to manage the care of the children with appropriate support and in a less stressful atmosphere. The wife also has the support of her family, despite their disapproval of divorce. I accept the maternal grandmother probably did advise the mother that she should stay in the marriage whatever was occurring.
The Respondent Husband, Johnathon Hadaway
The husband has worked for N Bank for 15 years. He is a hard working high achieving man. He how earns a substantial income with regular bonuses. His willingness to take overseas postings in Europe and Asia, have advanced his career. He had formulated a long term plan in this regard. The plan included marriage and three children in quick succession.
Unfortunately he began to develop a degree of frustration with his wife when she struggled increasingly with each international move. He may have misunderstood the depth of her loneliness and isolation with a new baby in Country E in 2006. He apparently also considered that the presence of maids and a nanny in Country L was enough assistance.
To his credit in 2007 he recognised that his wife was not coping after the suicidal note she left. He assisted her to access appropriate professional therapeutic assistance.
The husband was probably disappointed about a return to Australia earlier than he had planned.
On his own evidence he feared that the relationship would break down. For that reason the husband bought the Suburb G property in his sole name. He considered that having the title in both names would “add to uncertainty.” Both parties concede that this issue rankled. It probably contributed to mutual distrust and dissatisfaction.
The husband kept a strict budget in minute detail. This is consistent with my impression that he is punctilious about all matters, particularly unnecessary spending. For instance, when the wife asked for money for a replaced punctured tyre, he conceded that he asked her whether she had requested “an inner tube option, you should have asked me.” He also regularly told the wife to turn off the air conditioning because of the need to save money.
There was a profound difference between the parties. The husband objected to waste at any level. The wife believed that the high income of the husband justified providing a comfortable standard of living.
The husband became increasingly resentful about provision of money of the three to four years of separated life in the family home. For instance, on 3 April 2013 when the wife sought assistance for costs of a psychologist (after reading the report of Ms O), the husband replied:
My present financial circumstances do not permit me to provide any further level of support.
This attitude, not based in economic reality, imposed some hardship on the wife.
The husband admitted his behaviour of calling the wife cruel and insulting names. He asserted that he ceased that practice and named the date of ceasing; 24 August 2012.
Of equal or greater concern to the Court was the husband’s unwillingness to acknowledge fully the impact of his own behaviour on his son.
In 2012 B’s school report was highlighting a need for “greater respect for his peers and adults.” My impression is that the husband focused on the good academic results. His oral evidence as that he congratulated B on his report, “you did really well”.
The husband may be under-estimating the significance of B’s aggressive and disrespectful conduct at times. I am lead to that conclusion by his failure to understand the impact of his own aggressive language and conduct during the marriage. During cross-examination on these topics, I observed him to smile in a satisfied way.
I was left with the impression that the frustrations of separation had led the husband to contempt for the wife which he did not try to conceal from her or the children.
The husband’s mother, Ms Hadaway Snr
Ms Hadaway Snr was a restrained and polite witness. She has an established relationship with her grandson B. Due to the breakdown of her son’s marriage, Ms Hadaway Snr has had very little contact with C.
The relationship between Ms Hadaway Snr and her former daughter-in-law has fallen away. The two women have not spoken since C was a baby.
I accept that Ms Hadaway Snr made a genuine offer through her affidavit to assist the mother with the care of the children.[6] However I consider that the offer is unlikely to be accepted, or repeated.
[6] Affidavit of Ms Hadaway Snr sworn 11/02/2013, par 21
Ms Hadaway Snr described the children as happy and well adjusted. Both children will continue to spend time with their paternal grandparents when they are spending time with their father.
I have no doubt that Ms Hadaway Snr would firmly discourage her son from making disparaging remarks about the mother in the presence of the children and would not do so herself.
The husband’s friend, Mr M
Mr M was called in response to further evidence by the wife about his conduct in the parties’ home.
Mr M is a single man. He is clearly a close and loyal friend of the husband. My impression formed during his oral evidence is that he felt sorry for the husband living in the extremely difficult circumstances of separation, whilst living together with very young children. On that account, he visited very often at the family home.
In his affidavit, Mr M refers to visits to the family home after mid 2009 where the wife started off in a social manner and talked to him. Later in the evening she would become silent, sometimes crying. After about six months he reduced his visits, uncomfortable being around the wife.
He appeared not to understand the emotional strain in the household, or the possibility that he may be adding to it. The parties were unhappy and the wife was pregnant.
In March 2010, Mr M returned to the parties’ home. He was surprised to find the wife in a “bad mood” despite the birth of her new daughter.
In the following weeks, Mr M had drinks at a local hotel with the husband and played tennis with him and other mutual friends at weekends. During one of these games the wife came to the tennis court and criticised Mr M in loud insulting terms. Mr M stated, “I do not know what led [Ms Hadaway] to have the outburst she did at that time[7]”.
[7] Affidavit of Mr M sworn 19/07/2013, par 19
The wife thereafter banned Mr M from the house. She also contacted his mother to complain about what she saw as his intrusive visits.
The significance of this evidence is twofold. There is a revelation of the pressure both parties, but especially the wife, were under. The wife was trying to make the marriage work. The husband was staying because of the new child, but regarded himself as separated. The presence of a third party in the household imposed a higher level of restraint and to an extent, pretence on the parties.
When the husband spent time with friends outside the household, the wife not only felt isolated and overwhelmed, she saw all her efforts to save the marriage falling away.
The second aspect of this evidence is that when Mr M observed his friend with B, he saw an attentive, relaxed father and B enjoying shared activities such as canoeing and kicking a ball. I accept the evidence of Mr M about that.
After their return to Australia in 2009, it is apparent that each party was a better parent in the absence of the other.
Ms O, Clinical Psychologist
The single expert, Ms O prepared a report dated 17 March 2013. The primary recommendations made by Ms O were:
a) That the parents share parental responsibility;
b) That the children live primarily with their mother until 2016;
c) That from 2016, the children live in a week about arrangement.
The parties were assisted by the report in formulating consent orders.
The wife, having read the report, took immediate steps to consult a psychologist for the intensive psychotherapy recommended. That therapeutic relationship had begun by the commencement of the hearing.
Ms O concluded that both parties were loving and competent parents and the children are well bonded to the parents. She raised concerns about the ability of the mother to promote and facilitate a positive relationship between the children and their father.
The matter that informed those concerns, appear to relate to the stresses of cohabitation while separated. I take into account that interviews were conducted about three weeks after the physical separation of the parties. Having heard all of the evidence, I do not share Ms O’s concern.
Ms O held some concern about the father having remained in the home for three years, “exposing the children to significant conflict.” However I share her view that his motivation was positive.
Ms O reported that the father had “clearly spoken inappropriately in the past to both Ms Hadaway and B.[8]” Again, I share this view. Ms O may have underestimated the extent of the damage to the mother’s self-esteem which resulted from the father’s jibes. Ms O was unsure of the extent to which the mother’s allegations were factual. Now that practice has stopped, the mother’s ability to support the children’s relationship with their father is likely to develop positively.
[8] Report of Ms O dated 17/03/2013, par 137
The observation of the children by Ms O was that they had been exposed to parental conflict in the home. I agree. She observed that the lack of maturity of the children and inability to express their wishes had made it impossible for her to obtain a clear understanding of where they would like to live.[9] In my view, there was a further factor.
[9] Report of Ms O dated 17/03/2013, par 160
The parties’ physical separation was so recent when the children were interviewed that they had had very little experience of seeing their father in a separate household. C in particular, may not have understood the fact of separation. The children simply did not have sufficient knowledge to understand two households and their roles in the households. Clearly they love both parents but have been primarily cared for by their mother.
During cross-examination Ms O stepped back from her observation that the mother might suffer the condition Bi-polar disorder. She agreed that she had not made that diagnosis. She further agreed that the symptoms she identified as suggestive of that disorder were also consistent with difficulties coping with stressful situations.
Ms O also stepped back from this observation:
Additionally her allegations of family violence and the involvement of the police appear to be exaggerated for her own gain in the current legal proceedings.
Ms O offered, “Perhaps I shouldn’t have put that first part in.” She properly conceded that there was nothing to suggest that the mother had exaggerated any particular complaint.
Indeed, in my view the evidence does not suggest undue involvement of police for minor matters.
Finally, Ms O was asked about her statement to the children being able to “tolerate” more time away from their mother[10]. Ms O properly conceded that “tolerance” referred to what certain age groupings on a statistical basis can manage and not to any factual basis for what these particular children could do.
[10] Report of Ms O dated 17/03/2013, par 160
For the Court to speculate about what B and C could “tolerate” in two years’ time would not promote their best interests. They are doing well now.
Ms O takes the view that behaviour of both parties will ameliorate as a result of separation. I agree. The mother’s parents have finally accepted the breakdown of her marriage and are supportive of her and the two children. The father’s parents are close by and supportive of their son and the two children. The enormous pressure and strain of living together, but not in a united relationship, has finally been lifted.
I share the view of Ms O that these parties became incompatible partners but will probably be compatible parents. The order for equal shared parental responsibility made by consent reflects their own shared view in this regard.
Application of the Law
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[11]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)If an alteration should be made, to consider the matters contained in s 79(4) and s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[11] Stanford & Stanford [2012] HCA 52
Identify the existing legal and equitable interests of the parties in
The interests in property assets and liabilities of the parties were identified in a joint Balance Sheet as set out below:
Assets
O’ship Description Wife value Husband value 1 H F Street, Suburb G 2,350,000 2,350,000 2 W H Street, Suburb I 590,000 590,000 3 W Motor vehicle 1 31,000 31,000 4 H Motor vehicle 2 22,000 22,000 5 H Boat 45,000 45,000 6 W Wife's Bank accounts 547 547 7 H Husband's Bank accounts 158,476 158,476 8 H Bank accounts children (husband) B Hadaway TBA NA 9 H Bank accounts children (husband) C Hadaway TBA NA 10 W Bank accounts children (wife) B Hadaway E500 NA 11 W Bank accounts children (wife) C Hadaway E1,554 NA 12 H Husband's investments 48,314 48,314 13 W J Pty Ltd (no good will) – stock E3,000 E10,000 14 J Household contents of F Street, Suburb G and storage 18,575 18,575 15 H Household contents in rental property and storage 14,555 14,555 16 W Jewellery 12,004 12,004 17 H Jewellery 1,070 1,070 Total $3,296,595 $3,301,541
Addbacks
Ownership Description Wife value Husband value 18 W Legal Fees Paid 56,635 56,535 19 H Legal Fees Paid 164,426 0 Total $ 221,061 $ 56,635
Liabilities
Ownership Description Wife’s value Husband’s value 20 W NAB Credit Card 8,515 8,515 21 H Capital Gains Tax liability 65,258 65,258 22 H Westpac Credit Card 1 2,365 2,365 23 J Westpac Credit Card 2 NIL NIL 24 W Personal loan from P Lawyers (Legal) Fees 10,000 NK 25 W Westpac Credit Card 5,823 5,823 26 W NAB Personal Loan 13,682 13,682 27 W CGT Liability for sale of Suburb I 45,053 NIL 28 H PAYG liability 0 2,018 Total $150,696 $ 97,661
Superannuation
Member Name of Fund Type of Interest Wife’s value Husband’s value 29 W SuperTrace as at September 2012 Accumulation
45,600 45,600 30 H N Superannuation Plan Accumulation 94,185 94,185 Total $139,785 $139,785
Financial Resources Ownership Description Wife’s value Husband’s value 31 W 21,141 Westpac Rewards Points NK NIL 32 W 77,840 Hilton Honours Points NK NIL 33 W 126,246 Qantas Frequent Flyer Points NK NIL 34 H 676,631 Qantas Frequent Flyer Points (wife assets 950,000) NK NIL 35 H 420,917 Country L Airlines Frequent Flyer Points NK NIL 36 H Westpac Earth Reward Points NK NIL 37 H 14,107 Westin points NK NIL 38 H 69,198 Hyatt points NK NK Total $ NK $ NK 0 Joint comments:
Item No.
1
2
Per valuation of S Valuers dated 11 April 2011
Per valuation of S Valuers dated 11 April 2011
3, 4 Per valuation of R Valuers dated 11 April 2013 5 Per valuation of T Pty Ltd dated 10 April 2013 6, 7 Account balances to be updated on date of hearing having regard to current bank balances. Values to be verified by exchange of updated bank statements. Agreed by husband upon provision of supporting documents. 8-11 Not relevant 12 As per schedule. To be updated at date of hearing to have regard to current ASX rates 13 The parties are in dispute as to the value of the wife's business. 14 Per valuation of R Valuers dated 11 April 2013 15 Per valuation of R Valuers dated 11 April 2013 16 Per valuation of R Valuers dated 10 April 2013 17 Per valuation of R Valuers dated 10 April 2013 18 Wife contends that should not be an add back. Husband contends that the legal fees paid by the wife should be added back as they have been paid from matrimonial assets or liabilities which the wife seeks to include. 19 Husband asserts that his paid legal fees should be excluded as they have been paid from post separation income. The Husband also has $77,027.37 in Trust paid from post separation income and to be paid towards Senior Counsel's fees and the costs of the hearing.
The wife contends that the husband has paid his legal fees from an offset account into which the proceeds of sale of the Suburb U property have been deposited and therefore such legal fees or part thereof should be added back.
20, 22, 23, 25 To be updated at date of final hearing by exchange of credit card statements. Husband accepts wife's values upon provision of supporting documents.
The husband understands that it is the wife's position that her legal fees have been paid by incurring charges on her credit card. The husband accepts the value of these liabilities subject to provision of supporting documents and contends that it should be included as a liability if the wife's legal expenses are added back.
21 Per valuation of V Valuers dated 12 April 2013. 24 The husband contends that there is no evidence this loan has been provided. In any event, the husband contends that this loan should not be a liability of the parties as it has been used by the wife to meet legal expenses. The husband contends it should only be included as a liability if the wife's legal expenses are added back and evidence is provided as to its existence. 25 The husband contends that this loan should not be a liability of the parties as it has been used by the wife to meet legal expenses. The husband accepts the value attributed however contends it should only be included as a liability if the wife's legal expenses are added back. 27 Husband asserts that the CGT liability to be incurred by the wife is not a liability to be included in the matrimonial pool in circumstances where the wife is not intending to sell this property in the near future.
Mr Q has been appointed as a single expert. His valuation report has not yet been received.
29 Agreed by husband upon provision of supporting documents. Joint comments:
6. Schedule of wife’s bank accounts
Bank
Account No.
Account holder
Value (AUD)
HSBC Premier
121 884 30
Joint
NIL
Allied Country E Bank
013 400 20
Joint
NIL
HSBC Country L
152 323 721 496
Wife
106.00
HSBC
822 263 67
Wife
318.00
Allied Country E Bank
017 071 86
Wife
NIL
NAB
436 105 807
Wife
4.00
NAB
194 086 868
Wife
77.00
Westpac
639 252
Wife
Nominal
Paypal account
Wife
42.00
Total
$547.00
7. Schedule of husband’s bank accounts (per Financial Statement filed 8 April 2013 – to be updated at hearing)
Bank
Account No.
Account holder
Value (AUD)
HSBC Country K
…
Husband
NIL
HSBC Country K
…
Husband
125
HSBC Country L
…
Husband
655
HSBC Country L
…
Husband
93
HSBC Country K
…
Joint
NIL
AIB
…
Joint
Closed
WBC
…
Husband
14,187
WBC
…
Husband
143,000
WBC
…
Husband
NIL
Total
$158,476
8. Schedule of husband’s investments (per Financial Statement filed 8 April 2013 – to be updated at hearing
Stock
Value (AUD)
10,000 Telstra shares
$46,100
58 N shares
$2,214
2,300 N Options (vested) – expiry 15 August 2013, exercise price of $53.91 (current share price $30.50)
Nil
917 N shares (unvested and subject to Husband remaining in employment)
Nil
Total
$48,314
End of Parties Document
Commentary on and adjustment of Joint Balance Sheet[12]
[12]Exhibit 8
In respect to the joint asset pool, there was a subsequent change in interests and some items have been excluded.
Items 8-11These items have been omitted by consent from the Balance Sheet.
Item 13There was very little evidence about the wife’s business run from home. There was no valuation of it which was unsurprising given the modest income generated. I have included the lower figure of $3,000 representing stock for the wife’s business.
Item 18I have added back the legal fees of both parties. The husband has had use and control of the assets from the sale of his property at Suburb U. The net proceeds of sale were used to discharge the mortgage over the family home. The balance of funds was retained in an account by the husband; a significant part of which has apparently been used by the husband for costs. I have therefore added back in the legal fees of both parties and in the case of the wife, the liabilities also associated with paying legal fees.
Accordingly the assets and liabilities of each of the parties as at the date of trial are as follows.
(a) The wife:
Assets
2.
H Street, Suburb I
590,000
3.
Motor vehicle 1
31,000
6.
Wife’s bank accounts
547
13.
‘J Pty Ltd’
3,000
14.
Half share of household contents
9,288
16.
Jewellery
12,004
18.
Paid legal fees
56,535
29
Superannuation Super Trace
45,600
$747,974
Liabilities
20.
NAB Credit Card
8,515
24.
Personal loan from P Lawyers
10,000
25.
Westpac Credit Card
5,823
26.
NAB Personal Loan
13,682
27,
CGT liability sale of Suburb I
45,053
$ 83,073
Total net assets
$664,901
(b) The husband:
Assets
1.
F Street, Suburb G
2,350,000
4.
Motor vehicle 1
22,000
5.
Boat
45,000
7.
Bank accounts
158,476
12.
Investments
48,314
14.
Half share of household contents
9,288
17.
Jewellery
1,070
19.
Paid legal fees
164,426
30.
Superannuation AMP
94,184
$2,892,758
Liabilities
22.
Westpac Credit Card
2,365
27.
CGT Liability
65,258
28.
PAYG Liability
2,018
$69,641
Total net assets
$2,823,117
Net asset position
Wife $ 664,901
Husband $2,812,117
Total net assets $3,477,018
Would it be just and equitable to alter the current interests of the parties in property?
The wife is presently living in the family home with the parties’ children and is being supported by the husband meeting outgoings on the property. Neither party can afford to retain that property. The parties agree that the property should be sold.
The Suburb G property was purchased as the family home in Australia, after the parties returned from the husband working overseas. It did provide a family home although the parties were separated living under the one roof for several years.
Since the hearing the husband has received:
1. A cash bonus of $54,826 with net superannuation on the cash bonus of $338.
2. Net lump superannuation of $8,415 paid into his Superannuation account
3. A retained allocation in the N Plan of $20,151which will vest over the next 5 years providing the husband remains with his current employer. There is nothing in the evidence to suggest that the husband has an intention to change employer. Vested shares will attract tax at the relevant rate on receipt.
On 6 June 2013 the wife leased her Suburb I property for six months preserving her position until the outcome of these proceedings is known.(FN Exhibit 19)
It is just and equitable to alter current interests in property, especially as the home is held in the husband’s name alone. The title being in the sole name of the husband was a source of unease to the wife during the marriage. It is appropriate to significantly alter current interests to reflect contributions and changed needs.
Consideration of contributions of each of the parties and of adjustments pursuant to s 75(2) factors
Initial contributions
When the parties met they both worked for N Bank. The wife was an Executive Assistant, the husband was a Banker.
Their financial position when they began living together was as follows:
(1)The wife:[13]
[13] Affidavit of Ms Hadaway filed 08/04/2013, par 123
1.
Property at H Street, Suburb I Estimated historical value unchallenged
Mortgage debt to NAB
450,000
86,970
363,030
2.
Motor Vehicle
20,000
3.
Household goods
20,000
4.
Shares
4,000
5.
Superannuation
28,500
6.
Savings
9,800
7.
Credit Card Debt
15,000
Total net assets
$431,400
(2) The husband:[14]
[14] Affidavit of Mr Hadaway filed 08/04/2013, par 13
1.
Property at W Street, Suburb U
300,000
With mortgage debt to Westpac
118,984
181,016
2.
Motor vehicle
2,000
3.
Shares
102,473
4.
Household effects
13,200
5.
Superannuation
26,369
6.
Savings
5,035
Total net assets
$330,094
The comparative positions favoured the wife 55 per cent to 45 per cent.
Contributions during the marriage
The majority of the relationship has been lived outside Australia.
In 2001 the husband was transferred to Country K. He asked the wife to go with him and she agreed. She resigned from her employment of 10 years to do so.
The parties lived in Country K for a little over one year. In January 2003 the husband was transferred again to Country E, where the parties lived for about four years. Their first child B was born in Country E in 2006.
The husband travelled regularly to Country K, Germany and the United States of America and more rarely to Asia and Australia. The wife felt isolated in Country E and quite unhappy. When B was about one year old in early 2007, the husband accepted a transfer to Country L.
The parties and their son lived in Country L for about two and a half years. Neither of them was particularly at ease in their apartment in Country L. The mental health of the mother suffered . There was persistent conflict with the neighbours. Servants were employed to assist with domestic work and some of the care of B.
The husband continued to travel regularly to Australia and within Asia. He was more contented in Country L. The wife wished strongly to go home.
In 2009 the parties did return to Australia. They had a property to return to in Sydney, purchased the previous year. The wife learned she was pregnant. She no longer had any domestic assistance and there was a new household to set up at Suburb G prior to the birth of the baby. Marital difficulties intensified.
In March 2010 the parties’ second child was born. I accept the evidence of the wife of her belief that both the parties were prompted by the birth of C to try and restore their relationship and keep the family together. Whatever the husband may have privately felt, that is the way the parties lived.
On 14 December 2011 the wife filed an Initiating Application so at least for her part the relationship was over. However the household continued to function, although in an increasingly disjointed and dysfunctional way. The husband earned a high executive salary with variable bonuses. The wife was engaged in the care of the children and domestic work.
I accept that the husband worked hard and put in long hours to a job he clearly enjoys. I also accept that the wife worked hard setting up four different households and providing a home for the husband and the children as they arrived. She was alone a good deal and affected by the isolation.
At the date of separation, the overall contributions of the parties were equal. The husband made an overwhelmingly greater financial contribution than the wife. His salary escalated, particularly with each international move.
The wife ceased employment entirely from the time of the birth of the parties’ first child. However I do not consider it appropriate to give disproportionate weight to that much greater financial contribution. The contribution of the wife to the welfare of the family was disproportionately greater than that of the husband. Due to his greater absence from the family and the difficulties sustained by the wife, although willingly undertaken, of regularly moving where she had no connections or family support to enable the husband to enhance his career.
By the conclusion of the marriage that is at separation, I consider that the parties’ contributions should be considered equal.
Post separation
The husband continued to provide financially post separation, whilst the parties lived separately, under one roof. The wife continued to provide the majority of care for the children. I do not consider their position in terms of their contributions had changed by the date of hearing.
Section 75(2) factors - matters to be taken into consideration in relation to spousal maintenance and property division (s 79(4)(e))
Age and state of health
The wife is aged 45 and has suffered from depression for which she has sought treatment.
The husband is aged 41 and is in good health.
Capacity for employment
The wife has minimal income which is provided by the husband. At the date of hearing the husband was contributing $250 per week to the wife, she also received an average of $50 per week in income generated by running the business ‘J Pty Ltd.’
The wife has a greater capacity for work than what she is currently exerting. At the time the parties met she worked in administration earning about $65,000 per year. She has both the physical and mental capacity to obtain gainful employment of that nature, although not at the same level. She has been absent from the paid workforce for 13 years.
The husband is a professional with a disclosed weekly income of $5,000 per week. He has the physical and mental capacity to continue in gainful employment at that level, or given his past history, of escalating to a higher level of income over time.
Care and control of the children
The parties’ children are young, aged seven and three. They will spend the majority of time in their mother’s care, although substantial and significant time with their father.
Commitments of each of the parties
The husband is committed to fulltime employment at a demanding level, including overseas and interstate travel and long working hours. He will undoubtedly meet his commitments to child support as assessed in the future.
The wife has a duty to maintain the children and she will do that first of all through the support of the husband and when she is able to do so, probably when C starts school in 2016, will obtain paid employment.
Responsibilities of either party for support
Neither party supports any other person than the children.
Eligibility for Government benefits
The wife may be entitled to a family support payment and some limited Centrelink benefit in the short term. Neither party have reached the age of accessing their superannuation.
Standard of living
Both parties and their children have enjoyed a high standard of living, both overseas and in Australia, in the family home at Suburb G. It is reasonable for them to obtain accommodation at a comparable standard.
Spousal maintenance
The wife does need financial support until both children are school age so that she can either upgrade her skills to return to her former employment, or obtain fresh skills for running a small business as she had begun to do in the past.
Contributions to income earning capacity property and financial resources
The wife gave up employment at N Bank in order to accompany the husband to an overseas posting. She continued to accompany him as he was promoted to different overseas countries, including Country E and Country L. I accept that she did everything she could to support the husband’s career in that way.
Duration of the marriage
The parties were living together and married for about eight years, followed by living together whilst separated for a further four years. The marriage has had an adverse impact on the capacity of the wife to earn, both because she resigned her employment in order to travel with the husband and also because she willingly took on the majority of care of the parties’ two children.
Continuing role as a parent
Both parties have a strong wish to continue their role as a parent. The mother in particular wishes to be available to provide fulltime care and supervision to the children, particularly C until she starts school in 2016, without any significant outside care.
Section 79 Orders
With the sale of the Suburb G property each party will have a significant sum of money to obtain accommodation. The wife may sell her Suburb I property in order to afford suitable accommodation in the Suburb G area. She confirmed in her oral evidence her wish and intention to remain in the Suburb G area.
The husband will have a lesser sum of cash, but will be able to sustain mortgage repayment of not less than $1,750 per week, which is his current rental commitment.
There should be an adjustment in favour of the wife to meet her need for accommodation now, together with spousal maintenance support until the younger child starts school.
I consider that an adjustment to a 60/40 overall division of assets favouring the wife, together with a two year period of spouse maintenance, is appropriate for future needs.
Is the alteration of interests and transfer of property just and equitable?
A division of the in a ratio of 60/40 provides sufficient funds for the wife to reaccommodate herself and the children and to stabilise her position in anticipation of a return to part-time work in approximately two years’ time. Her greater share reflects the greater needs of the primary carer of young children.
The husband will also be able to provide appropriate accommodation for himself and the children, based on a cash division of the assets and his own capacity to borrow.
I do consider that the alteration of interests and transfer of property is just and equitable in the circumstances.
Parenting
The parties were able to resolve most issues by agreement. The significant issue was whether or not equal time should commence in 2016 when C starts school.
The father pressed for equal time to commence in 2016 when C starts school. This is an appropriate recognition by him of the need of the children at present to spend more of their time with their mother. However there are difficulties with his proposal.
There is no evidence from the father as to the arrangements he would put in place for the care and supervision of the children in each alternate week when they lived with him.
There is evidence of his ability to do two things. One is to vary his pattern of work such that one day per fortnight can be spent at home provided those nine hours are made up. One way to do that would be to work an additional hour on each other day of the fortnight. That would alter the hours of work from 8.00 am to 6.00 pm or 9.00 am to 7.00 pm.
The father already works long hours. In addition he travels extensively to the USA, Europe and Asia. During those times he would presumably call on the assistance of the children’s mother, his own mother or paid help. There is no evidence about it, which rather suggests that the father has not fully considered the logistics of equal time between the parents. If the father continues to work from home one day per fortnight, the increased time will take him to the limit of the flexible work arrangements he has in place on a trial basis.
The second work related proposal is for him to come into work late on one day each week. The orders provide for the children to be taken to school/pre-school by their father on two mornings each fortnight. One of those will be on the day of his working at home. The other will require a late start. In three years time there would be three mornings per week to be accommodated.
The second and more significant consideration is the impact on the children of a switch to week about shared care in three years time. It is impossible to predict the circumstances of the parties at that time.
Ms O said this in her report:[15]
Taking into consideration the children’s age developmental stage and their care history it seems reasonable that they remain living primarily with [Ms Hadaway] for the next three years and until [C] is of an age where she would be able to tolerate longer time away from [Ms Hadaway]. There is however no indication that the children would not tolerate a week about arrangement in the future, as they age and mature. Further this would maximise the chance of a strong relationship with both parents and provide some respite for each parent.
[15] Report of Ms O, Clinical Psychologist dated 17/03/2013, p 38, par 160
Ms O very properly conceded during cross examination that her statement was based on a statistical analysis of children’s stage of development and ability to cope with separation from their primary carer. It was not particular to these children.
That information is a helpful general guideline. However I am obliged to consider the best interests of these particular children.
The physical separation of their parents was only weeks old at the time of hearing, four days old when the children were interviewed. The children had just begun to experience the consequences of the separation of their parents. B aged 7 was assessed by Ms O, to need to remain primarily in the care of his mother for the next three years.
There was no basis in the evidence for an assumption by me that C would be ready to spend significantly less time with her mother at age six, just as she is starting school. Even if I were to be satisfied that C could tolerate such a change, tolerance is not the test to be applied.
In this case the children are doing well having been cared for by their mother for most of the time, all their lives. Their emotional needs are met primarily by her. Their mother has a commitment to continue making herself available for their fulltime care.
The father is a loving father who is much less available to the children as a result of his employment.
The father has a lesser capacity to meet their emotional needs. During separation under the one roof he regularly directed insulting contemptuous language at the mother in the presence of the children. In this way he used the children to provoke and antagonise the mother. The father says he has now realised that he should not do so. However the behaviour of the parties’ son B has been affected adversely. His school raised concerns. There was immaturity in the father’s conduct.
The best interests of the children are served by caution in the extent of change to current arrangements which work well.
For that reason I have made orders which provide for a slight increase in time for the children with their father after C has made the transition to school, but are otherwise a continuation of what the parties have agreed.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 November 2013.
Associate:
Date: 19 November 2013
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Consent
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