Connors and Taylor

[2011] FamCA 528

FAMILY COURT OF AUSTRALIA

CONNORS & TAYLOR [2011] FamCA 528

FAMILY LAW - CHILDREN - interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Connors

RESPONDENT: Ms Taylor

FILE NUMBER: SYC 2039 of 2007

DATE DELIVERED: 20 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees, SC and Ms Christie

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. Leave granted to the respondent to issue subpoenas to Dr W and Ms B for documents relating to their consultations with Ms Connors.  The material produced pursuant to those subpoenas is to be released initially to the lawyers for the applicant who will, within 14 days of the material being released for inspection, indicate to the respondent whether or not those documents can be made available for inspection.  If the applicant has an objection to any or all of those documents being made available for inspection, the matter is to be relisted before me for the consideration of that objection. 

2. During pre school holidays order 2.1 made 7 February 2011 is suspended.

3. During pre school holidays the children spend time with the applicant and respondent as follows:

   3.1.From 3pm on 1 July 2011 to 4pm on 3 July 2011 with Ms Taylor;

   3.2.From 4pm on 3 July 2011 to 4pm on Thursday 7 July 2011 with Ms Connors;

   3.3.From 4pm on Thursday 7 July 2011 to 4pm on Sunday 10 July 2011 with Ms Taylor;

   3.4.From 4pm on Sunday 10 July 2011 to 4pm on Wednesday 13 July 2011 with Ms Connors;

   3.5.From 4pm on Wednesday 13 July to 4pm on Sunday 17 July 2011 with Ms Taylor.

4. The children spend time with the applicant and respondent in the September holidays as follows:

   4.1.From 3pm on Friday 23 September 2011 until 4pm on Sunday 25 September 2011 with Ms Taylor;

   4.2.From 4pm on Sunday 25 September 2011 until 4pm on Thursday 29 September 2011 with Ms Connors;

   4.3.From 4pm on Thursday 29 September 2011 until 4pm on Sunday 2 October 2011 with Ms Taylor;

   4.4.From 4pm on Sunday 2 October 2011 until 4pm on Wednesday 5 October 2011 with Ms Connors;

   4.5.From 4pm on Wednesday 5 October 2011 until 4pm on Sunday 9 October 2011 at 4pm with Ms Taylor.

5. Within six weeks the applicant file and serve her trial affidavit and an affidavit by Ms F.

6. Within six weeks the respondent file and serve her trial affidavit and an affidavit by Ms T and her mother.

7. 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.  

NOTATION:

1. The applicant and respondent can give evidence about any of the issues that have been identified in the list of potential issues for determination by the court contained in the respondent’s case information document and the document entitled draft issues by the applicant. 

2. Ms F will give evidence about the relationship between the two girls and her observations of parenting capacities of the two mothers. 

3. The respondent’s partner will give evidence about her relationship with the children; her relationship with the respondent and the support she offers and evidence about any occasion of family violence when she was present.

4. The respondent’s mother will give evidence about the relationships that she observed between the children; the parental capacity of the respondent and the applicant and the support she offers to the respondent both on a physical and emotional level.

IT IS FURTHER ORDERED THAT:

1. If the parties cannot otherwise agree on a value for each of the properties, forthwith the parties confer to agree on the identity of single expert valuers and the text of a letter of instruction to those valuers asking them to carry out a single expert valuation in relation to each of the properties and forthwith forward those instructions to the valuers.

2. Within 21 days each party provide to the other all relevant documents that they have in their possession or control that go to any issue that I am likely to have to make a determination about in the property matter. 

3. On or before 18 August 2011 each party file and serve an affidavit setting out the evidence upon which they seek to rely in relation to orders they seek me to make for alteration of property interests. 

4. Within 7 days the respondent file and serve a response to the applicant’s application for alteration of property and a financial statement.  

5. The contravention application filed by the application on 21 April 2011 is withdrawn and dismissed.

6. The parties confer in relation to a trial plan and forward a draft trial plan to my associate no later than 4pm on 23 August 2011. 

7. This matter be adjourned to 25 August 2011 at 2.45pm. 

IT IS NOTED THAT:

1. The applicant will make an inquiry as to the availability of Dr M to give evidence between September and the end of the year. 

2. The property matter will be heard without the need for a formal conciliation conference, but I note that the parties will consider employing a private mediator to have a mediation prior to the matter coming back before me for setting trial dates. 

It is noted that publication of this judgment under the pseudonym Connors & Taylor is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 2039 of 2007

Ms Connors

Applicant

And

Ms Taylor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Two applications have been made on an interim basis.  The first is an application to vary an order made on 7 February 2011 in a minor way.  The suggested change would mean that the children would spend Thursday night together each week and that one of their mothers would take both of them to pre-school the next morning. Whilst that application seems attractive on its face, I take into account that the mothers in this matter have already had two interim hearings; that the order which is sought to be changed was made by consent; that the supporting affidavit in respect of the application has only recently been served and that the respondent has not had a proper opportunity to rely to it and the respondent opposes the change.

2. In those circumstances, I am not going to interfere with the current interim consent order.  It will remain in place until I deal with the matter on a final basis.   

3. The situation is different in relation to the second interim application which is an oral application that has been made in relation to the current interim consent order about holidays.  The mothers are both professionals.  Neither they nor the experienced family lawyers they engage can agree on what the current holiday order actually means. Although both originally agreed on the words, both had a different view about what it meant. For my part, I can see that there is considerable ambiguity and both parties have argued effectively for their own interpretation of the existing wording. The words of the order need to be recast. 

4. Although the family consultant talks about the need for one-to-one time with the primary attachment figure, Dr M is not necessarily impressed with that notion and says at paragraph 125 of his report that he did not identify any specific need for there to be exclusive time and that it was not necessary.

5. The children are already spending some one-to-one time with their respective biological mothers as a result of the regime that is in place in term time.  I am attracted to the notion that it would be in the children’s best interest to spend the whole of a two week period together for their holidays from pre-school. I will make an order in the terms of the orders sought by Ms Connors to resolve the dispute between the parties as to what should happen during school holidays.

6. Given the inability to agree upon dates in the past, it would be best if the order was specific.  As I understand it, the order is that both the children will be with Ms Taylor from 3 pm or the conclusion of pre-school on Friday until 4 pm on Sunday, 3 July, then with Ms Connors from 4 pm on Sunday, 3 July until 4 pm on the following Thursday, then with Ms Taylor from 4 pm on the Thursday through to 4 pm on the Sunday and with Ms Connors from 4pm on the Sunday through to 4 pm on the Wednesday and with Ms Taylor from 4 pm on the Wednesday to 4 pm on the Sunday, and that Sunday is 17 July. There should be a similar regime for the September holidays. I would ask that the parties agree upon a detailed minute of order and I stand the matter in the list so it may be prepared.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 20 June 2011.

Associate: 

Date:  1.7.2011