Connors and Taylor (No 2)

[2011] FamCA 884

FAMILY COURT OF AUSTRALIA

CONNORS & TAYLOR (NO 2) [2011] FamCA 884

FAMILY LAW - CHILDREN - interim – where prior consent orders are unclear in their terms – where evidence is untested and without a clear indication of appropriate outcome – decision to compromise between each party’s preference

Family Law Act 1975 (Cth)

APPLICANT: Ms Connors

RESPONDENT: Ms Taylor

FILE NUMBER: SYC 2039 of 2007

DATE DELIVERED: 14 November 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees, SC

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Pearson, Pearson Family Lawyers

Orders

SUBJECT TO ANY OTHER WRITTEN AGREEMENT THE PARTIES REACH AND PENDING FURTHER ORDER:

1. Order 2.2 made 7 February 2011 be discharged.

2. Between 16 December 2011 and the commencement of V’s schooling, V Connors-Taylor, born … November 2006 (“V”) and L Connors-Taylor, born … January 2008 (“L”) (“the children”) shall live with their mothers at the following times:

   2.1.From 6pm 16 December 2011 to 6pm 18 December 2011 the children are to be with Ms Taylor.

   2.2.From 6pm 18 December 2011 to 6pm 20 December 2011 V is to be with Ms Taylor and L is to be with Ms Connors.

   2.3.From 6pm 20 December 2011 to 3pm 25 December 2011 the children are to be with Ms Connors.

   2.4.From 3pm 25 December 2011 to 6pm 29 December 2011 the children are to be with Ms Taylor.

   2.5.From 6pm 29 December 2011 to 6pm 31 December 2011 V is to be with Ms Taylor and L is to be with Ms Connors.

   2.6.From 6pm 31 December 2011 to 6pm 4 January 2012 the children are to be with Ms Connors.

   2.7.From 6pm 4 January 2012 to 6pm 6 January 2012 V is to be with Ms Taylor and L is to be with Ms Connors.

   2.8.From 6pm 6 January 2012 to noon 10 January 2012 the children are to be with Ms Taylor.

   2.9.From noon 10 January 2012 to 6pm 14 January 2012 the children are to be with Ms Connors.

   2.10.From 6pm 14 January 2012 to 6pm 16 January 2012, V is to be with Ms Taylor and L is to be with Ms Connors.

   2.11.From 6pm 16 January 2012 to 6pm 20 January 2012 the children are to be with Ms Taylor.

   2.12.From 6pm 20 January 2012 to 6pm 24 January 2012 the children are to be with Ms Connors.

   2.13.From 6pm 24 January 2012 to 6pm 26 January 2012 V is to be with Ms Taylor and L is to be with Ms Connors.

   2.14.From 6pm 26 January 2012 to 6pm 29 January 2012 the children are to be with Ms Taylor.

   2.15.And thereafter until V commences school, V is to be with Ms Taylor and L is to be with Ms Connors.

3. Order 2 may be varied by the parties signing a document noting the variation.

4. I note that Ms Taylor and Ms Connors will meet at Ms Taylor’s home prior to V commencing her first day at school and will go together with her to her first day at school.

It is noted that publication of this judgment under the pseudonym Connors & Taylor (No 2) is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER:  SYC 2039 of 2007

Ms Connors

Applicant

And

Ms Taylor

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties have already had two interim hearings. The matter is set for a final hearing before me early February 2012.  The mothers are unable to reach an agreement as to what arrangements should be made for the 2011/2012 Christmas holidays.

2. There are current orders, made by consent on 7 February 2011, which seemingly covered the period. However, the parents are unable to reach an agreement as to what those orders mean and as I commented in my reasons on 20 June 2011, there is considerable ambiguity in relation to the interpretation of existing wording.

3. Under the original interim orders made by Justice Ainslie-Wallace on 13 September 2010, V (born in November 2006) spent two nights with Ms Connors and L (born in January 2008) spent two nights with Ms Taylor. The girls were consequently together four nights a fortnight. In addition, during each weekend day, they spent time together from 9am to 6pm with their respective mothers.

4. In the consent orders of 7 February 2011, a slightly different interim arrangement was agreed. The girls commenced to spend time with their mothers in the following pattern:

   4.1.Monday from 9am to 6pm with Ms Taylor;

   4.2.Tuesday 9am until Wednesday 1pm with Ms Connors;

   4.3.Wednesday 1pm until Thursday 3pm with Ms Taylor;

   4.4.On an alternate basis in week one, Thursday 3pm until Thursday 6pm with Ms Connors and week two, Thursday 3pm until Thursday 6pm with Ms Taylor;

   4.5.On an alternate weekend basis in week one from Friday 3pm or the conclusion of preschool until Sunday 4pm with Ms Taylor and in week two, the same periods of time with Ms Connors.

5. Under this arrangement, the children still spent 10 nights a fortnight with their respective birth mothers and apart from one another.

6. There was a provision that if Ms Connors was unavailable to look after the children, then Ms Taylor would be given the first opportunity to do so.

7. Order 2.2 is in the following terms:

   “During preschool holiday periods, order 2.1 is varied as follows:

   2.2.1   Each parent will have four consecutive nights with the children by agreement and failing agreement the arrangement will be that weekend time is extended by two nights so that it commences at 6pm Wednesday night and concludes at 4pm on Sunday.”

8. Ms Connors argues that that order was meant to be one by which the two girls spent the whole of each school holidays together on a cycle of four consecutive nights with one parent and then the next. Ms Taylor argues that that order was meant to simply extend by two nights the alternate weekend times that the girls spent together with each parent.

9. Unfortunately, the parents have not been able to work out an agreed arrangement for the coming Christmas holidays.

10. One central controversy that I will be asked to determine at a final hearing in early February 2012, is the issue of whether or not the children should substantially spend their lives together in the future in the care from time to time of one or other of their mothers or whether or not it is in each child’s best interests to spend substantial time alone with each of their birth mothers.

11. This interim disagreement seems to be a dress rehearsal for the final dispute.

12. The only difficulty is of course, I do not on an interim basis have the benefit of tested evidence, particularly the expert evidence.

13. On 20 June 2011 I made alternate orders about holiday time, in respect of the winter and spring holidays in 2011. In relation to the winter holidays, I ordered that the children should remain together during the whole of the holidays on a three day/two day cycle with each of their parents and in the spring holidays, on a three day/four day cycle.

14. This order was made in the context of a situation where both children were spending ten nights a fortnight with their birth mothers during school term. It was made without the testing of any of the evidence.

15. There is nothing in the parts of the evidence which is uncontroversial that greatly assists me in resolving this interim dispute.

16. The applicant wishes to maximise the time the children spend together. She submits that during the last two periods of holidays, where the children have not been separated, there is no word of complaint from the respondent in her voluminous material. On the contrary, it was suggested the material shows that there have been no issues with changeovers and the children are both happy. The applicant said in her affidavit material that she plans to take three months off over summer to spend time with the children, and that V has become happy and settled in her care. She says there is no good reason why the girls should not spend time together during the holidays.

17. The respondent wishes to maximise the time the girls spend with their respective birth mothers. The importance of this, she says, is highlighted by the advent of a “life changing event” at the end of the holidays, V starting school. She submits that the orders regarding the winter and spring holidays were made in the absence of affidavit evidence, and in any case, the circumstances of this application are different, as the summer holidays are far longer.

18. The respondent denies there are no complaints of how the holidays have worked out. She points to the difficulty L was having with changeovers, recorded at annexure 2 of her affidavit of 17 October 2011.

19. Ms Taylor also refers to a significant amount of the material that she has filed for the final trial and parts of Dr M’s report. All of that material is yet untested and there are other parts of Dr M’s report which are more supportive of Ms Connor’s position. I am unable in the context of this interim hearing to make any findings on any of those matters.

20. In February, the mothers agreed that on an interim basis, each of the children should spend significant amounts of time during school term with their birth mother. Whatever order 2.2 of 7 February 2011 was meant to mean, it at least means that the children were intended to spend four nights a week with each other during preschool holidays.

21. The parties have agreed that changeover should take place at 3pm on Christmas Day with the children to be with Ms Connors on Christmas Eve until 3pm Christmas Day and with Ms Taylor from 3pm Christmas Day until at least 3pm on 26 December.

22. I am also mindful that L’s birthday is in early January.

23. By way of compromise, I intend to make an order which:

    23.1.Allows the children to be together during the majority of the time during the Christmas holidays with that time being shared equally between their parents (17 nights each).

    23.2.Gives some one-on-one time with their respective birth mothers.

24. The orders that the parties respectively seek conclude on 30 and 29 January respectively. I am mindful that I have received recent communication (I presume by consent) indicating that the information that I was given about the date V was due to start school was incorrect. The orders I propose however should be effective no matter what actual start date school is.

25. Both parties seem to generally prefer 6pm as a changeover time.

26. In the event that the parties can agree in writing on any variation to the orders I have made, then my orders can be varied by simply mutually signing a document noting the variation. 

I certify that the preceding twenty-six paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 November 2011.

Associate: 

Date:  14.11.2011