CONNORS & TAYLOR
[2012] FamCA 207
•5 April 2012
FAMILY COURT OF AUSTRALIA
| CONNORS & TAYLOR | [2012] FamCA 207 |
| FAMILY LAW – CHILDREN – two young girls close in age born to different mothers in a same sex relationship – whether the non birth mother is a “parent” – what are the children’s current attachments – whether the siblings spend time apart – what arrangements are in the children’s best interests FAMILY LAW – PROPERTY – whether legal fees paid from post separation income should be added back – consideration of initial contributions – what is a just and equitable alteration of property – who should retain the family home |
| Family Law Act 1975 (Cth) Sections 60CA; 60CC(2), (3) and (4); 60H(1) and (5); 65C(c); 65DAA(1), (2) and (5); 65DAE(1) 69VA; 90SF(3); 90SM |
| Aldridge & Keaton [2009] FamCAFC 229 G & G [2001] FamCA 1453 |
| APPLICANT: | Ms Connors |
| RESPONDENT: | Ms Taylor |
| FILE NUMBER: | SYC | 2039 | of | 2007 |
| DATE DELIVERED: | 5 April 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 8 – 14 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr North, SC |
| SOLICITOR FOR THE APPLICANT: | Hamish Cumming Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Pearson Family Lawyers |
Orders
PARENTING ORDERS
The parties have equal shared parental responsibility for V (“the elder child”) Connors-Taylor, born … November 2006 and L (“the younger child”) Connors-Taylor, born … January 2008.
Each of the parties have sole parental responsibility for day to day decisions relating to the children when the children are in their sole care.
Unless otherwise agreed in writing, during school term the children shall live, with each of the parties, seven nights with Ms Connors and seven nights with Ms Taylor on a two week rotation as follows:
3.1.Until the end of 2012:
3.1.1.9am Thursday (or after the commencement of school or preschool) until 9am Sunday with Ms Taylor;
3.1.2.9am Sunday until 9am Wednesday (or before the commencement of school or preschool) with Ms Connors;
3.1.3.9am Wednesday (or after the commencement of school or preschool) to 9am Sunday with Ms Taylor;
3.1.4.9am Sunday until 9am (or before the commencement of school or preschool) Thursday with Ms Connors.
3.2.From the start of 2013 until the end of 2013:
3.2.1.9am Monday (or after the commencement of school or preschool) until 9am Wednesday (or before the commencement of school or preschool) with Ms Connors;
3.2.2.9am Wednesday (or after the commencement of school or preschool) until 9am Friday (or before the commencement of school or preschool) with Ms Taylor;
3.2.3.9am Friday (or after the commencement of school or preschool) until 9am Wednesday (or before the commencement of school or preschool) with Ms Connors;
3.2.4.9am Wednesday (or after the commencement of school or preschool) until 9am Monday (or before the commencement of school or preschool) with Ms Taylor.
3.3.After the end of 2013:
3.3.1.In the first week, after the commencement of school Monday until the commencement of school in the following week with Ms Connors;
3.3.2.In the second week, after the commencement of school Monday until the commencement of school in the following week with Ms Taylor.
Order 3 is suspended during school holidays.
The children shall live together with each of the parties during school holiday periods (which are defined to commence at the conclusion of school on the last day of each term and to start at the commencement of school on the first day of the next school term) as set out in orders 6 and 7 and the times referred to in order 3 are to recommence after such holiday period by a continued computation of where school term days would have fallen had the holiday period not occurred.
Unless otherwise agreed in writing:
6.1.Until the conclusion of the school year in 2012, the children shall live with each of the parties for one half of the school holidays as agreed and failing agreement in the same configuration of time as set out in order 3.1.
6.2.Until the conclusion of the school year in 2013, the children shall live with each of the parties for one half of the school holidays as agreed and failing agreement in the same configuration of time as set out in order 3.2.
6.3.During Christmas School holidays which commence in 2012 the children shall live in even numbered years with:
6.3.1.the Applicant for the first 4 days, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 4 days later and each alternate 4 days thereafter;
6.3.2.the Respondent for the next 4 days, concluding at 4.00pm on the day 4 days later and each alternate 4 days thereafter.
and continuing in this 4 day cycle until 4pm on the day before the commencement of the next school term
6.4.During Christmas school holidays which commence in 2013:
6.4.1.the Respondent for the first 7 days, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 7 days later and each alternate 7 days thereafter;
6.4.2.the Applicant for the next 7 days, concluding at 4.00pm on the day 7 days later and each alternate 7 days thereafter;
and continuing in this 7 day cycle until 4pm on the day before the commencement of the next school term.
6.5.From the commencement of the school year in 2014, during all school holiday periods the children live with the parties by agreement in writing for equal periods of time, and failing agreement both children live with the Applicant during the first half of each school holiday period in years ending with an even number and the second half of each school holiday period in years ending with an odd number and with the Respondent during the second half of each school holiday period in years ending with an even number and the first half of each school holiday period in years ending with an odd number.
Notwithstanding any other Order herein, the children spend time with each of the parties as follows:-
7.1.From 3pm 23 December until 3pm 25 December with Ms Taylor in each even numbered year;
7.2.From 3pm 25 December to 3pm 27 December with Ms Connors in each even numbered year;
7.3.From 3pm 23 December to 3pm 25 December with Ms Connors in each odd numbered year;
7.4.From 3pm 25 December to 3pm 27 December with Ms Taylor in each odd numbered year.
Notwithstanding any other Order herein, on the parties’ and the children’s Birthdays:-
8.1.The children shall live with Ms Taylor each year from 3pm [of date preceding elder child’s birthday] to 3pm … November (the elder child’s birthday) and with Ms Connors each year from 3pm [date of the elder child’s birthday] until 9am the following morning;
8.2.The children shall live with Ms Connors each year from 3pm [of date preceding younger child’s birthday] to 3pm on … January (the younger child’s birthday) and with Ms Taylor each year from 3pm [date of the younger child’s birthday] until 9am the following morning;
8.3.The children shall live with Ms Connors each year from 9am [date of her birthday until 9am [two days later];
8.4.The children shall live with Ms Taylor each year from 9am [date of her birthday] until 9am [two days later].
Notwithstanding any other Order herein the children shall spend half of Mother’s day with each party by agreement and failing agreement with Ms Connors from 8am until 1pm; and Ms Taylor from 1pm until 6pm, in even numbered years: and with Ms Taylor from 8am until 1pm; and with Ms Connors from 1pm until 6pm, in odd numbered years.
Notwithstanding any other Order herein, the children will otherwise live with one or the other party at any time agreed between them in writing.
The children are each to attend G primary school unless otherwise agreed in writing between the parties and each party is restrained from removing the children, or one of them, from the said school without the other party’s written consent.
Unless otherwise agreed in writing, the children are to attend the same high school for their high schooling.
Changeover pursuant to these Orders shall occur at school or pre-school and otherwise with the party or their agent collecting the children at the home of the other party at the commencement of their time on each occasion, unless otherwise agreed.
Each of the parties are entitled to attend all events involving one or both of the children including but not limited to, sport, extracurricular activities, school functions and events that normally allow for parties to attend including concerts, assemblies, sports days, party teacher interviews and social functions.
Each of the parties shall notify the other of any medical treatment the child has received and the treating doctor as soon as practical after the child has received such treatment whilst in their care.
Each of the parties be entitled to obtain directly from any health or welfare professional or any other professional attended by either of the children copies of any reports, notices, or other relevant verbal or written advice affecting the health or welfare of one or other of the children and for this purpose each of the parties shall, from time to time, notify the other the names of contact details of any relevant health or welfare professional and keep the other informed.
Each of the parties shall notify the other immediately of any emergency and direct their agent or nanny to notify the other immediately of any emergency involving one or other of the children.
Unless otherwise agreed both parties be permitted to travel interstate during school holiday periods with the children provided that the travelling party provides seven days written notice of such travel arrangements including dates and times of travel and itinerary and contact telephone number for the child.
In relation to overseas travel:
19.1.Each party is permitted to travel overseas with both children during the time the children live with them, or for some other agreed period of time, provided that a full itinerary is provided to the other party not less than 28 days prior to travel together with contact details for the children during the absence.
19.2.Each party shall do all acts and things and sign all documents to ensure that each of the children maintains a current passport, with the younger child's passport to be held by the Applicant and the elder child's passport to be held by the Respondent and such passports to be released to either of the parties only when they are to travel overseas with the children as provided by this Order.
Both parties are restrained from travelling with the children to a destination that has an Australian DFA travel advisory rating of “high degree of caution” or above unless otherwise agreed in writing.
In the event the parties are unable to agree on a decision about:
21.1.the exercise of equal shared parental responsibility;
21.2.an interpretation of these Orders or
21.3.a proposed variation of these Orders (if there is an assertion a significant change has occurred),
the parties will, prior to filing an application with the court, seek the mediation services of a person agreed between them and failing agreement by the Director of Child Dispute Services, Sydney Registry, Family Law Courts or her or his then equivalent, in order to attempt to resolve any such dispute. The parties shall attend such session or sessions as the agreed or nominated mediator recommends and the parties shall make a bona fide attempt to reach an agreement about any disputed issue.
PROPERTY ORDERS
Pursuant to s 90SM Family Law Act1975 (Cth), an Order be made in accordance with paragraphs 23 to 39 below.
The Court notes the following definitions for the purposes of these Orders:
23.1."[P] property" means the property situated at and known as [B Street, P] in the State of New South Wales being the whole of the land contained in folio identifier …90 of which the Applicant and Respondent are the registered proprietors as tenants in common in equal shares;
23.2."[P] mortgages" means the mortgages numbered …56 and …57 in favour of Commonwealth Bank of Australia registered on the title to the [P] property, of which the Applicant and the Respondent are jointly liable;
23.3."[O] property" means the property situated at and known as [X Street. O] in the State of New South Wales being the whole of the land contained in folio identifier …29 of which the Applicant and Respondent are the registered proprietors as tenants in common in equal shares;
23.4."[O] mortgage" means the mortgage number …86 in favour of Commonwealth Bank of Australia registered on the title to the [O] property, of which the Applicant and the Respondent are jointly liable;
23.5.“Chambers loan” means the Commonwealth Bank of Australia home loan account number …02 in the sum of about $300,000, borrowed by the applicant in respect of the acquisition of her chambers and presently secured by the P mortgages and/or the O mortgage;
23.6."MISA account" means the CBA MISA account number …07 held in the names of both the Applicant and the Respondent.
Within 42 days of the date of these Orders, the parties shall complete all acts and things and signs all documents necessary to cause the funds standing to the credit of the parties in joint names in the MISA account to be applied to the payment of:
24.1.The payment of the sum of $125,742 being one half of the Respondent’s unpaid income tax as at 30 June 2011.
24.2.The Commonwealth Bank Mortgage secured over the P and O properties.
Within 42 days the Applicant do all things and sign all necessary documents to discharge the Respondent from any liability in relation to the Chambers loan.
Within 42 days the parties do all things and sign all documents necessary to discharge the P mortgages such that the remaining security shall be the O property.
Simultaneously and upon compliance by the Applicant and Respondent with paragraphs 24 to 26 above, the Applicant shall pay to the Respondent the sum of $1,058,166 and the Respondent shall transfer to the Applicant all her right, title and interest in the P property.
The Applicant indemnify the Respondent against any liability from any outgoings in respect of the P property, including any arrears in relation to any of those outgoings.
The Applicant and Respondent forthwith (subject to any other written agreement between the parties as to the timing of the sale) do all things and execute all necessary documents to sell the O Property at a price to be agreed upon between the parties and failing agreement at a price to be determined by a qualified valuer agreed upon between the parties and failing agreement to be further appointed by the court.
Upon settlement of the sale of the O property, the proceeds of sale be applied in the following order and priority:
30.1.Payment of the sum necessary to discharge the O mortgage and any other monies jointly owed to the Commonwealth Bank of Australia.
30.2.The costs of sale.
30.3.The balance to be divided equally between the Applicant and the Respondent.
30.4.In the event that the sale price of the O property exceeds the sum of $1,550,000, the Applicant pay to the Respondent 2.5 percent of the excess and in the event that the sale price is less than the sum of $1,550,000 then the Respondent pay to the Applicant 2.5 percent of that difference.
Pending the settlement of the sale of the O property:
31.1.each of the parties has the right of occupation of the O property at times they agree upon in writing, and failing agreement the Applicant has the right to occupy the property for the first 2 weeks from the date of the making of these Orders and the Respondent has the right to occupy the property for the second 2 weeks from the date of the making of these Orders, to alternate each 2 weeks thereafter;
31.2.the party who has the right of occupation of the O property at the times specified in the preceding paragraph of these Orders has the sole authority to instruct the managing agent as to the leasing of the O property at those times;
31.3.all rent received from the leasing of the O property shall be applied in payment of the expenses associated with the O property, including council and water rates, electricity, water usage, telephone and land tax, agreed commission and expenses of the managing agent, in payment of the cleaners’ fees and similar expenses and any balance remaining shall be paid as to half to the Applicant and half to the Respondent and any shortfall shall be paid as to half by the Applicant and half by the Respondent.
The parties forthwith do everything necessary to divide equally the Commonwealth Bank accounts numbered …07 and …93.
The Applicant forthwith transfer to the Respondent her right, title and interest in the Audi … station wagon ….
The Respondent forthwith transfer to the Applicant any title that she has in the art in P property and chambers.
The Applicant forthwith transfer to the Respondent any title that she has in the named artwork at H Street, P.
Within 42 days the parties do all things and sign all necessary documents to equally pay the liabilities to Commonwealth Bank and for land tax referred to at items 37 to 40 inclusive on the balance sheet published in the Reasons for Judgment.
Within 14 days from the date of these Orders the wine, furniture and furnishings, and household contents owned by the parties or either of them which were in existence at the date of separation shall be divided between the parties by agreement, and in the absence of such an agreement, in the following manner:
37.1.within 14 days of the date of the making of these Orders the Applicant shall do all acts and things necessary to prepare two lists of the items contained in the P property, the items contained on each list to be approximate in value to that contained on the other list;
37.2.within 14 days of the date of the making of these Orders the Respondent shall do all acts and things necessary to prepare two lists of the items in the O property, the items contained on each list to be approximate in value to that contained on the other list;
37.3.within 14 days of the Respondent receiving the Applicant’s list in relation to the items in the P property, if the Respondent requests, the Applicant will allow the Respondent access to the P property to inspect the property for the purposes of satisfying herself as to the accuracy of the lists that have been prepared by the Applicant;
37.4.the Respondent shall select one of the lists prepared by the Applicant within 14 days of the receipt of the list or 7 days of the inspection referred to in the previous subparagraph (whichever is the later), and in default, the Applicant shall select one of the lists for the Respondent and thereafter the Respondent shall be solely entitled to the items contained in the list the Respondent has selected or been allocated and the Applicant shall be solely entitled to the items contained in the other list;
37.5.the Applicant shall select one of the lists prepared by the Respondent in relation to the items in the O property and within 7 days of receipt thereof, and in default, the Respondent shall select one of the lists for the Applicant and thereafter the Applicant shall be solely entitled to the items contained in the list the Applicant has selected or been allocated and the Respondent shall be solely entitled to the items contained in the other list;
37.6.the Applicant shall make available for collection by the Respondent or any persons nominated by the Respondent, all of those items contained in the list the Applicant has prepared and the Respondent has selected or been allocated, at any reasonable time requested by the Respondent and pending collection of the items by the Respondent the Applicant shall properly maintain such items;
37.7.the Applicant shall be entitled to collect from the O property the items contained in the list that she has selected or has been allocated.
Unless otherwise specified in these Orders, each of the parties is solely entitled, to the exclusion of the other, to all other property and chattels of whatsoever nature and kind in the possession of that party as at the date of these Orders and for that purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank account record, insurance policies are deemed to be in the possession of the beneficiary and superannuation entitlements are deemed to be in the possession of the member who has the superannuation interest.
Subject to any other order, each party shall indemnify the other in relation to any liability which is in their sole name.
Liberty granted to either party to apply on 7 days notice in relation to the implementation of these Property Orders.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Connors & Taylor 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: SYC 2039 of 2007
| Ms Connors |
Applicant
And
| Ms Taylor |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties to this litigation are two highly intelligent women who have each been very successful in their chosen profession. They lived in a de facto relationship for 11 ½ years. Both women were committed to that relationship until the Respondent became emotionally committed to another woman during the final year of the relationship between the Applicant and the Respondent. During the relationship, the women jointly planned a family and each gave birth to a daughter. The Respondent gave birth to the elder child and the Applicant gave birth to the younger child, with a gap of 13 months between those births. The girls are now 5 years and 4 months, and 4 years and 2 months.
Since the separation, the parties have not been able to resolve differences relating to what time the children should spend with each of them. Initially they unsuccessfully attempted to resolve their differences with the assistance of an experienced counsellor and have since both energetically involved themselves in litigation in this court.
During the course of the hearing before me, both parties have placed on the table a number of proposals as to how the children will spend time with each of their mothers. Each party’s proposal has been through many iterations. These changes have, in part, been a refinement of the weight the parties gave to competing considerations as to what might be in the children’s best interests, or have been a reaction to a previous proposal put by the other party or the evidence as it emerged during the hearing. I set out below the position taken by the parties at the commencement of final submissions.
In this matter, whilst mindful of all statutory considerations, I will find there are four main competing considerations in deciding what time each child should spend with each parent, namely:
4.1.A desire to maximise the amount of time that the children spend with one another;
4.2.A need to protect each child and particularly the elder child, from the risk of psychological harm from being separated from the mother to whom they are each primarily attached;
4.3.An assertion by the Applicant that the Respondent favours the child to whom she gave birth (the elder child) over the younger child and a consequential submission by the Applicant that the younger child needs to be protected (in terms of the amount of time she spends with the Respondent) from exposure to the Respondent’s preferential treatment of the elder child when the children are together;
4.4.Minimising the frequency of changeovers.
The children’s biological father has an ongoing relationship with the children, but has no traditional parenting rights or responsibilities.
During the time the parties were together, the income derived from their successful careers meant that their joint wealth increased significantly. They have not been able to agree on how to divide their property and they ask the Court to make that decision.
APPLICATIONS - PARENTING
The Applicant seeks an order that both parties have equal shared parental responsibility for both children.
The Respondent seeks an order granting her sole parental responsibility for the elder child and an order that the Applicant have sole parental responsibility for the younger child.
In relation to ordinary school term time, the Applicant has a primary position and an alternate position. The Respondent has settled upon a single proposal.
The parenting orders which the Applicant sought at the commencement of final submissions (Exhibit 10) are set out in Schedule 1 to these reasons and the orders which the Respondent sought at the commencement of final submissions (Exhibit 11) are set out in Schedule 2.
The Applicant’s primary proposal (Order 3, Schedule 1) would see both children being with the Applicant for nine nights and with the Respondent for five nights in a fortnightly period. The children would be together at all times in one or other of their mothers’ households. They would be involved in four changeovers where they would move together from one household to the other in a fortnightly period. The sequence of nights proposed is six nights with the Applicant; four nights with the Respondent; three nights with the Applicant; one night with the Respondent. As counsel for the Respondent pointed out, this proposal means that the elder child would be away from the Respondent nine nights in a particular period of ten nights in each fortnight.
The Applicant’s alternate proposal (order 4, Schedule 1), sees the elder child being with the Respondent for nine nights and the younger child being with the Applicant for nine nights, the children being together ten nights out of the fortnight and apart four nights. This cycle is more complex than the primary proposal, involving a total of six changeovers with each of the children moving four times in the fortnight. The sequence for the elder child in a fortnight is two nights with the Respondent; two nights with the Applicant; seven nights with the Respondent; three nights with the Applicant. The sequence for the younger child is seven nights with the Applicant; three nights with the Respondent; two nights with the Applicant; two nights with the Respondent.
The Respondent’s modified proposal at the commencement of final submissions was that the elder child be with the Respondent for ten nights a fortnight and the younger child be with the Applicant for ten nights a fortnight. The children would spend eight nights together and six nights apart in any fortnightly period. The sequence on the Respondent’s proposal is for the elder child to spend four nights with her; one night with the Applicant; six nights with her and three nights with the Applicant in any 14 day period and for the younger child to spend one night with her; three nights with the Applicant; two nights with her; one night with the Applicant; one night with her; six nights with the Applicant in any 14 day period. So the elder child would move four times between households in a fortnight and the younger child would move six times in the fortnight. There would be nine changeovers in total. The children would move more times if the Respondent was successful in obtaining order 16 (Schedule 2) which I detail in the next paragraph. The Respondent’s modified position at the commencement of final submissions significantly reduced the number of changeovers that were contained in the Respondent’s proposal at the commencement of the final hearing. That proposal involved 15 changeovers in a fortnightly period (there are currently 13 under the current interim orders).
Order 16 sought by the Respondent is framed in neutral terms so that it imposes the same responsibility on both parties. However the current practical effect of that order would only work in one direction. As it applies to the Applicant, order 16 would require the Applicant to deliver the younger child or both children to the Respondent on any occasion when she was unable to personally care for the children or the younger child, no matter how short a period was involved. On the Respondent’s proposal, either she or her new partner Ms T will be available at all times to care for the children and hence the Respondent’s order 16 will not practically apply to the Respondent.
During the hearing and again before the commencement of final submissions, I indicated that the parties should also consider as a possible arrangement, one that would see the children together all the time, spending equal time with both their parents and moving between their mothers’ homes four times during a fortnight.
APPLICATIONS – PROPERTY
The property orders sought by the Applicant are set out in Schedule 1 and the property orders sought by the Respondent are set out in Schedule 2.
During their relationship, the parties lived together in a property on B Street, P (“the P property”). The Applicant and the younger child still reside in this property. Both parties are seeking to retain the P property.
The parties have disagreed about various items on the balance sheet, primarily arising out of monies received and paid since separation. The parties were in disagreement about the value of the Applicant’s motor vehicle and an order was made to facilitate a valuation of that motor vehicle, with the parties agreeing to be bound by the results of that valuation. After the hearing the parties reached an agreement that the value of the motor vehicle was $46 000.
On an overall basis, the Applicant seeks an equal division of the net assets of the parties including superannuation and the Respondent seeks a 52.5/47.5 division of the net assets in her favour.
Both parties have agreed on the sale of the O property but disagree about the timing of when that property is to be listed for sale.
DOCUMENTS RELIED UPON
The Applicant relies on the following:
21.1.Applicant’s affidavit 08.02.2012
21.2.Applicant’s affidavit updating her financial circumstances 08.02.2012
21.3.Applicant’s affidavit 17.10.2011
21.4.Applicant’s affidavit 22.08.2011
21.5.Applicant’s affidavit 18.08.2011
21.6.Affidavit of Ms F 12.10.2011
21.7.Affidavit of Ms F 22.08.2011
21.8.Affidavit of Ms U, Applicant’s mother 17.10.2011
The Respondent relies on the following:
22.1.Respondent’s affidavit 01.02.2012
22.2.Respondent’s affidavit “re Parenting” 21.09.2011
22.3.Respondent’s affidavit “re Property Settlement” 24.08.2011
22.4.Respondent’s financial statement 27.06.2011
22.5.Affidavit of Ms T 24.08.2011
22.6.Affidavit of Ms AT 8.09.2011
The following independent documents were also in evidence:
23.1.Single Expert Report from Dr M dated 27.04.2011
23.2.Affidavit of Ms K (Family Consultant) 20.08.2010
SHORT HISTORY
The Applicant, Ms Connors, was born in 1970 and is now aged 41.
The Respondent, Ms Taylor, was born in 1969 and is now aged 42.
The parties commenced cohabitation in November 1998.
The elder child was born in November 2006 and is now aged 5 years and 4 months.
The younger child was born in January 2008 and is now aged 4 years and 2 months.
The parties separated in April 2010.
CREDIT
Counsel for each party made no oral submission that the credit of the other party should be impugned. Counsel for the Respondent made some comment adverse to the Applicant’s credit in the written document provided during submissions (Exhibit 14).
Applicant
The Applicant gave her evidence in a straight forward manner.
I do not accept any submission in Exhibit 14 that would bring the Applicant’s credit into question and I accept the submissions by senior counsel for the Applicant in relation to those matters.
Respondent
The Respondent was also forthright in her evidence.
Ms F
Counsel for the Respondent attempted to impugn the credit of the nanny, Ms F. The attack was primarily based on the fact that Ms F had affirmed an earlier affidavit, apparently in the context of interim proceedings. Some of the things that she said in her trial affidavit were not mentioned in the earlier affidavit, particularly as they related to her observations of the Respondent favouring the elder child over the younger child. I accept senior counsel for the Applicant’s submission that it would be unsafe to draw adverse inferences as to credit against Ms F on the basis of how those two affidavits were drawn. He correctly pointed out the court does not know the circumstances in which nor the purpose for which the first affidavit was prepared. Ms F was unshaken in her oral evidence and I accept that she expressed in her evidence the genuine perceptions that she had about the Respondent’s interaction with both children.
Ms T
Senior counsel for the Applicant took the Respondent’s new partner, Ms T, through examples of more recent communication between the parties. Ms T acknowledged this communication had been much more civil than in 2010 when the parties had just separated. However, Ms T was adamant that the tension and hostility between the parties had not subsided, even in part. I am not comfortable in accepting that assessment as an objectively held view.
DETAILED CHRONOLOGY
Unless indicated otherwise, what follows are findings of fact.
The Applicant, Ms Connors, was born in 1970 and is now aged 41.
The Respondent, Ms Taylor, was born in 1969 and is now aged 42.
The Respondent’s new partner Ms T was born in 1977 and she turned 35 recently.
In 1998, the Respondent acquired 300 shares in C Limited for $300,000. These shares were financed by an interest-only loan from the Commonwealth Bank. The shares entitled her to a room in … Chambers.
The parties commenced cohabitation in November 1998.
On 18 December 2001, the parties purchased a property in B Street, P, as tenants in common in equal shares. The purchase price of the property was $885,000 (together with an additional amount for stamp duty and acquisition costs). The Applicant contributed $270,000 from her term deposit funds, and that the Respondent contributed $170,000 from her personal savings. The balance was funded by a $466,000 loan from the Commonwealth Bank. They moved into this property in early 2002.
Around March 2004, the parties’ purchased a property in O for $1.5 million. The purchase was financed wholly by a loan from the Commonwealth Bank. This property was sometimes tenanted, although the parties would often spend weekends and Christmas holidays in the property.
In November 2006, the Respondent took maternity leave.
The Respondent gave birth to the elder child in November 2006.
In July 2007, the Respondent recommenced work part-time after taking maternity leave. Around this time, the parties hired a nanny to care for elder child.
In December 2007, the Respondent returned to full-time work. Around this time, the Applicant took maternity leave.
The Applicant gave birth to the younger child in January 2008.
In 2008, the Applicant began attending sessions with a psychiatrist, Dr S.
Around April or May 2008, the Applicant returned to work after maternity leave.
Around May or June 2008, the parties employed Ms F as a nanny for the children.
In June 2009, Ms F and the younger child were involved in a serious car accident involving a fatality.
The Respondent indicated her relationship with Ms T began back in June 2009. By some time in the second half of 2009, the Respondent and Ms T became emotionally committed. Dr M noted the women have “difficulty in defining the onset of their relationship.” Ms T said she was emotionally committed to the Respondent in October 2009. That relationship was not disclosed to the Applicant until April 2010.
The parties separated in April 2010.
In April 2010, the Applicant was diagnosed with depression and prescribed the anti-depressant Cipramil. While on Cipramil, she suffered severe adverse side effects. After one month, the Applicant changed to Effexor-XR. Her treatment was managed by psychiatrist Dr W.
On 22 April 2010, the Respondent leased a property in H Street, P. She and the elder child moved into that property. The Applicant and the younger child remained in the P home.
On 2 May 2010, the Applicant admits she began yelling, swearing, and kicking the Respondent during a changeover for the children.
On 22 May 2010, the Respondent arrived at the P property to pick up the younger child. The Applicant admits she began swearing at the Respondent and kicking her. The Applicant hit the Respondent, when loading the children into the car.
In May 2010, the Applicant began seeing Dr B, a clinical psychologist recommended to her as having expertise in child psychology and parenting issues.
On 5 June 2010, during a changeover for the children, the Respondent and Applicant disagreed over where the elder child would stay for that weekend. The Applicant admits she took the elder child from the Respondent’s arms without consent. In a state of distress, the Respondent called out to her new partner Ms T. The Applicant admits she began swearing at and kicking Ms T. The Applicant’s father had to restrain the Applicant.
In June 2010, Ms F was advised she had secondary cancer. She underwent radiation therapy in June 2010.
On 7 July 2010, the Applicant found a white powder which she alleged was drugs in the O property after the Respondent and the children had spent some time in the property. I am not satisfied that the Respondent or anybody associated with her was responsible for the presence of those drugs at the O property.
Around August or September 2010, Ms F gave notice to the Respondent that she would cease working for the Applicant and Respondent jointly. Ms F indicated she would continue to work for the Applicant three days a week.
On 29 August 2010, Ms T, without notice to the Applicant, arrived unaccompanied at P to pick up the younger child for the Respondent. The Applicant admits she refused to give the younger child to Ms T and sprayed her with the contents of a tomato sauce bottle.
In September 2010, Ms T commenced cohabitation with the Respondent in the H Street property.
On 24 September 2010 Ainslie-Wallace J made interim orders for equal shared parental responsibilities and for the children in each week, to spend four nights together (two nights with each party) and three nights with their respective birth mothers.
In December 2010, the Applicant commenced a relationship with her girlfriend Ms N. They do not live together.
In January 2011, the Respondent ceased her employment as a partner at a professional firm. She had been invited by the partnership to resign as a result of the Respondent not meeting performance targets.
In February 2011, the mothers agreed on variations to the interim orders but still with each of the children spending significant amounts of time during school term with their respective birth mothers.
On 21 and 22 March 2011, both mothers and the children met with Dr M.
On 30 March 2011, the Applicant and the children met with Dr M, after the Applicant had obtained the Respondent’s consent to have a further meeting with him.
On 27 April 2011, Dr M prepared his single expert report.
In May 2011, Ms F was diagnosed with new tumours. She began a course of chemotherapy on 16 August 2011.
On 20 June 2011, I made interim orders about winter and spring holiday time 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.
On 14 November 2011, I made interim orders about the 2011 Christmas school holidays. I ordered the children live with each parent, approximately six days with their respective birth mothers and four days with their other mother in a ten day cycle (bearing in mind Christmas Day and the younger child’s birthday in January). This meant the children were separated from each other only two days out of the ten day cycle.
On 2 February 2012, the elder child commenced school at G Public School.
THE LAW
Is the Applicant the elder child’s parent and is the Respondent the younger child’s parent?
Section 60H(1) and (5) Family Law Act (“FLA”) are in the following terms:
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure;
…..
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material — the child is not the child of that person.
…
(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
In Aldridge & Keaton [2009] FamCAFC 229, the Full Court discussed this section in the following terms:
16.Although not directly raised in this appeal, the question of whether an “other intended parent” is a “parent” for the purposes of Part VII is not without some doubt. This fact is of significance when considering s 60B(1) and (2) and s 60CC(2) and (3). We would, consistent with principles of statutory interpretation, give a purposive construction to the section, and regard both the birth mother and other intended parent as parents of the child. But we note other provisions of the Act appear inconsistent with this interpretation.
17.The Act, in s 4, defines “parent” as “when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”.
18.Section 60H uses the expression “person” and “other intended parent” not “parent”. It appears from the Revised Supplementary Explanatory Memorandum that the drafters intended such a person should be treated in the same manner as a parent, to meet the concerns expressed in representations recorded in the Senate Standing Committee on Legal and Constitutional Affairs’ report on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (“the Senate report”) but the definition of “parent” in the Act was not amended at the same time amendments were made to s 60H.
19.We also note the applicant sought a declaration she was a parent under s 69VA of the Act. This section appears in Sub-division E which division contains the provisions for ordering parentage testing procedures (DNA testing to establish biological parentage). As originally inserted into the Act it was not intended as a provision to enable declarations of parentage to be made in respect of parties in a same-sex relationship.
20.The applicant also sought an order that she be registered on the child’s birth certificate as a parent. That registration, if carried into effect, would have created a presumption (see s 69R) that the applicant was “a parent” of the child, which presumption, if not rebutted, would appear to put beyond doubt that the provisions of Part VII, including s 61DA(1) – the presumption of equal shared parental responsibility – and those sections of s 60CC which specifically refer to a parent would have application. [emphasis in original]
21.Section 69R which, in its present form, was introduced into the Act in 1996, preceded New South Wales legislation which now permits the recording on a child’s birth certificate the name of both the child’s biological mother and a same-sex co-parent (See the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW); s 14 of the Status of the Children Act 1996 (NSW); and the Births, Deaths and Marriages Registration Act 1995 (NSW)).
22.We think from reading the Senate report, it was intended that following amendments to s 60H that children, the subject of proceedings under the Act, regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex co-parent), as biological children born to men and women who have been legally married, living in a de facto relationship or who have never lived together. We are not sure the legislation has had that effect. However, while some issues in this appeal do focus on the term “person” and “parent” it is unnecessary we say anything further about s 4, s 60H, s 69VA in the context of this appeal, other than to note further legislative amendment may be necessary to clarify the non-biological person’s status as a parent.
This discussion by the Full Court was obiter dictum because the finding by the Chief Federal Magistrate at trial (upheld by the Full Court) was that there was, in this case, no de facto relationship at the date of the child’s conception.
In the present case, the artificial conception procedures that led to the conception of both children were carried out while both birth mothers were in a de facto relationship with one another.
The doubts expressed by the Full Court in Aldridge & Keaton have been both explicitly and implicitly rejected in cases where the issue has arisen in a way that required it to be determined.
In Maurice & Barry [2010] FamCA 687, Faulks DCJ dealt with parenting orders in relation to two children who were born as the result of artificial conception procedures at a time when the biological mother was living in a bona fide domestic relationship with the applicant.
His Honour made the following observations:
12. I digress to consider an issue relevant in this case about the status of the applicant as a parent. In this case, s 60H(1) of the Family Law Act 1975 (Cth) has the effect that each of the children is “a child of…the other intended parent.”
13. It is not immediately clear from the express provisions of s 60H(1) of the Family Law Act 1975 (Cth) that the “persons” for whom the child is a child within the meaning of that section is also to be regarded, for other purposes under the Family Law Act 1975 (Cth) as a parent. This was a matter the subject of consideration by the Full Court of the Family Court in Aldridge & Keaton (at [18] to [21].)[1] The Full Court relevantly stated:
[22] We think from reading the Senate report, it was intended that following amendments to s 60H that children, the subject of proceedings under the Act, regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex co-parent), as biological children born to men and women who have been legally married, living in a de facto relationship or who have never lived together. We are not sure the legislation has had that effect. However, while some issues in this appeal do focus on the term “person” and “parent” it is unnecessary we say anything further about s 4, s 60H, s 69VA in the context of this appeal, other than to note further legislative amendment may be necessary to clarify the non-biological person’s status as a parent.
14. As the Full Court made clear in the preceding paragraphs ([18] to [21]) it was intended by the legislature that a person referred to in s 60H “should be treated in the same manner as a parent, to meet the concerns expressed in representations recorded in the Senate Standing Committee on Legal and Constitutional Affairs’ report on the Family Law Amendment (De facto Financial Matters and Other Measures) Bill 2008…”.
15. Although the Full Court expressly reserved the question of whether s 60H would enable, (in the circumstances of the applicant in this case), a person who is the “other intended parent” to be a parent for the purposes of Part VII of the Family Law Act 1975 (Cth), in my opinion, a purposive construction of the s 60H, in combination with the Explanatory Memorandum, would suggest that s 60H at least impliedly contemplates an “other intended parent” being a “parent”. The drafting may fall short of ideal. It is difficult to imagine a man (or person) on an ACTION[2] Bus (let alone a man on the Clapham Omnibus) responding other than positively to a question about whether if a child was a child of a person that person was not the child’s parent.
16. In this matter I was not asked to make orders pursuant to s 69VA of the Family Law Act 1975 (Cth), although one would think that it would be appropriate in these circumstances to do so. In addition, if there were a direction sought in relation to the registration and the children’s birth certificates in accordance with s 69R of the Family Law Act 1975 (Cth), this may also have been appropriate. I am prepared upon further application to make orders in Chambers to this effect, notwithstanding my removal of this matter from the Pending Cases Inventory. I also waive any associated filing fee.
[1] Aldridge & Keaton (2009) FLC 93-421, 83,815 [18] – [22].
[2] ACTION stands for “Australian Capital Territory Internal Omnibus Network”.
Subsequently, in Halifax & Fabian [2010] FamCA 1212, Cronin J dealt with the parenting dispute between two children born to two women who were in a same sex relationship. His Honour found that the women were both parents of both children despite the fact that the children were not biologically connected. His Honour observed (without reference to the discussion in Aldridge & Keaton) the following:
21. Until the amendment to the Family Law Act 1975 (Cth) (“the Act”) commenced in November 2008, there was considerable judicial comment about who was a parent (see Simpson and Brockmann [2010] FamCAFC 37; Mathers & Mathers [2008] FamCA 856). The amendment to s 60H by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) referred to children born before November 2008. Section 60H(1) provides that where a child is born to a woman as a result of an artificial conception procedure while a de facto partner of another person, and that other person has consented to the procedure, the child is a child of both. While the reference to the consent of the procedure is vague, s 60H(5) places the onus to refute the consent on the person asserting no such consent. None of that has been suggested here. In this case, none of the constituent elements was disputed. Thus each of Ms Halifax and Ms Fabian is a parent of both children.
At paragraph 18 of Aldridge & Keaton, the Full Court refer to the Revised Supplementary Explanatory Memorandum and say, “the drafters intended such a person shall be treated in the same manner as a parent”. With respect to the Full Court, that inaccurately paraphrases what the Memorandum says.
The Revised Supplementary Explanatory Memorandum is in the following terms:
76.This item repeals subsection 60H(1) and substitutes a new subsection 60H(1) that deals with both married and opposite and same-sex de facto couples. Opposite-sex de facto couples were previously covered in subsection 60H(4). This subsection is repealed.
77.These changes will mean that section 60H(1) applies, as well as to married couples, to current or former de facto partners who are of the same-sex and to current or former de facto partners who are of different sexes where children are born as a result of artificial conception procedures. This would mean that female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother. In addition, genetic material from other than the couple must be used with the relevant donor’s consent. The provision provides that the child is to be the child of the woman giving birth and her de facto partner. [emphasis added]
There is a distinction to be drawn between a person being treated “in the same manner as a parent” and a person being “recognised as a parent”. In my view the 2008 amendment to s 60H(1) achieved the intention of the legislature.
The Full Court at paragraph 17 of their discussion focused on the fact that s 4 defines “parent” as “when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. At paragraph 18 the Full Court comment that that definition was not amended at the same time amendments were made to s 60H. It clearly may have been better if s 4 had been amended but with respect to the Full Court, the fact that it was not amended does not affect the clear words of s 60H(1)(c) FLA. Section 4 is not an exclusive definition of “parent”. That much is clear given that the definition of “parent” in s 4 does not include biological parents as parents and it would be absurd for anyone to suggest that biological parents were not parents for the purposes of the FLA because they were not included in the definition of “parent” in s 4 FLA.
I agree with Faulks DCJ that if (as it must) s 60H(1)(c) FLA means that each child in this case is the child of their non biological co-mother respectively, it must follow that each child’s non biological co-mother is that child’s parent respectively.
I conclude that the Applicant is the elder child’s parent and the Respondent is the younger child’s parent.
Neither party has sought a declaration to that effect under s 69VA FLA. The birth of both children predated the 2008 amendments in New South Wales (see paragraph 21 of Aldridge & Keaton) that allowed the non biological mother to be registered on the birth certificate as a parent. Both parties have reached an agreement with K that he would be noted on the birth certificate as the father. Section 60H(1)(d) precludes the children from being his children and overcomes any presumption in s 69R FLA.
My finding that both the co-mothers are parents has an effect on how some of the sections in Part VII FLA apply to the facts of this case.
If I am wrong and the doubts expressed by the Full Court are raised upon any challenge to my decision, and the co-mothers are not parents of the child to whom they did not give birth respectively, then for more abundant caution, I will, in the alternative, consider the facts of the case on the basis that I have incorrectly interpreted what I found to be the effect of s 60H(1)(c) FLA. In those circumstances both co-mothers bring applications for parenting orders in relation to their non biological children pursuant to s 65C(c) FLA, as a person concerned with the care, welfare or development of the child. As is clear from previous cases (Goode & Goode (2006) FLC 93-286 and Cowley & Mendoza (2010) 43 FamLR 436), in the event that neither a legislative pathway is mandated nor any particular parts of s 60CC(2) and (3) FLA are required to be considered (because they only refer to “parent”), the court is nonetheless at large and indeed must consider what parenting arrangements are in the best interests of the children (s 60CA FLA).
Senior counsel for the Applicant submitted that there is no practical difference in the exercise that the court needs to undertake, as factors which the court must take into account if both parties are parents to both children are the same factors which the court must take into account if the co-mothers are not parents of their non-biological children. Counsel for the Respondent did not comment upon that submission and I accept that there is no practical difference in the exercise. For example, s 60CC(3)(c) and (e) FLA specifically refer to parents but similar considerations can be taken into account in cases where orders are sought by persons in the position of the applications (see s 60CC(3)(m) FLA).
The approach in children’s cases
The objects of Part VII FLA are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
When making parenting orders, there is no preferred statutory pathway (see SCVG v KLD (2011) FamCAFC 100).
The court is also required to look at the reality of the situation and to make a determination which is in the best interests of the children. In that process, the court is not required to specifically choose one or other of the particular proposals put forward by the parties (and in this case there have been many configurations of them). The court is required to formulate orders considered to be in the best interests of the children (subject to procedural fairness considerations; U v U [2002] 211 CLR 238).
PARENTING - IMPORTANT ISSUES IN THIS CASE
Sibling bonds
Dr M opined that sibling bonds are likely to be lifelong and have a protective quality, strengthened by the more time siblings coexist within developmental experiences.
I note Dr M also said:
I did not identify that the relationship between the children and their biological and non-biological mothers was at risk in the context of either proposal. Similarly, I did not identify that the important role of the maintenance of the sibling relationship between the children was a threat in the context of either proposal. It should be noted that the sibling bond is likely to fluctuate over time. Given this normal occurrence caution should be used not to reify [sic] this key relationship.
What I believe Dr M was saying was that there should not be any presumption that you do not split siblings. In some circumstances that may be best, if not doing so put a child at risk of psychological harm because of a threat to the child’s primary attachment to a particular parent. On the other hand, if those attachments can be maintained, the value to the child of the development of sibling bonds needs to be given proper weight. Dr M opined that if the children in this case were together, time away from their primary attachment figures was likely to be more manageable.
Given the girls are very close in age, it is likely they will spend a lot of time together, particularly when the Applicant is working and in the event the Respondent returns to work. I am prepared to assume the frequency of their interaction would be unlikely to diminish until at least early adolescence. It is also likely that the girls will influence how the other develops in a positive way. They currently interact affectionately. I infer they will be able to draw strength from one another while their parents work on improving their skills in being able to deal with one another as the girls’ parents. I will place considerable weight on maintaining the continuity of the relationship between the children.
The Children’s Relationships with Their Mothers
While both parties have a good relationship with both children, it is the case that the Respondent has a different relationship with her biological child (the elder child), than with the younger child. The Applicant asserts that the Respondent has formed a family unit with her new partner and the elder child, to the exclusion of the younger child. The Applicant describes the younger child’s distress at not spending as much time with her sister and the Respondent’s family unit.
The Respondent believes there is a clear difference between the relationships of each child and their birth mother, and that this should be reflected in residential arrangements.
The Respondent said that the elder child has had a stronger relationship with her than the Applicant since birth. This was partly a result of bedtime schedules where the Respondent would snuggle and read with the elder child when the Applicant was putting the younger child to bed. This comfort led to the elder child rejecting the Applicant at times and the Applicant becoming frustrated by that rejection. In time, the situation arose where the Applicant would then care predominantly for the younger child’s needs while the Respondent would care for those of the elder child.
Dr M reported that during the interviews the Applicant was unable to settle the elder child, who did not separate comfortably from the Respondent. Dr M did make the point that some of the elder child’s clinginess and insecurity during the assessment process may have been, in part, a result of the illness she was suffering from at the time. She told Dr M she had a sore ear and she had just been getting over a middle ear infection. He also observed that the elder child did not respond as well to the Applicant’s more structured and controlling approach.
In assessing the weight to place upon the observations by Dr M of the elder child’s reaction to the Applicant, I also take into account the evidence about what the elder child may have been thinking at the time. In Dr M’s report, he quotes the Applicant as saying “[the elder child] volunteered that Mummy [Ms Taylor’s name] had told her that if she lived with [the younger child] all the time, she couldn’t live with Mummy [Ms Taylor’s name] at all.” During cross examination, Dr M agreed that this statement by the Applicant also corresponded with a note he had made during interviews, where he records the elder child saying in the interviews “if I spend all the time with [the younger child] [the Respondent] says I’m never going to live with her if I’m with [the younger child] all the time”
Dr M assessed that the elder child’s primary attachment was to the Respondent, and she showed secure secondary attachments to the Applicant, the Respondent’s partner and her biological father. Despite this primary attachment, Dr M did not see the need for the elder child to spend exclusive time with the Respondent to the exclusion of the younger child. Dr M concluded the younger child was securely attached to both mothers within the context of a primary attachment to her birth mother.
As set out above, in his report, Dr M did not identify the children’s attachments to each other or either mother to be at risk in the proposals put forward by each of the parties at that time.
Given that I had to balance a number of considerations which pulled in opposite directions I asked Dr M his opinion about the elder child’s psychological wellbeing in the context of the amount of time she could be away from her birth mother.
His response was
Certainly one of the difficulties in making such predictions is that there are so many variables. I don’t think I would be able to give an accurate prediction that plus or minus a day, one’s going to have a dramatic impact on outcome.
Certainly if the siblings are together, if the children are having at least half the time with their primary attachment figure, their birth mother, then I think that would be likely to be manageable.
However it was my assessment that there was a strong preference exhibited by the elder child with regard to contact and connection with her birth mother at the time of that assessment (bearing in mind that it was some months ago) and that there was a preference exhibited in her behaviour towards proximity with her birth mother.
Under such circumstances one could see the potential benefit of having a primary residence, however, in my view, given the evident strength of all the parties assessed, including the girls, I think it’s likely they would be able to tolerate such an arrangement.
So Dr M declined to give any opinion as to the exact number of nights that would be needed in order to ensure that there were no adverse psychological affects on the elder child from being apart from Ms Taylor. Dr M did not go so far as to say that the relationship itself would be damaged but rather her emotional wellbeing of being separated from her primary attachment figure was the focus of what needed to be considered.
Whilst Dr M confirmed individual time between a child and her primary attachment figure is beneficial, he did not believe that that time had to be in the absence of the other child. The other child could be present in the household whilst the other child was enjoying one to one time with her mother.
Will the Respondent treat the younger child less preferentially than the elder child and if so, does the younger child need to be protected from that treatment?
During cross examination, Ms F stated that she observed the Respondent treat the children differently. By way of example, Ms F said the Respondent bought the elder child a pair of shoes and a winter coat, but had told the younger child there were none available in her size.
During her examination in chief, the Respondent addressed these allegations. At the end of winter 2011, the Respondent purchased a coat and cardigan online. When the items arrived, the children were allowed to choose which item they wanted and the younger child chose the cardigan. This meant the elder child received a coat.
She stated that at the end of 2011, Ms T purchased the elder child running shoes to wear to school (which she was commencing in 2012). No shoes were purchased for the younger child. On 18 January 2012, the Respondent went shopping for shoes for both children. While the elder child was being fitted for shoes, the younger child tried a pair of shoes but found them uncomfortable after a short period of time. The Respondent purchased shoes for the elder child, but ran out of time on that day to find a correctly fitting pair for the younger child.
During cross examination, senior counsel for the Applicant questioned the Respondent on the reason her orders sought exclusive time for the children to spend with their respective birth mothers. He suggested to the Respondent that the orders reflected her need to spend time with the elder child. The following exchange took place:
MR NORTH: Or of your actually having – and when I say this I’m not for a moment suggesting that you don’t love [the younger child] and love her deeply, but that you actually have a greater, closer, more powerful love and need to spend time with [the elder child] than with [the younger child]; do you feel that?
MS [TAYLOR]: No. I don’t think that’s – I don’t think that’s necessarily the case.
MR NORTH: You don’t think that’s ‑ ‑ ‑?
MS [TAYLOR]: I don’t think that’s necessarily the case.
MR NORTH: Not necessarily the case?
MS [TAYLOR]: No.
MR NORTH: Right. Well, I’m not much concerned whether it’s necessarily the case; I’m concerned whether it may be the case. Can you exclude it as part of your makeup, that you actually feel this closer bond to [the elder child] than you do to [the younger child]?
MS [TAYLOR]: It depends how you put it. I mean I feel like I’ve got a – I do feel like I’ve got a closer bond to [the elder child] than I do to [the younger child]. We have a different relationship.
MR NORTH: And without diminishing in any sense your love for [the younger child], your love for [the elder child] is just that much greater?
MS [TAYLOR]: No, I – my love ‑ ‑ ‑
MR NORTH: Or different, is it?
MS [TAYLOR]: My bond with [the elder child] is different.
In her affidavit, the Respondent denies any favouritism. She said:
I have a warm and loving relationship with both [the elder child] and [the younger child]. I have a closer bond with [the elder child] than I do with [the younger child], but I do not distinguish between them in my treatment…I have always treated the girls the same when they are together…[The younger child] is and always will be my daughter. She and [the elder child] are at the centre of my life and every decision I make in life. I cannot imagine life without either of them.
Senior counsel for the Applicant also took the Respondent through her various applications and the changes she made from time to time and the timing of them. These changes have been detailed below. Some of the changes in the Respondent’s proposals seemed to focus more heavily on the needs of the elder child than on the needs of the younger child.
The Applicant’s mother, Ms U, and Ms F gave evidence of some instances of the Respondent’s alleged favouritism.
Ms U asserted that, while she does not believe the Respondent intentionally favours the elder child, the Respondent “frequently preferred [the elder child’s] advances for a cuddle or to be picked up over [the younger child].” She went on to say that “to date, [the younger child] seems to be unaware of [any favouritism], frequently telling me with excitement, of things [the Respondent] has purchased for [the elder child].”
In her affidavit, Ms F said “[the Respondent] frequently rejected [the younger child] if she sought [the Respondent] out for attention or affection. I observed many times that [the Respondent] gave [the elder child] things like a cupcake, lollypop or clothes in front of [the younger child] but leaving [the younger child] out.”
Changes in orders sought by each party regarding parental responsibility.
Throughout the proceedings, the Applicant has consistently sought equal shared parental responsibility for both children.
The Respondent has sought a number different orders regarding parental responsibility. In her Response filed on the 10 June 2010, the Respondent sought an equal shared parental responsibility order. This was continued in her Amended Response filed 10 August 2010.
On 17 June 2011, the Respondent provided the Court a case outline for the upcoming first day of the less adversarial hearing on the 20 June 2011. A change was made to the orders she sought; the Respondent sought sole parental responsibility for the elder child and equal shared responsibility for the younger child.
On 20 June 2011, I questioned the Respondent on this change. Our exchange was as follows:
HIS HONOUR: I noticed in the orders that you’re seeking that you want sole parental responsibility for (the elder child).
MS [TAYLOR]: Yes.
HIS HONOUR: Why?
MS [TAYLOR]: Because of – as I said, the level of conflict, which is ongoing; our lack of communication ‑ ‑ ‑
HIS HONOUR: But your – you want joint parental responsibility in relation to the younger child, so ‑ ‑ ‑
MS [TAYLOR]: That’s right, your Honour, because ‑ ‑ ‑
HIS HONOUR: How does that logic work?
MS [TAYLOR]: Because I don’t – I don’t assert myself strongly against (the Applicant’s) wish about – in respect of [the younger child], whereas she ‑ ‑ ‑
HIS HONOUR: Because she’s not your biological child?
MS [TAYLOR]: No, because – in part because if (the Applicant) is desperate for something to happen then I am prepared to think well, she does – you know, she’s living with her – if it’s desperately important to her, and it’s not – as long as it’s not against [the younger child’s] best interests then okay. But that doesn’t happen with regards to (the elder child). I find that I – I feel I am constantly under attack, particularly around health issues with (the elder child), where (the Applicant) is almost raising things – it seems like on a very regular basis, that there is something wrong where I just do not believe there is. This issue about the grommets, which I can detail if you would like me to – which was incredibly distressing for me and, I believe, (the elder child), where – had it gone ahead and (the Applicant) had booked her in to have an operation in hospital under a general anaesthetic without me being involved, would have been appalling for her, and she describes ‑ ‑ ‑
On 27 June 2011, the Respondent filed her Amended Response continuing to seek sole parental responsibility for the elder child and equal shared parental responsibility for the younger child.
On 7 February 2012, the Respondent’s case outline indicated she sought sole parental responsibility for the elder child and that the Applicant have sole parental responsibility for the younger child.
Senior counsel for the Applicant read the above passage from the transcript to the Respondent during cross examination. The Respondent described her response as “ineloquent.” Senior counsel for the Applicant perhaps unkindly but accurately described the response as “incoherent”. I accept it was incoherent because I think Ms Taylor was searching desperately to find an alternate explanation to the one that I had offered her, namely that the difference that led to that order being sought was primarily the fact that she was the elder child’s birth mother.
Matters highlighted by senior counsel during final submissions
During final submissions, senior counsel for the Applicant listed several examples where the Respondent has allegedly shown favouritism towards the older child:
The Respondent’s behaviour after separation
132.1.When the parties were separating and the Respondent left the P property, the Respondent took the younger child with her, but not the elder child. Ms F went on affidavit claiming the Respondent “took all her personal clothes and possessions. She also took most of [the elder child’s] clothes and some of her toys. She took nothing of [the younger child’s] at all.” The Respondent admits she took her clothes, some of the elder child’s clothes and a few household items.
The effect of the Respondent’s proposed orders
132.2.During proceedings on the 20 June 2011, the Respondent stated “I think separating either of those little girls from their biological mother is going to be incredibly distressing for each of them and leads to a sense of abandonment.” However very soon after those proceedings, the Respondent decided on an alternative proposal, whereby if the Court found the children should remain together at all times, the children should stay with her 10 nights in a fortnight. This would mean the younger child was away from her birth mother for a significant amount of time. It was submitted that this showed the Respondent preferred her relationship with the elder child over a concern for the younger child’s wellbeing.
132.3.In her affidavit, the Respondent asserts she shares “[the Applicant’s] view that it is disruptive to the children to be moved between homes for short periods.” However she goes on to say it is preferable that the children are cared for by her whenever the Applicant is unavailable. It was submitted that this shows the Respondent’s interest in having the children (particularly the elder child) often overrides the children’s best interests.
132.4.In the Respondent’s proposed property orders, she seeks the P property. It was submitted that if this order is made it would cause significant disruption for the younger child for whom the P property has been her primary residence for her entire life.
132.5.In cross examination, Dr M was questioned on a note he made during the interview saying the Respondent had a primary attachment to the elder child. It was put to him that if this was recorded as the words of the Respondent, she was emphasising her own attachment to the elder child, rather than the elder child’s attachment to her. Dr M agreed he likely wrote the note verbatim, but he explained “in considering attachment one considers it as a relationship and so in writing that note I was not – and I don’t conceptualise as, you know, delineating the mother to the child or the child to the mother.”
I accept Ms Taylor genuinely believes that she does not favour one girl over the other but I also accept that at times she behaves in a way that appears to others to evidence such favouritism. Ms Taylor herself says her bond with the elder child is different from her bond with the younger child. During cross examination the Respondent explained this difference in bond in the following way:
I think the bond that I have with [the elder child] is particularly close. I’ve always had the sense that I just know her and understand her, understand her emotionally. I have a very close bond with [the younger child] as well, but it is different, and I suspect that, you know, most people’s bonds with different people are different, and my bond with the two children is different.
I have no doubt however that Ms Taylor deeply loves both the children.
I had the opportunity of observing the Respondent when she was giving the evidence of the strength of her feelings for both girls. Although there may historically have been some occasions where the Respondent acted in a way that seemed to favour the elder child, I accept entirely her evidence that she loves both girls dearly. There is insufficient evidence for me to conclude that it would be in the children’s best interests to restrict the younger child’s time with the Respondent on the basis that that would protect the younger child from discrimination at the hands of the Respondent. Accordingly I do not consider the need to limit the younger child’s time with the Respondent for that purpose as a weighty matter when giving consideration as to what time each child will spend with each of their mothers.
The management of issues related to the children’s health
As a baby, the younger child suffered from severe gastro oesophageal reflux and hip dysplasia, requiring a plaster brace. She attended Sydney Children’s Hospital twice. This placed great strain on the parties’ relationship.
The elder child has had ongoing health issues, suffering from numerous ear infections. Ms F asserts she had noticed the elder child’s hearing was poor and she expressed concern to both parties. The Respondent denies Ms F ever discussed this issue with her. The Applicant agrees Ms F raised concern over the elder child’s hearing and her concern was, in part, a catalyst for having the elder child’s hearing checked.
From the commencement of the school year in 2014:
8.1.during the school holiday periods but excluding the Christmas school holidays both children live with:
8.1.1.the Applicant during the first half of each school holiday period in years ending with an even number and the second half of each school holiday period in years ending with an odd number.
8.2.the Respondent during the second half of each school holiday period in years ending with an even number and the first half of each school holiday period in years ending with an odd number.
8.2.1.During the Christmas school holiday periods the children shall live with the parties for equal periods as agreed and failing agreement the Applicant during the first half of each school holiday period in years ending with an even number and the second half of each school holiday period in years ending with an odd number.
8.3.the Respondent during the second half of each school holiday period in years ending with an even number and the first half of each school holiday period in years ending with an odd number.
8.4.Notwithstanding any other Order herein, during the Christmas period as follows:-
8.4.1.From 3pm 23 December until 3pm 25 December with Ms [Taylor] in each even numbered year;
8.4.2.From 3pm 25 December to 3pm 27 December with Ms [Connors] in each even numbered year;
8.4.3.From 3pm 23 December to 3pm 25 December with Ms [Connors] in each odd numbered year;
8.4.4.From 3pm 25 December to 3pm 27 December with Ms [Taylor] in each odd numbered year.
8.5.Notwithstanding any other Order herein, on the parties’ and the children’s Birthdays:-
8.5.1.The children shall live with Ms Taylor each year from 3pm [of date preceding elder child’s birthday] to 3pm … November (the elder child’s birthday) and with Ms Connors each year from 3pm [date of the elder child’s birthday] until 9am the following morning;
8.5.2.The children shall live with Ms Connors each year from 3pm [of date preceding younger child’s birthday] to 3pm on … January (the younger child’s birthday) and with Ms Taylor each year from 3pm [date of the younger child’s birthday] until 9am the following morning;
8.5.3.The children shall live with Ms [Connors] each year from 9am [date of her birthday] until 9am [two days later];
8.5.4.The children shall live with Ms [Taylor] each year from 9am [date of her birthday] until 9am [two days later];
8.6.Notwithstanding any other Order herein the children shall spend half of Mother’s day with each party by agreement and failing agreement with Ms [Connors] from 8am until 1pm; and Ms [Taylor] from 1pm until 6pm, in even numbered years: and with Ms [Taylor] from 8am until 1pm; and with Ms [Connors] from 1pm until 6pm, in odd numbered years:
That the children will otherwise live with one or other party at other times as agreed between them in writing.
The children are each to attend [G] Road primary school unless otherwise agreed in writing between the parties and each party is restrained from removing the children, or one of them from the said school, without the other parties written consent.
Unless otherwise agreed in writing, the children are to attend the same high school for their high schooling.
Changeover pursuant to these orders shall occur at school or pre-school and otherwise with the party or their agent collecting the children at the home of the other party at the commencement of their time on each occasion, unless otherwise agreed.
That each of the parties are entitled to attend all events involving one or both of the children including but not limited to, sport, extracurricular activities, school functions and events that normally allow for parties to attend including concerts, assemblies, sports days, party teacher interviews and social functions.
That each of the parties shall notify the other of any medical treatment the child has received and the treating doctor as soon as practical after the child has received such treatment whilst in their care.
That each of the parties be entitled to obtain directly from any health of welfare professional or any other professional attended by either of the children copies of any reports, notices or other relevant verbal or written advice effecting the health or welfare of one or other of the children and for this purpose each of the parties shall notify the other the names of contact details of any relevant health or welfare professional and keep the other informed.
That each of the parties shall notify the other immediately of any emergency and direct their agent or nanny to notify the other immediately of any emergency involving one or other of the children.
That unless otherwise agreed both parties be permitted to travel interstate during school holiday periods with the child provided that the travelling party provides reasonable notice of such travel arrangements including dates and times of travel and itinerary and contact telephone number for the child.
That each party is permitted to travel overseas with both children during the time the children live with them, or for some other agreed period of time, provided that a full itinerary is provided to the other party not less than 28 days prior to travel together with contact details for the children during the absence.
Both parties are restrained from travelling with the children to a destination that has an Australian DFA travel advisory rating of “high degree of caution” or above unless otherwise agreed in writing.
In the event the parties are unable to agree on interpretation of these Orders or to a proposed variation, they will, prior to and in the alternative to filing an application with the court, seek the mediation services of [Ms J] or other mediators as recommended by her or agreed, in order to resolve any such dispute.
The Respondent pay the Applicants costs of and incidental to these proceedings.
Property
That within 42 days of the date of these Orders, the parties shall complete all acts and things and signs all documents necessary to cause the funds standing to the credit of the parties in joint names in account number …07 with the Commonwealth Bank of Australia (“MISA Account”), to be applied to the payment of the Commonwealth Bank Mortgage secured over the [P] and [O] properties.
That the Respondent shall do all acts and execute all documents as are necessary to transfer to the Applicant (“Ms [Connors]”) the whole of Ms [Taylor’s] right title and interest in the property situated at and known as [B Street, P] in the State of New South Wales being the whole of the land in Certificate of Title folio identifier …90 (“The [P] Property”).
That the parties do all things and sign all documents necessary to discharge the CBA Mortgage over the [P] property such that the remaining security shall be the [O] property.
Simultaneously and upon compliance by Ms [Taylor] with Order 23 and 24, Ms [Connors] shall pay to Ms [Taylor] the sum of $849,350, representing:-
25.1.$750,000 in respect of Ms [Taylor’s] interest in the [P] property;
25.2.$14,600 in respect of the difference in the current insured value of the two motor vehicles ($33,300 for the Audi and $47,900 for the Mercedes);
25.3.$12,250 in respect of Ms [Taylor’s] share of the artwork in the [P] property (calculated at 50% of the high estimates provided by Bonhams less the [named] work currently in the possession of Ms [Taylor]);
25.4.$70,000 representing half of Ms [Connors’] net interest in her chambers ($65,000) and the contents of her chambers (estimated at $5,000).
That Ms [Connors] shall indemnify Ms [Taylor] against any liability for outgoings in respect to the [P] property as from the date of transfer of the said property pursuant to Order 23.
26.1.Simultaneously and upon compliance by Ms [Taylor] with Order 23, there will be a final cash settlement between the parties so as to effect the equal distribution of the cash pool as at the date of the hearing (which, for the avoidance of doubt, will be an adjustment in favour of either Ms [Connors] or Ms [Taylor]), with the cash pool to be comprised of any cash at bank as at the date of the hearing to which either party is entitled less agreed or found liabilities;
That the Applicant (“Ms [Connors]”) and Respondent (“Ms [Taylor]”) shall do all acts and execute all documents as are necessary to sell the property situated at and known as [X Street, O] in the State of New South Wales being the whole of the land in Certificate of Title folio identifier …29 (“The [O] Property”).
That upon settlement of the sale of the [O] property the proceeds of sale be applied in the following order and priority:-
28.1.Payment of a sum necessary to discharge the mortgage to the Commonwealth Bank of Australia secured by both the [O] property and the [P] property;
28.2.Costs of sale;
28.3.The balance to be divided equally with half payable to Ms [Connors] and half payable to Ms [Taylor].
That Ms [Connors] be declared the sole owner of the Mercedes Motor Vehicle registration number ….
That Ms [Taylor] be declared the sole owner of the Audi Motor vehicle, Registration … and the parties do all things and sign all documents necessary to transfer the ownership of the vehicle to Ms [Taylor’s] sole name.
That unless otherwise specified in these Orders, each of the parties is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of that party as at the date of these Orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank account record, insurance policies are deemed to be in the possession of the beneficiary and superannuation entitlements are deemed to be in the possession of the person who is named as the worker on the document.
Ms [Taylor] is solely entitled to the contents of the [O] Property.
Ms [Connors] is solely entitled to the contents of the [P] property.
Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to Order 31, 32 and 33.
End of Schedule 1
SCHEDULE 2
Orders sought by the Respondent at the commencement of final submissions (Exhibit 11)
THE COURT NOTES:
The following definitions for the purpose of these Orders:
1.1“The elder child” means [V Connors Taylor] born on … November 2006;
1.2“The younger child” means [L Connors Taylor] born on … January 2008; and
1.3“children” means the younger child and the elder child.
1.4"[P] property" means the property situated at and known as [B Street, P] in the State of New South Wales being the whole of the land contained in folio identifier …90 of which the Applicant and Respondent are the registered proprietors as tenants in common in equal shares;
1.5"[P] mortgages" means the mortgages numbered …56 and …57 in favour of Commonwealth Bank of Australia registered on the title to the [P] property, of which the Applicant and the Respondent are jointly liable;
1.6"[O] property" means the property situated at and known as [X Street, O] in the State of New South Wales being the whole of the land contained in folio identifier …29 of which the Applicant and Respondent are the registered proprietors as tenants in common in equal shares;
1.7"[O] mortgage" means the mortgage number …86 in favour of Commonwealth Bank of Australia registered on the title to the [O] property, of which the Applicant and the Respondent are the borrowers;
1.8“Chambers loan” means the Commonwealth Bank of Australia home loan account number …02 in the sum of about $300,000, borrowed by the applicant in respect of the acquisition of her chambers and presently secured by the [P] mortgages and/or the [O] mortgage.
1.9"MISA account" means the CBA MISA account number …07 held in the names of both the Applicant and the Respondent.
1.10"Respondent's Motor vehicle" means the Audi motor vehicle registration number … driven by the Respondent and registered in the names of the Applicant and the Respondent;
1.11"Applicant's Motor Vehicle" means the Mercedes motor vehicle registration number … registered in the Applicant's name;
THE COURT ORDERS:
The Respondent have sole parental responsibility for the elder child.
The Applicant have sole parental responsibility for the younger child.
Each party shall give the other party reasonable notice with details of any arrangements she proposes to make in relation to the health, education and place of residence of the child for whom she has sole parental responsibility.
The Applicant have responsibility for making decisions for the day to day care welfare and development of the children during the periods in which the children are living with her and the Respondent have responsibility for making decisions for the day to day care welfare and development of the children during the periods in which the children are living with her.
Save as provided in these Orders, the elder child shall live with the Respondent and the younger child shall live with the Applicant.
The elder child shall live with the Applicant during school term:
6.1.each alternate weekend from 3.00pm or the conclusion of school on Thursday until 9.30am or the commencement of school on Monday, commencing on the second weekend following the date of these Orders;
such arrangements to be suspended during school holiday periods, but in the case of the weekends to recommence after such holiday period by a continued computation of where the alternate weekends would have fallen had the holiday period not occurred.
The younger child shall live with the Respondent during preschool term in 2012 then school term:
7.1.each alternate weekend from 3.00pm or the conclusion of preschool or school on Thursday until:
7.1.1.6.00pm on Monday in 2012 commencing on the first weekend following the date of the making of these Orders;
7.1.2.Until 9.30am or the commencement of school on Monday, from 2013 computed from the second weekend following the date of the making of these Orders;
such arrangements to be suspended during school holiday periods, but in the case of the weekends the arrangements are to recommence after such holiday period by a continued computation of where the alternate weekends would have fallen had the holiday period not occurred.
The children shall live with the parties at Christmas each year as follows:
8.1.the children shall live with the Applicant from 3.00pm on 24 December to 3.00pm on 25 December in each odd numbered year;
8.2.the children shall live with the Respondent from 3.00pm on 25 December to 3.00pm on 26 December in each odd numbered year;
8.3.the children shall live with the Respondent from 3.00pm on 24 December to 3.00pm on 25 December in each even numbered year;
8.4.the children shall live with the Applicant from 3.00pm on 25 December to 3.00pm on 26 December each even numbered year.
Until the commencement of the school year in 2016:
9.1.during the school holiday periods but excluding the Christmas school holidays both children shall live in odd numbered years with:
9.1.1.the Applicant for the first 3 days of each school holiday period, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 3 days later;
9.1.2.the Respondent for the next 3 days of each school holiday period concluding at 4.00pm on the day 3 days later;
9.1.3.the Applicant for the next 4 days of each school holiday period, concluding at 4.00pm on the day 4 days later;
9.1.4.the Respondent for the next 4 days of each school holiday period, concluding at 4.00pm on the day 4 days later;
and in even numbered years with:
9.1.5.the Respondent for the first 3 days of each school holiday period, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 3 days later;
9.1.6.the Applicant for the next 3 days of each school holiday period concluding at 4.00pm on the day 3 days later;
9.1.7.the Respondent for the next 4 days of each school holiday period, concluding at 4.00pm on the day 4 days later;
9.1.8.the Applicant for the next 4 days of each school holiday period, concluding at 4.00pm on the day 4 days later;
continuing in this 3 day/4 day cycle until 4.00pm on the day before the commencement of the next school term when the elder child will live with the Respondent and the younger child will live with the Applicant;
9.2.except as provided by paragraph 8, during the Christmas school holiday periods the children shall live in odd numbered years with:
9.2.1.the Applicant for the first 4 days, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 4 days later;
9.2.2.the Respondent for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.3.the Applicant for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.4.the Respondent for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.5.the Applicant for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.6.the Respondent for the next 4 days, concluding at 4.00pm on the day 4 days later;
and in even numbered years with:
9.2.7.the Respondent for the first 4 days, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 4 days later;
9.2.8.the Applicant for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.9.the Respondent for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.10.the Applicant for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.11.the Respondent for the next 4 days, concluding at 4.00pm on the day 4 days later;
9.2.12.the Applicant for the next 4 days, concluding at 4.00pm on the day 4 days later;
with such 4 day cycle to be suspended:
9.2.13.during Christmas Eve, Christmas Day and Boxing Day when the time for collection and delivery of the children is to be as provided in paragraph 8 of these Orders, and
9.2.14.on the younger child's birthday when the time for collection and delivery of the children is to be as provided in paragraph 11.2 of these Orders,
and the 4 day cycle is to recommence after Christmas Eve, Christmas Day, Boxing Day and the younger child's birthday by a continued computation of the 4 day cycle as if Christmas Eve, Christmas Day, Boxing Day and the younger child's birthday had not occurred; and
9.2.15.for the last 4 days of the holidays the elder child shall live with the Respondent and the younger child shall live with the Applicant until the commencement of school for the new school year.
From the commencement of the school year in 2016:
10.1.during the school holiday periods but excluding the Christmas school holidays both children live with:
10.1.1.the Applicant during the first half of each school holiday period in years ending with an odd number, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day which falls at the midpoint of the holiday period; and the second half of each school holiday period in years ending with an even number, commencing at 4.00pm on the day which falls at the midpoint of the holiday period and concluding at 4.00pm on the day prior to the commencement of the next school term;
10.1.2.the Respondent during the second half of each school holiday period in years ending with an odd number, commencing at 4.00pm on the day which falls at the midpoint of the holiday period and concluding at 4.00pm on the day prior to the commencement of the next school term; and the first half of each school holiday period in years ending with an even number, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day which falls at the midpoint of the holiday period.
10.2.except as provided by paragraph 8, during the Christmas school holiday periods the children shall live:
10.2.1.with the Applicant for the first 14 days in each odd numbered year, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 14 days later;
10.2.2.then with the Respondent for the next 14 days in each odd numbered year, concluding at 4.00pm on the day 14 days later;
10.2.3.with the Respondent for the first 14 days in each even numbered year, commencing at the conclusion of school on the last day of term and concluding at 4.00pm on the day 14 days later;
10.2.4.then with the Applicant for the next 14 days in each even numbered year, concluding at 4.00pm on the day 14 days later;
10.2.5.then in each year the elder child shall live with the Respondent and the younger child shall live with the Applicant until the commencement of school for the new school year;
with each period of 14 days to be suspended:
10.2.6.during Christmas Eve, Christmas Day and Boxing Day when the time for collection and delivery of the children is to be as provided in paragraph 8 of these Orders, and
10.2.7.on the younger child's birthday when the time for collection and delivery of the children is to be as provided in paragraph 11.2 of these Orders,
and the periods of 14 days are to recommence after Christmas Eve, Christmas Day, Boxing Day and the younger child's birthday by a continued computation of the days as if Christmas Eve, Christmas Day, Boxing Day and the younger child's birthday had not occurred.
Notwithstanding any other Orders, the children shall live with the parties on the children's birthdays as follows:
11.1.The elder child and the younger child shall live with the Respondent from 3.00pm the day prior to the elder child's birthday until 9.00am or the commencement of school on the day following the elder child's birthday save that the elder child and the younger child shall live with the Applicant between 3.00pm and 7.30pm on the elder child's birthday;
11.2.The elder child and the younger child shall live with the Applicant from 3.00pm the day prior to the younger child's birthday until 9.00am on the day following the younger child's birthday save that the elder child and the younger child shall live with the Respondent between 3.00pm and 7.30pm on the younger child's birthday.
If the children are living with the Applicant on Mothers' Day, they shall live with the Respondent from 9.30am to 11.30am that day, and if the children are living with the Respondent on Mothers' Day they shall live with the Applicant from 9.30am to 11.30am that day.
The children shall otherwise spend time with and communicate with the parties as agreed between the Respondent and the Applicant.
Each party is permitted to travel overseas with the children when the children are living with that party as provided by these Orders, provided the party intending to take the children overseas has:
14.1.given a minimum of 28 days written notice to the other party of her intention to take the children overseas;
14.2.given the other party an itinerary in respect of the proposed travel including departure date and return date, flight details, list of country or countries where the children will be travelling, the approximate dates on which the children will arrive and depart each country and a telephone number and address at which the children can be contacted in each location in which they will be staying.
Each party shall do all acts and things and sign all documents to ensure that each of the children maintains a current passport, with the younger child's passport to be held by the Applicant and the elder child's passport to be held by the Respondent and such passports to be released to either of the parties only when they are to travel overseas with the children as provided by these Orders.
On occasions when either of the parties or the partner with whom that party lives is unable to personally care for the children or either of them, that party must consult the other party prior to making arrangements for the supervision of the child or children during such occasions, and must give the other party the option to care for the child or children herself during the whole of such period.
The Applicant shall collect or arrange for the children to be collected from preschool or school, or from the Respondent’s home if the children are not at school, at the commencement of each period in which the children are to live with the Applicant, and the Respondent shall collect or arrange for the children to be collected from preschool or school, or from the Applicant's home if the children are not at school, at the commencement of each period in which the children are to live with the Respondent.
Each of the parties shall inform the other party immediately of any serious injury or illness (not including common colds and like illnesses) suffered by either child and any hospital treatment to be provided to either child whilst the child is in the care of that party.
Property
Within 14 days from the date of these Orders the Applicant shall do all acts and things and sign all documents necessary to allow the Respondent to be reimbursed from the MISA account for all rental payments she has made from 1 May 2010 to date being the sum of $4,997 per month from 1 May 2010 until 30 March 2011 and the month sum of $5,214.29 per month from 1 April 2011 to the date of the making of these Orders.
Upon her receipt of a Notice of Assessment in respect of her income tax payable for the years ending 30 June 2010 and 2011, the Respondent shall provide a copy of each such Notice to the Applicant, and the Applicant shall then do all acts and things and sign all documents necessary to cause and permit the amount required to be paid to be paid from the MISA account on or before the date such amount is payable as shown in the Notice.
Within 30 days from the making of these Orders and contemporaneously:
21.1.the Applicant do all acts and things and sign all documents necessary to discharge her Chambers loan;
21.2.the Applicant and the Respondent do all acts and things and sign all documents necessary to cause the balance of the MISA account after compliance by the Applicant with paragraphs 19 and 20 of these Orders to be transferred and paid in reduction of the moneys owed in respect of the [P] mortgages;
21.3.the Applicant and the Respondent do all acts and things and sign all documents and each pay 50% of the money necessary to cause the balance of the [P] mortgages to be discharged;
21.4.the Respondent pay to the Applicant of the sum of $750,000;
21.5.the Applicant do all acts and things and execute all documents presented to her by the Respondent as are necessary to transfer to the Respondent the whole of her right, title and interest in the [P] property together with the improvements, fixtures and fittings erected thereon and/or attached thereto including but not limited to all carpets, blinds, light fittings all of which shall be properly maintained by the Applicant pending transfer;
21.6.the Applicant shall indemnify the Respondent against any liability for outgoings owing in respect of the [P] property up until the date of transfer to the Respondent pursuant to Order 21.5;
21.7.the Applicant do all acts and things and sign all documents necessary to transfer to the Respondent the Respondent's Motor Vehicle;
21.8.the Applicant and the Respondent cause the credit balance in the Applicant's bank accounts and the Respondent's bank accounts but not credit cards as at 6 February 2012 be paid as to one half to the Applicant and one half to the Respondent;
21.9.the Applicant pay or cause to be paid to the Respondent a sum equivalent to the difference between their respective members' account balances in the superannuation funds of which they are members as at the date of the making of these Orders;
21.10.the Applicant pay or cause to be paid to the adjustments of:
21.10.1.half the difference in the Redbook value of the Respondent’s motor vehicle and the valuation of the Applicant’s motor vehicles;;
21.10.2.$18,000 being half the amount given by the Applicant to her mother and her brother;
21.10.3.$72,500 being half the net value of the Applicant's chambers and contents;
21.10.4.$31,300 in respect of the Applicant's debtors as disclosed;
21.10.5.$10,000 in respect of the Applicant's Double Gold membership of the [Recreational Club];
21.10.6.$12,250 in respect of the Respondent's half share of the artwork as valued by Bonhams in their letter of 12 April 2011 to the Applicant, less the value of the [named] artwork currently in the possession of the Respondent.
The parties shall on 1 September 2012 or such other date as they agree upon, list the [O] property for sale in the manner agreed between the parties and do all acts and things and sign all documents necessary to sell the [O] property for the best price reasonably obtainable.
Pending the settlement of the sale of the [O] property:
23.1.each of the parties has the right of occupation of the [O] property at times they agree upon in writing, and failing agreement the Applicant has the right to occupy the property for the first 2 weeks from the date of the making of these Orders and the Respondent has the right to occupy the property for the second 2 weeks from the date of the making of these Orders, to alternate each 2 weeks thereafter;
23.2.the party who has the right of occupation of the [O] property at the times specified in the preceding paragraph of these Orders has the sole authority to instruct the managing agent as to the leasing of the [O] property at those times;
23.3.all rent received from the leasing of the [O] property shall be applied in payment of the expenses associated with the [O] property, including council and water rates, electricity, water usage, telephone and land tax, agreed commission and expenses of the managing agent, in payment of the cleaners’ fees and similar expenses and any balance remaining shall be paid as to half to the Applicant and half to the Respondent and any shortfall shall be paid as to half by the Applicant and half by the Respondent;
On settlement of the sale of the [O] property the proceeds of the sale be paid in the following manner and priority;
24.1.all costs and expenses of sale including legal costs and disbursements, agent’s commission, costs of and incidental to the appointment of the agent, valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
24.2.the amounts required to discharge the [O property] mortgage;
24.3.the balance then remaining shall be divided equally between the parties.
Within 14 days from the date of these Orders the wine, furniture and furnishings, and household contents owned by the parties or either of them and the artworks acquired by the Applicant since 12 April 2011, wherever situated shall be divided between the parties by agreement, and in the absence of such an agreement, in the following manner:
25.1.within 14 days of the date of the making of these Orders the Applicant shall do all acts and things necessary to prepare 2 lists of the items in her possession or control, the items contained on each list to be approximate in value to that contained on the other list;
25.2.within 14 days of the date of the making of these Orders the Respondent shall do all acts and things necessary to prepare 2 lists of the items in her possession or control, the items contained on each list to be approximate in value to that contained on the other list;
25.3.each of the parties shall, if she receives a request in writing from the other party to do so, provide to the other party all documents requested by the other party to confirm the purchase or acquisition of items since 19 April 2010, within 7 days of receiving such request;
25.4.the Respondent shall select 1 of the lists prepared by the Applicant within 7 days of receipt thereof, and in default the Applicant shall select one of the lists for the Respondent and thereafter the Respondent shall be solely entitled to the items contained in the list the Respondent has selected or been allocated and the Applicant shall be solely entitled to the items contained in the other list;
25.5.the Applicant shall select 1 of the lists prepared by the Respondent within 7 days of receipt thereof, and in default the Respondent shall select one of the lists for the Applicant and thereafter the Applicant shall be solely entitled to the items contained in the list the Applicant has selected or been allocated and the Respondent shall be solely entitled to the items contained in the other list;
25.6.the Applicant shall make available for collection by the Respondent or any persons nominated by Respondent all of those items contained in the list the Applicant has prepared and the Respondent has selected or been allocated, at any reasonable time requested by the Respondent and pending collection of the items by the Respondent the Applicant shall properly maintain such items;
25.7.the Respondent shall make available for collection by the Applicant or any persons nominated by Applicant all of those items contained in the list the Respondent has prepared and the Applicant has selected or been allocated, at any reasonable time requested by the Applicant and pending collection of the items by the Applicant the Respondent shall properly maintain such items.
Other than as is specifically provided for in these Orders the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these Orders and are responsible for all liabilities in their own name at the date of these Orders.
Each of the parties have liberty to apply to the Court and the other party on 14 days’ notice in writing in the event any difficulty occurs in relation to the sale of the O property, with a proposed Application in a Case and Affidavit outlining the circumstances of the difficulty which has arisen.
In the event that either party refuses or neglects to execute any deed or instrument required under these Orders, the Registrar of the Family Court of Australia at Sydney is appointed pursuant to Section 106A of the Family Law Act 1975 (Commonwealth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The Applicant pay the Respondent's costs of and incidental to these proceedings.
End of schedule 2
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