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…
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- CONNORS & TAYLOR [2012] FamCA 207
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- [2012] FamCA 207
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CaseChat Overview and Summary
The court was required to determine several key legal issues. In relation to parenting, the court needed to ascertain whether the non-birth mother was a "parent" for the purposes of the Family Law Act, assess the children's current attachments, and consider whether the siblings would spend time apart under proposed arrangements. The overarching question was what parenting arrangements would be in the children's best interests. Regarding property, the court had to decide whether legal fees paid from post-separation income should be subject to an add-back, consider the initial contributions of each party, and determine what constituted a just and equitable alteration of property interests, including the disposition of the family home.
In its determination, the court made orders for equal shared parental responsibility for both children, with each party having sole responsibility for day-to-day decisions when the children were in their care. A detailed schedule for the children's living arrangements was established, aiming for a balanced rotation between the parties during school terms and specific arrangements for school holidays, including Christmas and birthdays, to ensure the children spent time with both parents. The court also made comprehensive property orders, including the division of two properties, the discharge of certain loans, and the distribution of funds from the sale of one property. Specific provisions were made for the division of personal chattels and the allocation of liabilities.
Orders
Orders of the court
PARENTING ORDERS
1. 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.
2. 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.
3. 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.
4. Order 3 is suspended during school holidays.
5. 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.
6. 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.
7. 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.
8. 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].
9. 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.
10. Notwithstanding any other Order herein, the children will otherwise live with one or the other party at any time agreed between them in writing.
11. 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.
12. Unless otherwise agreed in writing, the children are to attend the same high school for their high schooling.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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
22. Pursuant to s 90SM Family Law Act 1975 (Cth), an Order be made in accordance with paragraphs 23 to 39 below.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. The parties forthwith do everything necessary to divide equally the Commonwealth Bank accounts numbered …07 and …93.
33. The Applicant forthwith transfer to the Respondent her right, title and interest in the Audi … station wagon ….
34. The Respondent forthwith transfer to the Applicant any title that she has in the art in P property and chambers.
35. The Applicant forthwith transfer to the Respondent any title that she has in the named artwork at H Street, P.
36. 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.
37. 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.
38. 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.
39. Subject to any other order, each party shall indemnify the other in relation to any liability which is in their sole name.
40. Liberty granted to either party to apply on 7 days notice in relation to the implementation of these Property Orders.
41. 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.
42. 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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