CONNORS & TAYLOR

[2010] FamCA 847

FAMILY COURT OF AUSTRALIA

CONNORS & TAYLOR [2010] FamCA 847

FAMILY LAW – CHILDREN – best interests of child – separation of siblings – resumption of equal shared parental responsibility

Family Law Act1975 (Cth)

APPLICANT: Ms Connors

RESPONDENT: Ms Taylor

FILE NUMBER: SYC 2039 of 2007

DATE DELIVERED: 24 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ainslie-Wallace

HEARING DATE: 13 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees SC with Ms Christie

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Hausman

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders Pending further order

1. The parties have equal shared parental responsibility of the child L (born January 2008).

2. That the child V live with Ms Taylor and the child L live with Ms Connors.

3. That the children spend time two nights in each week with Ms Taylor and two nights in each week with Ms Connors.

4. That the parties agree as to which nights the children will spend time with each of them but failing agreement, on Monday and Tuesday nights with Ms Taylor and Wednesday and Thursday nights with Ms Connors.

5. That each Saturday both children spend time with Ms Connors from 9am until 6pm and both children spend time with Ms Taylor each Sunday from 9am until 6pm and thereafter alternating the day on which the child spends time with the mother in the next week.

6. That before a nanny is engaged to care for the children after the departure of Ms F, the parties to agree on the person to act as nanny and in order to facilitate the agreement the parties will provide to each other the names, qualifications and other necessary relevant information of each proposed person to enable them to make a choice of carer.

7. That within 14 days of this order, the parties prepare a minute of order for the engagement of a single expert to consult and report on the issues between the parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2039 of 2007

MS CONNORS

Applicant

And

MS TAYLOR

Respondent

REASONS FOR JUDGMENT

background

1. This application concerns two little girls, V (born in November 2006) and L (born in January 2008).  Each has the same donor father.  V was borne by Ms Taylor and L by Ms Connors.

2. The parties commenced a relationship in 1998 and lived together from that time until separation in April 2010.

3. It seems common ground that the parties always treated the girls as sisters.  It was undisputed that the girls have a close and loving bond with each other.  It was also undisputed that V has a close and loving attachment to her birth mother, Ms Taylor as does L to Ms Connors.  The parties agree that each child is warmly and lovingly attached to the non-birth mother.

4. From early in their lives, the girls have been cared for by a nanny, Ms F, while their mothers worked.  It was said that the girls are closely attached to Ms F.  Ms F is in exceedingly poor health and does not imagine that she will be able to continue to care for the girls.  A new nanny will be engaged.  At the date of the hearing, Ms Taylor had engaged a nanny but had not consulted Ms Connors about the choice.  The resolution of that matter was left in the hands of the mothers.

5. Both parties have involved the donor father in the lives of the children and both propose that continue. 

6. The strength of the girls’ attachments to their non-birth mothers is a matter of dispute and which will need to be resolved at a final hearing.

7. At the conclusion of the relationship, Ms Taylor moved out of the home that the parties and children had shared and took V with her.  Ms Connors remained in their former home with L.

8. The parties made arrangements between themselves for spending time with the children although it seems that it was often fraught with dispute.  Essentially the children spent time with each other during the day while the mothers worked and spent the night with their respective birth mother.  There were times when the children would spend nights together with one mother.  In June 2010 the parties arranged for the children to spend 4 nights together each week, 2 nights with each mother. Ms Taylor believed that this arrangement was unsettling for V and the arrangement ceased.  Ms Connors disputes that V was unsettled by spending time with her and L overnight. In any event, they have been unable to agree on a different regime for the children.

9. On 18^th June they attended counselling and made an agreement about the children.  Ms Connors asserts that this was to be a temporary arrangement for 4 weeks.  It was agreed that the children would spend 6 days each week together, 5 days being cared for by a nanny and the mothers would share time on Sunday.  The children spent two nights together in the home of each mother.

10. The applicant, Ms Connors, seeks interim orders that have the children together every day and together spending nights equally with each mother.  Ms Taylor proposes that V live with her and L live with Ms Connors and that the children spend each day together and they spend two nights a week together at either her house or that of Ms Connors and the girls spend each alternate week together with either her or Ms Connors.

11. In May 2007 this Court made an order, by consent of the parties, that they have equal shared parental responsibility for V.  Both parties seek that order in relation to L.

Family Consultant

1. The parties met with a Family Consultant, Ms K, on 9^th August 2010 and she prepared a report of the consultation. 

2. Ms K noted that it had always been the parties’ intention to raise the girls as sisters, for them to attend the same preschool and schools and that while both mothers express the same intention there is a dispute between them as to how it will be effected.

3. Ms K noted that Ms Connors does not believe there to be a difference in V or L in the strength of their attachments to her and believes that each girl has a strong and secure primary attachment to her.  Ms Taylor believes that both children have a primary attachment to their respective birth mothers and each child needs time only with that mother.  She believes it is in the children’s interests for the primary base for each child be with the birth mother and so each child should spend the weeknights with her birth mother.

4. From Ms K’s report it seems that both parties acknowledge that the children are emotionally dependent on each other and miss the other child when they are apart.  Ms Taylor believes that while they may miss each other, the children miss their biological mother more if they spend too much time away from her.  Ms Connors said that in her observation, L appears to miss V desperately when they are apart.

5. Both parties referred to conflict associated with the separation and on change over for the children.

6. Ms K summarised the dispute between the parties as being one in which Ms Taylor, believing that V has a stronger primary attachment to her as birth mother and L to Ms Connors, wants to have in place arrangements that prioritise the primary attachment over the sibling bond.  Ms Connors sees the children as being “their” daughters and that they should not be separated from each other as they move between the households.

7. Ms K observed that it would be better for the children if the number of times in which they are moved between households were fewer and associated with less acrimony.

8. The parties are in significant dispute as to the prioritising of the relationships.   The Family Consultant recommended that an expert be retained to consider and report on the nature and strength of the bond between the children and that between each of them and the mothers. 

Parties’ Evidence

1. Ms Connors observations are that L misses V very much and asks for her sister frequently.  She said that when they come together, L launches herself at V and tries to hug her.  She said that V asks her whether she can stay more nights and tells her that she misses her.  Ms Connors says that present arrangements causes her to miss seeing V.

2. Ms Taylor, while not apparently disputing that the girls have a close and loving relationship and bond with each other believed that more than one night spent away during the week was upsetting V.  She said that when V was spending more time away during the week, her behaviour was unsettled.  Since the arrangement was reached in June 2010, V has been more settled and has become more confident.  Ms Taylor believes that V will be distressed if she spends more than one night a week away from her.  It appears that she believes her proposal that the girls spend each day together will maintain their bond.

3. While the parties had intended for the girls to attend the same preschool, it is not clear that that will be possible.  V is to start preschool in 2011 and has been given a place for three days each week in a nearby preschool.  Apparently the school cannot guarantee a place for L next year or, if a place became available, would she necessarily have the same days as V.  If that occurs, then this will mean a significant change in the amount of time that the girls spend together.

4. There is considerable dispute evident in the affidavits about incidents of conflict and acrimony associated with the separation, while attempting to negotiate arrangements for the girls and in giving effect to the handovers.  Each mother is critical of the other’s parenting capacities. 

5. In the context of an interim hearing where the matter proceeds on the basis of the affidavits without testing through cross examination, it is impossible to resolve contested issues of fact.

6. Ms F’s observations are of a “warm, loving and attached relationship” between the children and each of the mothers.  She noted that L seemed to be more “predominantly attached” to Ms Connors and V to Ms Taylor but said that the children showed no or little difficulty in separating from either of the mothers.

7. She observed:

   “…since [Ms Connors] and [Ms Taylor] have separated, the children show some anxiety about when they will next see each other.  [V] is…calm, content and happy when she is with [Ms Connors] …and likewise [L] appears calm, content and happy when she is at [Ms Taylor’s house].”

Discussion

1. It is important, as Senior Counsel for the applicant observed in argument, to be conscious of the objects and principles underlying the making of orders affecting children. 

2. The issue for this hearing is whether it is in the interests of the girls to spend more time together overnight with each parent.  Ms Taylor contends that to make an order that provides for V spending more time overnight away from her other than as presently in place would be distressing to her and would not be in her interests.  Ms Connors contends that the bond between the girls is strong and the present arrangements do not foster and support that bond to the distress of both of them.   Ms Connors feels it is not in V’s interests to spend so little time with her.

3. It was not suggested that it was not a benefit to both of these little girls to enjoy a meaningful relationship with each of her parents.  Although there have been unfortunate incidents and occasions of uncontained behaviour between the parties in the presence of the children, it seems that both parties have accepted the need to manage their interaction to avoid such events in the future.  If that happens, it will clearly be in the interests of the girls.  

4. As I have indicated, there is no argument that each child is strongly and warmly attached to both parents.  There is a dispute as to whether there is a stronger, primary attachment to each of the birth mothers which is a matter on which the Court will be assisted by expert evidence at the final hearing.

5. Despite the difficulties to which I have referred, it seems that both parents are willing and able to facilitate a close relationship with the other as it seems that each has the capacity to provide for the needs of each child.

6. The issue to be determined is whether it is in the children’s interests to make a change in their circumstances in this interim period.

7. Each party has or seeks shared parental responsibility for the children.  That being the case, the Court must consider whether it is in the children’s best interests and if it is reasonable practicable for them to spend equal time with each of the parents or failing that to consider whether it is in the children’s best interests to spend substantial and significant time with each parent.

8. Ms K commented that frequent care handovers are not necessarily meeting the interests of the children because they provide an opportunity for conflict between the parties and there is a suggestion in Ms Taylor’s affidavit that V is finding it somewhat confusing.

9. In this matter, on the limited evidence of the case, I am not persuaded that it is in the children’s best interests in the interim to change the present arrangements to give effect to equal shared time with each parent.  In coming to that decision I take into account that they are still very little, that separation was relatively recent and, from the affidavits of both parties, the girls are somewhat more settled than they have been and a significant change may cause distress to each of them. To make an order for equal shared time with the parents would reflect a significant change to the present circumstances. 

10. It seems however that the little girls are very close to each other, are warmly and lovingly attached to each other and miss the other. I find Ms F’s observations persuasive that the girls are showing some anxiety about when they will be together next and her observations of the warm relationship each has with their non birth mother.

11. On the evidence before me and pending a full exploration of the matter at a final hearing that it is in their interests to spend more time together with both mothers.  I will order that the children spend four nights each week together, that is they will, in addition to the present arrangements, an additional night together with each parent. 

1. I am conscious that Ms Taylor believed that the previous regime of 4 nights each week was unsettling to V.  However I am of the view that time has passed and she is now more settled and I am of the view that it will be nonetheless in their interests to make that change.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 24 September 2010.

Associate: 

Date:  24 September 2010