Supreme Court New South Wales Medium Neutral Citation: Dunning v Dunning [2011] NSWSC 1278 Hearing dates: 29 September, 19 October 2011 Decision date: 11 November 2011 Jurisdiction: Common Law Before: Harrison J Decision: DECLARE that in the events that have happened QBE is not liable to indemnify the first and second defendants in respect of any liability they are, or either of them is, held to have to the plaintiff, pursuant to the insurance contract bearing policy number K044947 between the first and second defendants on the one part and QBE on the other part. Catchwords: SEPARATE QUESTION - insurance - where infant plaintiff sustained injuries at premises of first and second defendants - where plaintiff alleges injuries were caused by their negligence - where first and second defendants were the beneficiaries of QBE insurance policy - question whether policy responds to the events that give rise to the plaintiff's claim - further question whether claim falls within the terms of an exclusion clause if plaintiff "normally lived" with them at time of incident - policy does respond but plaintiff normally living with first and second defendants at time of incident - events giving rise to plaintiff's claim covered by the exclusion clause Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Clarke v Clarke; Insurance Officer of Australia Ltd (Third Party) [1964] VR 773 Commissioners of Inland Revenue v Maple & Co. (Paris), Limited [1908] AC 22 Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 168 ALR 211 Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd [2000] WASCA 408; (2000) 23 WAR 291 Category: Separate question Parties: Nathan Bradley Dunning by his tutor Melissa Louise Dunning (Plaintiff) Scott MacKenzie Dunning (First Defendant) Lindsay Saddington (Second Defendant) QBE Insurance (Australia) Limited (Third Defendant) Representation: D Benson (Plaintiff) R Cheney SC with H Chiu (Third Defendant) Slater and Gordon (Plaintiff) Lee & Lyons Lawyers (Third Defendant) File Number(s): 2010/213532 Judgment 1HIS HONOUR : The plaintiff was born in 1998. On 30 December 2008, when he was 10 years old, he fell from a bunk in a bedroom at premises in Rosewood Drive, Medowie and was seriously injured. The plaintiff's father and his partner, who are respectively the first and second defendants, then occupied those premises. The plaintiff alleges that he sustained his injuries by reason of the negligence of these defendants, in that they failed in a timely way to assess his condition or to render appropriate assistance or to take him to hospital for medical help without undue delay. The plaintiff does not allege that the bunk, or any other part of the premises, was inculpated in what occurred. 2At the time of the events giving rise to the plaintiff's claim, the first and second defendants were the beneficiaries of a policy of insurance effected by them with QBE Insurance (Australia) Limited, the third defendant. QBE was erroneously joined as a defendant by the plaintiff who sought declarations that it was liable to meet any judgment in his favour against the first and second defendants and that he was entitled to "enforce" any such judgment against QBE pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 . Despite this initial procedural confusion, the plaintiff and QBE ultimately agreed to seek an early adjudication on the separate question of whether or not the QBE policy actually responds to the events at hand. The first and second defendants, who might ordinarily have been expected to be the proponents of such an application, have not played any active role in the proceedings. 3Two issues arise for consideration in this context. First, whether the policy responds at all to the events that give rise to the plaintiff's claim. Secondly, if the policy does respond, whether the claim falls within the terms of an exclusion clause contained in the policy. Those issues arise in the context of the following factual background. Background facts 4Melissa Dunning is the plaintiff's mother. She and Mr Dunning met in 1992, commenced living together in 1994 and were married in 1998. Ms Dunning gave birth to seven children between February 1996 and March 2005. One of their children died. The plaintiff is now the second oldest of the surviving children. 5Mr Dunning obtained employment in the Middle East and after a period of training in the United Kingdom in 2005, the family moved to Saudi Arabia at Easter in 2006. Mr and Ms Dunning separated in February 2007, approximately one week after returning to Australia from Saudi Arabia. Mr Dunning returned there in March 2007. Between February 2007 and May 2007 all of the children lived with Ms Dunning at rented accommodation in Wentworth Street, Wallsend. 6In May 2007 Ms Dunning returned to Saudi Arabia with the children for the purpose of attempting a reconciliation. That was unsuccessful. She returned to Australia with the children in August 2007. The children lived permanently with her in Australia until December 2007. 7In December 2007 Mr Dunning lost his job in Saudi Arabia and returned to Australia. He returned to Saudi Arabia in January 2008 and then went to the United Kingdom. Between January 2008 and March 2008 the children lived permanently with Ms Dunning at the family home in Murnin Street, Wallsend. Mr Dunning returned to Australia in March 2008 and moved into that home with Ms Saddington and the children, at which time Ms Dunning moved to a bed and breakfast facility nearby. She stayed there for approximately two weeks. 8On 19 March 2008 Ms Dunning re-enlisted with the RAAF and moved into a five-bedroom Defence Force home in Gordon Reeve Close, Raymond Terrace with the children. The Murnin Street property was sold on 4 April 2008. 9In her evidence Ms Dunning said that between January 2008 and November or early December 2008 she and Mr Dunning "shared custody of the children". Their marriage was dissolved by order of the Family Court of Australia on 2 August 2008. Mr Dunning married Ms Saddington a short time later. The QBE policy 10The first and second defendants effected a Home Cover policy of insurance with QBE on 28 March 2008. Section 6 of the policy is headed "Legal Liability to Others". Clause 6.1 is headed "Legal Liability to Another Person" and is in the following relevant terms: "If this policy insures your building and if you or your family become legally liable as an owner or occupier for: bodily injury or death to another person; loss or damage to another person's property, arising from an incident occurring during the period of insurance at your building or at the site ; [" the first limb "] or if this policy insures your contents at the site and if you or your family become legally liable anywhere in the world for: bodily injury or death to another person; loss or damage to another person's property, arising from an incident occurring during the period of insurance that is not related to the ownership or occupancy of your building ; [" the second limb "] then we will pay: the reasonable cost of the harm or damage for which there is liability; or the amount awarded by a court; up to the limit of liability ... There is no insurance under this Section for any claim for legal liability: 1. for bodily injury or death to: you or your family ..." 11The policy contains defined terms. They include the following: " building " means the main residential building at the site, its outbuildings on the site if able to be secured and fixtures . " family " means any of the following people who normally live with you: spouse or partner ; children, step children; parents, grandparents; grandchildren; brothers, sisters; domestic staff; a person who normally resides with you , BUT does not include a person with whom you may share a house for any financial consideration. " incident " means an event neither expected nor intended from the standpoint of you or your family which results in a claim on this policy . " schedule " means the policy schedule... " site " means...the land at the address shown on the schedule : on which the building is built... " you " and " your " means the person(s) named in the schedule as the insured including a family member. 12No other terms of the policy were referred to in argument and none appears to be relevant. Does the policy respond? 13There is no dispute that the first limb of the insuring clause is not engaged. The plaintiff contends that the second limb is engaged but QBE contends that it is not. 14QBE submitted that before any liability, which the first and second defendants might have to the plaintiff in respect of the accident, would be covered by the policy, it would have to be a liability "for...bodily injury...to another person...arising from an incident...that is...related to the occupancy of...[the] building...[being the 'main residential building' at the 'site' at... Rosewood Drive, Medowie]." That is incorrect, as the relevant clause in the policy speaks of "an incident... that is not related to the ownership or occupancy" of the building [emphasis added]. The omission of the word "not" would appear to be inadvertent as the following written submission upon which QBE then relied indicates: "12. The incident from which the plaintiff's bodily injury arose (being, in the language of the definition of ' incident ', the "event neither expected nor intended...which results in a claim on the policy") is the fall from the top level of the bunk bed pleaded in paragraph 5 of the statement of claim. That incident is plainly 'related to' the occupancy of the risk address. It is the incident , rather than the insureds' liability, that must be 'related to' the occupancy, and the proper construction of the insuring clause is therefore unaffected by the fact that the case pleaded against the insureds is directed to their alleged failure to administer or procure timely medical intervention." 15Even though that passage is somewhat infelicitously expressed, when it speaks of "the proper construction of the insuring clause" being "unaffected", I take it to be a submission that the clause is not engaged in the circumstances. Presumably that is said to be so because the plaintiff's fall from the bed was an incident that was related to the property, and therefore one that is outside the reach of the clause. In other words, according to the way in which I suspect QBE's submission was intended to read, it is that incident , rather than the insured's liability , which must be " not related to the occupancy" before the clause is potentially engaged. As QBE maintains that the incident from which the plaintiff's bodily injury arose was the fall from the top level of the bunk, it contended that it was therefore plainly "related to" the occupancy of the risk address, even if the insured's liability for what followed is not. 16QBE referred to IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 at 477 and 483 as support for the proposition that "phrases [such as] 'in relation to' or 'related to' are of the widest import and should not, in the absence of compelling reasons to the contrary, be read down": per Clarke JA. Similarly, in Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 168 ALR 211 at 224, the Court said that the "width of the phrase 'relating to' is undoubted", and agreed with the proposition that "there is no expression more general or far-reaching": see Commissioners of Inland Revenue v Maple & Co. (Paris ), Limited [1908] AC 22 at 26. The presence of the expression "related to" in an insurance policy provides no reason to construe the term narrowly: Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd [2000] WASCA 408; (2000) 23 WAR 291 at [67]. 17In contrast, the plaintiff submitted that the relevant "incident" was "related only to the acts or omissions of the [insureds], and unrelated to [their] occupancy of the building". The plaintiff submitted that the policy was engaged in these circumstances, just as it would also have been engaged if the acts or omissions of the insureds had taken place outside the building. It was submitted further that the presence of the plaintiff and the insureds at the site was "coincidental" and had no bearing upon the relevant "incident", which the plaintiff maintained was the lack of proper or timely care afforded to the plaintiff at the time. Consideration 18For presently relevant purposes, the QBE policy only responds if two conditions are fulfilled. First, the insureds' legal liability for bodily injury to the plaintiff must have arisen from an incident. Secondly, that incident must be one that is not related to the insureds' ownership of occupancy of the building. The insureds' legal liability must therefore arise from an incident that is unrelated to their ownership or occupancy of the building. 19The relevant liability for which the policy provides cover must arise from the incident in question. The issue of whether or not that liability arises from a particular incident must be assessed or determined before the issue of whether the incident is or is not related to the ownership or occupancy of the property. In the present case, the only liability for which the insureds seek to be indemnified arises from their alleged failure to render medical care and assistance to the plaintiff in a timely way. Their liability for that failure does not arise from the fact that the plaintiff sustained injuries in the course of a fall from a bunk bed at the premises. At the point when those injuries were sustained, no liability had arisen. QBE's submissions are completely silent on the meaning of the expression "arising from". 20An incident may be more than a single, discrete event such as a fall from a bed. An incident may certainly be limited or restricted to a single occurrence or a single event, but it may equally be a distinct piece of action or an episode, or something that occurs casually in connection with something else. The events that occurred during the inculpated period following the plaintiff's fall, until he was taken to hospital, or the insureds' decision to delay taking him to hospital, are equally capable of amounting to an incident. That is the incident from which the insureds' legal liability to the plaintiff for bodily injury arose. It was equally an event neither expected nor intended from at least the plaintiff's standpoint, as defined in the policy. If the insureds' failure to treat the plaintiff as alleged amounted to an incident from which their legal liability to him arose, it seems clear that that incident is not related to their ownership or occupancy of the building. Such a conclusion is not dependant upon a reading down of the expression "related to" in defiance of any of the authorities upon which QBE relies. The acts and omissions alleged against the insureds are not in my view related in any way to their ownership or occupancy of the building. 21It follows in my opinion that the QBE policy responds to the events that give rise to the plaintiff's claim. Does the exclusion apply? 22Ms Dunning deposed to the following matters in her undated affidavit filed in the proceedings: "23 By late November, early December of 2008 I came to realise that the informal joint custody arrangements with the first defendant were failing, and on numerous occasions in December 2008 the first and second defendants informed me that they would no longer have the children on a shared custody arrangement. 24 Certainly by no later than 19 December of 2008 all six children came into my exclusive care, custody and control. 25 Because of my working commitments and the need for after school care of the children I was offered assistance by friends in the local area... 26 I did make an arrangement with the first defendant for a visit by the children with the first defendant because the first defendant told me that 'I don't have much leave owing to me'. I agreed to this arrangement because this was the only opportunity the children had to visit their father during the time of his limited holiday leave. The agreed period for the children's holiday visit [was] 26 December 2008 to 1 January 2009. 27 I first became aware that Nathan had been injured when I received a telephone call from the first defendant at about 8.30am on 31 December 2008 ..." 23Mr Dunning's affidavit sworn 12 July 2011 contained the following relevant paragraphs: "9 ... Melissa and I did not have a formal custody agreement concerning the children. After our separation, and during the time I was in Australia, the children would simply spend five days at Melissa's place, then five days with Lindsay and I, then two days with Melissa, then two days with Lindsay and I. The children spent an equal amount of time in each household. 10 Occasionally Melissa would change the times/dates the children were dropped off at our home to suit her social commitments. I became increasingly frustrated with Melissa on those occasions as it interfered with my own plans. 11 I recall that on or about October 2008, Lindsay met up with Melissa at our home to draw up a schedule regarding the care of the children, including Nathan...As far as I am aware the schedule was adhered to from the day we started shared custody till the day after Nathan's accident. 12 Lindsay and I wanted to have the informal custody arrangement documented and filed in the Local Court... 13 On 3 December 2008, I received an email from Stuart Beal attaching the Terms of Settlement setting out the custody arrangement proposal... 14 The draft agreement was sent to Melissa on or about 17 December 2008. 15 Melissa required the children to spend every Christmas Day and Mother's Day with her... 16 On 24 December 2008 I sent an email to Melissa Dunning which outlines the rules upon which Lindsay and I would continue to agree to a 50/50 shared care of the children... 17 That same day I received a response from Melissa to my request to which I also responded in a different colour... 18 On 28 December 2008, I received a further email from Melissa setting out the following: 'I have not yet been assured that you wish to continue with the 50/50 care of the children'. 19 This email shows that at that point the care of the children was shared on a 50/50 basis... 20 Melissa's email upset me and it was clear to me that Melissa and I could not agree on the terms of the formal custody arrangement. I responded on 29 December 2008 by saying that 'I will forego any further shared care as of 1 January 2009'. 21 Throughout my email correspondence with Melissa referred to [above] the informal custody arrangements to share the care of the children on a 50/50 basis remained. Nathan spent Christmas Eve and Christmas Day in 2008 with Melissa. 22 On Boxing Day 2008 Nathan was in my care and was due to return to Melissa on 1 January 2008. Nathan's accident the subject of these proceedings occurred on 30 December 2008. 23 I was not aware at any time prior to Nathan's accident that the arrangements regarding the care of the children were changed. 24 At no time prior to the plaintiff's accident was I aware that the shared custody arrangements had changed. 25 If the custody arrangements had changed or if Melissa requested the Child Support Agency to register any new custody arrangements, it is the procedure...of CSA to notify me and give me 28 days notice that the custody arrangements have changed. Any change from 50/50 shared care of the children to 100 percent care in Melissa's favour would have significantly increased my child maintenance payments...I have not received at any time prior to the plaintiff's accident any such notification from the CSA. 26 I therefore verily believe that I had a 50/50 shared custody of all my children with Melissa, including Nathan when this terrible accident occurred." 24Lindsay Saddington also swore an affidavit dated 6 September 2011. Part of that affidavit is as follows: "6 On or about March 2008, Scott and I moved into a rental property located at ... Rosewood Drive, Medowie. This was a large five bedroom home which we specifically chose to accommodate the six children who spent fifty percent of their time with us after Scott and Melissa separated. 7 As far as I am aware there was no formal custody arrangement between Melissa Dunning and the first defendant. The children would simply spend five days at Melissa's place, then five days with Scott, then two days with Melissa, then two days with Scott. The children spent an equal amount of time in each household. 8 On or about October 2008, I met with Melissa to draw up a schedule regarding the care of the children...The timetable was recorded in a calendar. Each day in the calendar contains either the name 'Scott' or 'Mel'. This represents the person in whose custody the children are to be on that particular day. The calendar was adhered to by both Scott and Melissa up to and including the date of Nathan's accident." 25Ms Dunning also gave oral evidence and was cross-examined. Part of her evidence-in-chief is in these terms: "Q. Just turning to another topic, in November and December of 2008, you did correspond with Mr Dunning mainly via email about care arrangements, is that correct? A. That's correct. Q. And why is it that you continued to correspond with Mr Dunning about those matters? A. Because he is the father of my children. Q. And? A. We had so many unresolved issues. Q. What did you want Mr Dunning to do? A. Could you please? Q. You were corresponding with him about? A. Care arrangements, yes. Q. What did you want him to do? A. I wanted a workable, amicable arrangement. Q. Did you get it? A. No. Q. Is it true that in December of 2008, in particular, you did correspond with the Child Support Agency? A. That's correct. Q. It is not a memory test for dates. I just ask you this question. On 9 December 2008, did you contact the Child Support Agency? A. Yes. Q. And the note that is recorded in the records of the agency is, 'Melissa called through to restart registration'; what does that mean? A. I am not exactly sure of their terminology, but it would be a case Q. Why did you contact them? A. Because the care arrangements we had in place weren't working. Q. What was your intention about contacting the Child Support Agency? A. To find out my entitlement when the children are in my full care. Q. You had some advice from them, which I don't want you to discuss, is that correct; you had some advice from the Child Support Agency then? A. I would have. Q. The records of the agency then note that you contacted them again on 19 December 2008. Why is it that you contacted them then? A. Because I had taken the children into my full care and I can fully recall that call." 26Ms Dunning was cross-examined about the series of emails that passed between her and Mr Dunning before Christmas in 2008. Part of that cross-examination was as follows: "Q. And can I suggest to you that at least as late as Christmas Eve when these emails were being exchanged if you had formed in your own mind an intention to terminate the 50/50 sharing arrangement with your husband that intention had not been communicated by you to your husband, do you agree with that? A. I don't know that I - I don't know, I can't recall telling him what had occurred but as you can see by the emails there is millions of these let's work it out emails and I got to the point where the lesser of two evils was to have all the children in my care and not deal with this any more. Q. But what I want to suggest to you ma'am is that a reasonable interpretation to place on the emails exchanged on Christmas Eve at least was that if as at Christmas Eve you had formed the intention to assume full custody of the children you had not communicated that intention to your ex-husband, do you agree? A. I have thought about this and I do agree because I possibly didn't tell him because he would not have had that Christmas visit with the children, he would have cancelled it so I can see where I may not have told him. ***** Q. What I want to suggest you said that on 28 December because you were unsure whether in the new year your husband was going to continue with the 50/50 sharing arrangement and if he was not you needed to know so that you could make alternative care arrangements for your children? A. I had already made alternative care arrangements for my children. Q. If that is so do you agree that it is odd that you would ask for your husband's position about that and tell him that you needed to know it because you needed to make alternative arrangements, if necessary? A. Yes, I agree that it is odd and also agree I was supposed to email all correspondence through Ms Saddington and not actually supposed to even speak to him directly so, yeah, it wasn't a nice workable arrangement. I absolutely would like him to be involved in their lives. Q. And Ms Dunning if you would turn to the last page of that affidavit, page 21. Do you see your husband's email to you of 29 December about 24 hours before Nathan's accident in which he says a number of things and concludes 'I will forego any further shared care as of 1 January 2009'? A. Mmm mmm. Q. Can I suggest to you that it is only on receipt of that email that you understood that the pair of you agreed that he would not have shared care in the new year? A. Scott had stated to me on numerous occasions that he wasn't going to have the kids as of 1 January, okay, so therefore there was no child care available in Raymond Terrace on a Monday or a Tuesday because we usually changed over on a Wednesday so as I was working full time I had to arrange child care for my children and at that time when the child care was in place I said - I took the children into my full care. Q. You see, Ms Dunning, if as you tell us by the time of the 29 December email which is at page 21 of the bundle you had already formed in your mind the view that the share care arrangements should be terminated? A. Mmm mmm. Q. I suggest the only reasonable reading of Mr Dunning's email to you of that day is he was unaware that you had formed that view, do you agree? A. Possibly. I don't recall telling him so I can't say what he was aware of, I'm sorry. Q. So may we take it that on those occasions in your affidavit where you assert that the arrangement for shared care was ended you are referring to your own understanding of the arrangements? A. No. Q. And your own intentions? A. No, I am referring to the fact that I had taken the children into my full care and I had rung the Child Support Agency. We are obviously not best friends, Scott and I so I don't like - I didn't like dealing with them." Consideration 27The insureds are not entitled to indemnity in respect of any bodily injury sustained by the plaintiff on 30 December 2008, if he normally lived with them when that occurred. There is no dispute that at least up until 19 December 2008 the plaintiff and his siblings normally lived according to an informal custody arrangement pursuant to which they spent roughly equal times in the households of each parent. These households were conducted and configured so as to accommodate the normal living, sleeping and eating arrangements of all of the children in approximately equal comfort and for approximately equal periods. The evidence suggests that the parties had even marked out the days on a calendar in accordance with this agreement or arrangement so as to limit or exclude confusion or uncertainty about what times were to be spent in which home. The evidence also suggests that the normal indicia of the children's domestic, social, educational and recreational lives were evident in equal ways at both places. For example, there were beds for all children in both homes and their clothes and other possessions would appear to have been distributed or accommodated in roughly equal proportions in each household. They went to and from school, and attended other activities, during the week and also on weekends from both houses without any apparent or significant differences. 28The natural and ordinary meaning of the term "normally" is as a rule, regularly or according to rule or general custom. I was not referred to any authority that specifically dealt with the expression "normally live". However, the notion that someone might be "ordinarily resident" at more than one place has long been recognised, particularly in the context of bankruptcy and revenue cases. For example, in Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194, Lockhart J considered that expression, noting that the words had no technical or special meaning, being ordinary English words and that the question was one of fact and degree. His Honour said this at 198: "Most people, if asked where they were ordinarily resident at a particular time, would name but one place: their home, because that would be the only place in which they normally or customarily live, although they may travel to other places on holidays or business intermittently. Other people may have two or more houses or flats and stay for various purposes and varying lengths of time in each. It may, depending on the circumstances, be permissible to say that at a particular time they are ordinarily resident in each of the places, though they may be at that time physically present somewhere else. This point is made in many of the reported cases..." 29In Clarke v Clarke; Insurance Officer of Australia Ltd (Third Party) [1964] VR 773, the court was required to construe a motor vehicle insurance policy which indemnified the insured in respect of "bodily injury to persons other than any relative or friend of the insured ordinarily residing with the insured". In that case the infant plaintiff, the daughter of the insured, obtained judgment against him for damages for injuries sustained by her as a result of his negligent driving. The plaintiff spent the majority of her time at boarding school, and returned to the family home during school holidays. She was injured during one of these. Smith J held that the daughter was "ordinarily residing with the insured" and that he was not entitled to be indemnified. His Honour said this at 775-776: "The words 'ordinarily residing with' are common English words and here there is no context requiring that they should be given other than their natural meaning in accordance with the accepted usage of English. Even in such circumstances, however, there can be difficulty and doubt as to their applicability to particular sets of facts, because the conception to which the words have reference does not have a clearly definable content or fixed boundaries. The conception as to the extent of the association and the strength of the connexion between two persons as members of one household or domestic establishment, and whether the extent and strength of the connexion are such in any given case as to make the words fairly applicable, is a question of degree. Moreover, that question depends upon an assessment of a combination of factors, and combinations may be found to be adequate though they differ widely, both in the weighting of factors and in the identity of the factors present. The situation is similar to that discussed by Rand J in... Thomson v Minister of Natural Revenue [1964] S.C.R. (Can.) 209 at 224, where the expression under consideration was 'ordinarily resident': 'The enquiry lies between the certainty of fixed and sole residence and the uncertain line that separates it from occasional or casual presence, the line of contrast with what is understood by the words 'stay' or 'visit' into which residence can be attenuated; and the difference may frequently be a matter of sensing than [ sic ] than of a clear differentiation of factors. The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance 'residing' is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one sense it can be satisfied by certain elements, in another by others, some common, some new.' The duration of residence and the comparative times spent in different places or households, will, of course, commonly be of great importance, but they are not factors that are necessarily decisive. They may be outweighed by other factors...In some circumstances, for example, a man may properly to be said to be 'ordinarily residing' at a place immediately after he begins to reside there...To take another illustration, if a ship's officer spends all but a few weeks of the year at sea, and spends those weeks with his wife and children in the home in which they live, it would be an appropriate use of language to say that he ordinarily resided with his wife..." 30Gummow J dealt with the topic in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519-20 as follows: "The meaning ordinarily given to the phrases 'resides', 'usually resides' and 'ordinarily resides' is such as to make the result in a given case depend largely upon matters of fact and degree. That means that if, in the reasons of a body such as the Tribunal, no misapprehension of the meaning of the provision in question is disclosed, and no misconception appears as to what may amount to 'residence' or 'usual residence', the decision will not involve a question of law... ...[In] ... R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309... Lord Scarman (at 340) pointed out that whilst 'ordinary residence' is not a term of art in English law, it embodies an idea of which the Parliament has made increasing use in the statute law in Britain since the beginning of the 19th century...After reviewing various authorities concerned with taxation, bankruptcy and family law, his Lordship (at 343-344) said: 'Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.' " 31In the present case, for as long as the plaintiff's parents followed an arrangement that saw their children spend what amounted to equal, or roughly equal, periods of time living in each of their respective households, there can in my view be no doubt that the children were in such circumstances entitled to say that they were, or were liable to be found to be, normally living in both households. In the circumstances of this case it was normal for the children to live at times with their mother but also normal at other times to live with their father. Put another way, it could not be said that it was not normal, or was abnormal, for the children to be living either with their father or with their mother at any particular time throughout a given period during which the shared custody arrangement between the parents applied. 32Nor do I perceive the plaintiff strongly to contest this. So much is apparent from the fact that the case for the plaintiff was conducted upon the basis that from at least 19 December 2008, the arrangement between the parents had come to an end, with the result that the children thereafter normally lived only with the mother and not with the father at all, or if at all, only exceptionally. 33Ms Dunning said that she had formed the view that as from 19 December 2008, the shared care arrangement had come to an end as a result of her unilateral but uncommunicated decision to terminate it. However, Mr Dunning had indicated his willingness to forego any continuing shared care arrangement only as from 1 January 2009. He did this in correspondence to Ms Dunning on 29 December 2008, to which I have earlier referred. It seems to me to be clear that Ms Dunning's email to Mr Dunning the day before, in which she notes that she has not yet been assured that Mr Dunning wished "to continue with the 50/50 care of the children", does support the inference that at the time she wrote it, the then existing arrangement for the care of the children had not yet changed and remained in place. Moreover, Mr Dunning's uncontradicted reply suggests that he was in fact giving Ms Dunning the assurance to which she referred, confirming that the arrangement would change from 1 January 2009. It is significant that no formalisation of a change in the childcare arrangements is reflected in the records of the Child Support Agency. 34I find that the equal time, shared custody arrangement put in place by Ms Dunning and Mr Dunning earlier in 2008 had neither ceased by 19 December that year nor otherwise relevantly changed at any time before 1 January 2009. I do not accept that Ms Dunning either formed the intention to change the arrangement in the way she described, or that it would have made any difference to the arrangement even if she had. The tenor of the correspondence between the two of them is to the contrary and Ms Dunning's uncommunicated unilateral decision purporting to alter the shared custody arrangement could not in the circumstances have been sufficient to do so. It follows from this that the plaintiff was normally living with his father at the time of the events giving rise to his claim, which are therefore excluded from cover by the terms of the QBE policy. 35In any event, QBE submits, and I accept, that even if it were accepted that the equal time, shared custody arrangement had ceased by 19 December 2008, that would not necessarily be conclusive, or even particularly significant, on the question of whether or not the plaintiff normally lived with the insureds. That is because the arrangement had existed for all but 11 days of the pre-accident period, so that there was no basis for saying that the plaintiff was living more or less normally with one parent to the relevant exclusion of the other. Conclusions 36QBE seeks a declaration in the following terms: " DECLARE that in the events that have happened QBE is not liable to indemnify the first and second defendants in respect of any liability they are, or either of them is, held to have to the plaintiff, pursuant to the insurance contract bearing policy number K044947 between the first and second defendants on the one part and QBE on the other part." 37QBE seeks no order as to costs. I am inclined to make a declaration in the terms sought unless the plaintiff wanted to argue for some other form of orders or relief. In the circumstances, I will invite the parties to bring in short minutes to reflect these reasons. If agreement cannot be reached upon the final form of the orders or relief that I should pronounce or grant, I will hear argument on any points of difference between the parties at some time convenient to them and to the Court. Further matters 38I have already noted that Mr Dunning and Ms Saddington were not active participants in this application, although they swore affidavits upon which QBE relied and also gave evidence for QBE by telephone from Kuwait where they now live. It does not appear that they have filed appearances. They are obviously aware of the proceedings and presumably aware of the nature and import of the issues I have been asked to decide. It was with some concern that I had about these matters that I inquired of each of them during their oral evidence whether or not they had sought or received legal advice regarding the proceedings and their respective potential liabilities in the circumstances. Each of them informed me that they had not done so. For example, Ms Saddington said this: "Q. Ma'am, this is the judge here. You are a party to these proceedings and liable at the suit of the plaintiff. Have you sought independent legal advice about your position in relation to these proceedings? A. No, we can't afford a lawyer." 39Mr Dunning said this: "Q. Mr Dunning, have you retained solicitors separately to represent you in these proceedings? A. No." 40At the conclusion of Mr Dunning's oral evidence I had the following discourse with counsel for QBE: "HIS HONOUR: Mr Cheney, you don't act for Mr Dunning, do you? CHENEY: No, your Honour. HIS HONOUR: If this policy responds he is in a better position in two ways, as the parent of the child and as the defendant to the claim ... Has anyone spoken to him about his legal position? BENSON: I have not, personally, your Honour. HIS HONOUR: To be frank with you, the interplay of interests here is quite curious. CHENEY: I can assure your Honour those instructing me have spoken to Mr Dunning about his position. HIS HONOUR: Mr Dunning sounds like the most honest man in the world in the context of this litigation. I can imagine similar litigation in other circumstances where somebody in your position, Mr Cheney, might be suggesting to him that nothing he could say could be believed because it was so consistent with the plaintiff's case and [so] inimical to those who instruct you that it wasn't credible but, in this case, perhaps arising out of the nature of the matrimonial dispute, we are in a different position. Yet, Mr Dunning appears, in those circumstances, on one view, to expose himself to a personal liability he might not otherwise have. It is hard to get across. CHENEY: It certainly is, your Honour. HIS HONOUR: Anyway, it will all be explained one day." 41I was moved to inquire in this way because of what I saw to be the curious position adopted by Mr Dunning and Ms Saddington in the matter, which was fundamentally inconsistent, and on one view irreconcilable, with their ultimate interests in the proceedings, not to say with their avowed or presumed affection and sympathies for the plaintiff. I was not able to ascertain whether or not that position was informed by an imperfect understanding of the proceedings, the possibly related fact that they did not have legal advice, or whether it was borne of some more fundamental enmity between them and the plaintiff's mother. 42I mention these matters lest it appear that they were overlooked, either by me or by the active parties in this application. I make no comment in all of these circumstances whether the findings of fact that I have made or which are necessarily inherent in my conclusion, or the declaration that I have indicated I propose to make, are binding upon the first or second defendants. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2011