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.