Derham and Spiller

FEDERAL CIRCUIT COURT OF AUSTRALIA

DERHAM & SPILLER

[2014] FCCA 827

Catchwords:
FAMILY LAW – Parenting dispute – child in primary care of mother- dispute over parental responsibility – father (religion omitted) living in (country omitted) – mother devout (religion omitted) living in Australia – child only 4 years old – how much time should child spend with father in Australia – when should child travel to (country omitted) – when should child travel unaccompanied.

Legislation:

Family Law Act 1975 (Cth), ss.60C(1), 60CC, 61C(1)

Goode v Goode [2006] FamCA 1346

Applicant:

MR DERHAM

Respondent:

MS SPILLER

File Number:

MLC 1349 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

6 & 7 March 2014

Date of Last Submission:

7 March 2014

Delivered at:

Melbourne

Delivered on:

5 May 2014

REPRESENTATION

Counsel for the Applicant:

Ms Wilkening-Le Brun

Solicitors for the Applicant:

Blackwood Family Lawyers

Counsel for the Respondent:

Ms Mercader

Solicitors for the Respondent:

Mercader Lawyers

DRAFT ORDERS

THE COURT ORDERS THAT:

The mother have sole parental responsibility for the child of X born (omitted) 2009.
Notwithstanding order 1 the mother is required to notify the father and discuss with him all major decisions relating to X’s education, health and religious upbringing.
The child continue to be known by the name X, with the surname Spiller alone.
The child live with the mother but spend time with the father pursuant to order 5.
The child spend time with the father:
In Melbourne
(a)In 2014, for four days from 9.00 am to 6.00 pm with one overnight stay in the currency of those four days, such night to be chosen by agreement between the parents and in default of agreement the last night;
(b)In 2015, the time will be spent as in 2014 save that time will extend to two overnight stays, such nights to be chosen by agreement between the parents and in default of agreement the last two nights;
(c)In 2016, for five days and nights; and
(d)In 2017 and thereafter on the occasion of each visit by the father to Melbourne for one week.
In (country omitted)
(e)In the event that the father pays for the travel and accommodation costs of both X and the mother, at such times as agreed or in default of agreement the amount of time that X would have spent with his father in the event that time took place in Melbourne pursuant to these orders; and
(f)At such other times as agreed between the parties.
In addition to the time spent set out in order 5, X will spend time and communicate with the father by Skype not less than once per week at times to be agreed between the parties and in default of agreement at 6.00 pm Australian Standard Eastern Time. The mother is to telephone the father to ensure the father is ready to receive the Skype call.
The extant Watch List order be discharged.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1349 of 2013

MR DERHAM

Applicant

And

MS SPILLER

Respondent

REASONS FOR JUDGMENT

Introductory

The parties have formulated various articulations of what the issues in dispute in this proceeding are. As far as I can see, the issues are:
a)parental responsibility;
b)the amount of time the child, X, born (omitted) 2009, should spend with his father in Melbourne and the circumstances in which that should take place;
c)whether X should travel to (country omitted) and if so, when such travel should commence, together with the interrelated but separate issue of when he should fly unaccompanied by an adult relative;
d)the child’s surname;
e)the costs of the family report.
For the reasons that follow, I am going to make orders generally consistent with the recommendations of the family report of

Ms D dated 10 October 2013.

The facts and the areas of dispute

While the parties have a number of minor disagreements about matters that are not of great moment (such as the length and particular timing of visits they have spent together) much of the overall picture of the evidence in this case is relatively clear. I will endeavour to set out the narrative, including those aspects of difference as the parties put it.
The applicant father was born in (country omitted) on (omitted) 1981 and is of (country omitted) descent. It would appear that he and his parents are practicing (religion omitted). The father, nonetheless, says that he was brought up in the (country omitted) culture and it is to the culture of (country omitted) that he looks when considering himself.
The respondent mother was born in Australia on (omitted) 1977 and is of (country omitted) extraction. Both she and her parents are practicing (religion omitted). She takes X to church once a week. She is a qualified (occupation omitted).
The father had some difficulty in explaining exactly what his employment is but it appears that he is a sort of (occupation omitted) in (omitted) and for present purposes, I think that admittedly rather broad description is sufficient. He is at the beginning of his career in this professional capacity and is not by any means yet fully established.
The parties met in December 2007 when it would seem the father was in Australia on a working visa. The mother has deposed that the parties went overseas in early 2008 and started to cohabit in mid-2008 in Australia. No challenge was made to these assertions in cross-examination.
The parties discovered that the mother was pregnant in either September 2008 (mother’s version) or November 2008 (father’s version). The mother says the father was angry about the pregnancy and returned to (country omitted) when she refused to abort the baby. The father did not challenge this version of events in cross-examination, although his affidavit suggests that he returned to (country omitted) because his visa was about to expire.
While there is once again some difference between the parties as to exactly what occurred, I note that the following is asserted at paragraphs 8, 9 and 10 of Ms D’s report and was not the subject of challenge in cross-examination.
“8. … Mr Derham returned to Melbourne in June 2009, 2 to 3 weeks prior to X’s birth, was present for the birth, and stayed for 3 months before returning to (country omitted), where he continues to live.
9. Over the following 2 years it seems the parental relationship was co-operative: with the parents meeting twice a year for about a month. For her part, Ms Spiller believes their relationship continued through to February this year; when according to Ms Spiller, Mr Derham, on his visit to Melbourne, told her he had a new partner in (country omitted).
10. Mr Derham’s recollection is that he considered he and Ms Spiller had ceased their relationship in February 2012, as neither was prepared to relocate at the time. In interview, however, Mr Derham reported that in fact he felt their relationship had finished in November 2011, because Ms Spiller did not want to live in (country omitted).”
It seems clear that Ms Spiller and X have been to (country omitted) no less than three times and that on one of these occasions, Ms Spiller took X on what might be described as a side trip to (country omitted).
The parties and X have also been to the (country omitted) and X has been with his mother to the (country omitted). The parents also went on a visit to (omitted) at a stage when they were both in Australia.
The parties had considerable difference of opinion in the evidence in Court as to the duration of the relationship. The father stuck to the proposition that the relationship ended in November 2011 but the mother maintained that it was not until 2013, when the father unequivocally explained that he had a new partner, that the relationship came to an end.
Exhibit A3 is an email from Ms Spiller to the father, dated 25 April 2011, which purports to say that the relationship is over. I should say at this stage that I accept that the relationship continued notwithstanding this, not least because I accept that the trips to the (country omitted) and (omitted) were afterwards and I accept the mother’s evidence that the parties were intimate on these occasions.
As recently as early 2013, the mother was actively contemplating the possibility of relocating to (country omitted). It seems to me that the relationship came to an abrupt halt when, in February 2013, the father, who was in Melbourne, told the mother that he had a new relationship. The mother’s evidence in Court was that she was not jealous of the father repartnering but that she was shocked when she found out. In my view, it is altogether more probable that the announcement of the new relationship was what finally sundered the relationship between the father and the mother.
Notwithstanding this, nonetheless, the mother still took X to (country omitted) in April 2013 because, she deposed, the father told her his mother was very ill. That visit did not go well (scarcely surprising, given the father’s new relationship) and it was on this occasion that the mother took X to (country omitted).
Both of the parents seem to me, even now, not to be wholly over their relationship, with the father asserting that he still loves the mother as the mother of his child. The mother’s demeanour in giving her evidence and that nature of her responses suggest also that she continues to be emotionally engaged with the father. Both these parties impressed me as being somewhat immature for their years and much of their evidence was given in a mutually accusatory fashion, suggestive of a degree of immaturity, even though mutual accusation is, of course, commonplace in parenting disputes.

The father’s failure to pay Child Support

Much of the mother’s criticisms of the father related to his alleged failure to provide financial assistance with X. I have been provided with extensive financial records which appear to me to show only modest assistance from time to time. In 2010, the father appears to have forwarded $2,950 between 5 May 2010 and 11 October 2010. In 2011, the father appears to have forwarded $1,000. In 2012, the father forwarded just over $1,500 and in 2013, a total of $1,200 in the period up to 10 June 2013.
The amount of Child Support now paid, which was the subject of disagreement, is on any view very small.
Whether the father is as open to criticism as the mother thinks might be open to question. Although the amounts of money forwarded by the father are small, the fact is that he is in the process of the commencement of his professional career and his income may not be large in any event. The low assessment of Child Support tends to support this proposition.

The mother’s earnings

Much was sought to be made by counsel for the father of the mother’s earning capacity, both as a (omitted) and in her family business. It is sufficient to say that I accept that while the mother has available to her what would appear to be significant support and resources from her family, she is not actively employed in the business. I accept the mother’s denials which were given with conviction. The mother accepts that she has started to do some work as a (omitted) and when this occurs, X is looked after by her parents, who are clearly very supportive.

Evidence of the witnesses

Thus far, I have been able to deal with the evidence in a relatively uncontroversial way because although there were some differences of view, they were relatively minor and easily resolved. At this point, however, is it appropriate to turn to what the witnesses actually said in Court, because this gives a clearer flavour of the dispute between them.

The evidence of the father

What follows is, of course, not a transcript. It is a record taken from my notes. Nonetheless, I believe it will be sufficiently accurate to indicate the nature of the evidence given.
In evidence-in-chief, the father adopted his two affidavits as true and correct and tendered a tax record (exhibit A1) and documentation from (omitted) Airline as to unaccompanied travel by children (exhibit A2).
Under cross-examination, the father confirmed meeting the mother in December 2007 and cohabitation commencing in July 2008. He confirmed the mother’s pregnancy and the birth of X on (omitted) 2009.
It was put to the father that he did not want a serious relationship with the mother but he denied this. He said the parties had considered living together and, indeed, considered living in (country omitted). In September 2008, the mother had applied for a visa to live in (country omitted). This was at the end of her then extant visa for (country omitted). He said he was serious in the relationship and that it ended in November 2011.
It was put by counsel that this was not true and that he had told the mother right up until 2013 that he loved her. The father confirmed that this was true. He said it was not him who had broken the relationship but that in April 2011, the mother wrote and said she did not want to continue it. He said he had wanted to continue the relationship and also to be close to X. He went on to say that he still loves her to this day as the mother of his child and that he still had affection for her.
The father was cross-examined about the extent of his Child Support payments. He said that the mother had made a demand for Child Support and that he had completed all relevant documents. He said he was required to pay $47 per month, although it was put to him that he was paying only $7.60 per week.
The father said he now made arrangements to transfer moneys from (country omitted). His evidence about the process of transferring money to the mother was unconvincing and circular but it did appear to emerge that since June 2013, payments are made through the Child Support Agency and the equivalent body in (country omitted) collects the same.
The father did confirm that in 2013 he had let arrears of Child Support run up because he simply did not have the money to pay it at the time. He stuck with the proposition that he had made a lot of payments as explained in the documents he provided.
A number of his answers were not just circular and unconvincing, they were also frequently non-responsive and self-serving.
The father gave evidence about his work. He has no precise hours as he is a (occupation omitted) but normally works from around about 8:00 or 9:00 am to about 6:00 pm, although on occasions, he works until midnight. He lives with his girlfriend who also works and indeed, has just started a 6 month placement in (country omitted). He moved in with her in October 2013.
The father was cross-examined about a visit of X’s in 2010 with the mother. The father said he did not remember X being unwell on this occasion.
He said he had travelled in a plane with X and that X had never been sick.
The father confirmed that he wanted X to understand (country omitted) culture and to see his family. He said that airlines take children alone, even if it is a long voyage. He said it would be preferable that X be able to come to (country omitted).
The father said that although his parents are (country omitted), his culture is (country omitted).
I should interpolate at this point and make a brief observation about the interpreter. The interpreter is a level 2 interpreter and his interpretation was, even according to its terms, inadequate. This is so because at times, and indeed almost at all times, his answers began, “He says”, rather than being a simple interpretation of what the witness actually said. At times, the interpreter was compelled to have conversations with the applicant and a number of the interpretations were inaccurate. In particular, the interpreter put the wrong way around an answer to which I shall come.
The Court was probably fortunate in that Ms Wilkening-Le Brun is clearly a native (country omitted) speaker and I am a fluent (country omitted) speaker and was well able to understand the answers given by the witness.
It is not open in these circumstances for the Court to substitute its own understanding of the evidence for that of the evidence given by the interpreter, but I did on occasions cause, as did Ms Wilkening-Le Brun, corrections to be made on the record.
If the matter had not been fixed only for the days that it was fixed, owing to the necessity of the father, as I understood (as it turned out, I think erroneously) to return to (country omitted), I would have dispensed with the interpreter and insisted on an interpreter qualified at at least level 3. It was unfortunate that the forensic difficulties of the trial were exacerbated in this way.
The father was cross-examined about the assertion at paragraph 76 of his affidavit affirmed 3 March 2014, to the effect that the mother was seeking to obstruct his time with X by enrolling X in two kindergartens and signing him up for numerous extracurricular activities. The father said he was not unhappy that X engages in activities such as going to swimming, football and singing classes but complained that it reduced the time that X is available to spend with him. In essence, he said that the time it took to take X, for example, to swimming took up most of the time allocated to him.
The father confirmed that he wants X to come to (country omitted) to immerse him in (country omitted) culture, to meet his family and spend more time with him, (this being the answer referred to in paragraph 36).
He confirmed that X had travelled to (country omitted) on three occasions and always with his mother. He said, however, that he could of course look after X.
When challenged as to what he would do if X said he had a stomach ache, he said he would examine him or take him to a doctor or hospital. He would call the doctor if X had a temperature. He would try and comfort X if he was crying for his mother but if necessary, he would call the mother and discuss any such distress with her.
He said that since X has spent more time with him, and has spent overnights with him, and got used to the idea of being with him he was asking for his mother less and less. He said that as X grows, he will detach more and more from his mother.
When it was put to the father that he was going to keep X in (country omitted), he denied this and said that the Hague Convention Article 221 made it obligatory to return a child. He went on to say that to detach X from his mother would not be good for his wellbeing.
He said he wanted X to be with him in (country omitted) for two weeks or at the most, three weeks. He said Skype was the best form of other contact because the parties can see one another and see the environment.
The father was cross-examined about the apparent failure of Skype to have occurred in more recent times and a number of his answer were, in my view, non-responsive. Some of the father’s responses amounted to failure to answer simple questions about the practicalities of Skype. The father was cross-examined about why he had not answered telephone messages from the mother and he replied that this was because he was at work or asleep. I found these aspects of his evidence unconvincing.
In re-examination, the father tendered his bank records with which I have already dealt and gave further evidence about his payment of Child Support.
He further repeated that he had the capacity to look after X. He said his mother was a (occupation omitted). The father has had a little sister of his own and he has looked after children before. He said he was not impatient or bad tempered. He said the parties separated in November 2011. The relationship had not been at all stable and there were problems with the relationship at a distance.

The evidence of the mother

In evidence-in-chief, Ms Spiller confirmed that she is a (occupation omitted) performing casual work. She gave evidence of arrears of payment of Child Support and confirmed that she was receiving $7.60 per week.
The mother gave evidence about concerns about X’s health on his first trip to (country omitted) in 2010. She asserted that she wanted X treated for vomiting and illness but the father refused, as did his mother, at least initially, to go to the doctor.
The mother gave further evidence about her concerns for X flying unaccompanied. She referred to his airsickness and said that, indeed, X becomes carsick, even in one hour drives.
She said that when she read the report of Ms D, she decided to do a parenting course and tendered exhibit R3 which shows, however, that she has only enrolled in such a course and not yet commenced it.
She said that X had been placed into kindergarten and long day care because she wanted to keep his friends and that kinder was, in any event, appropriate for children of his age.
She said she would like X to spend as much time as possible with the father and would like for there to be a strong father/son relationship. She said she had made a lot of telephone calls to the father but he never picked up the phone. She said she sent him flowers on his birthday.
She said Skype had now been implemented and there were calls every Wednesday and Sunday. She denied telling X not to like the (country omitted) or (religion omitted).
Under cross-examination, the mother confirmed that she worked unpaid at her parents’ shop. She stays at her parents’ home rent free and is a co-owner of a negatively geared rented property. Her evidence was that the costs of the mortgage on this property are $1,200 per fortnight, whereas the rent is only $800. This property was bought shortly before X was born and her contribution was $12,000 towards the deposit from her savings.
The mother denied that her parents would leave their business to her and was not sure if this would be the case.
The mother denied that her parents disapproved of the father just because of his religion, although she admitted that her mother had told him to become (religion omitted) if he was to stay with her.
She admitted that her parents say (religion omitted) are different but denied saying that she did not like the (country omitted) or (country omitted) culture. She confirmed taking X to church every week and that she was not comfortable taking him to a (church omitted). She said that she thought X might become confused if he was to be introduced to two religions. She says she speaks (country omitted) to X on a daily basis and that her parents do not discourage this. She said her parents were planning to go to (country omitted) to visit the father’s parents in a couple of months’ time.
The mother said the father has limited time in Australia and is here during the school terms. She said she was paying for a lot of the extramural activities that X conducts. She said X is very proud of his soccer and swimming and she wants the father to see this.
She went on to give evidence about the Child Support payments and the process whereby these were engendered but in my view, apart from the fact that money is obviously a sensitive subject between these parties, nothing further emerged of moment in this regard.
The mother repeated her complaints of the difficulty of contacting the father. She said she calls him at weekends and out of hours but he just does not reply.
The mother was taken to exhibit A3, being her email from 2011 but while she admitted sending it, thereafter the father had said that he loved her and the relationship continued. They had been on holidays together to (omitted) and to the (country omitted) and as earlier indicated, they have been intimate on these occasions.
The mother said she was not jealous of the father’s repartnering but was shocked when she found out he had done so. When the father came to Australia in February 2013, he was talking about a (business omitted) in (country omitted) and the mother had made an appointment at the (omitted) Consulate, with a view to going to (country omitted). Her visit to (country omitted) in April 2013 was a surprise visit of which she had not told the father.
The mother said that when he told her he had repartnered, she was in turmoil and in shock. It was seven days before X spoke to the father thereafter.
She said she wanted X to know she was nearby because he might get anxious. When pressed in cross-examination, she said that a 14 day visit to (country omitted) would be fine but that she would need accommodation for herself in (country omitted). She denied asking to be paid her salary by the father. She admitted that she had stayed in a five star hotel on her last visit but this was through the good offices of a friend.
The mother was cross-examined about the connection of Skype but as I pointed out to the parties in Court, this is, in fact, much easier to conduct that the parties seem to find it. I foreshadowed that I proposed to order that the parties make initial contact by telephone and then go online for Skype. It appears they have been in the practice of going online on Skype and as it were just waiting and hoping that the other would come into view.
The mother finally confirmed that she did not want X to travel to (country omitted) until he was older. She said he almost always vomits on flights. Notwithstanding this, however, she confirmed that X had been to (country omitted) three times (on one of which occasions he had had a side trip to (country omitted)), the (country omitted), the (country omitted) and (omitted). On any view, that is a lot of travel for a four year old.
In re-examination, the mother confirmed that she had contributed to celebrations of (religion omitted) at the kindergarten X attends. She repeated the difficulties of calling the father on the telephone and that he fails to return calls.

The father recalled

The father was recalled to give evidence about his payments to the mother. He confirmed that between February and June 2013, he had financial difficulties and this is why there were arrears that he subsequently paid.
It was put to him that X had been ill on the last trip and that he had not agreed to take him to the doctor’s straight away. The father thought that this was a reference to an earlier visit. He said X was sick at night and he took his temperature which was very high. He gave him a suppository and if it got worse, he would have taken him to a doctor. He confirmed that seeing a doctor in (country omitted) is free and that finance was not an obstacle. He said that the mother can be excessively worried about X’s health.
He confirmed that on the journey to (omitted) in 2012, X had not been airsick. The child had been to the (country omitted) with the mother via (country omitted) and then continued from (country omitted) to (country omitted).

The evidence of Ms D

Under cross-examination by counsel for the father, Ms D, who adopted her report, said she had seen many cases involving parents in different continents with young children over her 30 years of practice. She said unaccompanied travel by children under the age of 10 was rare.
She confirmed that the father was of (country omitted) descent. She said the father was responsible and rational and that in her opinion, he would not take the child to (country omitted).
It was put that the mother had accepted that X could travel to (country omitted) aged 7 and she said this would be acceptable, provided he was accompanied.
When it was put to her that unaccompanied travel would be permissible at 10, she said this was not ordinarily the case. She said it might be appropriate but that ordinarily, secondary school was a more appropriate age for children to travel unaccompanied. She did not recommend it for children under 10.
When it was put to her that the mother would not oppose the child spending two full weeks in Melbourne, Ms D said that she suggested time should be phased in. She said if the parents were cooperating and provided there was contact with the mother during those periods of time spent with the father, then this would be appropriate.

Findings about the evidence

I have set out this evidence at some length, more to give it a sense of the feel of it rather than because the factual issues are so complex as to otherwise require it.
The broad history of the relationship between the parties is easy to follow. These two people, both of whom I regard as surprisingly immature for their years, and both strongly focused on their own needs and requirements, come from radically different backgrounds. The father is a (country omitted) of (country omitted) descent and a (religion omitted). The mother is of (country omitted) descent and is a (religion omitted). He lives and will continue to live in (country omitted) and she lives and will continue to live in Australia.
The parties met and were obviously attracted to one another and commenced cohabitation relatively quickly. As I find, they fell in love almost at once and there is no reason to doubt the mother’s assertion that they travelled for some time before they commenced cohabitation in mid-2008. Scarcely surprisingly, visa problems intruded upon their relationship from time to time. It is clear that from time to time, they contemplated the mother living in (country omitted). It is, in retrospect, poignant that the mother was, as late as early 2013, contemplating the possibility of living in (country omitted).
That finding suggests very strongly to me that despite the volatile nature of the relationship (including exhibit A3 and what were clearly various forms of sundering from time to time) she was still in love with the father until then.
The final realisation that the relationship was at an end because the father had re-partnered, albeit intimated earlier, seems to me to have come on the trip to (country omitted) in April 2013. The mother clearly responded by withholding X from the father and in due course, these proceedings were issued.
It seems clear to me that both the father and mother’s families had strong reservations, and probably still do, about the background and religion of the other party. Each of them has, in part, admitted it and in my view, the evidence each gave about the response of the other’s family was believable.
The mother struck me as being given, on occasion, to exaggeration. I accept that X has not been ill every time he has flown. I accept the father’s evidence that he went to (omitted) without vomiting when the parties went there together.
Furthermore, it is clear that however much ill health X suffered, the mother did not regard this as an impediment to very significant amounts of overseas travel when these were in pursuit of the relationship that was then continuing. Her concerns about the travel have erupted since the relationship broke down.
The father likewise struck me as being both very self-oriented and a not all together satisfactory witness. As I have already indicated, a number of his answers were unsatisfactory and involved a failure to respond to really very simple questions. A number of his answers were self-serving.
It was noteworthy to me that when asked why he wants X to come to (country omitted), his answer was to immerse himself in (country omitted) culture, meet his family and spend more time with him, in that order. There was a very strong feel to the father’s evidence that he regards it as critical for X to be immersed in (country omitted) culture and to develop an understanding of (religion omitted).
Having said this, however, the very fact of the pursuit of this case in the way that it has been done would indicate to any reasonable observer, as the family report writer observed in any event, that the father adores his child.
While the father has little experience in that role, I see no reason to doubt that he would be perfectly able, with the assistance of his family when it is available, to look after X if X was to spend time with him, either in (country omitted) or in Australia. The mother’s criticisms in relation to the incident where there was dispute about X being taken to a doctor is an example of her exaggeration and her hyper-vigilant personality.

The Family Report

I do not propose to traverse the family report in great detail, save to say that Ms D was not significantly challenged in cross-examination about any aspect of it. Her evidence was given with conviction and I should make it clear that I accept it. I would set out, however, brief extracts from the report which, in my view, accurately portray the situation. At paragraphs 35-37, Ms D had this to say of Ms Spiller:
“35. While Ms Spiller is protective of X, it seems that her feelings towards Mr Derham, as a former partner, might cloud her judgment as a parent. She is naturally aggrieved he ended the relationship, but it must also be asked whether she actually thought she was in a long-term, long-distance relationship with Mr Derham since he originally left Melbourne in 2008. She is either naïve or disingenuous about this account.
36. While there is a sense of naivety about Ms Spiller, at the same time, she is an emotionally strong woman; capable of caring for X as a single parent with some support from her family. It is, however, not entirely evident that she recognises and accepts that the parenting role should be shared, as best it can, with Mr Derham, for X’s sake.
37. At the same time in interview Ms Spiller did not give any indication, in consideration of X’s best interests, that she will deny the child a long-term relationship with his father. Her issues seem to be more about her own relationship with Mr Derham. Therefore, there may be an element of punishing Mr Derham for ending their relationship, as she sees it.”
At paragraphs 47-50, Ms D had this to say of the father:
“47. While it is evident that Mr Derham ultimately wants X to visit him in (country omitted), he knows, he said, the child is too young to travel unaccompanied until he is ‘8 or 9 years old’. It is, however, not entirely clear at what age Mr Derham wants X to visit (country omitted); as he spoke about X travelling to (country omitted) with him, or Ms Spiller, in 2014 or 2015.
48. At the same time, Mr Derham said, ‘I’m trying to come often to see X; twice a year’, and that in 2014 he would be returning in February and maybe later that year; adding that, ‘I’m not saying X come now’ to (country omitted), and acknowledging, ‘I know it’s important to see X.’
49. Mr Derham thereby gives the impression that he intends to continue to visit Australia, rather than X visiting (country omitted), or, possibly, a combination of visits each way. He also wants continuing contact using Skype: ‘I will plan my agenda on him’; suggesting 6.30/7:00pm Australian time would be the ‘best time’ for X.
50. While Mr Derham’s expectations of X’s visits to him in (country omitted) seem a little unrealistic at this point, his commitment to his son seems clear and strong. Further, he seems sure his relationship with Ms Spiller is over. As a parent Mr Derham impresses as being a positive influence in X’s life.”
So far as X’s interaction with his father is concerned, Ms D pointed out at paragraphs 58 and 60:
“58. X appears to have an attachment to Mr Derham; knows who he is and was confident and relaxed in his presence. X displayed no reluctance or anxiety in spending time with his father.
60. Notably, X separated extremely well from his mother; despite some initial protestations that he did ‘not want to go with papa’. Once distracted, X settled into play again with his father, humming to himself and seeming happy. He gave his mother a kiss goodbye when Ms Spiller asked for one.”
I note that X did report to Ms D being hit on the face by the father’s finger but Ms D regarded this matter as having “little real substance”.
I do not propose to repeat all the matters set out under the evaluation that concludes the report. Relevantly I note, however, the difficulties arising out of what Ms D described as “a degree of ambiguity” as to whether the relationship continued after Mr Derham returned to (country omitted).
I also note the commitment of each parent to the other having a relationship with X (paragraph 75).
At paragraph 77, Ms D said:
“77. It is Ms Spiller, however, who has the sole parental role and responsibilities; financial and otherwise. She is essentially a single parent. Mr Derham, within limitations, parents from a distance.”
Ms D was clear that X had an attachment to his father but had, scarcely surprisingly, a stronger relationship with his mother who provides his daily care. At paragraph 83 and following, Ms D said:
“83. Notwithstanding Mr Derham’s good intentions, his proposals for overseas travel for X at this stage are unrealistic. It is however not entirely clear to the psychologist whether Mr Derham proposes to travel to Australia in 2014 – it seems he does – to visit X here.
84. Nonetheless, overseas travel for the child to (country omitted) will need to be reviewed when X is older. Ms Spiller of course, as she did in April this year, might also travel to (country omitted) with X.
85. X’s time with his father when he visits Melbourne is essentially not in dispute. When Mr Derham visits in February 2014, X might have his overnight time with his father increase from the current 1 to 2 nights, on at least 2 occasions, if Mr Derham is in Australia for 2 weeks.
86. At this point it is not possible to recommend a routine for X to visit his father in (country omitted); even if the child is accompanied by his father. What is possible, at this point, as mentioned above, is for Ms Spiller to take the child herself to (country omitted).
87. X’s independent travel to (country omitted), or accompanied by his father, will have to be further negotiated later. It is not recommended prior to X commencing his primary school education in 2015.
88. X needs to be at an age when he understands what a trip to (country omitted), without his mother, means and entails. X requires more time with his father through regular email/Skype/mail contact and visits to Australia by Mr Derham, so that a regular, reliable and consistent relationship develops and is maintained.”
At paragraph 90, Ms D continued:
“90. The parties might negotiate parental responsibility. Given the logistics of the geographical distance, Ms Spiller might well retain sole parental responsibility; but also include, informally, Mr Derham in major decisions about their son.”
Ms D went on to recommend that X live with Ms Spiller and spend time with the father as a minimum on two visits a year in a routine similar to that in the Federal Circuit Court orders of

4 September 2013. It was recommended that X’s time on the occasions of Mr Derham’s visits proceed to three hours, then nine hours, then one overnight, moving to two overnights. Ancillary recommendations were made for Skype contact and regular contact by letters and small gifts.

The issues to be determined

Although it is clear that the question of when X might go to (country omitted), and when he might go unaccompanied, is at the forefront of the parties’ anxieties and disagreement, I am going to seek to resolve the matters in dispute by applying, as best I can, the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”

Parental responsibility

As the Full Court pointed out in Goode v Goode, unless the Court makes an order changing the statutory conferral of joint parental responsibility, s.61C(1) of the Family Law Act 1975 (“the Act”) provides that until a child turns 18, each parent has parental responsibility for the child. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.
I will interpolate here and say that it is immediately apparent that there is no serious suggestion that either parent has engaged in abuse of the child or family violence.
The presumption may, however, be rebutted where the Court is satisfied that the application of the presumption of equal shared parental responsibility would conflict with the best interests of the child.
If both these parents were living in Australia, then in my view the presumption would obviously be applied, but they do not. The father seeks joint parental responsibility and as his counsel submitted, there is an obvious risk that if sole parental responsibility is given to the mother, given her underlying attitudes towards the father, he will effectively be excluded from all input into X’s life insofar as the exercise of parental responsibility is concerned. I accept the force of that proposition.
On the other hand, however, one has to confront the practical realities of the position the parties are in. I have already set out above

Ms D’s observations on this matter and they are eminently sensible and obviously correct. As a matter of practical politics, Ms Spiller is a sole parent bringing up X, to all effects and purposes, on her own. It is simply impracticable to have the ordinary order made, especially given the difficulties of communication which, on any view of the evidence, the parties have had in the past.
It is in my view clear that the order that should be made in X’s best interests is that hinted at by Ms D at paragraph 90, namely that Ms Spiller have sole parental responsibility but include Mr Derham informally in major decisions about X’s future.
As a matter of practical politics, these decisions will include his religious upbringing. I have not dealt with the matter thus far but given the eagerness that I discern in the father to involve X in his own (religion omitted) faith and culture, I asked Ms D whether this might give rise to difficulties on X’s part, given his very tender years, and the concomitant likely lack of sophistication in his understanding of religious matters. Ms D’s reply was to the effect that it would depend upon the nature of what X was told. If things were put to X in a simple and straightforward way, as a straightforward story, for example, emphasising points in common between the (religion omitted) and (religion omitted) traditions, this might not be difficult.
This answer, once again, is one that is entirely commonsensical and one that I accept.
In the circumstances, I will therefore make an order for sole parental responsibility in favour of Ms Spiller but I will require her to notify the father and discuss with him all major decisions relating to X’s education, health and religious upbringing.

Time to be spent with the father when he is in Australia

The father has committed, in effect, as I understand it, all his annual leave from time to time to try to come and visit X. This is greatly to his credit. It is, however, immediately apparent that in these circumstances, the father cannot spend equal time with the child.
Whether it will be possible for the father to spend substantial and significant time within the meaning of the Act is a matter that depends more upon the extent of time to be provided to the father and the way in which it might be phased in.
Although the mother was driven to concede, as I understood it, in cross-examination that even a period of up to 2 weeks with the father in Australia would be acceptable, I am not prepared to give effect to such an outcome. X has never spent more than 2 or at the most, 3 nights in a row with his father and Ms D’s recommendation is for 2 nights to begin with.
These are not areas of precision.
Bearing in mind Ms D’s evidence, which is broadly to the effect that time needs to be phased in and made at all times secure for X, time should progress to overnight time in 2014 and to 2 nights in 2015. The precise delineation of this amount of time will necessarily depend upon X’s enrolment at school which, if I understand the matter correctly, will occur in 2015.
What I would have in mind is a process of spending at least 4 full days per week with his father when his father visits, with one of those days extending to an overnight visit. That is, as far as I can see, consistent with the orders made in September 2013. The parties will need to confer as to the practicalities of this, bearing in mind whether the father comes during school term in 2015 or not. If the father comes in 2014, clearly X can be taken out of kindergarten or any other activities to be with his father, although his extramural activities, which should not otherwise be problematic, should be continued.
Assuming all goes well in 2015, in 2016 when the father is in Melbourne, time can be expanded to blocks of five days. Once again, there is no particular precision to this but by then X will be 7, will have spent regular time with his father, and could sustain 5 days with his father.
Thereafter, assuming the father comes to Melbourne twice per year, I would see no obvious reason why X should not spend a week with his father on each such occasion.

When should X go to (country omitted) and when should his travel be unaccompanied

Ms D is not in favour of X going to (country omitted) until at least 2015 and I agree. At one level of analysis this might sound counterintuitive, given that X has been to (country omitted) three times already. However, those visits, with the exception of the last one, took place in the context of an ongoing relationship between his father and mother. That measure of security is now absent.
There is a further difficulty with early travel to (country omitted) and it is the fact that X has never spent any great length of time away from his mother and it is clearly all the less appropriate to commence extended periods of time while he is overseas.
Against this, however, it is plainly impracticable for X to go all the way to (country omitted) merely to see his father for a few hours or a couple of days.
I will order that in the event that the father pays for the mother and X to go to (country omitted), X can spend the same amount of time with his father there as the orders I make will provide for him to spend in Australia.
This approach has the disadvantage that it will take longer for X in all probability to go to (country omitted) but in my view, X has work to do to consolidate his view of the world as Ms D pointed out (he needs to know what a trip to (country omitted) is). While the father’s desire to immerse X in his own culture is understandable, this needs to occur at a rate that is in X’s best interests.
The father’s desire to immerse X in (country omitted) culture and to expose him to his own (religion omitted) background is entirely proper in itself but it must be said that it seemed to me to be an almost overwhelming consideration. The father actually put these matters ahead of himself in describing the benefits that X would achieve by going to (country omitted). X will undoubtedly achieve benefits from this but it is not a matter, in my opinion, that needs to be hurried.
So far as unaccompanied travel is concerned, I note and fully accept and agree with Ms D’s recommendation that this not occur until secondary school at the earliest. Although it is true that unaccompanied little children do travel, and that the airlines make very proper and sensitive efforts to assist them, the reality is that air turbulence is a frightening thing even for adults. When severe turbulence is occurring all flight attendants are required to sit down in their seats. X would find himself potentially in the situation of being in turbulence, to which he is at least prone to bad reaction, without the comfort of the airline appointed carer next to him. This leaves fully aside the difficulties associated with his having to transfer, as would inevitably be the case at some point.
The father’s insistence, scarcely abandoned at all during the currency of the proceeding, that X travel unaccompanied effectively almost at once shows a marked and slightly disturbing lack of insight.

The change of name

The father wants the child to be called Derham-Spiller and the mother seeks that he take her name. That is, of course, his name at the moment.
All the authorities make it clear that the question of the name of a child is about the child’s best interests. The principles are, in my view, well known. There is, of course, the difficulty that if a child has only his or her mother’s name, the father is, so to speak, excluded. There are issues of identity, cultural background and the like that clearly obtain in this instance.
In the end, however, in my view, the father’s desire to have a double-barrelled name for the child is all about him. This is understandable but not necessarily in X’s best interests.
As Ms D has pointed out, the reality is that Ms Spiller is, in effect, a single parent. The child has her name. In my view, X’s best interests, bearing in mind that his closest relationship will be with his mother, will be better met by his keeping her name alone.

The costs of the family report

Counsel for the father in final submissions sought that the costs for the family report which were ordered to be met by the father in the first instance should be paid jointly between the parties. Those costs exceed $4,000.
Little was said so far as I can recall in evidence about this aspect of the dispute. I have referred to the evidence about the parties’ financial situations already.
The fact is that the family report has been paid for, as I understand it, and whatever impost this has placed on the father’s circumstances has been self-evidently absorbed. In my view the evidence is simply not sufficiently clear as to the parties’ respective overall positions for it to be possible to say it is appropriate to make any further order as to the costs of this report.

Conclusion

This is an unusual case, turning on a particular set of facts. In the circumstances, I have not elaborated seriatim or, indeed, in any great detail the matters contained in s.60CC of the Family Law Act. Nonetheless, as I hope is clear, I have had careful regard to the various matters that that section brings into consideration. The unusual facts of this case, however, require the issues to be dealt with discretely.
It is apparent that the parties will need to confer as to the form of final orders that should be prepared. I have prepared a draft and the parties will confer and if need be, make further submissions.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate:

Date: 5 May 2014

[2014] FCCA 827

5 May 2014

Key Legal Topics

Areas of Law

Family Law