Derham and Spiller (No.2)
[2014] FCCA 1330
•27 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DERHAM & SPILLER (No.2) | [2014] FCCA 1330 |
| Catchwords: FAMILY LAW – Ruling on form of final orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(l), 117(2)(a) |
| Applicant: | MR DERHAM |
| Respondent: | MS SPILLER |
| File Number: | MLC 1349 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 2 June 2014 |
| Date of Last Submission: | 2 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 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 Barristers and Solicitors |
ORDERS
The mother have sole parental responsibility for the child 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.
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 in each week from:-
(i)9.00 am to 1.00 pm on the first day;
(ii)9.00 am to 3.00 pm on the second day; and
(iii)9.00 am to 6.00 pm thereafter 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 order 5(a)(iii) herein 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 in each week; 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 herein, 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 7.00 pm Australian Standard Eastern Time. The mother is to telephone the father to ensure the father is ready to receive the Skype call.
The father will collect X at the commencement of time in Melbourne and the mother will return. In default of agreement the father will collect from the mother’s residence and the mother will return at the father’s (temporary) Melbourne residence.
The father will collect and return X when he spends time with X in (country omitted).
The father must give the mother two months notice of any intended visit to Australia.
In the event that X and the mother travel to (country omitted) pursuant to order 5(e) herein, the father must give the mother two months notice and details of where she will be staying.
The Airport Watch List order contained in order 1 of the Orders made in this Court on 4 September 2013 be discharged and the Australian Federal Police be requested to remove the name of the child X born (omitted) 2009 from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Derham & Spiller (No.2) 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
This is a further set of reasons for judgment in the matter of Derham & Spiller.
On 5 May 2014, I published reasons for judgment in this matter, together with draft orders which were intended to give effect to my conclusions.
My decision about the amount of time that X would spend with his father in Australia encapsulated essentially at paragraphs 115 to 118 of my earlier judgment. I adopted a gradually increasing amount of time for X to spend with his father, which I understood to be consistent with the recommendations (at least broadly) of Ms D. Ms D recommended X spend time with his father, as a minimum, on two visits per year “in a routine similar to that in the Federal Circuit Court orders of 4 September 2013”.
Ms D also said, at paragraph 85 of her report:-
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 increased from the current 1 to 2 nights, on at least 2 occasions, if Mr Derham is in Australia for 2 weeks.
The Orders made on 4 September 2013 provided for time to be spent for three hours initially, increasing to one overnight, and two full day periods of time. Those Orders, however, were made in the context of a very precise amount of time available to the parties. I note that the time covered in the Orders went from Wednesday, 4 September 2013 till Friday, 13 September 2013. Some of the time provided was short.
In retrospect, it would have been helpful if Ms D’s position could have been made more precise. I note further that, at paragraph 78 of my earlier judgment, I paraphrased Ms D’s evidence as:-
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.
In my view, it is appropriate to approach this matter by looking at each of the orders proposed by the Court and taking the parties’ objections seriatim.
Orders 1 and 2
“The mother have sole parental responsibility for the child X, born (omitted) 2009.”
This order is not in dispute.
“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.”
This order is not in dispute.
Order 3
“The child continue to be known by the name X, with the surname Spiller alone.”
The father seeks that the name continue with the words “with the surname Spiller alone” be deleted. The mother contends for the order as proposed in the draft.
The mother’s written submissions on this point read:-
Draft Order 3 is consistent with the name of X in his birth certificate. X has always been known to have Spiller as his surname. Therefore, this order should be made final.
The father’s submissions read:-
The Father does not understand why the Court is proposing to change X’s surname from “Derham Spiller” to “Spiller” in circumstances where the Mother made no application to the Court for such a name change. Furthermore, the Mother expressed no concern about the surname “Derham Spiller” during her evidence at trial.
The father sought, in his original application, that the child’s surname be Derham-Spiller. It is true that neither party made any issue of this matter when the matter was before the Court, but since it was on issue on the pleadings, as I understood it, I gave reasons for judgment and made the proposed draft order.
The child’s birth certificate has been forwarded to the Court. It shows that his name is X. In all the circumstances, I propose that the child will continue to have that name. The mother will doubtless refer to him as Spiller alone, and the father, should he wish to refer to him as Derham Spiller, is at liberty to do so. I do not propose otherwise to make any order in this regard.
Order 4
“The child live with the mother but spend time with the father pursuant to order 5.”
This order is not in dispute.
Order 5
The father seeks the insertion of the words “per week” in suborders 5 (a) and (c). I confess that I had not thought that this amount of increase was appropriate.
Nonetheless, I see that the mother’s proposed draft orders provides for a regime that obtains on each week of the two weeks of the father’s visit. It would appear that the father will come during school holidays. He will therefore not be spending substantial and significant time with the child, at his own election.
What is really in issue, as things now stand, is the amount of time the child should spend. The mother seeks to limit time, whereas I have already determined that 9.00 am till 6.00 pm, with one overnight stay, is appropriate. In my view, the draft orders will be amended to include the words “per week”, as sought by the father, since that is plainly what both the parties envisage. The mother has already sought to limit the amount of time the child spends with his father. My hope that the parties would confer as to the practicalities involved has been well and truly dashed by the obdurate insistence on disputation.
In my view, and doing the best I can, I will make an order that X spend from 9.00 am until 1.00 pm on the first day and from 9.00 am until 3.00 pm on the second day and from 9.00 am until 6.00 pm thereafter. In the second week, the time will be from 9.00 am until 6.00 pm, with one overnight. I note that X will be spending four nights with his father on each visit that the father makes in 2015. This will increase to two tranches of five nights in 2016. This will give X some time with his mother on the weekend in between and will enable her to give X any reassurance he may need. In line with the at least implicit position of the parties, I will increase that to seven days and nights in 2017, being a total of one week. While in real terms this is a reduction from 2016 it is a longer block of time.
If the father chooses to stay in Melbourne longer and if he can persuade the mother to agree to further time, then so be it.
The father has sought that there be time, pursuant to a proposed order 5(f). He seeks an order that X spend time with him in (country omitted), travelling unaccompanied from 2022. It is true that Ms D contemplated unaccompanied travel when the child was at least in secondary school. In my view, however, as I indicated in a preliminary way during the currency of oral submissions, the difficulty with this proposition is that we do not yet know how well X will have developed by that stage.
Having thought about the matter at greater length, I still remain of that view. X is only now four. It is not possible to guess what he will be like when he is 12. Although I am keenly conscious of the provisions of s.60CC(3)(l) of the Family Law Act 1975 (Cth), in my view, there is not a sufficient evidentiary basis to conclude that X would or would not be able to travel unaccompanied at that time. The parties will either have to agree or litigate further, as the case may be.
Order 6
The parties agree that Skype should be at 7.00 pm Australian Eastern Standard Time.
Handover
The father’s proposal is that he should collect at the commencement of time, and the mother should return. He further proposes that if the mother is in (country omitted), the mother should deliver and collect.
As counsel for the mother implicitly conceded, the disputes about handover in Australia are of virtually no moment. They reflect, in my view, the petty bickering to which both these parents are prone. In the circumstances, the father’s desire that the travel be split seems to me to be reasonable. I will make orders that the father seeks.
So far as handover in (country omitted) is concerned, the father’s request that the mother deliver X to him is understandable. She will have the free time to do so and to collect X as well. The difficulty, of course, is that the mother is by no means fluent in (language omitted), nor does she know (country omitted) anything like as well as the father does.
It does not seem to me to be a very desirable way to start X’s time off with his father that his mother should be trying to navigate, at least on the first occasion, an unfamiliar part of the world (even if she has been to the father’s current residence before) in a language in which she is not fluent and on an occasion when, by definition, she will be stressed in any event. This will only be compounded by the possibility that she might meet the father’s new partner, something that is also likely to be difficult for her. The father will do the travel in (country omitted).
Order 7
It is not controversial that the extant watch list order be removed.
The mother seeks additionally that the father give her three months notice of any intended travel to Australia
She says that this is necessary to enable her to prepare for his arrival. This, in my view, is somewhat disingenuous. She knows he is going to come to Australia. Nonetheless, it is not unreasonable that she have some notice, so that she can adjust her affairs. In my view, the father should give at least two months notice of any intended visit. It would be self-evidently in his interest to give much more, so that the parties can adjust their holidays and the like in a cooperative way.
The mother seeks an order that if she visits (country omitted), the accommodation provided for her must be near the residence of the father. I do not propose to make this order. I will simply order that in the event that the mother is to travel to (country omitted), the father must give the mother at least two months notice and give her details of where she will be staying. If he chooses somewhere unreasonable the mother will have time to return to Court.
Tuition fees and other expenses
The mother seeks that the father pay half of the total amount of tuition fees and other expenses relating to the education of X. Counsel for the father correctly points out that there is no child support application before the Court. More importantly, this aspect of controversy was not, as I recall it, raised in any fashion during the trial. It would be entirely unfair to make an order of this sort on this footing.
Furthermore, the financial position of the father is scarcely sufficiently certain for the Court to be satisfied that it would be appropriate to make an order to this effect in any event. It should be borne in mind that he is already spending very substantial amounts of money simply seeking to sustain his relationship with X by travelling to Australia.
Each of the father and the mother sought payment of $1,452 in costs thrown away on 28 May 2014. The father says that the hearing on that day was rendered otiose by the unavailability of the mother. The mother complains that it was the failure of the father to provide timely instructions that prevented the matter proceeding to conclusion.
The submissions made reflect the parties’ very considerable tendency to bicker. What both of them ignore is the mandatory considerations set out in s.117(2)(a) of the Act. The Court is required to have regard to the parties’ financial circumstances. Both are, despite levels of support from family or partner, as the case may be, in my view, impecunious. In my view it is inappropriate, in the circumstances, to make an order for costs in this matter.
Furthermore, there is force in the submissions made by both counsel. On the one hand, the mother’s failure to make herself available was misconceived. It was obviously possible that there would be further instructions required. On the other hand, the father could and should have cooperated with the mother through his lawyers in Australia in such a fashion as to progress the matter better than it did. There will be no order as to costs.
I have reformulated the orders in this matter to give effect to these conclusions, and they will be published. As indicated in the hearing, I have excused the parties’ attendance to save them the costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 June 2014
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
-
Costs
-
Remedies
0
0
2