FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPENCER & SQUIRE (No.3) | [2018] FCCA 2362 |
| Catchwords: FAMILY LAW – Parenting – where both final and interim parenting orders made on 15 December 2017 – very young child – where the father seeks to vary interim orders made 15 December 2017 – where the mother resists variations being made – orders “pending further order” – whether the principles in Rice & Asplund apply – interim hearing – change of circumstances – failure to reach consensus where order for equal shared parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DA, 65DAB, 65DAC Federal Circuit Court of Australia Act 1999 (Cth), s.81 Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR SPENCER |
| Respondent: | MS SQUIRE |
| File Number: | SYC 8327 of 2016 |
| Judgment of: | Judge Harper |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson SC |
| Solicitors for the Applicant: | Barkus Doolan |
| Solicitor-advocate for the Respondent: | Mr O'Sullivan |
| Solicitors for the Respondent: | O'Sullivan Legal Family Lawyers |
ORDERS
Orders 7 and 8 made on 15 December 2017 be varied to read as follows:
The child spend time with the father as agreed in writing between the parties and, in the absence of such agreement, from the date of these orders until 2 October 2018, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i)From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00 am to 1:00pm on Monday.
(b) Where the father provides notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, in…
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- AGLC
- Spencer and Squire (No.3) [2018] FCCA 2362
- Case
- [2018] FCCA 2362
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate variations to orders 7 and 8, which dealt with the child's time with the father. These orders, made on an interim basis following an earlier four-day hearing, included provisions for equal shared parental responsibility and the child living with the mother. The variations sought related to the practical arrangements for the father's time with the child, both within a four-week cycle and during school holidays, commencing from the date of the orders until 2 October 2018, and thereafter.
Judge Harper varied orders 7 and 8 to provide more detailed and specific arrangements for the child's time with the father. The reasoning appears to be to clarify and refine the existing interim orders to better facilitate the father's time with the child, while acknowledging the ongoing nature of the parental responsibility arrangements. The court's decision involved a detailed articulation of the father's time, including specific hours and days within a four-week cycle, and provisions for school holidays, with mechanisms for agreement between the parties and default arrangements where agreement was not reached.
The court ordered that orders 7 and 8 made on 15 December 2017 be varied in accordance with the detailed terms set out in the judgment. Additionally, all extant applications were adjourned to 27 September 2018 for call-over, with directions regarding any new applications or objections to subpoenas made returnable before that date.
Orders
Orders of the court
1.
Orders 7 and 8 made on 15 December 2017 be varied to read as follows:
7.
The child spend time with the father as agreed in writing between the parties and, in the absence of such agreement, from the date of these orders until 2 October 2018, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i) From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00 am to 1:00pm on Monday.
(b) Where the father provides notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, in Town A:
(i) From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00am to 1:00pm on Monday.
…
(e) Notwithstanding anything specified in orders 7(a) to (d), the child shall spend time with the father from 9:00am to 1:00pm on Easter Sunday.
8.
The child shall spend time with the father as agreed in writing between the parties and, in the absence of such agreement, as follows:
(a) During weeks 2 and 4 of the 4 Week Cycle in Town A:
(i) From 10:30am to 1:30pm and 3:00pm to 6:00pm on Saturday and from 9:00am to 2:00pm Sunday; and
(ii) From 9:00am to 1:00pm on Monday.
(b) Where the father provides written notice to the mother of his intention to spend time with the child no later than 28 days prior to commencement of proposed time, during weeks 1 and 3 of the 4 Week Cycle, on the Region 1 or in Sydney:
(i) from 12.00pm to 6.00pm on Saturday; and
(ii) from 9.00am to 3.00pm on Sunday.
(c) During the School Holidays at the end of terms 1, 2 and 3 in Town A, in a single agreed week from 11:00am to 5:00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.
(d) During the School Holidays at the end of term 4 in Town A, in two agreed weeks, from 11.00am to 5.00pm each day and, failing agreement as to time frame, such time shall commence on the second and the eighth Saturday of each school holiday period.
2.
All extant applications be adjourned to 27 September 2018 at 12:00pm for call-over.
3.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the adjourned date will not be heard on that date without the express leave of Judge Harper, however directions in respect of that Application or Objection may be given.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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