Spencer and Squire (No.3)

Case [2018] FCCA 2362

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
Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44
Charisteas and Charisteas [2015] FCWA 15
Crouper & Mitchell [2014] FamCAFC 246
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654
Goode & Goode [2006] FamCA 1346
Granville & Blakeslee [2017] FamCAFC 162
Jess & Garvey [2018] FamCAFC 44
Jollie & Dysart [2014] FamCAFC 149
Kulat & Azzarudin [2018] FamCAFC 97
Langmeil & Grange [2013] FamCAFC 31
Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24
Marsden & Winch [2009] FamCAFC 152; 42 FamLR 1
Marvel & Marvel [2010] 43 Fam LR 348
Merla & Merla [2018] FamCAFC 101
Millar & Millar [1983] FamCA 21; (1983) 9 Fam LR 5
Reid & Lynch [2010] FamCAFC 184; (2010) FLC 93-448, 44 Fam LR 141
Rice & Asplund (1979) FLC ¶90-725
Salah & Salah (2017) 56 FamLR 299
SCVG & KLD (2014) FLC 93-582
Searson & Searson [2017] FamCAFC 119
Smith and Smith (1994) FLC 92-488
SS & AH [2010] FamCAFC 13
Sullivan & Tyler (No. 4) [2013] FamCAFC 175
Warner & Warner [2016] FCCA 703
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

  1. Orders 7 and 8 made on 15 December 2017 be varied to read as follows:

  2. 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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Details
AGLC
Spencer and Squire (No.3) [2018] FCCA 2362
Case
[2018] FCCA 2362
Decision Date

CaseChat Overview and Summary

In the proceedings before Judge Harper, the parties, Spencer and Squire, sought to vary existing orders made on 15 December 2017 concerning their very young child. The dispute centred on the specific terms of the orders governing the time the child would spend with the father, particularly regarding the duration and timing of these periods.

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

In these proceedings, I gave judgment on 15 December 2017 after a four-day hearing (“earlier judgment”). I made orders, some of which were final and some of which were interim (“December 2017 orders”), in relation to a very young child, [X] born 2016 and presently 1 year and 10 months old. One of the interim orders that I made was an order for equal shared parental responsibility. This order was made by consent. In relation to parental responsibility my reasons for judgment were expressed, in part, as follows:“[206] In the first 12 months of the child’s life, the parties have been unable to agree on the manner and location of time spent with the father, the child’s name, or the place of baptism. This level of disputation is not encouraging. The parties have not yet had to deal with many of the major long term issues, such as education or health issues, but still can find very little agreement beyond a high level of generality. If such a trend continued, it would weigh against an order for equal shared parental responsibility on a final basis (see, for example, Warner & Warner [2016] FCCA 703 at [143], [144]).[207] In this regard I keep in mind the discussion above concerning the consideration set out in s.60CC(3)(i) of the Act and I take account again of Dr B’s comments in paragraph 171, in particular that “the parents have the capability and skills to communicate well should they choose to prioritise this.”[208] These parents should be able to exercise equal shared parental responsibility. If such an order is made, the parties will be required to comply with the obligations for consultation prescribed in s.65DAC of the Act.[209] Having considered these matters, and in light the consensus for an order for equal shared parental responsibility, I will make an order by consent. However, I am not prepared to make such an order on a final basis at this stage. Before such an order could be made, it is preferable to wait and see how the parties’ capacity to co-parent evolves until the child turns 3. It is also preferable to ascertain how the child develops and grows. Once some time has passed, the Court will be in a better position to assess the co-parenting capacity of the parties.” I also made an order for the child to live with the mother in Town A, in New South Wales. Orders were made for the father to spend time with the child in Town A on a four week cycle and in the Region 1 or Sydney at his discretion from 2 October 2018. Orders seven and eight were in the following terms:“THE COURT FURTHER ORDERS THAT:(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 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and 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 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and Sunday; and(ii) From 9.00am to 1.00pm on Monday.(c) Between 26 December 2017 to 2 January 2018 inclusive in Town A from 10:00am to 1:00pm and 3:00pm to 6:00pm each day.(d) During the School Holidays at the end of terms 1, 2 & 3, in a single agreed week, from 10.00am to 1.00pm and 3.00pm to 6.00pm each day and, failing agreement as to time frame, such time shall commence on the second Saturday of each school holiday period.COMMENCING 2 OCTOBER 2018, THE COURT ORDERS PENDING FURTHER ORDER THAT:(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 10.00am to 1.00pm and 3.00pm to 6.00pm on Saturday and 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 sixth Saturday of each school holiday period.”

Ratio Decidendi

Legal Principle Established

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