CERROS & WALDING - [2019] FCCA 1512

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERROS & WALDING

[2019] FCCA 1512

Catchwords:
FAMILY LAW – Parenting – dispute about the time a child aged 3 ½ should spend with his father – where the mother has been gatekeeping – where both parents are capable parents – order made for overnight time to commence and for the father to spend substantial and significant time with the child in due course - dispute about parental responsibility – where the mother seeks an order for sole parental responsibility – where there is a power imbalance between the parties and a risk that if the mother is given sole parental responsibility the father may be marginalised in the child’s life – dispute about whether there should be a change of surname so that the child has a hyphenated surname which includes the surname of both the mother and the father – where this would be in the child’s best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAC, 65DAA

Cases cited:

Reynolds & Sherman [2015] FamCAFC 128

Applicant:

MR CERROS

Respondent:

MS WALDING

File Number:

NCC 3181 of 2017

Judgment of:

Judge Terry

Hearing dates:

15 & 16 April 2019

Date of Last Submission:

16 April 2019

Delivered at:

Newcastle

Delivered on:

2 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Peter Hamilton & Associates

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Burke & Meade Lawyers

ORDERS

All previous parenting orders are discharged.
The parents shall have equal shared parental responsibility for the child X born in 2015 (“the child”).
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)from 10.00am until 5.00pm on 4 May 2019;
(b)from 10.00am on Saturday 25 May 2019 until 5.00pm on Sunday 26 May 2019;
Until the child commences school
(c)commencing on 1 June 2019 each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday (being the week the father’s other children spend time with him).
(d)commencing on 11 June 2019 each alternate Tuesday from 4.00pm until 6.00pm.
Upon the child commencing school
(e)each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday (being the weekend the father’s other children spend with him).
(f)each alternate Tuesday from 4.00pm until 6.00pm.
Upon the child commencing his second year of formal schooling
(g)During school terms:
(i)each alternate weekend from 5.00pm or the conclusion of school on Friday until 5.00pm on Sunday (being the weekend the father’s other children spend with him).
(h)During school holiday periods:
(i)At the completion of terms 1, 2 and 3 for the first half of the school holiday period from 5.00pm or the conclusion of school on the last day of the school term until 5.00pm on the second Saturday of the school holiday period.
(ii)At the completion of term 4:
A.In odd numbered years from 5.00pm or the conclusion of school on the day the child finishes school for a period of 7 days; and then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CERROS & WALDING

Details

AGLC: CERROS & WALDING [2019] FCCA 1512
Case: [2019] FCCA 1512
Decision Date: 2 May 2019

CaseChat Overview and Summary

In the matter of *Cerros & Walding*, heard by Judge Terry, the dispute concerned parenting orders for a child born in 2015. The court was required to determine the best interests of the child, specifically regarding equal shared parental responsibility, the child's living arrangements, and the time the child would spend with each parent. The court also considered issues of family violence, the parents' respective roles in the child's life, and the practicalities of implementing parenting arrangements, including changeovers and communication.

The court's reasoning focused on the paramount consideration of the child's benefit from a meaningful relationship with both parents, balanced against the need to protect the child from harm. Judge Terry found that both parents were intelligent and well-educated, but noted that the mother had engaged in "gatekeeping" regarding the father's time with the child, significantly limiting his contact for a period. The court also addressed allegations of family violence, finding that while the father had pushed the mother, it was a reaction to a perceived threat to his daughter and did not constitute family violence intended to control or coerce. The court was critical of the mother's past behaviour, including text messages suggesting the father had abandoned the child and threats regarding an unborn child, which indicated a reluctance to foster the father's relationship with the child. The father's efforts to spend time with the child, despite practical difficulties arising from the parents' geographical distance and the mother's previous restrictions, were acknowledged.

The court ordered the discharge of all previous parenting orders. It established equal shared parental responsibility for the child, with the child to live with the mother. Specific, detailed arrangements were set out for the child to spend time with the father, with provisions for different stages of the child's schooling and for special occasions such as birthdays, Mother's Day, Father's Day, and Christmas. The orders also included provisions for communication, changeovers, and the child's name change to "Cerros-Walding," authorising the father to apply for the name change. Each parent was granted the right to receive information from the child's school or day care and to attend school events. Provisions were also made for passport applications and international travel, with notice requirements for the non-travelling parent.

Orders

Orders of the court

All previous parenting orders are discharged.

The parents shall have equal shared parental responsibility for the child X born in 2015 (“the child”).

The child shall live with the mother.

The child shall spend time with the father as follows:

(a) from 10.00am until 5.00pm on 4 May 2019;

(b) from 10.00am on Saturday 25 May 2019 until 5.00pm on Sunday 26 May 2019;

Until the child commences school

(c) commencing on 1 June 2019 each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday (being the week the father’s other children spend time with him).

(d) commencing on 11 June 2019 each alternate Tuesday from 4.00pm until 6.00pm.

Upon the child commencing school

(e) each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday (being the weekend the father’s other children spend with him).

(f) each alternate Tuesday from 4.00pm until 6.00pm.

Upon the child commencing his second year of formal schooling

(g) During school terms:

(i) each alternate weekend from 5.00pm or the conclusion of school on Friday until 5.00pm on Sunday (being the weekend the father’s other children spend with him).

(h) During school holiday periods:

(i) At the completion of terms 1, 2 and 3 for the first half of the school holiday period from 5.00pm or the conclusion of school on the last day of the school term until 5.00pm on the second Saturday of the school holiday period.

(ii) At the completion of term 4:

A. In odd numbered years from 5.00pm or the conclusion of school on the day the child finishes school for a period of 7 days; and then each alternate fortnight to conclude not later than 5.00pm on the day prior to the child returning to school.

B. In even numbered years, from the seventh day after the child finishes school for a period of 14 days; and then each alternate fortnight, to conclude not later than 5.00pm on the day prior to the child returning to school.

(iii) For the purpose of these orders the school holidays are deemed to commence on the first day after the public school term ceases and conclude on the last day before term commences and that fortnightly time between the child and the father be suspended during school holiday periods and recommenced on the first weekend of the new term. Changeover of the child shall occur on the day in the middle of the school holiday period, unless otherwise agreed or set out in these orders.

(i) For the purposes of Order 4 if the time the child spends with the father falls on a weekend which includes a public holiday the time shall be extended to include the public holiday.

Notwithstanding any other order the child shall spend time with each of the parents as follows:

The child’s birthday

(a) For half of each of the child’s birthday at times to be agreed between the parents but failing agreement the child shall spend time with the parent with whom he is not living from 2.00pm until 6.00pm or if the child is due to attend school on the child’s birthday, from the conclusion of school until 7.00pm.

Mother’s Day and Father’s Day

(b) If Mother’s Day falls on a weekend when the child is due to be spending time with the father pursuant to these orders, the child’s time with the father that weekend is suspended.

(c) If Father’s Day falls on a weekend when the child is not due to spend time with the father pursuant to these orders, the child shall spend that weekend with the father, and the child’s time with the mother on that weekend is suspended.

Christmas

(d) In even numbered years:

(i) The child shall spend time with the father from 9.00am on Christmas Eve until 9.00am on 26 December; and

(ii) The child shall spend time with the mother from 9.00am on 26 December until 9.00am on 27 December.

(e) In odd numbered years:

(i) The child shall spend time with the mother from 9.00am on Christmas Eve until 9.00am on 26 December.

(ii) The child shall spend time with the father 9.00am on 26 December until 9.00am on 27 December; and

Unless otherwise agreed in writing between the parties, changeover of the child shall take place by:

(a) For the purposes of Orders 1(d) and (f) when the child is due to spend time with the father from 4.00pm until 6.00pm by the father collecting the child from and returning the child to the mother or her nominee at K Street in City L UNLESS the mother notifies the father of the care arrangements for the child and requests that he collect the child from the place where the child is being cared for at commencement of the time.

(b) On all other occasions when the child is due to spend time with the father, the father shall collect the child from the mother or her nominee at K Street in City L at the commencement of the time and the mother or her nominee shall collect the child from McDonald’s Restaurant in Town M at the conclusion of the time.

Notwithstanding any other order during the Christmas school holiday period in 2019/2020 and 2020/2021 the father’s time with the child shall be suspended for a maximum of 21 days if the mother gives the father notice in writing no less than 28 days before the day on which she wishes the suspension to commence of her wish to take the child away from the Region N for a holiday and for that purpose the mother shall give the father notice of the day of her intended departure and the day of her return and following the day of her return the father’s time with the child shall resume in accordance with these orders NOTING THAT the mother is not permitted to give the father notice of taking the child away for 3 weeks which commences any earlier than 9am on the 27th of December in 2019 or 2020.

Each parent may communicate with the child by telephone, iPad or other electronic communication at 4.00pm on Thursday with the parent with whom the child is residing to ensure that the child is available to receive the call and allow the call to continue only for so long as the child is comfortable to take part in the call.

For all purposes the child X born in 2015 shall be known henceforth as X CERROS-WALDING.

10.

The father is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X born in 2015 to X CERROS-WALDING.

11.

The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the father referred to in Order 10 above is to do all acts and things to register the change of name of X born in 2015 to X CERROS-WALDING pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

12.

Each parent may obtain from the child’s day care centre or school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s day care centre or school normally attended by parents.

13.

Each parent shall inform the other parent as soon as reasonably practicable in the event of the child while in their being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.

14.

Each parent shall if requested to do so by the other parent sign a passport application for the child and if they fail to do so within 21 days of receiving a written request from the other party may apply for and obtain a passport for the child notwithstanding that the consent of the other parent has not been obtained and irrespective of which parent obtains the passport the mother shall:

(a) subject to any travel arrangements hold the child’s passport; and

(b) each parent may travel internationally with the child during their period of school holiday time with the child and for that purpose the parent proposing to travel shall give the other parent at least 28 days’ notice of their intention to travel and information about the date of departure and return, the method of travel and the way in which the child can be contacted while the child is absent from Australia.

Background

Background to the litigation

I must consider the child’s maturity, sex and background. The mother said in her affidavit that X failed to thrive after birth and was diagnosed with a medical condition. However he received treatment and there was no suggestion in the material that this was an ongoing issue or was relevant to the orders I should make in this matter. I must consider whether there has been any family violence involving the child or a member of the child’s family. The mother alleged that during the relationship the father would intimidate her during arguments and get right up into her face and forcefully put his point and threaten her due to having a history of being a boxer. She alleged that he boasted of pushing his first wife. The father denied these things. He said that the mother would in fact yell at him, especially when she was on antidepressants, and that she was not someone who could be easily intimidated given her training as a public servant. I cannot be satisfied that the mother is telling the truth about those incidents involving the father. I am particularly concerned about the unreliability of her evidence about the gun incident and I cannot find that the father perpetrated family violence of this nature during the relationship. Neither is the yelling the father described something which comes within the definition of family violence. There was an incident on 29 January 2017, or perhaps two incidents. The father alleged that the mother was screaming out verbal abuse about E, F and G’s mother and that E heard her and took offence. He alleged that the mother went toward E’s room and he said that he feared that she might be going after E and he pushed her. The mother said that the father pushed her so hard in the chest that she went flying backwards, and there might be another incident of a push that the mother alleged, but she certainly alleged an incident which clearly constituted family violence with the father laying his hands on her in anger. The father did not deny that he had pushed the mother. He said that he did so because he was fearful that she was going to assault E and that he said something like, “Don’t lay a hand on my fucking daughter.” The mother’s counsel said that the father’s evidence about why he behaved in that way was not credible. I commented to him at the time and I repeat, I do not see why it is not credible. Perhaps the mother did not intend to hit the child and perhaps the father misinterpreted the situation but it was a very heated situation. The father’s reaction was understandable and his evidence about why he pushed the mother was certainly not incredible. In an email exchange on 8 February 2017 the mother made some admissions about her behaviour on that occasion including saying after describing what preceded it:…which resulted in me reaching my boiling point regarding all our issues. I am not proud of dealing with things in this way, but I am merely human.[7][7] Mother’s affidavit paragraph 44 I cannot be sure exactly what happened between the parties that day. The father certainly pushed the mother, which was a violent action. Whether it comes within the definition of family violence is a little bit lineball. It may, because it frightened the mother, but it was certainly not intended to control and coerce her. I am satisfied that it was a reaction by the father to a perceived threat to his daughter.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child or make decisions about the child. The father has always been very keen to spend time with X. Organising it has been difficult, especially because of the mother’s issues with E, F and G and the father’s obligations in relation to those other children, but the father has gone to considerable lengths to spend time with X. The father said as follows in his affidavit:The restriction which prevents E, F and G coming into contact with X has caused some issues. The weekend of Easter 2018 was a weekend when E, F and G spent time with me and X spent time with me in the schedule as Week 1 or Week 2. Further, the mother took D and X to City T for a sports event. To put the Order into effect I drove with my three children E, F and G to City T to spend time with X on the Saturday. After I returned X to the mother on the Saturday I then drove from Town B to Town P to return the children to their mother. I returned the children to their mother so as to not breach the Order by not bringing E, F and G into contact with X on the Sunday. I then returned to City T to spend time with X. On the Sunday I spent the six hours with X I then drove back to my home at City L. On the weekend of Easter I drove almost 800 kilometres to put the Order into effect to spend time with X, to spend time with E, F and G and to not breach the Order that I bring E, F and G into contact with X.[4][4] Paragraph 81 of the father’s affidavit. The expert said and I thoroughly agree that:It is apparent that the father has made repeated, patient and appropriate steps to spend time with the child. The mother has also clearly always been wanting to spend time with the child but I do not need to comment on that as a separate issue because the focus is on what I should be doing in relation to the father’s involvement in the child’s life. I must consider the issue of financial support of the child. The father is highly paid. He pays a very reasonable amount of child support and child support is not an issue in the case. When I say that, it is not an issue for the Court, because there is no suggestion that either party is motivated by child support considerations in seeking the orders they do, but there is some evidence in the mother’s material which suggest that she has some resentments about some financial issues. However I cannot find on the state of the evidence that it is reasonable for her to do so. I must consider the likely effect of any change in the child’s circumstances. I will deal with that as part of my conclusion to the judgment because that requires findings about the remaining s.60CC (3) matters and the s.60CC (2) matters. I must consider the practical difficulty and the expense of the child spending time with a parent. There is some practical difficulty and expense and it has been created by the father’s choice about where he lives, which has resulted in the parties living two hours driving distance apart.

Ratio Decidendi

Legal Principle Established

I must now return to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. X will benefit from having a meaningful relationship with both of his parents. They are intelligent, well-educated people who are way up the top of the tree in terms of parents that I see before me in this court. They would only have to sit in the back of the court for a day on a duty day to realise that. In some respects they should not even be here. Unfortunately to date the mother has been gatekeeping in relation to X’s time with the father, in other words she has wanted it to be as determined by her and she has not been willing to agree to much time at all. She managed to keep the father out of his life pretty successfully for about 10 months or so after separation. She relied among other things on an alleged concern about sexual misconduct by E, F and G notwithstanding that the incident between these children and D had occurred nearly two years previously. The father gave the following evidence about a text message exchange which occurred soon after separation:Mr Cerros:I would also like to know your thoughts on visitation for X.Ms Walding: That’s not possible sorry. You have no children here that you need to concern yourself about, you made that choice. Live with it!Mr Cerros:I asked when I can see X?Ms Walding: You chose pleasing Ms GGG and being there for your other kids over X yesterday.Ms Walding: …We had worked so hard and had so many great plans for us and our little family and you had to ruin it all with ur past ur (sic) baggage.…Our ‘plans’ turned to shit because you treated this family like shit just to support your other family…The following day I had a conversation via text with Ms Walding to the following effect:Mr Cerros:When can I see X? I’d also like to see D too.Ms Walding: Your family is in Town B, you’ve said that yourself.Mr Cerros:I never once said that, I never once felt that was the case.[10][10] Paragraphs 40 and 41 of the father’s affidavit. The father was not challenged about that evidence and there is a flavour in it of the mother saying, “You have abandoned X and D and I. You have chosen E, G and F. So go off and play happy families with them; you are not going to see X”. The threats the mother made about having an abortion unless the father agreed to remain out of the unborn child’s life add to my concerns. The mother has been very difficult about changeovers since she went back to work full-time and some of the suggestions she put forward to deal with the problem, such as the father assisting with paying for a nanny or an au pair, were simply impractical. I am very concerned about the mother’s attitude to the father having a relationship with X and that is relevant to the amount of time that the child spends with the father.