CERROS & WALDING

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 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 27^th 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.
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.
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.
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.
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.
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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3181 of 2017

MR CERROS

Applicant

And

MS WALDING

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have to make a decision about parenting arrangements for X, who is 3½ and is the only child of the parties.
X lives with his mother. He spends time with the father but it is not much and achieving what there is has been like pulling teeth. The mother has also recently failed to comply with Court orders on many occasions.
The mother said that there was good reason for her reluctance to increase time, her insistence that it be hedged around with conditions and her failure to comply with orders. She said that the latter was due to difficulties she faced complying with the orders about the changeover time and location due to her work.
The father said that there was no good reason for the mother refusing to increase time or for her failure to comply with orders and that she was simply being difficult because she did not want him to have a significant role in X’s life.

The parties circumstances

The father is 42. He lives in Town O near Town P and he is a Supervisor. He is required to do shift work and at present he does not have each alternate weekend free. However he is due to start a new role as a Supervisor in June 2019 which will be in place for 12 months and which will mean that he does have each alternate weekend free and will also be available to spend time with X on the afternoons he proposed. His shifts will start early and finish at 3.30 pm.
The father shares a house with Mr Q. He began doing so in 2017 when the parties separated and he had to move out of the former matrimonial home.
The mother said that the father may be in a relationship with Mr Q. The father said that Mr Q was gay but they were just housemates. However regardless of the status of their relationship, friendship or whatever it is, nothing adverse is known about Mr Q and the father filed an affidavit by Mr Q and the mother’s counsel did not require him for cross-examination.
The father has three children from a previous relationship: E, 14; F, 12; and G, 10. They live with their mother in Town P or near Town P as far as I am aware and that seems to be why the father has relocated to Town O. They spend time with the father on two weekends out of four in accordance with his shift roster, for half of the smaller school holidays and for two weeks at Christmas.
To achieve that the father was involved in some fairly bitter Court proceedings with those children’s mother when the parties were together but orders were made by consent in May 2016 and have been complied with and things between the father and those children’s mother seem to have settled down.
The mother is 35 and is a public servant. She was off on sick leave when the relationship ended but she has recently returned to work full time after having been back part time for a while. She also works shifts. She said that she could not reveal her shift rosters for operational reasons. I will mention that again later on because it makes it difficult for me to deal by way of orders with the problems the parties throw up about changeovers.
The mother lives at Suburb R near City L which is nearly two hours driving distance from the father’s home. To date the changeover location has been close to the mother’s home although even that has not ensured the mother’s compliance with orders.
At the moment X attends pre-school from 9.00am to 3.00pm or 4.30pm on Tuesdays, Wednesdays and Thursdays and that may provide a means by which changeovers can occur for the shorter afternoon time the father proposed.
The mother has re-partnered with Mr S who has two children aged 11 and 8. Mr S did not give evidence in the proceedings but the father did not make an issue of that or of anything to do with Mr S.
The mother has a son, D, 8, from a previous relationship. D has no relationship with his father as I understand it and he has not spent any time with the father in these proceedings since the parties separated two and a half years ago although the father initially expressed a willingness for that to occur.

The parties’ proposals

The father proposed that the parties have equal shared parental responsibility and that X live with the mother and until June 2019 spend time with him (although he does not say exactly when in June and if it is the beginning of June it is only a month away) on two weekends in a row from 10.00am until 5.00pm on Saturday and 10.00am until 5.00pm on Sunday; in week 3 from 10.00am until 5.00pm on Sunday; and time during the week on three weekday afternoons and from 9.00am to 12.30pm on Friday in week 4.
How practical some of that is given the distance the parties live apart is open to question, and an additional issue is that X attends preschool on Tuesday, Wednesday and Thursday and if the father takes him out of preschool on those days the mother is very likely still going to have to pay for it, which is not going to improve the relationship between the parties.
The father proposed that from when he commenced his new position in June 2019 until X commenced school in 2021 the time be from 10.00am on Saturday to 5.00pm on Sunday each alternate weekend or until 5.00pm on Monday if the weekend was a public holiday weekend, and also each alternate Tuesday from 4.00pm to 6.00pm.
The father proposed that once X commenced school the time be each alternate weekend from Friday to Sunday or to Monday if Monday was a public holiday and each Tuesday from 4.00pm to 6.00pm. He proposed that school holiday time commence once the child started year one.
The father proposed that for all longer periods of time changeover be at Town M, which is a point between the parties’ home which somewhat favours the mother but is much closer to a midpoint and that once the child commenced school there would be a pick up at school if the time commenced on Friday, and if neither of those things applied that changeover take place at K Street Shopping Centre in City L which is closer to the mother’s home.
The father also proposed that the child’s surname be changed from Walding, the mother’s surname, to Cerros-Walding.
The mother proposed that she have sole parental responsibility for X. Her proposal about the time he was to spend with his father shifted during the trial but her final proposal was that X spend time with the father for six hours on Saturday and six hours on Sunday on two weekends out of four until the Boxing Day before he commenced school.
In her case outline document the mother proposed that overnight time commence when X commenced kindergarten. At trial she proposed it commence on Boxing Day 2020 which would be a few weeks prior to him commencing school.
The mother proposed that all changeovers take place at K Street Shopping Centre, save that if her son D was doing a sporting event on weekends the father collect X from that event wherever it might be.
That is a little concerning given that the mother could not say how often those events occurred and the events take place at different locations and some take place as far away as City T.
The mother sought an order that the father be restrained from allowing X to be in contact with E, F and G unless he was personally present.
The mother opposed the change of surname and sought one additional order, an order about the issue of passports.

The evidence

The mother gave evidence in her case. The father gave evidence in his and also relied on the affidavit of Mr Q.
An expert report was prepared by Mr U.
The mother, father and Mr U were cross-examined. Mr Q was not required.
I usually make a comment at this stage about the credit of witnesses.
The mother’s counsel submitted that there were issues with the father’s credit because at a spouse maintenance hearing in February 2018 he failed to reveal that he had just received a yearly bonus of $16,000.00. The father had an explanation for that but even if he hadn’t I would not have been satisfied that this one thing cast a shadow over the father’s evidence in the parenting case.
The father was not shown in cross-examination to be an inconsistent or unreliable witness, in fact he was quite an open witness. He made some admissions against interest, for example about having pulled D’s ears. He said that was the way he was brought up. He did not deny having done it.
On the mother’s own evidence the father told her on their first date, that his 15 year old stepdaughter had accused him of inappropriately touching her, and he later gave her documents to read about it, so he was an open witness, and he was not shown in cross-examination to be an unreliable witness.
The mother was a very poor witness. She endlessly answered, “I don’t recall,” when asked questions in cross-examination, to the point where I simply began to expect it as soon as a question was half-asked. I have never heard this refrain used so often in a family law hearing. Usually the mother did not even show signs of considering the question. She would just immediately respond, “I don’t recall.”
When she was asked about why she was doing this she professed to have a poor memory, but her affidavit was replete with extensive evidence about issues which she said supported her case that the father was an uncaring, angry man who prioritised his own children over the mother, D and X, so I have some reservations about the mother’s evidence in that regard.
One of the things that often concerns me when I hear family law matters is that it does seem that people get confused about the difference between proceedings in this Court and criminal proceedings.
In criminal proceedings stout denial or at least keeping quiet and hoping nobody lifts up a stone and uncovers anything might serve a purpose, because in those proceedings the Crown has an onus of proof. However in family law proceedings each party needs to present a positive case in support of the outcome they want, and if there are problems in their case or problems they know the other party is going to raise, they need to confront them and explain how they have dealt with them or explain why they should not concern the Court.

Dealing with matters in this Court by stout denial or hoping that if nothing is said the truth will not emerge is not a good policy.
Another thing which concerned me about the mother’s evidence was that there were significant omissions from her affidavit.
A big issue for her was a single incident of sexualised behaviour between D, E, G and F which happened before X was born. She blamed E, G and F for what happened. She failed to reveal that there had been a number of instances at school which resulted in the school raising a concern with her about D’s sexualised behaviour in relation to other children. That emerged in cross-examination.
The mother related in some detail an incident where the father allegedly drove onto her property with a gun when she was away but failed to mention that the police did not pursue the matter because when they interviewed her brother who supposedly saw the gun he admitted that he had been drinking and changed his story to say, “I think I saw a gun.”
She also did not reveal that the police became suspicious about her bona fides in relation to the complaint and felt that an allegation that the father had a gun in his vehicle might have been made after they refused to go on the property immediately when she first called them because they deemed the circumstances not sufficiently serious.
I have numerous concerns about the mother’s evidence; however I cannot say that simply because of that I am going to accept as true everything the father says and disbelieve everything the mother says. That is not permissible, but findings about credit can be relevant when I come to assess individual issues in dispute.

Background

The parties met online and commenced a relationship. The mother said that was in 2013. At that time the father was living in Town V and the mother in Suburb W. The mother was working full time as a public servant and the father was working in primary industry.
The parties began staying over at each other’s homes and in 2015 they rented a property at Suburb Y, near City L. It might have been earlier than that. I might have those dates a bit mixed up but in any event at some point after that they purchased a property at Town C in the same area and that became their home.
They became engaged in 2015 and X was born in 2015.
The parties separated on 29 January 2017 when X was still a very young child after a heated incident at their home.
The parties each faced a lot of challenges during the relationship. The father was involved in Court proceedings with the mother of E, F and G. They were expensive and emotionally stressful and he agreed that he was often stressed and upset as a result of those proceedings.
The mother had suffered a workplace injury in mid 2013 prior to the relationship commencing. She had continued to work full time but in early 2015 she suffered a further injury. She said that she was in chronic pain with movement problems and required multiple surgeries. She worked for a short while on restricted duties after sustaining the second injury and then ceased work and went on maternity leave. Her pregnancy with X had some issues.
There is strong foundation for the following in the family report:
It does appear to this report writer that this parental relationship has always been under strain and stress, due to financial issues, and the challenges that face families involved in shared-parenting. It is clear that the previous family dispute of the father, as acted out through Court has had previous impacts on the functionality and harmony within this current parental dispute. It is also quite apparent that the financial limitations on the mother, as reported by herself, have influenced the agreements regarding the child spending time with each parent.[1]
[1] Family Report paragraph 48
In 2015, prior to X’s birth, there was an incident where D told his teacher that E had pulled his pants down and that F had touched his “penis” and “bottom”. (Those were the mother’s words; other documents suggest that D used more of the vernacular, “bum” and “doodle”).
The mother said that D reported that G said, “Don’t tell anyone. It’s top secret.”
At that time D was 4, E 10, F 8 and G 6.
The mother was extremely concerned about the incident and she cannot be blamed for that. She reported it to the sexual assault team at Region Z Hospital and arranged counselling for D.
The mother said that the father was also concerned about the incident and that they jointly put strategies in place to make sure that the children could not get up to anything with doors closed or when nobody was there to observe them.
Both parents dealt very appropriately with the incident. They did not blow it out of proportion but they took steps to ensure that the children had counselling and they put practical measures in place to ensure that an eye was kept on the children.
Nothing further of that nature occurred prior to the parties’ separation in January 2017, so the parents cooperatively and successfully dealt with the issue.
Around this time some issues were raised with the mother by D’s school about sexualised behaviour by D directed at other children. There was more than one incident of that nature but I am not going to say anything further about that at the moment.
X was born in 2015 and during 2016 and into January 2017 there were difficulties in the home.
The mother alleged the father had mental health issues toward the end of 2016 and I will refer to that later on in the judgment.
On the day of separation in January 2017 there was some violence between the parties and I will have to make some findings later about that and what it means.
X was 15 months old at the time of separation and following separation the mother would not allow the father to spend time with him out of her sight no matter how often he asked. There was one occasion when he went to the property and saw the child but that did not go well.
Throughout 2017 the father tried to work things out. He organised mediation and that takes time. The parties eventually attended mediation in about September but no agreement was reached and in October 2017 the father commenced proceedings.
On 13 December 2017 orders were made by consent for the father to spend time with X supervised by the paternal grandmother. When he contacted the mother about that after court however she said that the orders were wrong and that she had not intended to agree to the paternal grandmother supervising, only the paternal grandfather, so that time did not happen.
Because the mother would not comply with the orders arrangements were made for some time to occur supervised by AAA Counselling and there were some visits in January 2018.
Subsequent to that orders were made for X to spend unsupervised time of short duration with the father on condition that E, G and F were not present.
In one part of her affidavit the mother gave evidence that since Easter 2018 X had been happier to spend time with the father, but nevertheless she has never agreed to let go of the reins to any great extent or agreed to any great extension of the father’s time with the child, so the matter came to trial with the father spending fairly limited day time only with X and with the restraint on E, G and F being present in place.

X’s best interests

Any orders I make about X must be orders determined by treating his best interests as the paramount consideration.
S.60CC (2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine X’s best interests. There are primary considerations in s.60CC (2) and additional considerations in s.60CC (3).
I am going to start with the additional considerations and the first of those is an easy one because it is the views of the child and X is too young to have a view about future parenting orders.
I must consider the nature of the relationship between the child and each of his parents and any other relevant person including a grandparent of the child.
This is where the dispassionate observations of an expert who is not emotionally involved in the matter can be very valuable to me and the report writer said as follows:
The child X is quite young, and just over half of his life has been post-separation. It is very unlikely that the child would have any conscious memory of his parents living together. It is apparent to the report writer that the child has developed a primary attachment and significant bond with his mother, as it is evident that the mother has provided the bulk of the child’s care and provision of needs, in the child’s infancy and beyond. This does not suggest that the father played no role at all, and it is also apparent that the child has a relationship, bond, and attachment to his father. It is also apparent that the child has a close, familiar, and secure relationship with his brother D, in a very age appropriate and typical sibling way.
It is also somewhat apparent that the child has a relationship with the three older Cerros children. These have been enduring, and routine relationships historically, that have only become more restricted as the parental dispute has worn on. It is equally clear that the three older Cerros children are keen to have a relationship with X, and X himself appeared quite comfortable and entertained, when with them.[2]
[2] Family Report paragraph 51 & 52
Underpinning those conclusions are observations that the expert made at the report interviews.
A lengthy part of the report is devoted to observations of interactions between the child and the father because a major issue in the matter was whether there should be an increase in his time and what sort of orders should be made about X spending time with him and the expert said as follows:
In observations of the interactions between the subject child and the father, as well as the three older Cerros children, it was noted that the child smiled broadly when he noticed the three half-siblings, and then cheered “Daddy” when saw his father. The child ran to the father saying “Daddy” and hugged him, and this was reciprocated naturally and enthusiastically by the father. The child had no observable hesitation in leaving the care of his mother, to ‘come and play’ with Dad. The child did ask if ‘Mummy was coming’ as they walked to play room. The father was observed to reassure the child that he would ‘go back to Mummy soon’.
During the observations of interactions, the father was observed responding to the child’s needs (wiping nose) and was constantly speaking and interacting with the child. The three half-siblings too interacted with the child, making him centre of attention. The child X was comfortable and happy, making “wheeee” sounds as he dropped playing pieces into the Connect 4 games while all the others watched and laughed. The father was physically affectionate with the child and the child responded appropriately and he appeared comfortable with the affection.
There were a lot of “hey X” from the half-siblings as they engaged him in play. The children were all observed to be happy playing with the father and they all laughed at the father’s efforts with Mr Potato Head. While this is perhaps insignificant, it does suggest to the report writer that the children were all comfortable and secure with the father, and not scared or cautious about the reactions of the father (when laughing at him).
At 11.30am, it was noted that the subject child X rubbed eyes and appeared tired, which was also noticed by the father. The father was also observed addressing the safety of the subject child, stopping the child from walking into a chair. Throughout the interactions, the father sat on the floor with all the children.
Throughout the bulk of the interactions with the father the children simply played with each other, amusing each other, or occasionally engaging the father in the play (“here dad catch”). The child X was observed to sit on the father’s lap voluntarily and stayed there for about 5 minutes while the father stroked the child’s hair. The child was comfortable and appreciative of the affection.[3]
[3] Paragraphs 67 – 71 of the Family Report.
The expert concluded that the child’s primary attachment was to his mother but that he also has a very good bond and a good relationship with the father and there is ample foundation for that opinion.
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.
There is also another practical problem namely that both parties work shifts. That is particularly a problem in terms of the mother’s situation because she will not reveal her roster. She said that she could not do so for operational reasons and that may be true but it creates a situation where I have nothing to work with in order to try and ensure that the orders I make are practical.
X is at day care and that creates the possibility of the father picking him up from there for some short visits at the end of a day but there is still going to be that two-hour driving distance between the parties that has to be dealt with if orders for longer time are made.
The mother put forward numerous reasons why she was not able to take the child to and from the changeover location the father proposed in Town M which is about half-way between the parties’ homes.
She said that her father and stepmother, who live in Town M, were unable to help due to not liking the father/ill health/not having a suitable motor vehicle/needing to be available to pick up D. She said that her aunty could not drive or walk unassisted. She did not mention whether her partner could assist but she threw out a whole a lot of problems and not too many solutions in terms of how we could deal with the changeover difficulties.
The mother proposed a continuation of six-hour visits until close to when X commenced school in over 18 months’ time, and yet she was critical of the father for taking X back to Town O during those six-hour visits. Longer time with the father is preferable in terms of making sure that X does not have to do an undue amount of travel to get to the father’s home and then be at the father’s home for a short period before turning around and coming back again.
The next thing I have to consider is the capacity of each parent to provide for the needs of the child, including his intellectual and emotional needs.
The mother raised a number of concerns relevant to the father’s parenting capacity.
She alleged that he drank a lot during the relationship. She said that he drank one to two cartons of beer and one to two bottles of rum per week.
The father denied this and as I indicated earlier there are some problems with the mother’s credit as a witness, especially about the evidence she gave about the father having a gun. I cannot find that the father drank at the level the mother alleged in the face of the father’s denials and the absence of any independent evidence, and even apart from that, although the mother gave evidence about the quantity of alcohol the father drank she did not give any evidence about the impact of alcohol on the father’s behaviour. She included the evidence about his alcohol consumption in the financial section of her affidavit and referred to the cost of purchasing it.
There is no evidence to support a finding that the father has an alcohol problem which impacts on his capacity to provide care for his children.
The next issue the mother raised was an emotional issue. She said that during the relationship the father prioritised the interests of E, F and G over those of X, D and herself; for instance he would prioritise buying food for his children over essentials for X.
I am not satisfied that those allegations have any substance.
The mother also said that she was concerned about the father supervising X and properly watching him. She said that when the child was six months old she found him choking on a lolly wrapper in the lounge room after leaving him in the father’s care.
What concerns me about this is that the mother does not seem to be proportionate about these things. She mentioned the choking-on-the-lolly-wrapper incident more than once. However X fell into the fire in City T when he was in the mother’s care and had to have his face dressed. That was a much more serious incident. The father did not on that basis allege that forevermore the mother should not be trusted to look after X. The mother did not suggest that she needed watching when X was in her care.
I am not satisfied on the state of the evidence that the father lacks the capacity to properly supervise the child and as the father’s counsel pointed out in submissions, the mother proposed that the child spend six-hour blocks with the father and if he is at risk from lack of supervision or negligent parenting he is as much at risk in six hours as he is in 12 and 24 hours.
Some other evidence that is relevant to the issue of the father’s capacity to parent and is of concern is the evidence about him tweaking D’s ears.
I was a bit horrified when I heard about that but the father cares for his three older children regularly and there was nothing to suggest that he was inappropriately or negligently parenting those children.

The report writer asked those children about what was happening in the father’s home, particularly because the mother raised a concern about a slight bruise on the child’s arm and alleged that Mr Q had caused it.
The mother did not seek to cross-examine Mr Q. The child was very young when he made that comment and I cannot possibly make a finding that Mr Q deliberately harmed the child and the report writer went on to say:
Upon being asked, the three children all confirmed they were not afraid of anybody or anything at the father’s house. This included the father’s friend Mr Q, who they said played with them but didn’t boss them around or tell them what to do. They confirmed that Mr Q would not punish them and, additionally, confirmed that the father’s punishment of them, if required, was reasonable and fair. The children stated that discipline from their father was rare anyway, with G saying, “Dad usually helps if we break a glass or do something wrong.”
Those children endorse their father’s parenting and there was nothing about their condition or their presentation at the interviews to suggest the father had been in their ear and had said, “Tell this to the report writer.” These children’s mother has not tried to stop them spending time with the father.
The mother alleged the father had anger-management issues during the relationship and anger management issues can impact on parenting but although she gave some graphic examples in support of that claim I have some reservations about her evidence. I do not consider that there is any evidence the father has anger-management issues which impact on his parenting capacity although I will refer to that issue again in the family violence section of the judgment.
Evidence was given about the father’s mental health and the expert took that seriously and reflected on it.
During the relationship the father was distressed about his family law proceedings and the mother said that at times he called a men’s help line. That is not a reason to be critical of the father; it is a good thing that he used a resource which was available to him. The thing which concerned the expert was that the mother said that the father was suicidal in December 2016.
The father admitted that he was suicidal and said that he went to a doctor and was prescribed antidepressants. He said that the issue arose a little earlier than December but nothing really turns on that.
The father went on to say as follows in his affidavit:
From the time X was born I developed a great relationship with X. Shortly after X’s birth I was at a very low ebb. I had been involved in proceedings in the Federal Circuit Court of Australia at Newcastle relating to E, F and G. The final hearing was held on 9 May 2016. I represented myself. I ultimately agreed to Orders by consent on 9 May 2016. Following these Orders I felt useless as a father and useless as a human being.
Ms Walding and I argued about Ms GGG from early in 2014. Ms Walding also had issues with my children. At that time I felt worthless and had suicidal thoughts. Then one day in 2016 X recognised me. He was less than 12 months of age. His face simply lit up when he looked at me. I saw in his eyes that he recognised me. It gave me reason to live. I went to Dr BBB at CCC Medical Centre and he placed me on anti-depressants. I sought counselling with Ms DDD of Town EEE. I took time off work to focus on my recuperation. I used my relationship with X as a positive re-enforcement to repair my mental health and to ensure that my mental health was in a good pace. I have never looked back.[5]
[5] Father’s affidavit paragraphs 25 & 26
The expert took the issue of the father’s mental health seriously and considered it at some length in his report. In assessing risk he referred to the father’s employment history; that no concerns for children in the father’s care had been raised by police or FACS; and that the father had never attempted self-harm or been hospitalised and he said as follows:
While it is noted by the report writer that the father has experienced somewhat significant depression in the past and that he is currently taking antidepressant medication, there is nothing to support the notion of risk to the children.[6]
[6] Family Report paragraph…
There is ample foundation for that opinion and I agree with it.
I am satisfied that the father is capable of parenting X appropriately in the time that he is seeking to spend with him.
There is nothing to suggest that the father would fail to properly supervise the interaction between X, E, F and G. Like the mother, he took the incident in May 2015 very seriously. He dealt with it appropriately and there is nothing to suggest that he would allow X to come to any harm.
That is not to say X might not come to harm in the care of either parent, because children can have accidents as happened with the fire at City T, but I do not consider that the father would be negligent in his supervision or care of the child.
Although there is no challenge to residence I will make a few observations about the mother’s parenting capacity.
The father did not dispute that the mother was more than capable of properly feeding and clothing the child. Like the father she has good day-to-day parenting skills and the father does not seek to disturb her primary care of X.
The father was concerned about the mother having some anger-management issues which he said were demonstrated by her lashing out verbally about E, G and F’s mother.
The mother said that happened only once, on the day of separation, and that it was not relevant to her capacity to parent X when the other children were no longer in the home and there is some merit in this and I am not even going to attempt to work out where the truth might lie about the allegations the father made.
The father made allegations about the mother smacking D in a rage, which the mother denied, and once smacking F on the bottom which the mother admitted. He said that he was particularly concerned about this because there was reference in the subpoena material to the mother using the word “flogging” in connection with the children and telling a teacher that she had flogged D and that it had not made any difference to his behaviour in relation to the sexual acting out.
This is a difficult area for a couple of reasons, one being that the word “flogging” could be hyperbole. It does not necessarily indicate the child was flogged. It could be just a manner of speaking and the father did not allege harsh discipline of X.
I have a small residual concern about the possibility of the mother using a wooden spoon on the children. Using an implement to hit a child can be child abuse. If the mother is using an implement on the children and a wooden spoon or anything else, she needs to carefully reflect on that because it should not be happening, but I cannot find that X, the subject child in these proceedings, is at any risk of being excessively disciplined by the mother.
An interesting aspect of the matter, and it gets back to the issue of the lolly wrapper and the falling into the fire, is that the mother has repeatedly expressed concern that X might be at risk of sexual harm from E, F and G notwithstanding that there was one incident nearly four years ago, but does not consider that there is any possibility that D might pose a risk of harm to X, notwithstanding that there were a number of incidents in which D behaved in a sexually inappropriate way with young children at school.
I am not suggesting that D is a risk for X. I am just suggesting that again there is a lack of proportionality in the mother’s thinking about these issues.
In broad general terms I am satisfied that the mother like the father is more than capable of parenting X.
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.
For those reasons I have some reservations about whether it comes within the definition of family violence in the Family Law Act 1975 but leaving that aside it was a violent action by the father.
The other allegation by the mother about family violence was that the father attended her property with a gun when she was in City T. She was relying on information allegedly given to her by her brother Mr FFF, who admitted that he had been drinking a lot that evening.
The police asked the father about it. He said he did not have a gun and they were welcome to search his home.
Mr FFF was not called to give evidence and I have no reason to believe that the father went onto the mother’s property with a gun.
Actions by the mother which constituted family violence are contained in two emails the mother sent to the father threatening to abort their child if he did not agree to have nothing to do with the child. The father said as follows:
I recall during May 2015, Ms Walding and I had an argument regarding the discipline of my 3 older children and she moved out of the property with D for a short period. Ms Walding was pregnant with X at the time. I recall around this time Ms Walding saying words to the following effect:
I have spoken to a solicitor, and a doctor about getting an abortion. If you sign papers signing the baby over to me I will keep the baby. If you don’t sign the agreement I am booking in an abortion.
I did not agree to this course of action, however, at the time I was not sure if Ms Walding really meant the threat to have an abortion, or she was simply stating it to get her own way. In any event, Ms Walding and I reconciled after this event and Ms Walding kept the baby without me signing any paperwork.
Around this time Ms Walding and I had a text message exchange to the following effect:
Ms Walding: Perhaps we could have talked more if u actually stopped talking over me yesterday and ur kids stopped walking in or perhaps u could have called today if u were really interested. If u actually did the research there are very little clinics that do abortions after 12.5wks and even less after 15.5 weeks and the only time I can get in before this deadline is this Friday as there is only one doctor that can do it and it’s a major surgery under General anaesthetic. I’ll do u a deal. I’ll keep it if u sign something my solicitor draws up tomorrow no questions asked.[8]
[8] Paragraphs 123 – 125 of the father’s affidavit.
In summary there was certainly a violent action by the father but whether it is family violence is a bit lineball. There was family violence by the mother in threatening to have an abortion if the father did not agree not to see the child. How far that takes the matter in terms of the decision I have to make about future parenting arrangements for X is something I will discuss later on but it may be that it does not take it very far at all.
I must consider any family violence orders but there have not been any.
I must consider the attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents.
I have some concerns about the mother’s attitude to the child and the responsibilities of parenthood in terms of him having a relationship with the father.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
I am concerned that I may not be able to come up with such an order. There is a high risk of further proceedings between these parents; the matter is on a knife edge.
It should not be, because I have two parents who are productively employed, who do not have drug and alcohol issues, who do not have mental health issues and who can both capably parent their child on a day-to-day basis, but it is on a knife edge and the reason for that is because the mother, either out of genuine concern for X or to bolster a case to push the father out of the child’s life, places enormous weight on things a very young child says to her; always jumps to conclusions least favourable to the father; does not comply with Court orders if it does not suit her and then blames the father; and refuses to let go of trivial matters such as the lolly wrapper incident which happened when the child was six months old notwithstanding the child having a much more serious accident in her care.
I am extremely concerned that no matter what orders I make there may be non-compliance for a variety of reasons.
The mother may actively look for problems. In the witness box she said that she did not want time to commence until X was five because at that age he would be able to speak up more convincingly if things went wrong.
Contravention proceedings are possible. There have been none to date but contravention proceedings are a nuisance and a roadblock if they occur before a final hearing. Sometimes after the end of proceedings, they are necessary and have their place.
Another possibility is that the matter comes back because of allegations.
I will do the best I can to deal with the changeover issue, which is the biggest concern to me at the moment, but I cannot do anything else and unless the parents have a careful think about their behaviour and actions and unless the mother begins to accept, in light of what the situation of E, F and G is telling her, that the father is a capable parent, this matter could continue through the court system for years.
I will be very sorry if that occurs because one of the things that often happens when that occurs, apart from the fact that I get a stack of files about 40 centimetres high, is that the child reaches the age of about 12 and stops seeing one of his parents. I don’t know which one it will be but unless the parents are able to develop a bit of goodwill and a bit of trust and make sure that orders are complied with there is a considerable risk that this matter is going to spend years in the court system.
However there is nothing I can do by way of orders to prevent that happening. Whether or not it happens is entirely up to the parents.
I must consider any other relevant matter.
Communication between the parties is poor at the moment. That is partly due to the father not thinking before he responds to communications from the mother and if the mother makes an allegation responding with comments such as “Yet another lie”, which is not very helpful at all.
The father might not like the mother questioning him about certain things but it would increase goodwill if he could find a better way to respond.
The parties’ communication is not very good and there is a lack of trust between them but they do communicate. There is evidence in the mother’s affidavit about the toilet training exchange of emails. The mother used it to be critical of the father but his response was reasonable, so the parents have a basic capacity to communicate. I am not going to give up at this stage on the possibility of them being able to do communicate effectively in the future although I do fear for the future.
One of my concerns is that the mother places her own interpretation on things the child says. The things a young child says could mean half a dozen things but if parents do not trust each other they put the worst possible interpretation on it.
The mother referred in her affidavit an occasion when the child woke up in the night and said, “Mr Q hurt me”. She said that he had a small bruise on his arm and she interpreted his comment to mean that Mr Q had been responsible for the bruise. Later in her affidavit she referred to this as if it was an established fact.[9] She said that there was an occasion when X had a bruise on his arm caused by Mr Q.
[9] Mother’s affidavit paragraph 246
Unless the parties step back and treat what the child says to them more carefully and realise that things children say are not necessarily reliable there is a considerable risk of this matter continuing in the court system.
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.
A parent can have a relationship with a child which is valuable, significant and important to the child even if they spend fairly limited time with them but given that the mother has to date been quite resistant about encouraging the relationship and that there is no sign that this is going to immediately end, it is important that sooner rather than later X commence spending a more significant amount of time with the father.
It is important that he spend sufficient time with him to allow the father to show that he can care for the child overnight, at bath time and at bedtime and if the child gets a bit distressed and if the child wakes up in the night; so that the father can adopt that caring role in the child’s life as well as just being a fun parent and the child can learn to trust the father in those situations.
It is very clear on the evidence and a little bit sad that the mother has difficulty accepting the fact that the child has two valuable parents.
The expert said as follows and for reasons already given I agree with this conclusion:
The mother has shown a limited ability or willingness to facilitate and encourage a close and continual relationship between the child and the father.[11]
[11] Family Report paragraph 58
There is no sign that the father has a similar attitude to the mother. There is no sign of him denigrating the mother either out of the hearing of or to the child. He respects the mother’s role as the primary carer of the child. I am not concerned that the child’s relationship with the mother is going to be undermined if the child spends significant time with the father.
The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The father is a capable parent and I do not consider that X is at risk of harm from E, G or F. I have not overlooked the evidence about an incident where one of E’s friends is alleged to have shown her boobs to the child. I do not quite know what to make of that but it does not ramp up my concern about the child spending significant time with the father. It also does not ramp up my concern about his capacity to properly supervise the child.
I do not consider that X will be at risk of sexual harm if he spends time with E, G and F. I do not accept that the father would fail to properly supervise the children.
The mother made some allegations about X being aggressive to D and cruel to pets after returning from spending time with the father. It was emotive evidence. I cannot place weight on it and I do not accept that X is likely to be exposed to or subjected to abuse, neglect or family violence in the father’s care.
The evidence about the mother using a wooden spoon is concerning but I have already mentioned that and I cannot make a finding that the mother has subjected the child to family violence or abuse or is likely to do so in the future.

Parental Responsibility

Parental responsibility was a big ticket item in this case because the mother sought an order for sole parental responsibility.
There has been some family violence and that means that the presumption in s.61DA of the Family Law Act 1975 that the parents should equally share parental responsibility does not apply but I can still make an order for equal shared parental responsibility if I consider that it would be in X’s best interests to do so.
The reason the mother gave for wanting an order for sole parental responsibility was that the parents did not communicate very well and that there was distrust and lack of goodwill between them. To an extent that may be so but I would be extremely concerned about making an order that the mother have sole parental responsibility.
There is a very strong flavour in the case of the mother gatekeeping, abiding by rules only when it suits her and holding a whole host of beliefs about the father and the child’s siblings which are without foundation.
The mother has a very strong personality and a forceful way of getting what she wants. There is a considerable danger that if she is given sole parental responsibility the father could be marginalised in the child’s life.
You have only have to imagine a situation for example where the mother tells stories at the school or to authorities about something the father has allegedly done in the past; she has sole parental responsibility and people will assume that there must be a good reason for that and be inclined to have a poor view of the father as a result.
There is power imbalance between these parties, with the mother being forceful and the father more laid back. At the moment the mother has the power, but it is not in the child’s best interests that the father is relegated to an inferior position and that is strongly indicative of an order for equal shared parental responsibility being in X’s best interests.
Pursuant to s.65DAC of the Family Law Act 1975 such an order requires the parents to discuss the matter and attempt to come to a joint decision if a decision about a major long term issue needs to be made. That will not be easy for the parents. They are both going to have to learn to step back, including the father stepping back and being a little politer than he has been to date in some of his text message exchanges.
One of the parties will have to put forward a view and the other will have to consider it and give a considered response. It is not going to be easy, but equal shared parental responsibility has not ever been tried between these parents. They separated. They couldn’t reach agreement about the father’s time with X. Court proceedings were commenced. They have been in dispute or in the court system since separation and have never been required to try and cooperate and it is too early to give up on the possibility that they will be able to do so.
A relevant matter is that not too many big decisions will need to be made. The only big decision looming on the horizon is choice of school although other decisions might be required which I cannot currently foresee.
If I make an order for equal shared parental responsibility one parent will not be able to take the child to a psychologist or a medical specialist without consulting with the other. That will have to be discussed and agreed on.
If a big issue such as the choice of school arises and the parties cannot agree then they may need to come back to court. I hope that will not happen but regardless of that possibility but I am strongly of the view that it is not in X’s best interests to give sole decision making power to one of the parents and I intend to make an order for equal shared parental responsibility.

The expert report

Expert reports are valuable because the report writer is not emotionally involved in the matter. He has the opportunity to speak to both parents and also to the children which is an opportunity I never have.
The expert in this case has experience in preparing reports and making recommendations within the confines of the Family Law Act 1975.
Reports are always valuable, whether it is just for the observations or whether it is for the opinions expressed or whether it is for both of those things and also for the recommendations made by the expert.
The expert’s recommendations in this case deserve considerable weight because he prepared a very thorough report. His opinions are underpinned not only by the evidence available to him but the evidence available to me.
The expert said as follows:
An analysis of the child’s needs is that he can spend time with his father and would be safe to do so. The report writer also suggests that the child should be able to maintain and further develop an ongoing, sibling like relationship with his siblings. The report writer additionally evaluates that the child’s primary attachment figure is his mother, and further evaluates that the child is in a critical age of forming and relying on such primary attachment figures…[12]
[12] Paragraph 99 of the Expert Report.
His recommendations were as follows:
It is recommended that the child live with the mother and spend time with the father:
a.     At a frequency and routine of 1 to 2 days per week, up to 6 hours on each day.
b.     On occasions dependant on both parents’ work rosters, to promote the child spending time with the father, when he is not at work.
c.      That such days be consecutive and that such time transitions (over 6 months) to include overnight time with the father.
The report was prepared in August 2018 and more than six months has passed since then and X is now well over three. It was the expert’s view that the child at his current age was emotionally ready to spend some overnight time with the father.
The expert recommended that when the child was of school age the time should be from Friday to Sunday and that school holiday time should commence when the child commenced year one and those are the recommendations the father has adopted.
The report writer recommended that handover take place at a halfway point between the parties’ homes and there is certainly some benefit in the parents sharing the burden of travel. He also recommended that an order be made that neither parent physically punish the child.

Conclusion

The mother proposed that for the next 19 months X spend something like six hours on consecutive Saturdays and Sundays each alternate week with the father. Given the distance between the parties homes that would involve a massive amount of travel for the child and the mother complained about the travel separately in her affidavit.
If he goes to the father’s home it will mean four hours travel each day and it is important that he be able to go to the father’s home so that he becomes familiar with it and is easily able to spend time with his siblings.
It is not appropriate for the child to spend limited time with the father involving that amount of travel for the next 19 months.
The travel distance and the difficulties the parties have arranging changeovers because of their respective work commitments makes it preferable that there be fewer changeovers. A longer block of time on alternate weekends is to be preferred for this reason and the other matter to be kept in mind is that the father is a competent parent and he needs sooner rather than later to spend longer time with the child.
The child is attached to his father. He is used to spending time with him. There are no risk of harm issues in the fathers care and if overnight time is introduced, which the expert considered emotionally appropriate at the child’s current age, it will allow the father to do a range of caring things for the child and the child will learn to trust the father to meet his needs.
There is no justification on the evidence for keeping the father’s time to six hours a day until the child turns 5. Overnight time needs to commence and it needs to commence fairly shortly.
There is also no basis for an order requiring the father to personally supervise the child’s time with E, G and F or be present for the entire time. If I am to trust the father with the care of X overnight on alternate weekends then I should trust him to properly carry out his parenting responsibilities and I am satisfied that he can be trusted to do that.
I do not consider that the father would unreasonably leave X unsupervised or out of his sight or hearing but an order that he has to be personally present at all times means that he cannot ever delegate the child’s care to some other person, a delegation the mother is happy to be able to make herself but does not want the father to be able to make it.
I want to stress one thing to the parents very strongly. It is inevitable that X is going to come home to the mother sometimes or come to the father’s home sometimes and make little complaint about something that has happened to him. Children do that. They might say, “Look, Dad, look at this graze on my knee. I got this because D tripped me up”. Or, “Look, Mum, I have got this bruise because something happened in relation to F or G”. It is the kind of thing they say. X also might come home complaining about E, F and G, because children quarrel over toys. They argue over some minor thing.
Both parents need to be very careful about how they handle the things that X says to them or the arrangements are going to fall over and they are going to have a lengthy sojourn in the court system.
I am going to come in a moment to the orders I am going to make but I am very troubled about the changeover issue.
The father proposes that changeovers for the longer periods of time be at Town M. If I cannot do anything better than that then I will make that order but I have reflected on another possibility which would involve a little bit of extra travel for the father. That is, that time on the weekends start an hour earlier than the father proposed and that the father collect X from the mother, which would mean that he was certainly collected and the father was not waiting at Town M to see if he turned up, and that the mother collect the child from Town M at the end.
The father may not find that palatable but I want to do whatever I can to make sure time actually happens and I do not have to deal with a contravention application.
I am not going to make an order that the father has to pick X up from sports events. The mother will have an obligation to make X available at a fixed place at fixed times. If she cannot make him available herself she will have to call on all the resources available to her, including Mr S, to help her out so that it happens.

The passport issue

There is no reason why the child should not have a passport. Most Australians like to travel and I will make an order to ensure that X can obtain a passport and travel.

The child’s surname

The mother wants X’s surname to remain Walding. Her other son D is HHH on his birth certificate but uses the surname Walding and the mother wants X to have the same surname as D and herself.
The father wants his surname, Cerros, to be in the child’s surname. He said that he agreed to the mother using Walding when the child was born but the mother said that she would change it when they got married and they were engaged at the time so he did not worry about it. However the parents later separated and no change of the surname eventuated.
The expert did not support a change of surname. He did not say why in his report. In cross-examination he said that among other things there was a lot more to parenting than a surname.
There are many decided cases about the issue of children’s surnames because it is an issue that arises time and time again but every single one of those cases turns on its own combination of facts.
The case law indicates that when the court is considering whether to change a child’s surname it must treat the child’s best interests as the paramount consideration.[13]
[13] Reynolds & Sherman [2015] FamCAFC 128
In some surname cases children have a view about what they want to happen. They might want their surname changed. They might not want it changed. However X is too young to have a view about his surname. He is only three and a half years old. The name X would be important to him, not his surname.
Many of the other considerations in s.60CC (2) and (3) are not relevant. I do not accept that the father is seeking a change of surname because he wants to assert some sort of ownership over the child or has any sense of entitlement about the child and that was something mentioned in the mother’s case outline document. I do not accept that the father is motivated by any personal desire to stamp his brand, if you like, on X in seeking the change of surname.
I also accept that the mere fact that the child does not bear a parent’s surname does not mean they will have a poor relationship with a parent or fail to have a relationship with one side of their family. As I observed in a decision I handed down some years ago if that were the case then we would have had centuries worth of children who did not have a good relationship with their mother or maternal family because historically children bore their father’s surname.
The fact that a child does not bear a parent’s surname does not affect the quality of their relationship with their parents and I do not accept that I need to change the surname to ensure that X has a good relationship with his father.
However for the same reasons that I consider that an order for equal shared parental responsibility is essential in this case I consider that there should be a change of surname.
There is a real power imbalance in this matter. There is a history of the mother not properly supporting the child’s relationship with the father.
It is very important for X to have a meaningful relationship with his father and I am concerned, and I hope the mother proves me wrong, that she might have difficulty fostering it. If the child has the father’s surname as part of his surname it will make it absolutely clear to other people and to the child that he is an important and strong part of the father’s family and that he is equally connected with both of his parents. Given the factual situation in this case it is important to change the child’s surname.
X is too young to have formed an attachment to a surname and a change of surname will not cause him any difficulty save that it will be something a bit longer that he has to write. The end of his surname will still be Walding, the same as D’s, so he will still have that connection with the mother and D, but he will also bear the father’s surname and the surname of E, G and F.
That connection will be obvious to him and to everyone who has any dealings with him and the father and I consider the change to be in the child’s best interests.

I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 11 June 2019

[2019] FCCA 1512

2 May 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Jurisdiction