Cerros & Walding (No 2) - [2021] FCCA 7

FEDERAL CIRCUIT COURT OF AUSTRALIA
Cerros & Walding (No 2) [2021] FCCA 7

File number(s): NCC 3181 of 2017

Judgment of: JUDGE TERRY

Date of judgment: 13 January 2021

Catchwords: FAMILY LAW – Parenting – application by the father for fresh parenting orders less than a year after final orders were made – where conflict between the parents has continued unabated since the orders were made – where a further inquiry into appropriate parenting orders for the child is necessary – father permitted to continue with his application.

Legislation: Family Law Act 1975 (Cth) s 60CC.

Cases cited: Dorney & Murphy [2018] FCCA 3926
King & Finneran (2001) FLC 93-079
Marsden & Winch (2009) FamCAFC 152
Cerros & Walding [2019] FCCA 1512
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

Number of paragraphs: 61

Date of hearing: 17 December 2020

Place: Newcastle

Solicitors for the Applicant: Peter Hamilton & Associates

The Respondent: In person

ORDERS

NCC 3181 of 2017

BETWEEN:
MR CERROS

Applicant

AND:
MS WALDING

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

13 JANUARY 2021

THE COURT ORDERS THAT:
1.The father’s Initiating Application filed on 9 April 2020 shall not be dismissed at a preliminary stage pursuant to the Rule in Rice & Asplund.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Cerros & Walding (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY:
Introduction

On 9 April 2020 Mr Cerros (“the father”) filed an Initiating Application seeking an order that his son X, then aged 4, live with him and spend time with his mother Ms Walding (“the mother”) each alternate weekend from Friday to Sunday and each alternate Tuesday from 4.00pm to 6.00pm during school terms and for half of the school holidays.
Pursuant to final orders made on 2 May 2019 X lives with his mother and spends time with his father and in her Response filed on 17 August 2019 the mother proposed that the 2 May 2019 orders, as varied by orders made on 17 July 2020, remain in force.
The variation on 17 July 2020 was in respect of changeover arrangements.
The 2 May 2019 orders were made following a two day final hearing.[1] The father filed his application for a change of residence less than twelve months after those orders were made and the mother in effect sought the dismissal of his application. As a result I considered it appropriate to list the matter for a hearing to determine whether father’s application should be dismissed at a preliminary stage pursuant to the rule in Rice and Asplund.[2]
[1] Cerros & Walding [2019] FCCA 1512.
[2] Rice & Asplund (1979) FLC 90-725.
The Rule in Rice & Asplund
Rice &…

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 (No 2)

Details

AGLC: Cerros and Walding (No 2) [2021] FCCA 7
Case: [2021] FCCA 7
Decision Date: 13 January 2021

CaseChat Overview and Summary

In the matter of *Cerros & Walding (No 2)*, heard by Terry J, the applicant father sought to prevent his Initiating Application from being dismissed at a preliminary stage pursuant to the Rule in *Rice & Asplund*. The dispute concerned parenting orders for the parties' child, X, and the potential change of X's surname.

The court was required to determine whether the father's Initiating Application should be dismissed at a preliminary stage, applying the principles established in *Rice & Asplund*. This involved assessing whether the material before the court made it necessary or proper, in the best interests of the child, to allow further proceedings to continue. The court also considered the broader context of Section 121 of the *Family Law Act 1975* (Cth), which prohibits the publication of identifying details in family law proceedings.

Terry J reasoned that the test in *Rice & Asplund* necessitates an assessment of the available material to ascertain if continuing proceedings is in the child's best interests. The court found that the father's application should not be dismissed prematurely, indicating that the issues raised warranted further consideration rather than an immediate cessation of proceedings.

The court ordered that the father's Initiating Application filed on 9 April 2020 shall not be dismissed at a preliminary stage pursuant to the Rule in *Rice & Asplund*.

Orders

Orders of the court

NCC 3181 of 2017

BETWEEN:

MR CERROS

Applicant

AND:

MS WALDING

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

13 JANUARY 2021

THE COURT ORDERS THAT:

1. The father’s Initiating Application filed on 9 April 2020 shall not be dismissed at a preliminary stage pursuant to the Rule in Rice & Asplund.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

In those factual circumstances the following passage from the judgment of Collier J in King & Finneran better explains the issue which the court needs to consider:To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings.[6][6] King & Finneran (2001) FLC 93-079.Background The father is 44. He is a Supervisor and lives in Town B. The mother is 37. She is medically retired from the public service, is engaged in home duties and lives in Town C. The parties were in a relationship from 2013 to January 2017. They have one child, X, who was born in 2015 and is now 5. Each of the parties has older children. The mother’s son D is 9. He has always lived with the mother. The father’s children are E, almost 16, F, 13 and G, 12. They spent time with the father in the home the parties shared during the relationship and have continued to spend time with him since separation. At separation X, who was then 15 months old, remained with the mother in the former matrimonial home and the father moved out and began living with a friend. The parties were unable to reach agreement about a regime for the father to spend time with X and on 17 October 2017 he filed an application for parenting orders. He sought orders that X live with the mother and spend defined time with him. Interim orders were made for X to spend time with the father but the mother would only agree to limited time and there were many occasions when she failed to comply with the orders. In my judgment I said as follows: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.[7][7] Cerros & Walding [2019] FCCA 1512. The parties obtained a private family report to assist them to resolve their dispute but after its release they remained unable to agree on final orders and the matter was listed for trial. The issues in dispute at the hearing were the allocation of parental responsibility, the amount of time X should spend with the father and whether X’s surname should be changed to a hyphenated surname incorporating the name of both parents. The mother proposed an order for sole parental responsibility; the father sought equal shared.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	NCC 3181 of 2017
Judgment of:	JUDGE TERRY
Date of judgment:	13 January 2021
Catchwords:	FAMILY LAW – Parenting – application by the father for fresh parenting orders less than a year after final orders were made – where conflict between the parents has continued unabated since the orders were made – where a further inquiry into appropriate parenting orders for the child is necessary – father permitted to continue with his application.
Legislation:	Family Law Act 1975 (Cth) s 60CC.
Cases cited:	Dorney & Murphy [2018] FCCA 3926 King & Finneran (2001) FLC 93-079 Marsden & Winch (2009) FamCAFC 152 Cerros & Walding [2019] FCCA 1512 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363
Number of paragraphs:	61
Date of hearing:	17 December 2020
Place:	Newcastle
Solicitors for the Applicant:	Peter Hamilton & Associates
The Respondent:	In person

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	13 JANUARY 2021