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

1. 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.

2. 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.

3. The variation on 17 July 2020 was in respect of changeover arrangements.

4. 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

5. Rice & Asplund was a case in which a mother applied to change a custody order which had been made in the father’s favour nine months earlier. The matter went to hearing and the trial judge ordered a change of residence. The father appealed. The appeal was dismissed but in the judgment handed down by the Full Court Justice Evatt said as follows:  

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs. 

   Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step.  Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served.  These principles apply whether the original order was made by consent or after a contested hearing.  The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case.[3]

   [3] Rice & Asplund (1979) FLC 90-725.

6. This pronouncement became known as the Rule in Rice & Asplund and as the years went by it became common for courts to consider not just at the end of a hearing but at a preliminary stage whether there were circumstances which justified reconsideration of the earlier order.

7. In Marsden & Winch[4] the Full Court emphasised that when the court was considering whether to dismiss an application at a preliminary stage the paramount consideration remained the best interests of the children. Referring to Warnick J’s decision in SPS & PLS the Full Court said as follows:

   Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:

   …when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

   [4] Marsden & Winch (2009) FamCAFC 152.

8. The Full Court went on to discuss the matters the court should consider in determining whether a fresh application should be allowed to proceed and said as follows:

   In Miller & Harrington (supra) the Court posed the question:

   Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

   That question might be better formulated in another way in the following proposition, namely that there is a requirement:

   (1)for a prima facie case of changed circumstances to have been established; and

   (2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

9. It is important to note however that although most fresh applications for parenting orders are based a claim of changed circumstances, there may be cases where the fresh application is legitimately brought because circumstances have not changed.

10. An example may be a case where a parent seeks a change of residence because of an allegation of alienation or alignment. The court might decide not to change the child’s residence because the child is young and the primary carer asks the court to accept that things will be different in the future. Instead the court might make detailed orders about the child spending time with the other parent.[5]

    [5] Dorney & Murphy [2018] FCCA 3926.

11. If problems persist after final orders are made the other parent may bring a fresh application, relying not on the fact that things have changed but on the fact that they have not.

12. 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

13. The father is 44. He is a Supervisor and lives in Town B.

14. The mother is 37. She is medically retired from the public service, is engaged in home duties and lives in Town C.

15. 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.

16. Each of the parties has older children.

17. The mother’s son D is 9. He has always lived with the mother.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. The mother proposed an order for sole parental responsibility; the father sought equal shared.

25. The mother proposed that X, then 3, spend time with the father for six hours on Saturday and six hours on Sunday on two weekends out of four until Boxing Day 2020, shortly prior to him commencing school. She proposed that overnight time then commence.

26. The father proposed that X immediately commence spending one overnight with him on two weekends out of four and that this increase to two overnights once X commenced school. He proposed that school holiday time commence when X commenced year 1.

27. The mother proposed that X’s surname continue to be Walding. The father proposed that it be changed to Cerros-Walding.

28. The hearing took place on 15 & 16 April 2019 and I delivered a decision on 2 May 2019. The father’s case at trial was that the mother did not support X having a relationship with him and I said as follows in my judgment:

    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. [8]

    [8] Cerros & Walding [2019] FCCA 1512

29. The orders I made provided for the parties’ to have equal shared parental responsibility and for X to spend time with the father in a way which was more consistent with the father’s proposals than the mother’s and was in line with the recommendations in the private family report.

30. I also ordered that X’s surname be changed to a hyphenated surname.

31. It was not long at all before issues arose with compliance with the orders. The mother began proposing alterations to the changeover arrangements and the father would not agree. The mother did not make an application to vary the orders, she simply failed to make X available for collection by the father if he would not do as she proposed. X was exposed to at least one extremely unpleasant incident as a result of an argument about changeover and after 12 November 2019 arrangements broke down altogether and X ceased spending time with the father.

32. The father sought legal advice and on 27 December 2019 he signed an affidavit in support of a contravention application. The contravention application was filed on 4 February 2020. The father alleged that the mother had contravened the orders about him spending time with X twice in July 2019, three times in October 2019, three times in November 2019 and twice in December 2019.

33. As is the practice in this Registry the Contravention Application was listed before Registrar Clarke and at a mention before her on 23 April 2020 the parties agreed to a variation to the changeover arrangements to the effect that all changeovers would to take place at Suburb H McDonalds. However the father wished the Contravention Application to be heard and it was listed before me for hearing on 17 July 2020.

34. After a hearing I found that the mother had contravened the orders without reasonable excuse on three occasions in October 2019, 3 occasions in November 2019 and two occasions in December 2019. I placed the mother on a 12 month bond which was subject to a condition that she comply with the 2 May 2019 orders as varied. I made a final order varying the changeover arrangements as had been agreed on 23 April 2020.

35. It was abundantly clear from the documents filed for the Rice & Asplund hearing that although the variation to the changeover arrangements had been successful in ensuring that X was always made available to spend time with the father it had not ended the conflict between the parties.

36. The mother insists that the changeovers be what she calls “contactless changeovers.” To achieve this she insists that when the father returns X to her he takes him inside McDonalds, leaves him there and exits the building. The mother waits in her car until she sees the father get into his car and leave. Once he does so she gets out of her car and goes inside and collects X.

37. Until the mother goes into McDonalds to collect him X, who was four when this arrangement commenced and has only recently turned five, is alone inside the building.

38. At the commencement of time the mother insists that the same thing happen in reverse.

39. The father considers it highly inappropriate for X to be left alone inside McDonalds while one of his parents walks away from him and exits the building. He is concerned that X might get up and run after him or the mother into the carpark or that he might be unsafe left unattended.

40. As a result conflict regularly occurs. In the updating affidavit he filed on 28 October 2020 for the Rice & Asplund hearing the father referred to incidents which had occurred on 21 July 2020, 26 July 2020, 4 August 2020, 11 August 2020, 14 August 2020, 2 September 2020,  25 October 2020 and  27 October 2020.

41. On a couple of those occasions the father took X home because the mother would not collect the child in a manner which he considered safe. On those occasions the mother called the police and asked them to do a welfare check and they went to the father’s home and did so.

42. On a couple of occasions the father took X out to the mother’s car. On one occasion X tried the door handles but the mother would not unlock the doors. On another occasion she did the same but D let X into the car.

43. The father alleged that on another occasion his partner Ms J approached the mother’s car in an attempt to hand the child over the mother and the mother yelled at her repeatedly that the father was a paedophile and she was living with a paedophile.

44. The mother did not entirely agree with the father’s version of events about what happened on each of these occasions and in particular did not admit that she had told the father’s partner he was a paedophile. However she agreed that there had been conflict at changeovers on numerous occasions. She blamed the father for this and said that he was being unreasonable in refusing to comply with her requirements. It was her view that X was perfectly safe if left sitting at a table inside McDonalds but she said that in the alternative he be put into the children’s play area which had a child proof exit gate.

45. The mother said that she would continue to insist that changeovers be done in this way because D was terrified of the father and she could not leave D alone while she did changeovers with the father.

    The father’s case

46. In original proceedings the father only sought time with X. He said that he had now filed an application for a change of residence because he was of the view that unless there was a change of residence there was a risk that he would lose his relationship with X altogether.

47. His counsel submitted that the behaviour of the mother which led to X not seeing his father for five months amply demonstrated that she still did not value the father’s involvement in the child’s life.

48. She submitted that if the child was constantly exposed to conflict at changeovers this could undermine his well-being and potentially his contentment about spending time with the father. The father gave evidence that the exposure to the conflict was already having an impact on X. He said that on a couple of occasions during telephone calls in the period when he was unable to see the child at all X had told him that he hated him.

49. The father’s solicitor submitted that the paedophile comment suggested that the child was likely to be exposed to ongoing denigration of the father if he remained living with the mother.

50. The father’s solicitor submitted that the father could not solve the problem of conflict by agreeing to changeover happening the mother’s way because it potentially placed the child at risk of harm and also made him acutely aware that he was at the centre of parental conflict.

51. The tenor of the father’s case was that it was clear from the mother’s affidavit that she was not happy with the decision handed down on 2 May 2019 and in the light of this, and in the light of the history of the matter since separation, there was a considerable risk that even if he acquiesced in the mother’s proposal about how changeovers should be done it would not solve the problem. She would simply find another way to cause conflict and interfere in him spending time with X.

    The mother’s case

52. The mother submitted that there was no justification for another round of litigation. Since the agreement was reached on 23 April 2020 about a revised changeover location she had complied with the orders and X had not missed time with the father through any fault of hers. All the father had to do was to comply with her requirements and there would no further issue.

53. The mother submitted that her proposal about changeover was sensible and practical as it protected both her and D. She submitted that X was at no risk of harm from being left alone in McDonalds as long as one parent had him in their line of sight and that conflict would abate if the father backed off and let the changeovers happen in the way she requested.

1. The mother submitted that the father’s refusal to do changeovers the way she wanted was evidence of him perpetrating ongoing coercive and controlling violence.

   Discussion

2. It would be preferable for X, the parties and the court if further litigation did not have to occur in this matter. However the parties have been in conflict about parenting arrangements for X since the day of separation. The conflict continued after interim orders were made and it continued after final orders were made. It led to X not spending time with his father for five months and it has continued since time resumed in April 2020 notwithstanding the parties agreeing to vary the changeover location.

3. X has repeatedly been exposed to conflict between the parties, including quite recently.

4. This is not a case where the father has brought fresh proceedings because he is disgruntled with the original decision. It is apparent from the mother’s affidavit that if anyone is disgruntled with the original decision it is her. I am satisfied that the father has applied for a change of residence because he is genuinely concerned that if this does not occur his relationship with X will be in peril.

5. The father may not achieve the outcome he is seeking if a fresh trial is conducted. Further inquiry into the matter may establish that the father is the one who is being unreasonable about the changeover arrangements and that there is a fix to that which will put an end to conflict. It may establish that the father, and not the mother, is the root cause of X being repeatedly exposed to conflict. If that is the case an amendment to the spend time with regime, perhaps involving a reduction in X’s time with the father, rather than a change of residence, may be the solution.

6. However there is absolutely no doubt that unless there is a further inquiry into X’s parenting arrangements and an effort made to identify the root cause of the problem, the conflict between the parties will continue and that is simply not in X’s best interests. Not only could it lead to him losing his relationship with his father and his older siblings in the father’s household, which on the face of the material available to me at the first trial would be an irreparable loss, it could cause him immense psychological harm.

7. I am satisfied that the father’s application should be allowed to proceed.

8. The father has proposed that he pay for a further family report and I am informed that the report writer who did the last report is willing to prepare a further report. I will not make an order for that however without first hearing from the mother.

I certify that the preceding sixty one  (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.

Associate:       

Dated:            13 January 2021