FATHER SEEKS FOR FRESH PARENTING ORDERS LESS THAN A YEAR AFTER FINAL ORDERS WERE MADE
Cerros & Walding (No 2) [2021] FCCA 7 (13 January 2021)
This is an application by the father for fresh parenting orders less than a year after final orders were made. This is due to the fact that conflict between the parents has continued unabated since the orders were made.
Facts:
The applicant-father filed an application for a change of residence of the child 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. 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.
The mother 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.
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. The mother futher submitted that her proposal about changeover was sensible and practical as it protected both her and D. She alleged that the father’s refusal to do changeovers the way she wanted was evidence of him perpetrating ongoing coercive and controlling violence.
Issue: Should the court allow the father to continue with his application?
Law:
Analysis:
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 the 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.
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.
Conclusion: The court is satisfied that the father’s application should be allowed to proceed.
