Hackney and Cadd and Anor
[2012] FMCAfam 90
•10 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKNEY & CADD and ANOR | [2012] FMCAfam 90 |
| FAMILY LAW – Children – child’s best interests – interim spend time with arrangements – where one parent has spent limited time with the child – gradual increase in spend time with arrangements. |
| Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(1)-(3), 61DA, 65DAA(1)-(4) |
| Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR HACKNEY |
| First Respondent: | MS CADD |
| Second Respondent: | MR H |
| File Number: | CAC 2007 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | By written submission |
| Date of Last Submission: | 9 November 2011 |
| Delivered at: | Canberra |
| Delivered on: | 10 February 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Farrar Gesini & Dunn, Canberra |
| Solicitors for the First Respondent: | Wayne J Boom, (omitted) NSW |
| Solicitors for the Second Respondent: | Self Represented Litigant |
ORDERS
Until further order and unless otherwise agreed in writing, the Respondent Mother have sole parental responsibility for the child X born (omitted) 2006 (‘the child’).
The Applicant Father be kept informed of any major, long-term issues affecting the child.
For the next four months, the child spend, on one weekend per month, two hours with the Applicant Father, from 5:00pm – 7:00pm. The Respondent Mother may be present at a nearby table in the café/restaurant, but no other members of the maternal family should be present.
After the completion of four months, and in the absence of any other agreement in writing between the parties, the time between the child and the Applicant Father shall increase to twice per month, at times and venue to be agreed.
Until further order, Mr Hackney may telephone X twice per month, on dates and times as agreed between the parties.
Both parties are restrained from speaking negatively about the other parent, and will use their best endeavours to ensure that no other person does so either.
Within 21 days of the date of these orders, the parties are to attend a course of counselling with Relationships Australia (or such other counselling service as is available and agreed).
Precise details regarding the visits (location and other matters) between the child and the Applicant Father are to be agreed as between the parties, and are to be assisted in this regard by relevant counselling.
Until further order (or written agreement between the parties), the Respondent Mother is formally restrained from relocating the child’s residence outside the (omitted) Canberra region.
On the basis of order 5 made on 21 February 2011, the maternal grandmother is removed as a party to these proceedings.
The matter will be adjourned for further mention or directions on 20 June 2012 at 11:00am in the telephone list.
Liberty is granted to have the matter re-listed on 14 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Hackney & Cadd and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2007 of 2010
| MR HACKNEY |
Applicant
And
| MS CADD |
First Respondent
| MR H |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 17th October 2011, this Court declared the Applicant, Mr Hackney, to be the biological parent of X, who was born on (omitted) 2006.
X’s parents, Mr Hackney and Ms Cadd, were in a very short relationship of approximately six (6) weeks, and had not had any contact with each other for the better part of five (5) years since their brief relationship ended until shortly before Mr Hackney brought the current application. Mr Hackney has confirmed that he was unaware of X’s existence until a member of Ms Cadd’s family told him so in late 2010.
Mr Hackney is aged approximately 38; Ms Cadd is aged approximately 24.
In her affidavit material, Ms Cadd contends that the relationship with Mr Hackney, who then worked in (omitted), was more of a “fling”. She also asserts that, at the time of her brief sexual liaison with Mr Hackney, he was married with three children.
Mr Hackney lives in Canberra with his current partner and their young daughter. Ms Cadd and X live in (omitted) with Ms Cadd's father. (omitted) is approximately a one hour plus drive from Canberra.
Mr Hackney seeks parenting orders that will allow him to spend time with X on an increasing basis. His original application, in my view inappropriately, sought orders whereby X would live with his Father and spend time with his Mother. This was not, in any way, apposite because (a) X has lived all his young life with his Mother, (b) X has considered the Third Respondent, Mr H, to be his Father (and obviously bears his family name because Ms Cadd originally thought Mr H to be X’s biological father)[1], and (c) Mr Hackney has only quite recently begun spending somewhat regular, but still quite limited time with his son.
[1] The Family Consultant recorded in her Report, dated 4th October 2011 (par.1.3), that Ms Cadd and Mr H lived together until X was 2½ years old. Mr H now lives on the (omitted) of NSW with his current partner and their 1 year old daughter.
There is a factual contest between the parties as to how that time has in fact proceeded, with the Mother contending that there have been all manner of problems, while the Father says that such issues as there are relate to Ms Cadd’s anxiety and presence while X and his Father spend their limited time together. Mr Hackney says that the time with X otherwise actually proceeds quite well. Even more so than usual, the Court is unable to resolve, at this stage, any factual controversy between the parties.
Mr Hackney now seeks a much more graduated ‘time with’ parenting orders, which in my view are much more appropriate and consonant with recommendations and comments of the Family Consultant as set out in her Report dated 4th October 2011. In detail, Mr Hackney’s most recent orders sought, as set out in submissions filed on his behalf on 9th November 2011, are as follows:
(1) 3 of every 4 weekends commencing as soon as possible the applicant spend time with X for 2 hours from 5 – 7pm.
(2) This would enable X to have dinner with the applicant and for them to interact without distraction. The respondent could be in the same café/restaurant but not at the same table.
(3) The respondent will ensure that the time between the applicant and X is free of distractions including the presence of other members of the maternal family.
(4) The respondent or any other member from the maternal family shall refrain from belittling or denigrating the applicant of speaking to X in any way that may place fear or doubt in wanting to spend time with the applicant.
(5) Time will occur at a location as agreed by the parties and failing agreement at a location nominated by the applicant. Visits could alternate between (omitted) and (omitted) and (omitted).
(6) Within 14 days the parties attend a course of counselling with Relationships Australia as per paragraph 8.3 of the Family Report.
(7) Until further Order, the respondent be restrained from relocating the residence of the child from the (omitted)/Canberra region.
(8) The matter be adjourned for further directions and/or hearing after 1 February 2012.
For her part, Ms Cadd seeks a significantly more restricted access between X and Mr Hackney. As explained further below, Ms Cadd contends that the times that X has spent with Mr Hackney have been fraught, and that she is frightened of and intimidated by him. Indeed, as per the Response filed on 25th July 2011, the time between X and Mr Hackney as proposed by Ms Cadd would, for all intents and purposes, be nugatory and, in my view, of more detriment than benefit to both X and his Father.
Formally, as set out in that Response, the interim orders sought by Ms Cadd are as follows:
(1) That the applicant not approach the place of residence of the respondent and child.
(2) That the applicant not approach the child at the school of the child X.
(3) That the applicant not approach the respondent and/or the child in a public place.
(4) That the applicant may send photos/postcards to the child X born (omitted), 2006 every fortnight for six months and then weekly for a period of twelve months. The mother is to assist the child to place these photos in a book. After twelve months the mother and Mr H shall inform the child that the applicant is his biological father.
(5) That the applicant have telephone contact with the child commencing after eighteen months, one day per week on the same day between the hours of 5pm and 7pm.
(6) That the parties will attend counselling in Canberra at the (omitted) Family & Child Centre to plan when and how the child will meet with the applicant.
(7) That the mother and father endeavour to resolve issues of concern through counselling prior to making an application to the court.
(8) That the matter be adjourned to 20th January, 2013 but either party may have the matter relisted at an earlier date.
Ms Cadd’s final orders sought are as follows:
(1) That the child live with the mother.
(2) That mother have sole parental responsibility for the child.
(3) That after eighteen months the applicant have telephone contact with the child once per week on the same day between the hours of 5pm and 7pm.
(4) That after the expiration of two years the applicant to have supervised contact with the child through (omitted) Family & Child Centre who support contact with the non-residential parent for two one hourly visits per month.
Subsequent submissions filed by Ms Cadd on 28th October 2011 state that she is prepared to meet with Mr Hackney through (omitted). She also suggests the possibility for the child to spend supervised time with Mr Hackney for one hour every four weeks for a period of six months with the matter to be reassessed after this time.
I should also note that, to date, neither the maternal Grandmother (the second respondent) nor Mr H (the third respondent) have taken any effective part in the proceeding. Thus, the only protagonists are the Father (Mr Hackney) and the Mother (Ms Cadd).[2]
[2] In her report, the Family Consultant noted that neither the maternal Grandmother nor Mr H attended the family conference.
I proceed as follows. First, I consider the Family Report to which I have referred. On the principles set out in SPS & PLS, that Report should be taken to be admitted into evidence.[3] Secondly, having regard to (a) the written submissions of the parties and (b) the legislative pathway and relevant jurisprudence relating to it, I consider and determine the orders that are in X’s best interests, pursuant to s.60CA of the Family Law Act 1975 (“the Act”).
[3] SPS & PLS (2008) FLC ¶93-363.
A. The Family Report
It is not only apposite but important to note the following directly from the Report of the Family Consultant, Ms W.
The first matter to note from the Report is the Family Consultant’s identification of the relevant issues, with which I generally agree. As noted in the Report, at par.4, those issues are:
· An explanation and discussion with X regarding Mr Hackney’s position and role in X’s life. This would best be done by his mother initially and then with his mother and Mr Hackney with Mr Hackney being a presence in a brief discussion with X.
· A plan for the gradual introduction of Mr Hackney to X that is secure for X.
· Support of Ms Cadd during the introduction of X with Mr Hackney so that she can emotionally support X during this time.
Early in her Report, at par.1.4, Ms W had noted:
Mr Hackney has three children aged 9 years to 16 years with his previous partner. These children live with their mother in the (omitted) and spend 3 weekends in 4 weekends with him. Currently Mr Hackney resides in Canberra with his partner and infant daughter. He states that his current partner and previous partner are supportive of him. He has also informed his 3 older children of X’s existence.
In relation to the parents, the Family Consultant observed:
5.2 The father maintains that X has been given incorrect and negative information regarding him by the mother and her family. He said that on his last meeting with X, X had said to him “Mum said you are naughty. You are psycho and yuck”. The father said that he had asked X if he thought he was “yuck” and X had replied in the negative.
5.3 Ms Cadd says that she barely knows Mr Hackney. “He could be dangerous. I don’t understand his background. I don’t want to put X in danger. I wouldn’t let X sleepover with him. I wouldn’t let X see him if I wasn’t there”. She understands that Mr Hackney’s relationship with his 3 elder children is unhappy.
In relation to X, Ms W said:
6.2 X said that he lived with “(omitted), me and Mummy”. He listed a number of other people whom he considered his “family” - his uncles, aunts and cousins on his mother’s side of the family. He was asked about his “Dad” – “Yes, He is Mr H he lives in (omitted) with T and H, my sister. I have another sister, E, she’s (omitted)’s and Ms L’s daughter”. X told the Consultant “I had a sleepover at Dad’s house (with reference to Mr H)”.
6.3 X was asked about his meeting with “Mr Hackney at the park” - “Mr Hackney kept kicking me and slapping. He was pushing me on the swing. He was hurting me. I said stop”. The Consultant asked X if Mr Hackney had meant to hurt him. “I don’t think so’. This incident was innocent and explained as X being pushed on the swing by Mr Hackney.
Ms W further observed in relation to X:
6.4 At the conclusion of the interview the Consultant told X that she was going to speak with his mother while he played in the playroom with his grandparents. “Are you going to talk to her about Mr Hackney?” He was asked why he thought that – “Because I don’t like him. He’s a stranger. He’s a robber. He takes other peoples kids. He’s going to take me because he is playing with me.”
Following these comments, the Family Consultant noted the feedback that she gave to Ms Cadd, thus:
7.1 Ms Cadd was distressed about X’s statements to the Consultant regarding X’s perception that Mr Hackney was going to “steal him”. She said “I didn’t mean to do that to him (X). I don’t talk to him about Mr Hackney”.
7.2 Ms Cadd considers her position as the primary carer of X to be threatened by Mr Hackney and his application for X to live with him and to share parental responsibility with her. Both orders sought appear hasty and intimidating of the mother considering the extremely limited relationship that X has with Mr Hackney; the limited relationship between Mr Hackney and Ms Cadd; and the necessity of the mother’s support and encouragement of X to commence a gradual process of getting to know Mr Hackney.
The final and important matters to note from the Family Report are the recommendations, which are as follows:
8.1 The confusion for X around Mr Hackney’s sudden appearance in his life is frightening. His mother is unable to reassure X at this time due to her mistrust and uncertainty regarding Mr Hackney’s current and future role and position with her son.
8.2 X will be able to assimilate the knowledge that he has two fathers and that this is positive and safe as long as his mother is also able to accept this and support X in this.
8.3 It is recommended that X continue to spend monthly supervised time with his father. That Ms Cadd and Mr Hackney see a service such as Relationships Australia, Early Life Matters at (omitted) or a private practitioner regarding gaining some counselling individually and together about speaking with X to provide him with an explanation regarding Mr Hackney’s relationship with him.
B. Submissions
I turn now to consider the respective submissions of the parties.
Father’s Submissions: At the outset, Mr Hackney confirmed that he had no intention of upsetting the current living arrangements “on an interim basis” in relation to X. It was submitted that his original application for residence should be seen in that light.
For my part, just on this aspect of the Father’s submissions, I readily appreciate why Ms Cadd would be so anxious, and her anxiety little relieved, should Mr Hackney not formally withdraw or amend his application so as not to disturb X’s current residence.
Mr Hackney, in my view, rightly, objected strongly to the submissions filed on behalf of Ms Cadd. I deal with them later in these reasons.
Leaving to one side various factual matters that are disputed, the basic thrust of the Father’s submissions was to the effect that Ms Cadd’s presence (and other members of her family) when X is spending time with Mr Hackney is unhelpful and distracting, and that otherwise the time between Father and son has gone reasonably well in all the unusual circumstances.
Mother’s Submissions: Respectfully, the submissions filed on behalf of Ms Cadd were quite unhelpful. But for an occasional comment, they are not submissions at all. The Father’s solicitors rightly object that they are inappropriate [as submissions] because they purport to provide a range of evidence that is both unsworn and not previously provided either to the Court or to Mr Hackney. Whenever the information became available, it should have been put into an affidavit. Moreover, there has been ample opportunity for the matters raised in the “submissions” to be aired long before their filing.
The substance of what is put in the Mother’s submissions may be summarised as follows.
First, the Mother contends that she is intimidated and scared of the Applicant. That intimidation relates essentially to the final orders sought in the Application to change X’s residence.
Secondly, the Mother contends that the visits between X and Mr Hackney have not gone well. Understandably, the Mother contends that Mr Hackney’s appearance in X’s life has been quite disruptive and is disconcerting.
Thirdly, notwithstanding her anxiety, Ms Cadd says that she is prepared to meet with Mr Hackney but which should, in her view, take place through (omitted) (or presumably any third party agency). She proposes that Mr Hackney’s time with X remain supervised (presumably with Ms Cadd to continue to provide the supervision), and that this continue for one hour every four weeks for six months, after which it will then be re-assessed. It will be noted that what is in the “submission” of Ms Cadd is significantly different from what is set out in her Response, where she sought to have the supervised time between X and Mr Hackney only commence two years hence, and that there could be only telephone time between them once per week for the next 18 months.
More generally in relation to both sets of submissions, it will also be noted that there is some level of agreement, or at least mutual recognition, that some kind and level of third party assistance is necessary, both now and into the future, to assist everyone (including X) to come to grips with the family realities and dynamics in this matter.
Again by way of general comment, Ms Cadd is to be congratulated on making a significant change so as to agree to meet with Mr Hackney, with a view, over time, to work out arrangements that are and will be in X’s best interests. Likewise, Mr Hackney is to be commended in not pressing his original application. It is clearly going to take quite some time, as Ms W said, for X to come to grips with the reality that Mr Hackney is his [biological] Father (and that Mr H is not). And all parties now seem to acknowledge that a slow, measured and supported regime of time between X and Mr Hackney is appropriate, together with some counselling and other assistance.
C. Jurisprudential Considerations
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments for application in the current matter. Brown J said:[4]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[4] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[5]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[5] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
By reference to these principles, it seems to me that the principal task of the Court in this matter is to craft orders that will balance, on the one hand, the important but very gradually-increased, consistent time between X and Mr Hackney, and on the other hand, for the parenting relationship between X’s parents to be assisted by relevant counselling, as well as the most gentle and sensitive support for X. That support might also involve some counselling.
Having regard to (a) the various prescriptions in Part VII, as outlined by Brown J in Mazorski v Albright, (b) the necessary limitations in interim proceedings (not least in relation to the inability to make any formal findings in relation to facts), and (c) above all else, that any orders made must be in X’s best interests, I note the following by reference to s.60CC(3).
X’s age militates against placing much weight at all on any of the very brief comments made by him to the Family Consultant.
There is little contest, nor could there be, that X’s primary attachment is with his Mother, with whom he has lived all his life. Nor could there be any real contest that X’s relationship with his Father could only be described as embryonic. It necessarily requires very gentle nurturing.
The evidence is sufficiently sparse so as to preclude the Court making anything other than the most cursory observation about the willingness and ability of each parent to facilitate and encourage X’s relationship with the other parent. To the degree that any comment is possible, I have already noted Ms Cadd’s areas of understandable concern, as well as her more positive movement from the position as outlined in her Response.
It is not, and in my view cannot be, proposed that there be any relevant change in X’s living or residence situation. He is not to be separated from his Mother. The Court must also be conscious of not ignoring the relevance of Mr H in X’s life and his regular time with him.[6] In my view, at this still early stage of proceedings, arrangements for X to spend time with Mr Hackney should be worked out between the parties with the assistance of a counsellor.
[6] In the first of two affidavits filed by Ms Cadd on 25th July 2011 (p.5), she said that Mr H continues to pay child support for X.
A further consideration, not addressed in submissions, relates to X – at an appropriate stage and manner – getting to know his siblings. For my part, that might be a little way off into the future, except perhaps for his youngest sister from Mr Hackney’s current wife. In fact, subject to the views of the counsellor, it may be that her presence in the not too distant future might provide a good foil for the current difficult dynamics to mellow somewhat.
There are some small logistical issues having regard to the localities of the parties’ residence. In my view, it would assist if some of the ‘time with’ X took place in Canberra. Among other things, it would convey to X that his Mother supports his relationship with Mr Hackney. But as with most aspects of this matter, such logistical matters should also be worked out between the parties with the assistance of a counsellor.
There are no issues raised on the documents filed regarding Ms Cadd’s ability to provide for X. No such matters relevantly arise at this juncture in relation to Mr Hackney.
The only further matter to note is that Mr Hackney is (omitted), while Ms Cadd swears in her affidavit material that X has been baptised a Catholic. He attends the local Catholic school in (omitted). The affidavit material from Ms Cadd, more generally, suggests that there are (or are likely to be) “issues” in relation to Mr Hackney and the risk of clashes concerning his (omitted) faith and X's Catholic tradition and practice.
Apart from comments made earlier in these reasons in relation to the original orders sought by Mr Hackney and their relevance to the Court considering what it showed (or failed to show) in relation to his comprehension of his parental responsibilities concerning X, there is little else that can be said concerning the matters set out in s.60CC(3).
The matters I have noted are all that can currently be gleaned from the material put before the Court so that orders can be crafted that will ensure, as prescribed by s.60B(1) and (2), and s.60CC(2), that X has a meaningful relationship with both his parents, and to the degree that it is in his best interests, to be cared for and spend time with both of his parents.
D. Conclusion
In the current circumstances of the matter, I think it is appropriate that, until further order (or otherwise by written agreement), Ms Cadd should have sole parental responsibility for X. However, it would be desirable that, in relation to major long-term issues as defined in s.4 of the Family Law Act 1975, she keep Mr Hackney informed of any significant matter affecting X.
In my view, the following orders are in X’s best interests: that for the next four months, on one weekend per month, two hours with Mr Hackney, between 5-7pm. Ms Cadd may be present at a nearby table in the café/restaurant, but no other members of the maternal family should be present.
After the completion of four months, and in the absence of any other agreement in writing between the parties, the time between X and Mr Hackney shall move to twice per month, at times and venue to be agreed.
Until further order, Mr Hackney may telephone X twice per month, on dates and times as agreed between the parties.
Both parties are restrained from speaking negatively about the other parent, and will use their best endeavours to ensure that no other person does so either.
Precise details regarding the visits (location and other matters) between X and Mr Hackney are to be agreed as between the parties, and are to be assisted in this regard by relevant counselling.
Within 21 days of the date of these orders, the parties are to attend a course of counselling with Relationships Australia (or such other counselling service as is available and agreed).
Until further order (or written agreement between the parties), I also formally restrain Ms Cadd from relocating X’s residence outside the (omitted) – Canberra region.
The matter will be adjourned for further mention or directions on 20th June 2012 at 11am.
Liberty is granted to have the matter re-listed on 14 days notice.
The Court so orders.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 10 February 2012
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