Hackworth and Abani
[2012] FMCAfam 712
•19 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKWORTH & ABANI | [2012] FMCAfam 712 |
| FAMILY LAW – Parenting – no significant change in circumstances. |
| Family Law Act1975, s.60CA |
| Bondai & Bretton [2012] FamCA 429 Marsden v Winch (2010) 42 Fam LR 1 Reid & Lynch (2010) FLC ¶93-448 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR HACKWORTH |
| Respondent: | MS ABANI |
| File Number: | PAC 780 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 19 June 2012 |
| Date of Last Submission: | 19 June 2012 |
| Delivered at: | Canberra |
| Delivered on: | 19 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented Litigant (by telephone) |
| Counsel for the Respondent: | Mr R Thomas |
| Solicitors for the Respondent: | Darryl Perkins Solicitors |
ORDERS
The Application filed by the Father on 24 February 2012 be dismissed.
There be no order as to Costs.
AND IT IS NOTED THAT these orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Hackworth & Abani is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
PAC 780 of 2011
| MR HACKWORTH |
Applicant
And
| MS ABANI |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction & Procedural History
There is a significant history to this parenting matter, which concerns – now – only two (aged almost 14 and close to 10 years) of the four girls born to the relationship between the parties. Of most immediate relevance are orders made on 4th May 2011, which provided as follows:
a)The Applicant Father, Mr Hackworth, communicate with the children by way of letter only, with a letter to be sent to the children at a maximum of once every two (2) weeks;
b)The parties are at liberty to file any further application in 9 months time without constraint;
c)The matter is now finalised and will be immediately removed from the docket; and it was noted that
d)Ms Abani will not impede or prevent [Y] born [in] 2002 and [X] born [in] 1998 from contacting their Father if they so wish.
On that occasion, the Court had the benefit of an independent children’s lawyer, as well as a report from a very experienced family consultant. The consultant’s Report was formally before the Court, pursuant to the principles articulated by Warnick J in SPS & PLS.[1] The Applicant Father was present on the occasion that the May 2011 orders were made.
[1] (2008) FLC ¶93-363.
The Father filed a further parenting Application in the Parramatta Registry of the Court on 24th February 2012, supported by a very brief affidavit. The substance of that affidavit was to the effect that the Father missed his children and had not been able to spend any time with them since September 2008 when the parties separated, that the Mother was in a superior legal position because she was represented via Legal Aid, and he was not able to secure any form of legal representation. The Father also said in separate documents provided to the Court (noted below) that there are domestic violence orders in place, at the Mother’s instigation, which have prevented him from seeing the children. The Father contends that he sends letters to the children but that they are intercepted or “interfered with” by the Mother.[2] The Application was listed for hearing in Parramatta on 16th April 2012.
[2] On the Court file there is, in fact, a copy of a letter, which is undated but bears a post-mark of 6th April 2011, addressed to the Mother’s solicitor from the Father. It is said to be “Letter #15.” It contains two very brief notes, one to each daughter, [Y] and [X]. So far as I can see, there is no record that it was ever formally tendered.
In my view, it is of some moment that neither in his Application nor in his affidavit in support did Mr Hackworth refer to the orders of this Court dated 4th May 2011. Likewise, he made no mention of the Family Report of Ms L (noted below), which played no small part in relation to the May 2011 orders.
By an Application in a Case, filed on 26th March, the Mother sought to have the matter transferred to the Canberra Registry. In her affidavit in support, the Mother deposed that (a) the girls continued in their opposition to seeing, or communicating with, their Father, (b) pursuant to the May 2011 orders, the Father had not sent any mail to the children, and that this was so notwithstanding two letters from the Mother’s solicitors to the Father requesting that any letters to the children be sent via the Mother’s solicitors. The Mother confirmed that no letters had been received by the children since the May 2011 orders either directly to the family residence or via the Mother’s solicitors.
The Mother also confirmed that all of the four children continue to live with her.
By orders of Dunkley FM made on 16th April, the matter was [re]transferred to the Canberra Registry and listed on 14th May 2012. His Honour also made orders for a Response to be filed by the Respondent Mother. That Response was filed on 4th May.
On an interim basis, the Response sought orders for an updated report to ascertain the children’s views, and the appointment of an independent children’s lawyer.
On 14th May, the Mother was legally represented, but there was no appearance by or for the Father. The matter was adjourned to 19th June.
The Father filed a ‘Response to the Mother’s Response’, on 24th May, and filed a further affidavit on 5th June. In my view, the matters outlined in his affidavit are little different from those he raised in earlier material. In short, the Father protests about the Mother allegedly ‘poisoning the minds’ of the children against him, and that the children cannot know their own views because they are children. In my words, the Father sought to insist on the right to spend time and parent his children solely on the basis that he is their Father. The Father also protested that the Mother continues to interfere with the sending of mail to the children by him.
The Family Report of August 2010
As previously indicated, there was a Report on which the Court, and others (notably the ICL) relied in the making of the orders in May 2011. For more abundant caution, again relying upon the principles set out by Warnick J in SPS & PLS, the Report of Ms L, dated 12th August 2010, should be taken as admitted into evidence. It became Exhibit A.
Secondly, in the course of the hearing on 19th June, I read the following passages in open Court. In particular, I referred to paras.12-14 inclusive from the Report concerning the child [X], then paras.15 and 16 of the Report concerning the youngest child, [Y].
Next I read, in open Court, paras.17 and 18 of the Report headed “Outcome of the Conference”. Finally, I read out paras.19 and 20, as well as the very brief recommendation. For ease of reference I set out those paragraphs.
12.[X] presents as a sensitive and caring twelve year old. She sobbed through much of the interview when speaking of her father’s abusive behaviour.
13.Similar to [Z], [X] is adamant that she does not wish to spend time with her father or to communicate with him in any way. Her earliest recollection of her father is “it was my birthday party – he came home and yelled at my Mum”. [X] informs that her father blamed her mother for everything and “I always see him yelling and screaming”. She sobs bitterly when recollecting an incident when her father chased her mother around the house with a video camera to file her reaction to his abusive behaviour. [X] explains “he hurt my Mum – he always hurt my Mum – she started screaming – he’d put his hand over her mouth – she couldn’t breathe – she escaped to her room – he punched the door”. In regards to her reaction to the incident and other similar incidents, [X] informs “I was little then – I’d get scared – I’d run to my room and close the door”. She states that she felt helpless. [X] mentions “when Dad was fighting with Mum, my little sister said ‘don’t’ – he just pushed her and slapped her”.
14.[X] stresses “I don’t want anything to do with my father” and adds “usually when my father wants to speak to me on the phone, I just don’t want to talk to him”. She comments “it’s peaceful now – my Mum takes good care of us – there’s no yelling and screaming – nothing like that.”
15.[Y] presents as a quietly spoken and gentle child. She requested the presence of [Z] for her interview. [Y] is seven years old. Although she was only five years old at the time of her parents’ separation, she recalls some of the tension in the home leading up to the separation.
16.[Y]’s recollection of her father is of an insensitive and frightening parent. She states “I was afraid of him – he hit me.” Similar to her sisters, [Y], too, stresses that she has no wish to spend time with her father. She comments “if I see him, he will be mean to me again and hit me again.” She adds “I don’t want to talk to him on the phone.”
17.Ms Abani’s reaction to the feedback regarding the content of the children’s interviews was one of genuine distress. She expressed sadness and remorse that the children had been exposed to family violence over many years. Ms Abani informed that her task as a parent is to protect the children from further abuse by their father. She informed that, since the separation, the children have thrived and all four are now happy and able to concentrate on their education and other aspects of their lives.
18.Mr Hackworth’s reaction was one of frustration and disappointment. He expressed the view that the children’s perceptions have been influenced by Ms Abani. Mr Hackworth, again, mentioned the issue of child support, if he were not able to spend time with the children.
19.From the children’s perspective, their father is an insensitive and abusive parent whom they continue to be afraid. In my opinion, their concerns are genuine. It would appear that [X], in particular, continues to experience the aftermath of exposure to ongoing family violence. All three children would benefit from being reassured that their father is longer in a position to disrupt the sense of security they have been able to develop in their mother’s care since separation.
20.I remain uncertain of Mr Hackworth’s capacity to repair his relationship with the children. An attempt might be achieved by him to his daughters, providing the letters are well considered and do not have the effect of further distressing the children.
Submissions, Discussion & Resolution
The Father’s arguments were very brief. They were of a kind to which I have already referred earlier in these reasons. Indeed, he confirmed that he relied upon his affidavit material. In addition to that material, the Father contended that the allegations of abuse levelled against him by the Mother (noted, among other places, in the Family Report) were false and that she was the perpetrator of abuse and family violence.
For his part, Counsel for the Mother submitted that there was no evidence before the Court that could constitute a sufficient change in circumstances as to warrant the Court entertaining the Father’s further Application. In such a situation, Counsel sought to have the Father’s Application dismissed.
Accepting that the Family Report is now of some significant time ago compared to the application in the current matter that was filed on 24 February 2012, I am required, as a matter of course, to have regard to the principles set out in Rice & Asplund.[3] That case has, of course, been the subject of somewhat regular comment, as well as further elucidation by the Full Court many times since, not least including the Full Court decision of SPS & PLS, to which I have already referred.
[3] (1978) 6 Fam LR 570; (1979) FLC 90-725.
Among a number of critical considerations outlined in such cases is the need to ensure that, so far as properly possible, children are protected from being embroiled in ongoing litigation. Before revisiting an earlier parenting order, the Court must be satisfied that there has been a sufficient change in circumstances as to warrant the Court intervening, and in doing so, risking further and possible on-going disruption in the lives of the children. As the then Chief Justice (Evatt CJ) said: “[the Court] should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs.”[4]
[4] Ibid at p.572.
Her Honour went on to say, at the same place: “… 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.”
Evatt CJ further said (still at p.572): “It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served.”
More recent authority, such as Marsden v Winch and Reid v Lynch, as summarised by Forrest J in Bondai & Bretton,[5] confirm that the Court needs to be satisfied that there is some changed circumstances or some new factor arising, or some factor that was not disclosed at the previous hearing that would properly warrant a variation of the earlier orders. Further, the Court must assess whether the variation sought would benefit the children more than the disruption caused by further litigation. In my view, it is clear that the onus of properly establishing such change of circumstances, or the other matters noted, falls on the party who seeks to vary the existing orders.
[5] Marsden v Winch (2010) 42 Fam LR 1, Reid v Lynch (2010) FLC ¶93-448, and Bondai & Bretton [2012] FamCA 429 at [21].
I also note Warnick J’s comments from SPS, at [83], where his Honour said: “… the rule [in Rice & Asplund] may not impede hearing an application for a small alteration, which may require only a short and narrow inquiry, but may properly prevent a hearing in respect of far-reaching changes.”
In my view, the Father has provided no evidence at all that would warrant the Court entertaining his Application. As understandable as it is for him to wish to spend time with his children, of itself, that desire does not warrant a sufficient, indeed any, change in circumstances to those that prevailed at the time of the Family Report in August 2010, or at the time when the May 2011 orders were made.
Having regard to the principles to which I have referred in Rice & Asplund and SPS & PLS, and most particularly the best interests of the children (cf. s.60CA Family Law Act 1975), in my view there has been an insufficient change in circumstances to warrant any change to the orders that were made in May of last year.
In such circumstances, the application brought by Mr Hackworth must be dismissed. I do not accede to the Mother’s application for costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 20 July 2012
0
3
1