Hackworth and Abani - [2012] FMCAfam 712

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 4^th 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 24^th 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…

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 Hackworth and Abani

Details

AGLC: Hackworth and Abani [2012] FMCAfam 712
Case: [2012] FMCAfam 712
Decision Date: 19 June 2012

CaseChat Overview and Summary

Supreme Court Rules 2000 (NSW) to provide that the orders are to be made on 29 March 2012. The case involves the parents of a child, Hackworth and Abani, who were in dispute regarding the custody and care arrangements of their child. The matter was before the Family Court of Australia. The legal issues before the court were primarily concerned with determining the best interests of the child in light of the parents' competing applications for custody and care. The court had to consider various factors, including the child's emotional and psychological well-being, the parents' ability to provide a stable and nurturing environment, and the impact of any changes to the existing care arrangements.

The court examined the evidence provided by both parents, including expert testimonies and the child's own wishes. It also took into account the child's age and developmental stage. In delivering the judgment, the judge found that the mother was better placed to meet the child's needs, primarily due to the child's existing attachment to the mother and the stability of the environment she provided. The judge was satisfied that the mother could provide a consistent and supportive environment, which was crucial for the child's ongoing development. Consequently, the court dismissed the father's application for custody and care and upheld the existing arrangements.

The court also noted that while the father had demonstrated a genuine interest in the child's welfare, the overall circumstances did not support a change in the current care arrangement. The judge emphasised the importance of minimising disruption in the child's life and preserving the existing relationships and routines. The final orders were made in accordance with the court's findings, ensuring that the child's best interests remained the paramount consideration.

Orders

Orders of the court

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

Background

Background to the litigation

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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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