Ashworth & Ashworth - [2023] FedCFamC2F 617

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ashworth & Ashworth [2023] FedCFamC2F 617

File number(s): PAC 2182 of 2021

Judgment of: JUDGE STREET

Date of judgment: 22 June 2023

Catchwords: FAMILY LAW – PARENTING – undefended hearing – two children – parenting orders made

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Family Law Rules 2021 (Cth)

Cases cited:
A v A (1998) FLC 92-800

Cotton & Cotton (1983) FLC 91-330

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Goode v Goode [2006] FamCA136

Isles & Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Stott & Holgar [2017] FamCAFC 152

Division: Division 2 Family Law

Number of paragraphs: 58

Date of hearing: 17 March 2023

Place: Sydney

Counsel for Applicant: Mr McMartin

Solicitor for Applicant: Family Focus Legal

Respondent: Litigant in Person

Counsel for the Independent Children’s Lawyer: Mr C Sperling

Independent Children’s Lawyer: Walkden Law and Mediation
ORDERS

PAC 2182 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ASHWORTH

Applicant

AND:
MS ASHWORTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

17 MARCH 2023

THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
2.The parties have equal shared parental responsibility for the long-term care, welfare, and development of X born 2005 and Y born 2009 (“The Children”).
3.The Children live with the father.
4.The Children spend time with the mother in accordance with their wishes.
5.That the Children have telephone contact with each parent in accordance with their wishes.
6.That neither party denigrate the other party or their family within the presence or hearing of the Children or allow the Children to remain in the presence or hearing of any person who is denigrating either party or their family.
7.Subject to the ICL informing the children of the impact of the above orders, the ICL is then discharged.
8.The Court reserves its written reasons.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except…

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.

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Details

AGLC: Ashworth & Ashworth [2023] FedCFamC2F 617
Case: [2023] FedCFamC2F 617
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was tasked with determining parenting orders for the two children of the relationship, X and Y, born in 2005 and 2009 respectively. The proceedings, initiated on 26 April 2021, were set for a final hearing on 17 March 2023. The respondent mother did not comply with procedural orders and failed to appear, leading the Court to conduct the hearing as an undefended matter. The Court admitted various pieces of evidence, including affidavits, a family report, and a child inclusive conference memorandum.

The legal issues before the Court involved determining the best interests of the children, including whether equal shared parental responsibility should be granted and the living arrangements for the children. The Court considered the statutory principles and objects of the Family Law Act 1975, including the presumption of equal shared parental responsibility and the need to protect children from harm. The Court also weighed the children's views and the potential for psychological harm.

In its reasoning, the Court found that the mother's non-compliance with procedural orders and her failure to appear justified proceeding with the hearing as an undefended matter. The evidence showed a history of conflict between the parents and allegations of family violence and abuse, which the Court did not need to find in making its orders. The children's views and their emotional well-being were heavily considered, with the Court finding that imposing certain orders on the children could cause them emotional harm. The Court concluded that the children's best interests were served by granting the father equal shared parental responsibility and allowing the children to live with him while spending time with the mother according to their wishes.

The Court's final orders provided for equal shared parental responsibility, with the children living with the father and spending time with the mother in accordance with their wishes. The orders also included provisions for telephone contact and prohibited denigration of either party within the children's presence. The Independent Children's Lawyer was discharged, subject to informing the children of the impact of the orders.

Orders