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
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…
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CaseChat Overview and Summary
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
Orders of the court
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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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