Aynesworth & Aynesworth
[2023] FedCFamC1F 471
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aynesworth & Aynesworth [2023] FedCFamC1F 471
File number(s): SYC 6535 of 2020 Judgment of: ALTOBELLI J Date of judgment: 14 June 2023 Catchwords: FAMILY LAW – PARENTING – Where the only remaining issue was how much time, and under what conditions, the child would spend with the father – Where there is a substantiated history of family violence against the child’s siblings and mother – Where the father did not demonstrate any insight or attitudinal change – Where frequent contact would disrupt the family unit – The child is to spend supervised time with the father four times per year. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Carter & Wilson [2023] FedCFamC1A 9
F v M [2021] EWFC 4
Helbig & Rowe and Ors [2016] FamCAFC 117
Illgen & Yike [2018] FamCA 17
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 1 First Instance Number of paragraphs: 113 Date of hearing: 9–11 January 2023, 19 April 2023 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Allen Evans Family Lawyers Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Nicole Evans Lawyers Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 6535 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AYNESWORTH
Applicant
AND: MS AYNESWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
14 June 2023
THE COURT ORDERS THAT:
1.The Respondent mother (“the mother”) have sole parental responsibility for the child, X, born 2011 (“the child”).
2.The child live with the mother.
3.The child spend time with the Applicant father (“the father”), supervised by a professional supervision agency:
(a)On the first Saturday of March each year for a period of four hours;
(b)If the father's birthday falls on a Saturday then on the father's birthday otherwise, on the first Saturday following the father's birthday each year for a period of four hours;
(c)On Father's Day each year for a period of four hours;
(d)On the first Sunday of December each year for a period of four hours; and
(e)At all other times as agreed between the mother and the father in writing.
4.To give effect to Order 3 above, within 48 hours of these orders the mother and the father will do all acts, things and sign all documents necessary to schedule a professional supervision agency to supervise the child’s time with the father.
5.The father will be responsible for any and all fees charged by the professional supervision agency to supervise his time with the child.
Restraints
6.The mother and the father are restrained from denigrating the other parent, their friends, domestic partners or families whilst they have care of the child and will remove the child from any environment in which such denigration is occurring.
7.The father is restrained from consuming alcohol beyond a blood alcohol concentration of 0.05 per cent whilst the child is in his care or within the 24 hours immediately prior to the child entering his care.
8.The father is restrained from consuming illegal drugs or drugs for which the father does not have a valid prescription whilst the child is in his care or within the 24 hours immediately prior to the child entering his care.
9.The father is restrained from harassing, molesting or stalking the mother and/or the child.
10.The father is restrained from causing or threatening to cause bodily harm to the mother and/or the child.
11.The father is restrained from yelling, shouting, swearing or using any abusive or offensive language toward the child or in his presence.
12.The father is restrained from removing or attempting to remove or procuring another person to remove the child from school.
13.The father is restrained from contacting the child via telephone or by other electronic means unless otherwise provided for in these orders.
14.The father is restrained from:
(a)Approaching the mother;
(b)Trying to find the residential address of the mother;
(c)Contacting the mother by any means except as provided for in these orders; and
(d)Being within 100 meters of the mother’s residence or her place of employment.
Communication
15.The mother and the father will communicate with each other in relation to medical emergencies, changeover or as required by these orders via the Our Family Wizard mobile telephone application. In the event that the Our Family Wizard mobile telephone application ceases to exist, the parents will communicate via email.
16.The mother will facilitate the child contacting the father at all reasonable times at the request of the child.
General
17.The mother will notify the father within six hours of an event of any significant illness or injury suffered by the child requiring admittance into hospital and will provide details of the injury, illness and/or medical treatment to the father.
18.These orders shall be taken as an authority for the child’s school to authorise the provision of information to the mother and the father, at the requesting parent’s expense about the child including, but not limited to:
(a)Reports;
(b)Invitations;
(c)Circulars; and
(d)School photograph order forms; and
(e)20.5. Notices.
19.These orders shall be taken as an authority for all the child’s treating medical practitioner(s) or allied health worker(s) to authorise such professional to provide information to the mother and the father, at the requesting parent’s expense about the child, including, but not limited to;
(a)Referrals;
(b)Treatments;
(c)Medication; and
(d)Any other information regarding medical history.
Travel
20.Pursuant to s 65Y of the Family Law Act 1975 (“the Act”), the mother is permitted to travel with the child from the Commonwealth of Australia during the times the child is in her care.
21.Pursuant to s 11(1)(b) of the Australian Passport Act 2005, the mother is permitted to travel with the child from the Commonwealth of Australia during the times the child is in her care and for such purposes, the mother is permitted to apply for the issue of a renewal of an Australian passport for the child under the provisions of s 11(4)(b)(i) of the Australian Passport Act 2005, without the father’s consent.
22.For the purpose of Order 20, the mother will serve the father with an itinerary of travel no later than four weeks before departure which is to include:
(a)Departure and return dates;
(b)Location or locations the child will be travelling to;
(c)The dates on which the child will arrive and depart each location; and
(d)Copies of certificates of travel insurance for the child.
23.The mother will retain the child’s passport and be responsible for their safe-keeping.
24.For the purposes of ss 68P and 68Q of the Act:
(a)A declaration pursuant to s 68P(l)(a) of the Act that the orders herein which provide for the child to spend time with the father, or which expressly or impliedly require or authorise the father to spend time with the child;
(b)A declaration pursuant to s 68P(2)(a) of the Act that those orders or some of them are inconsistent with an existing family violence order that is in place for the protection of the child, being an Apprehended Domestic Violence Order as varied in late 2020 (the ADVO); and
(c)Pursuant to s 68Q(l) of the Act, to the extent of any inconsistency between these orders and the provisions of the ADVO, the provisions of the ADVO are invalid.
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 in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aynesworth & Aynesworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in relation to the child, X, born 2011 and who is currently 11 years old.
BACKGROUND
The father is the applicant in this matter (“the father”) and the mother is the respondent (“the mother”). X is the youngest child of the parents who are in dispute about how much time, and under what conditions he should be spending time and communicating with the father. There are a number of associated issues including communication, the sharing of information and travel.
On the first day of the final hearing, the parties signed consent orders which provided for the mother to have sole parental responsibility for X (as well as his brother, B), and that both children live with the mother. By closing submissions the father proposed that X spend time with the father on a gradually incremental basis commencing with supervised time, but eventually leading to each alternate weekend from after school on Friday to before school on Monday, as well as school holidays and special occasions. The precise orders sought by the father are reproduced in the first schedule to these reasons.
By closing submissions, the mother’s proposal was that X spend time with the father on a supervised basis four times annually. The precise orders sought by the mother are reproduced in the second schedule to these reasons. She also sought a number of ancillary orders including restraints, communication, and sharing of information.
The Single Joint Expert Report of Ms D dated 11 November 2022 recommended as follows:
•On balance, while concerns remain for [the mother] and [X’s] siblings’ responses and emotional wellbeing, it is recommended that [X] spends time with [the father] supervised for approximately 1 to 2 times each month, incorporating time spent around occasions of significance such as birthdays, Christmas, Father’s Day.
•Given the length of time passed, the complexities and allegations, this assessment is unable to extrapolate further recommendations beyond supervised parenting arrangements.
•[The father] engage in therapy as per evaluation.
•[The mother] continues to engage in therapy as per evaluation.
•[Mr C] and [B] continue to engage in therapy as per evaluation.
•Given this report be released in a structured, supported context.
•[The father] and [the mother] avail themselves of the Court based Family Violence Support Service.
By the time of closing submissions the Independent Children’s Lawyer also proposed that X spend time with the father on a supervised basis, but much more frequently than the mother proposed, that is, time during the day up to twice per month. Although, in closing submissions, the Independent Children’s Lawyer said they would leave the frequency of X’s contact with the father in the Court’s hands. The minute is reproduced in the third schedule to these reasons.
The father is currently 51 years old, describes himself as a Manager, and lives in Sydney. The mother is 49 years old, describes herself as working in the beauty sector, and also resides in Sydney together with X’s two older brothers.
The parties started living together in 2001 and married in 2004. They separated on 12 March 2016 and were divorced in 2021.
X has not spent time with his father since mid-2019.
X’s oldest brother, Mr C, is 20 years old. His other brother, B is 17 years old. The relationship between Mr C and B and the father has broken down.
The mother alleges that her relationship with the father was characterised by family violence as defined in the Family Law Act 1975 (Cth) (“the Act”). The evidence indicates that in early 2020 the father was convicted of two offences against Mr C and one offence against the mother. The father appealed this conviction, and while the appeal was dismissed in late 2020, his sentences were varied to a conditional release order without conviction and two community corrections orders. In late 2021 the father was convicted of two offences against B and he was sentenced with a conditional release order. On the same date the father was also convicted of contravening an Apprehended Domestic Violence Order (“ADVO”) protecting B, receiving the sentence of a conditional release order and being ordered to complete the Relationships Australia Men’s Behaviour Change Program.
B, Mr C and the mother are all receiving psychiatric treatment which is associated with their relationship with the father, the family violence that they experienced or were exposed to, and family dynamics generally.
The two older children, B and Mr C, have experienced mental health and behavioural difficulties throughout their lives. B has suffered from depression, anxiety and substance abuse issues, and has had suicidal ideations and has self-harmed. B is a “school refuser” and has missed a large amount of secondary school, and has also been arrested and charged with offences. Mr C has also suffered with his mental health, including suicidal ideation, as well as substance abuse issues and low school attendance. They have both run away from home on multiple occasions. Both B and Mr C now present as “highly functioning individuals” (Family Report, paragraph 123). B has not attended on psychiatric treatment since he attained an injury in late 2022, but Mr C continues to attend.
X has not had difficulties with his mental health which require any professional support. However, the mother deposed in her affidavit that throughout 2019 X became upset, quiet and withdrawn, lost his appetite and stopped enjoying school.
The current operative interim order was made on 12 February 2021. By consent the parents agreed that the mother would have sole parental responsibility, the children would live with her, and the father would be permitted to send cards and gifts to the children on special occasions.
On the first day of the hearing the parents entered into consent orders dealing with B and a number of non-contentious aspects about X. These orders provided for the mother to have sole parental responsibility for X and B and for them to live with the mother. It was agreed that B would spend time and communicate with the father in accordance with his wishes. Both parties were restrained from denigrating the other or discussing proceedings with the children, as well as from being within 100 metres of the other’s residence. Each party was to notify the other in the event of any significant injury or illness of B or X. Finally, each party was authorised to access any reports, referrals, notices and other documents relating to the children’s schooling and medical treatment.
An experienced Independent Children’s Lawyer represents X. At the hearing of this matter both parents and the Independent Children’s Lawyer were represented by competent lawyers and experienced counsel.
A Single Joint Expert Report was prepared by Ms D dated 11 November 2022.
The issues are complex, and the case was difficult to decide. The family violence perpetrated by the father against the mother and the children was the predominant issue. Several important issues flowed from this, including whether the father presented an ongoing risk, the extent to which he had gained insight, the past, current and continuing impacts of this violence on the mother and the children, and the impact on the mother, Mr C and B of X spending time with the father, as well as the impact of this on X.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ, Bennett and Campton JJ in Carter & Wilson [2023] FedCFamC1A 9 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary depending on the context (Carter & Wilson at [71]). Therefore findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
THE EVIDENCE BEFORE THE COURT
In support of his case, the father relied upon:
(a)Further Amended Initiating Application filed 16 December 2022;
(b)His affidavit filed 23 December 2022; and
(c)Various documents tendered during the proceedings, marked as Exhibits A1–A2.
In support of her case, the mother relied upon:
(a)Further Amended Response to Initiating Application filed 21 December 2022;
(b)Notice of Child Abuse, Family Violence or Risk filed 6 August 2020;
(c)Her affidavit filed 23 December 2022; and
(d)Various documents tendered during the proceedings, marked as Exhibits R1–R16.
In support of their case, the Independent Children’s Lawyer relied upon:
(a)Child Inclusive Conference Memorandum by Family Consultant Ms E dated 3 May 2021;
(b)Single Expert Report by Ms D dated 11 November 2022; and
(c)Various documents tendered during the proceedings, marked as Exhibits ICL1–ICL3.
Following the proceedings, the Court tendered the following document:
(a)The father’s affidavit filed 22 July 2021, marked as Exhibit C1.
CREDIT ISSUES
It is regrettably necessary to make credit findings in this case. In substance, a core element of the father’s case was that whilst he had perpetrated family violence in the past, he had gained insight into his past behaviour and its impacts on the family. For example, he had engaged with services to assist him to better understand his behaviour and its impact. Implicit in his case was a reassurance to the Court that he was not a risk of harm to X. Accordingly, it was entirely appropriate for there to be a robust testing of the father’s evidence in cross-examination in order for the Court to better understand and discern the extent to which the father had in fact changed, and gained insight.
The Court found the father to be an unimpressive witness who was frequently unresponsive to the questions asked in cross-examination, often exaggerated or minimised as the need arose, gave inconsistent evidence, was sometimes evasive, often selective and therefore manipulative in the presentation of his evidence, and basically unconvincing as to both the substance of parts of his evidence and the manner in which he presented it. Some of the father’s evidence will be discussed in much more detail below, and examples of the Court’s concern about the father’s evidence will become apparent. For present purposes, just one example will suffice. At page 45 of the transcript of 10 January 2023 the father was cross-examined about evidence that he gave in the Local Court during the course of ADVO proceedings against him. The relevant event will be explored in greater detail in due course. The issue was the misleading evidence he had given to that Court about his communication with the mother in early 2019. Counsel for the mother quite properly put it to the father that he had lied to the Local Court in respect of his communication with the mother. The father’s answer was as follows: “I don’t think I lied. I think there’s a miscommunication about the specifics” (Transcript 10 January 2023, p. 45 lines 10–11). The father showed a remarkable capacity to creatively interpret past events in a manner that was favourable to him but which was devoid of any factual basis.
DECONSTRUCTION OF THE FATHER’S CASE
As foreshadowed above, the father’s case depended on being able to satisfy the Court that notwithstanding his previous history of violence towards members of the family, he had rehabilitated himself. As Ms D observed in her report at paragraph 146: “Ultimately it is through his behaviour that [Mr Aynesworth’s] attitudinal changes will be evident”. With much discernment, Ms D correctly observed that the focus for the father should be on attitudinal changes which are manifested through his behaviour. In her report at paragraph 150, for example, she acknowledged the father’s “…willingness and significant effort to engage in behaviour change”. There can be no doubt, therefore, that as at the date of the release of the report the father knew, or should reasonably have known, what he had to do in in terms of demonstrating to the Court the attitudinal changes which Ms D referred to.
At paragraph 265 of his trial affidavit filed 4 January 2023 the father explains how, in the last two to three years, he has been receiving assistance from counselling to gain self-awareness and attending courses to gain awareness about the issues of family violence. At paragraphs 266–268 he provides detailed evidence in support of his assertion. For example, he refers to having learnt a great deal about: developing self-awareness and empathy for others; reaching out for help with mental well-being and to speak up against violence against women and/or children; recognising and acknowledging the experience of victims; and letting the children know that they are safe by being in control of his own behaviour and actions. He explains how he has had plenty of time to analyse and reflect on past events and sought the opportunity to communicate to the children that he recognised that his behaviour was completely inexcusable and that he deeply regretted the impact and outcomes for the children and his family as a result of his actions. He also deposes that he has engaged in counselling with a psychologist and has been provided information and advice on how he can better manage his emotions and feelings to help retain what he considers his usual calm demeanour when faced with stressful situations.
The father’s claim, therefore, is that this assistance from counselling was obtained in the two to three year period before he filed his affidavit on 4 January 2023. This means that the earliest that the counselling commenced was early 2020. The evidence indicates that the father completed the “Parenting After Separation – Focus on Kids” program in mid-2021. The evidence also suggests that the father completed a Men’s Behaviour Change Program which commenced in late 2021.
In short, the difficulty with the father’s evidence in this regard is that it is inconsistent with the facts. The requisite attitudinal change is not manifested in the father’s behaviour.
In cross-examination the father acknowledged that he had not enrolled in a specific anger management course but claimed that it was covered in the Men’s Behaviour Change program he had undertaken. Whilst he insisted that he did not currently have difficulty with anger, he accepted that he has in previous years, ultimately conceding the period 2016–2019. When the father was challenged about his failure to engage in specific anger management education, he intimated that it was included in the therapy undertaken with his psychologist Mr F. This is clearly not the case as the documents produced on subpoena indicated. Moreover, he represented to Ms D during an interview that he had consulted Mr F for six sessions when in cross-examination he acknowledged that it was only three sessions. The father’s ability to deal with anger issues was an important issue in this case. The fear held by the mother and elder children about the father’s anger in the past was clear from the evidence. The father needed to clearly address this in his evidence. He did not. Instead he mislead the Court about what efforts he had actually undertaken to address the anger management issue.
On 17 September 2020 the father commenced the present proceedings and in his application he stated that he had been falsely accused and wrongly convicted of the assault of his son Mr C. The circumstances of this assault will be explored in due course. The father was not only convicted, but he also unsuccessfully appealed this conviction. His belief in late 2020 occurs during the period when the father asserts that he commenced counselling. The Court notes that the father told Ms D that he commenced counselling in 2019, but he conceded in cross‑examination that he got the date wrong and it was actually 2021. His belief that he had been falsely accused and wrongly convicted had in fact been previously expressed in mid-2020 at a conciliation conference, which the father conceded to in cross-examination. However, he also said that he used the incorrect terminology, and what he really meant was that he had a credible defence (Transcript 9 January 2023, p. 8). Although, this contradicts what the father expressed in a letter to a Registrar on 5 May 2020 (attached to the mother’s affidavit filed 14 December 2022) regarding a conciliation conference which was scheduled the next day, where he stated “…the entirely fabricated […] charge that I was found guilty of at [the] Local Court is currently under review…therefore any claims made under the false allegations of domestic violence perpetrated by myself upon my wife will be strongly defended”.
Also in mid-2020 the father accused Dr G, who was the treating psychiatrist for the mother, Mr C and B, of propagating false allegations of violence against him. The email correspondence between Dr G and the father was in evidence. In cross-examination the father denied that this correspondence was threatening. The Court finds that the correspondence is palpably threatening, and indeed manifests the father’s seething anger. Perhaps the more interesting aspect of the father’s denial that his emails were threatening is that counsel specifically asked him if he maintained that view even after he had completed the courses to which he had referred in his evidence. Initially, he said no. Then he prevaricated. Ultimately, he conceded that his words could be construed as a threat. He conceded that he wrote an angry email. The Court finds that on the day of that correspondence the father was, at the very least, struggling to develop the self-awareness and empathy for others that he referred to in his affidavit.
In mid-2018 B went to live with the father for a few months. He was attending school at H School and it seems common ground between the parents that he was experiencing bullying. Quite appropriately, the father raised this with the school. At paragraph 128 of his affidavit he refers to a meeting with the head of the senior school during which he complained “angrily” about the schools inaction. Oddly, and notwithstanding the father’s own use of the word “angrily”, he denied in cross-examination that he was angry, insisting instead that he was forceful. The father’s denial is also odd given that he admits that he was angry in 2018. The mother’s evidence is that the father was so angry that the school almost called security. The father insisted, however, that it was a “heated conversation” (Transcript 9 January 2023, p. 39 line 35). It is possible that the father’s reluctance to make what was clearly a sensible concession having regard to his own evidence was related to the fact that B was present during at least part of that meeting including, in all likelihood the Court finds, when the father was angry. Thus not just the teacher, but B as well, were exposed to the father’s anger. The father’s attempt in cross-examination to reconceptualise his anger into a form of contextually justified assertiveness is incongruous with his evidence that as a result of the courses he has undertaken he is better able to recognise and acknowledge the experience of victims of violence, including understanding that his actions violate the rights and safety of the victim.
The father’s evidence about the period that B lived with him can be described as sanitised, to say the least. The father portrays B as a normal teenage boy whose behaviour he had little trouble in managing, implicitly in strong contrast to the mother. This is the same period that B was being bullied at school. He was also suspended from school, indeed a number of times. On one occasion it was for imitating an inappropriate act in front of one of the teachers. On another occasion it was because he took contraband to school. In cross-examination the father characterised this as teenagers doing “stupid stuff” (Transcript 9 January 2023, p. 40 line 33). The father accepted that all of this occurred at the same time as the mother communicating with him her concerns about B’s declining mental health.
In mid-2018, whilst B was in the father’s care, a dispute occurred between the parents about the family dog. B wanted to see his dog, who lived at the mother’s home. The mother, who had concerns about the father’s cruelty towards the dog based on what the children had told her, would not allow the dog to go into the father’s care but suggested an alternative of spending time at a local park. The argument between the parents became ugly, with both asserting that the other physically assaulted them. The father denies any form of mistreatment of the dog. The father went to the police to report the alleged assault. He also rang B. The transcript of the cross-examination on this issue bears reproduction:
And you told [B], when you spoke to him, that it was the mother’s fault that he couldn’t see [the dog]?---I told him what the situation was and the options available.
And you – did you tell [B] your version of events in terms of the physical altercation?---Possibly, yes.
And why would you have done that?---Why would I have done that? I was upset, I guess.
And so you thought it was appropriate then to tell a mentally fragile young teenager about that at that time?---I actually can’t confirm that I did actually tell him. I think I may have done but I couldn’t confirm that I did tell him.
And did you tell [Mr C] about that, your version of events?---I don’t remember.
You don’t remember?---No.
Do you recall - - -?---Again, we’re talking about a situation that occurred five years ago.
Now, it’s the case that [Mr C] witnessed you pushing the mother; do you recall that?---No.
And [Mr C] asked you about the incident or you told him about it. Do you recall a conversation with [Mr C] about this event after it occurred?---No, I don’t. I don’t remember a specific conversation with him about it, no.
Do you recall telling [Mr C] about what it is that you allege that the mother had done?---I may have done, yes.
I will just show you a text message?---Thank you.
You see that’s a text message from [Mr C] to you, dated [mid-2018]?---Yes.
And you will see that you say:
Not sure what you think you did or didn’t see but your mum attacked me in the street, hit me in the head with her key several times, punched me several times and tried to stop me leaving. That’s basic assault and domestic violence. If I had done that to hey –
and I assume that’s supposed to be a typo, that’s - - -?---“Her”.
- - - supposed to be “her” - - -?---Yes.
Continuing:
- - - I would be in jail by now.
Do you now recall sending - - -?---Yes, I do.
- - - a text message to [Mr C] about that?---Yes.
And [Mr C], at this point, would have been about […] 14 years old?---In 2018, no he was older than that.
(Transcript 10 January 2023, p. 9 lines 37–45 to p. 10 lines 1–46)
Transcript 10 January 2023, page 11, lines 1–8 also bears reproduction:
Sorry, about […] 16 years old?--- […] 16, yes.
Now, why it is that you felt it appropriate to tell your son that version of events via text message?---Why?
Why?---He wanted to know what had happened.
There’s a text message above that says you called. And then afterwards, without prompting, you set out this version of events; you would agree with me?---Yes.
This event, and the father’s subsequent actions and recollection demonstrate a lack of concern and insight about how this could have affected the children, especially Mr C. It was entirely inappropriate for the father to describe the incident in such a way, unprompted, to his teenage child who was already struggling mentally.
These events form the backdrop for the next event. At home, B sent a text message to his au pair to the effect that he was feeling suicidal. Whilst the father was at the police station reporting the alleged assault, the police attended the father’s home and conveyed B by ambulance to the J Hospital for a mental health assessment. In cross-examination the father explained that B had not told him that he was feeling suicidal.
It should be noted that B took contraband to school just days after his mental health admission. The father also agreed in cross-examination that notwithstanding the events depicted above, just a few days after B’s admission, he once again asked the mother to allow the dog to come to his house.
The father acknowledged that his evidence does not refer to his telephone calls to B and his brother, B’s suspensions, or his mental health admission. The Court regards this is important evidence within the father’s personal knowledge that should have been disclosed. The Court infers that disclosure would not have suited the father’s narrative.
During the time that B lived with the father, the father deposed to experiencing pressure from the mother to return B to her care. The mother said that she was concerned about B’s mental health, but the father characterised the reason for wanting B back to be so that he could be reunited with his brothers. In cross-examination, when it was suggested to the father that B was in fact experiencing mental health difficulties, he said “I don’t really know” (Transcript 10 January 2023, p. 4 line 14). The father accepted that he and the mother were in constant text communication about B’s behaviour, and they were both concerned about his anxiety, and about behavioural issues at school. The father agreed that the mother was concerned that B should not be left alone, particularly after school before a parent returned home from work. He managed this by having B sometimes come around to his office. He also acknowledged, however, that B did not always do what the father told him. When it was suggested by counsel that B’s mental health was deteriorating during this period, the father acknowledged that B “was up and down” (Transcript 10 January 2023, p. 6 line 8).
It seems common ground that B returned to the mother’s care in late 2018. The circumstances of this are in contention. The father says at paragraph 131 of his affidavit that he packed B’s things, told B that he was taking him home, and did so. When he left B at the mother’s home “…he was distraught – crying, shouting and loudly objecting to me…” leaving him there. In cross-examination, however, he conceded that B’s return was part of an agreed course of action with the mother which was implemented by him. He agreed that, at that time, the arrangement was unsuitable, that B’s behaviours and choices were unacceptable, and he needed more structures and boundaries which the mother’s home would provide. There was an incident in the mother’s home that day. She offered B a glass of water, but B slapped the glass out of the mother’s hand. In her affidavit at paragraph 67 the mother alleges that the father then grabbed B, and threw him onto the lounge. B began to cry, and the father slapped B across the face. In his affidavit the father says at paragraph 156 that he intended to smack B on the upper arm, but as B was thrashing around and swinging punches and kicks at him, he accidentally slapped his face. The father says B’s behaviour immediately ceased. He categorically denied picking B up and throwing him on the sofa.
In cross-examination the father agreed that, at this time, B weighed about 30 kilograms. He agreed that he was charged with assaulting B in relation to this incident and pleaded guilty. The father contended that he did not want to put B through the pain or anxiety of cross‑examination. The father was shown the New South Wales Police Facts Sheet relating to this incident. When cross-examined, it was completely disingenuous of the father to seek to infer that because he did not recognise the signature on the document it was not his. He certainly accepted that it was the fact sheet relevant to the events involving B. The document refers to two charges. The Court finds that it is the relevant fact sheet and that the father signed the same signifying that he agreed to the facts. The slapping of B on the side of the face is admitted by the father. He admitted that the slap was loud enough to be heard from down the hallway. Mr C also gave a statement as he was a witness to this incident. He stated that there was a big red mark on the side of B’s face. In cross-examination the father did not deny this. Indeed, referring to the slap, he said: “… it stopped him from acting the way he was acting” (Transcript 10 January 2023, p. 24 lines 5–6). When counsel asked him whether he felt that was the most appropriate way to physically discipline a 30 kilogram child the father responded: “…. at that point, yes” (Transcript 10 January 2023, p. 24 line 14). The father’s evidence reflects very poorly on him. It suggests an end-justifies-the-means attitude. His questioning on this issue was an opportunity for the father to reflect on the inappropriateness of his actions and manifest insight and attitudinal change. None of this was apparent.
In cross-examination the father was firmly of the view that there was never any physical violence perpetrated on the mother during their relationship. This is inconsistent with the mother’s evidence corroborated, for example, by a COPS entry in mid-2018 which records the mother’s allegation that the father pushed her during an argument about the family dog. The father denies this, but such are the concerns that this Court has about the father’s evidence that the Court prefers the mother’s evidence about violence, where it is inconsistent with that of the father. It must be borne in mind that there is uncontested and incontrovertible evidence about the father’s physical violence towards the children, B and Mr C. It is entirely plausible that the father was also physically violent towards the mother. The Court acknowledges, however, that in cross-examination the father did acknowledge the perpetration of other types of violence including shouting and using his physical presence to intimidate. It is this Court’s experience that the gap between using physical presence to intimidate, and physical violence, is but a tiny crack and not a crevice. The failure to acknowledge this stands strangely inconsistent with the father’s assertions about gaining self-awareness about issues of family violence.
The father’s propensity to exaggerate in his evidence is problematic and is manifested in the following incident. At paragraphs 112–114 of his affidavit he deposes to an event in mid-2019 when X was living with him, and was in bed. The father says that a few hours later X asked to call his mother, and that they did so in a conversation lasting about 10 minutes. He heard X tell his mother that he wanted to come home. The father spoke with the mother and disagreed that he should come home. Ultimately, the father agreed that the mother could come and collect X, and she did so. This was the last occasion that the father either saw or spoke to X. The father presents this event rather innocuously. In cross-examination, when asked whether it was an accurate depiction of what had occurred, he explained that it was a brief depiction, that there might have been finer details, but what he presented “were the nuts and bolts of it” (Transcript 9 January 2023, p. 14 line 8). What transpired from cross-examination, however, is that he clearly exaggerated a number of aspects of the event. In cross-examination he implied that the telephone call between X and the mother was out of the norm, when in fact it was quite usual, as he himself deposes. He exaggerated the length of the telephone conversation between X and the mother. He exaggerated the time of night when the conversation was occurring – it was in fact relatively early in the evening, and not “…in the middle of the night” as he had deposed in his affidavit of 22 July 2021. Moreover, in this last mentioned affidavit he deposed to hearing the mother, in effect, inciting X so that he would want to come home. There are clear inconsistencies between the father’s account of the same incident between his trial affidavit filed 4 January 2023 and that of 22 July 2021. In cross-examination the father agreed that he was suspicious of the mother in that she had incited X to return home. He further agreed that his suspicion for the mother continued after completing the Taking Responsibility course. The Court finds that even in relation to a relatively innocuous event, the father’s evidence was unreliable.
Another curious but disconcerting issue that arises from the above event is that when the father told Ms D about it in the course of the report interviews, he said that the mother had been consuming alcohol that night, an assertion that does not appear in his affidavits. He agreed that his Notice of Risk filed 17 September 2020, at the time of commencing these proceedings, also contained an assertion that the mother consumed an abnormal amount of alcohol. He also agreed that his affidavit refers to the mother’s illicit substance use. He ultimately accepted the reality that after separation he had no concerns about the mother being the primary carer of the children because that was what in fact occurred. From the Court’s perspective the father’s actions are a form of victim blaming, a matter which he claims to have learnt to eschew at paragraph 266c of his affidavit.
The father gives evidence at paragraphs 115 onwards of his trial affidavit under the heading “[Ms Aynesworth’s] difficulties managing [Mr C] and [B]”. The issue for the Court here is how the father frames his evidence in this recent affidavit, and whether it reflects the father’s attitudinal changes claimed by him. It does not. In cross-examination he conceded that both parents had difficulties managing the oldest boys during the relevant period. Whilst the father denied in cross-examination that he was suggesting that he was not having difficulties managing the children’s behaviour when they were with him, that is a reasonable inference from his evidence.
Indeed, the evidence establishes that some highly traumatic events occurred involving the children whilst they were in the father’s care. For example, the father agreed that in 2017 there was an incident when he was so angry with B after B had poured hot chocolate over X, that he called him a “little shit” (Transcript 9 January 2023, p. 29 line 24). He agreed that B’s mental health struggles commenced that year. B was about 12 years old at the time. Another example is the “walk of shame” incident. The mother deposes at paragraph 53 of her affidavit filed 24 December 2022 that in mid-2017 B approached her at home and asked: “Mum, what does the walk of shame mean?”. B then explained to his mother that his father had said that to X and B, specifically referring to the mother. The mother explains at paragraph 54 of her affidavit that she felt humiliated and shamed.
To the father’s credit, in cross-examination he immediately acknowledged that it was a “…very ill advised thing to say….I was mortified by that… when I found out” (Transcript 9 January 2023, p. 30 line 47 to p. 31 line 6). When the mother raised the issue with him in an email the father acknowledged that it was inappropriate and apologised. However, and notwithstanding his feelings, there is no reference to this incident in his affidavit. He did not mention it to Ms D. The incident occurred at a time when both parents were re-partnering or making tentative steps in that regard. It must have been a particularly vulnerable time for the children. The mother, in her email to the father, reasonably and rationally points out that the comment implied that she was doing something wrong, and that she was promiscuous. It is notable that the father refers to shame at paragraph 266c of his affidavit in the context of his learnings from the courses he has taken. He refers to: “… recognising the stages of shame that we put ourselves through in order to cope with the feelings we experience having used violence…”. The Court finds it curious that the father claims an understanding of the role of shame in his life, but could not acknowledge it in his evidence in the context of the mother. It was a shameful episode for the father, and he missed a powerful opportunity to manifest his understanding and insight by disclosing this episode in his evidence. He did not. It did not suit his narrative. This is a poignant omission on the father’s part, particularly when at paragraph 266c he claims to recognise the stages of shame including “… turning things around to suit the narrative”.
At times the father was both misleading and manipulative in his evidence, often when there was no forensic benefit in the present case to do so. For example, his depiction of the sizes of the children in relation to the mother and himself was plainly misleading. For example, at paragraph 166 of his affidavit, in the context of expressing increasing concern for the mother about the children’s behaviour, he says that by age 11 Mr C was bigger than the mother, and by age 15 he was bigger than the father. Counsel suggested to the father that he gave the same evidence in the Local Court in the context of the charge relating to Mr C, and the assertion was that the father was acting in self-defence. When presented with photos of Mr C when he was aged 11, however, he quickly retracted his evidence acknowledging that he had made a “mistake” and “an incorrect assumption” (Transcript 9 January 2023, p. 33 line 47 to p. 34 line 8). With respect to the father, it was so clear that his evidence was plainly wrong that it beggars belief that this evidence found its way into his affidavit unintentionally. The father knew that his self-defence argument was rejected in the Local Court. There must have been a forensic purpose for the inclusion of this evidence in the present proceedings. The Court finds that it was another attempt by the father to reconceptualise his violence towards Mr C in particular. It was an attempt to minimise the nature of the violence he perpetrated and turn “things around to suit the narrative”.
The mother alleged, and the father denied, that the father had mistreated the family dog. In the mother’s Notice of Risk filed 6 August 2020 she asserts that in late 2017 X visited the father with the family dog. X reported that the father tied up the dog, beat the dog in front of X, and told X not to console the dog whimpering. However, in her affidavit at paragraph 68 she states that this event occurred in late 2018 and X told her: “…Dad tied [the dog] up and hit her over and over. [The dog] was so hurt and distressed. She was whimpering and crying Mum! He then told me to not go to her and to leave her alone...”. The mother discusses with the father Mr C and X’s allegations of the father’s violence against the dog in text messages dated mid-2018. Therefore, it is more likely that this event occurred in 2018 rather than 2017. The mother also based her allegations on what Mr C and X had told her. In text messages between the mother and the father from mid-2018 the mother stated that “[Mr C] and [X] are both telling me. I’ve discussed it at length with both of them and they are both telling me the same story”. The father was categorical in his denial: “I’ve never beaten or abused the dog…” (Transcript 10 January 2023, p. 15 line 39). The oldest child Mr C, in his witness statement dated mid-2021 given to police when he was 18 years old in the context of the criminal charges against the father for assaulting B, refers to the father being overly aggressive towards the dog. When asked whether Mr C was lying, the father explained that, at most, Mr C may have seen him smack the dog on the bum if she had done something wrong. It is not possible to make a positive finding that the father mistreated the family dog. The evidence clearly establishes that the father was violent towards both Mr C and B and, the Court is satisfied, to the mother as well. Given the Court’s reservations about the credibility of the father, his propensity to exaggerate, minimise, and reconceptualise past events to suit his narrative, the Court is satisfied that it is not out of the question that he mistreated the family dog, but makes no positive finding.
In early 2019 there was an incident where Mr C and B went missing. The father deals with this from paragraph 132 of his affidavit. He says that he spent the day with his then girlfriend, including staying overnight at her apartment, and that he did not look at his phone during the day. He says that his phone ran out of battery in the evening, and that he charged it overnight at his girlfriend’s place. At paragraph 133 he explains that on waking up in the morning and turning on his phone he discovered many missed calls from the mother, Mr C and B, and the au pair. In the next paragraph he explains that he “…rushed home on hearing those messages…” arriving there between 7.00 am and 7.30 am. He discovered Mr C and B asleep at his apartment.
In cross-examination, however, the father admitted that during the previous day he and the mother had a couple of phone calls about the behaviour of Mr C and B. When challenged about his evidence in relation to turning off the phone he clarified that he had a few phone calls before going out for lunch, a few missed calls whilst at lunch, but then his phone died. By this stage, the inconsistencies between the father’s oral and affirmed evidence were becoming apparent. When pressed, he further admitted that notwithstanding what he had just said, there may have been further conversations with the mother during the afternoon. He explained, however, that: “I was at lunch with my girlfriend at the time. There was a couple of calls. I wasn’t paying a great deal of attention” (Transcript 10 January 2023, p. 25 lines 34–35). He conceded that the evidence in his affidavit was not correct. Counsel confronted the father suggesting that in fact paragraph 132 completely misrepresented what occurred that day with a view to presenting the father in a positive light. The father replied: “No. I just – I think I just generalised what – my recollection” (Transcript 10 January 2023, p 26 line 16). At this point the Court observed the father’s defensive demeanour to be one of discomfort.
The transcript of the following questions and answers is revealing:
The reality is – is that you had a series of discussions with the mother on that day and she was imploring you to help her find your eldest children. That’s correct, isn’t it?---Not that I recall, no. I – I – look, it’s – it’s a hazy day. I don’t recall exactly what the conversation was.
And as the day went on, you became less responsive to the mother’s concerns in respect of your eldest children’s behaviour and where they were?---No. They were with her on that particular day. They were living with her. That wasn’t my day with them. I was doing my own thing.
So was it the case that if the kids weren’t with you on the day, that you were not there to assist the mother – it was her problem?---I was – I was doing my own thing that day.
(Transcript 10 January 2023, p. 26 lines 18–30)
That the father’s evidence was misleading is perhaps the least of his worries.
The father was then confronted with his text message exchange with the mother throughout that day including, the Court finds, at a time when he contended that his phone was dead. Indeed the text message exchange manifests the mother’s deep concerns about B’s behavioural issues including experimenting with illicit substances, possible drug dealing, and the risk that he would end up in foster care. These messages provide a context and framework within which to examine and try to understand the father’s inaction on that day.
At paragraphs 135–136 of his affidavit the father describes the conversations he had with Mr C and B on that date in early 2019, after they woke up. He explains that his knowledge about the events that led to Mr C and B coming to his home is based on what the boys told him, as well as text messages he had received from the au pair.
The father was cross-examined about his text message exchange with the au pair. The Court concludes that this exchange reveals that the father’s main interest was seeking to attribute fault to the mother, rather than concern about what was, on any measure, unacceptable behaviour by the children directed towards the mother. Indeed, the au pair emerges from the text message exchange as the voice of objectivity and reason. For all practical purposes, the au pair’s account corroborates the mother’s evidence about what took place.
The father’s attitude about this event is highly problematic. Despite his denials, the Court finds that his view was that whatever problem the mother was having with the children, it was her problem, not his. In all likelihood, the father was discounting and minimising the mother’s frantic messages to him. Another possibility was that he was simply ignoring them.
This incident is yet another example of the father’s seemingly remarkable capacity to provide incomplete, misleading and manipulative evidence to suit his narrative. The father was given many opportunities in cross-examination about this event to manifest some of the attitudinal change upon which his case is founded. He took none of those opportunities. The self-awareness and empathy for others, the awareness of turning things around to suit the narrative, and the analysis and self-reflection of which the father deposes at paragraphs 266–267 of his affidavit were all singularly absent.
Objectively, the behaviour of the children was, at times, very difficult for both parents to manage. The father’s express and implied criticism of the mother’s handling of their behaviour has already been noted. The mother was critical of the methods used by the father to manage Mr C and B’s behaviour when they were with him, particularly in terms of escalation. The father’s evidence was that the methods he used did not escalate the children’s behaviour. In cross-examination the father agreed that these methods included, for example, turning off the hot water when Mr C was taking too long in the shower, and turning off the Wi-Fi when he was sitting on the toilet for too long.
In early 2019 the boys were staying with their father. There was an argument between the father and Mr C. Mr C was kicking chairs, and fronting up to the father. The father agreed that his response was: “I stood my ground and told him that I had no hesitation in hitting him back if he hit me” (Transcript 10 January 2023, p. 39 line 17). Counsel explored with the father how his action could be reconciled with not escalating Mr C’s behaviour. The father acknowledged that in specific circumstances it might be possible that his actions escalated the children’s behaviour. He agreed that date may be an example of that. He agreed that it could be considered a physical assault. He accepted that, in 2019, he would not walk away and he would not try other attempts to discipline the child. His response would be to physically hit him. The Court finds that in 2019 the father was a stern, physical disciplinarian of his oldest boys. He would fight fire with fire if the need arose.
Cross-examination then moved to events in early and mid-2019.
The mother’s evidence about these events is found at paragraph 77–81 of her affidavit. In early 2019 B told the mother about an argument that occurred at the father’s house when the father grabbed B’s hand, which was injured, and tried to pull him from the room, causing further injury to the hand. Also in early 2019, Mr C told the mother about another incident between the father and him:
“Dad got in my face and said ‘Stop being a fucking idiot’. I told him to ‘fuck off’. Dad then pinned me against a wall and slapped me with an open hand. He then punched me […]. [B] was there. When I fell to the ground after being hit Dad said, ‘get up, you can’t even take a punch, you pussy’.”
The mother describes an event in mid-2019 when Mr C and the father were fighting, and she was physically trying to keep them apart, where at one point the father: “… launched a punch over my shoulder hitting [Mr C]”. The Court accepts the mother’s evidence about these events.
The father was charged and convicted of assaulting Mr C. As previously noted, the Court rejected his argument about self-defence. His appeal was unsuccessful. He opposed the extension of an ADVO that was in place to protect the mother and the children.
He agreed that as at late 2020 he still held the view that the allegations against him were false, and that it was only in the last 18 months (before he gave evidence) that he gained insight about the inappropriateness of his actions. Of course, the Court notes, the father’s own evidence is that it was in the last two to three years that he has been receiving assistance from counselling to gain self-awareness and attending courses to gain awareness about the issues of family violence. One of these statements cannot be true.
Counsel suggested to the father that his escalation of the children’s behaviour by his aggressive confrontation of them was in fact a pattern of behaviour occurring when he could not control the children. The father agreed that that was the case in 2019. Like so much of the father’s evidence in relation to critical events that did not accord with the narrative that he now presents to the Court, his recital of facts was selective and minimised the ferocity of his own actions. The mother and the children are better historians than the father in relation to the violence they experienced from him.
The intensity of the father’s violence at this stage must have been frightening for the mother and the children. It was an unrestrained violence. The language he used with the boys was offensive and demeaning. The father agreed that he had an anger problem at the time. His failure to engage in a course that dealt specifically with anger management is very difficult to understand in the context of such explicit evidence about family violence. The father’s actions clearly escalated the children’s behaviour. B and Mr C’s preference not to have time with the father is an appropriate, proportionate and realistic response to his historical behaviour towards them. It is hardly surprising that the boys would have concerns about the father spending time with X.
Another significant event occurred in mid-2019. It is common ground between the parents that the father arrived at the mother’s home to return X and a conversation about money and child support rapidly developed into an argument. On the father’s account, as he turned to leave the mother shoved the door into his body two or three times, pushing him out of the way, until she could slam the door behind him. On the mother’s account, the father left through the front door, but then turned around angrily. She described his face as red and that he was breathing heavily. He tried to return into the house. She stood in the doorway. The father approached very closely, raising his voice and asking to be let back into the house. The mother asked him to leave. The father then took an additional step forward and shoved the mother, connecting forcefully with her body, as he tried to re-enter the home. The mother describes her reaction to this incident. She cried, was physically shaking, and began to feel nausea.
Even the father concedes that he was convicted of assaulting the mother on this occasion. However, at paragraph 218 of his affidavit he states: “I maintain that the version of events set out above is correct”. Indeed, in cross-examination he contended that he had been wrongly convicted. He denied that he was angry. He asserted that he had been falsely accused. This is notwithstanding the fact that the father was convicted after a contested hearing and unsuccessfully appealed the conviction.
This evidence is deeply disconcerting. The father demonstrated no evidence of the attitudinal change relating to a range of issues that he asserts at paragraphs 265–267 of his affidavit to have gained awareness about. There was no self-awareness or empathy for the mother and Mr C who were cross-examined in the context of the defended assault hearing. There was no recognition or acknowledgement of the experience of his victims and how his actions violated their rights and safety (see paragraph 266d of the father’s affidavit filed 4 January 2023). This is notwithstanding the fact that at paragraph 267 of his affidavit he says that he has: “… had plenty of time to analyse and reflect upon the situations that occurred”. He then deposes to how much he would “dearly love” the opportunity to tell all of the children that he recognises and acknowledges that his behaviour was completely inexcusable. Curiously the mother does not get a mention here. In cross-examination the father did have the opportunity to express remorse, to show empathy and to demonstrate insight. Instead, he insisted that he was wrongfully convicted.
THE EVIDENCE OF THE SINGLE EXPERT MS D
The Single Expert Report of Ms D is dated 11 November 2022 (“the Report”), and she was cross-examined on the final day of the hearing, 19 April 2023. For present purposes, the focus will be on Ms D’s evidence relating to the father.
As noted above, Ms D recommended, despite remaining concerns, that X spend supervised time with the father one to two times per month, including time on special occasions. She also recommended that the father, the mother and the children engage in therapy, and that both parents avail themselves of the court-based Family Violence Support Service.
At the outset it must be recognised that Ms D did not have the opportunity to observe the father in cross-examination, or to see how he chose to conduct his case. Moreover, she did not have the opportunity to access the full range of evidence that was before the Court, or to have the benefit of carefully considered submissions from counsel.
Ms D recorded that the father presented as amiable, articulate and conversational. She did not see the father as the Court has, namely an unimpressive witness who was frequently unresponsive to the questions asked in cross-examination, often exaggerated or minimised as the need arose, gave inconsistent evidence, was sometimes evasive, often selective and therefore manipulative in the presentation of his evidence, and unconvincing as to both the substance of parts of his evidence and the manner in which he presented it.
At paragraph 145 of the Report Ms D states:
145.[Mr Aynesworth] impressed as bereft of losing the relationships with each of his children and concerned about them being without their father, especially [X] as the youngest child having lost this relationship and his guidance as [X’s] father from aged 8 to 10 years. He appears resolved to the damage in the relationships with [Mr C] and [B], understanding and accepting of their wish not to spend time with him. He appears to have insight as to the reasons for this, particularly cognisant about the assaults and impact on [Mr C] and [B] of the Court charges and hearings. He is also particularly concerned about the impact on [B] of being caught up in the conflict between him and [Ms Aynesworth]. He has evidently abided by the terms of the ADVO regarding [X].
By contrast, the evidence that the father gave showed little insight as to the impact of the violence that he perpetrated on Mr C and B, let alone the mother.
At paragraphs 148–149 Ms D states:
148.Regarding family violence, [Mr Aynesworth] and [Ms Aynesworth] provided widely divergent narratives. From [Mr Aynesworth’s] perspective, there was no family violence in his behaviour; he denied there being any element of social or financial control. He said the conflict in their relationship was mutual arguments, particularly in relation to finances. From [Ms Aynesworth’s] perspective, [Mr Aynesworth] perpetrated social and financial control, and she felt verbally and socially threatened to the point of ensuring that she did not agitate [Mr Aynesworth]. [Ms Aynesworth] said that post separation the alleged family violence became worse, when [Mr Aynesworth] became abusive to [Mr C] and [B].
149. The element of family violence in this family is complex. The [Aynesworth] family problems may stem from toxicity and the relationship issues between [Mr Aynesworth] and [Ms Aynesworth] characterised by ongoing tension and mutual arguments, finances being a theme that appears common to both of their perspectives. These problems in combination with family violence allegedly perpetrated by [Mr Aynesworth] on [Ms Aynesworth] in the marriage and the children, would seem primarily post separation, to have left a long entrenched legacy in the narratives of all family members apart from [X].
The widely diverging narratives that Ms D refers to are in fact found by the Court to be the mother’s narrative, and the grossly minimised and distorted narrative by the father.
At paragraph 150 of the Report Ms D states:
150.[Mr Aynesworth] demonstrated some understanding of the impact of his behaviour on [Ms Aynesworth] and both the willingness and significant effort to engage in behaviour change. However, [Mr Aynesworth’s] comment that [Ms Aynesworth] gave as good as she got, and his depiction of problems in the relationship being arguments, mainly around family finances, particularly during the period of the GFC, gave the impression of mostly stress-related mutual verbal abuse.
By contrast, the Court finds that the father demonstrated little understanding about the impact of his behaviour on the mother and, in fact, made only superficial efforts to engage in behaviour change. The evidence before the Court is not of stress-related mutual verbal abuse.
Ms D’s discussion about the impact of family violence on family relationships, and especially on children, is unimpeachable. Mr C and B’s lived experience resonates with this evidence.
The father had convinced Ms D that he had reflected on his behaviour and this, the Court finds, led Ms D to express the opinion that as the father had a positive relationship with X, and as X wanted to spend time with him, there was an appropriate pathway to reconnect X with his father, albeit with a period of supervision.
Ms D expressed a measure of confidence that the father would attend therapy sessions to reinforce the messages and strategies of the programs that he had undertaken. The Court does not have any measure of confidence in that regard. If the father was truly committed to changing his attitudes, at the very least he would have taken the opportunity to do so after the Report was released.
Ms D was cross-examined. In the course of the same she described the concept of identity contact as an old-fashioned concept which restrained relationships and was therefore inherently problematic. The Court notes that the mother’s proposal could be categorised as identity contact, and the Independent Children’s Lawyer’s proposal as a more generous version of the same. The essence of identity contact, sometimes described as recognition contact, is that it enables children to maintain the identity of the parent, and for the parent to maintain the identity of the children. In many cases it serves to keep the metaphorical door open for children and parents to carry on with their relationship at another stage of their lives, and under different conditions. Ms D thought that identity contact was of questionable benefit to X. His relationship with the father could not develop under those circumstances. In her experience, identity connections “tend to fizzle”. She also recognised, however, that if the Court found that there was a risk of harm to X from the father, the other alternative was no time with the father, though that was not her opinion in this case. Ms D acknowledged that recognition contact was a way for the Court to mitigate risk as far as possible.
In cross-examination Ms D maintained her view that the father presented no risk of harm to X that could not be managed by the making of orders consistent with her recommendations. The father was not a risk because, in effect, he had changed. He had shown some insight into his past behaviour. He was “….well along the continuum of gaining insight into his behaviour”. With appropriate orders, the father would be able to demonstrate that he is a strong and wise parent for X. When confronted with the father’s evidence in cross-examination, Ms D conceded that, in terms of insight, perhaps the father “…still has a way to go”. His evidence indicated that he continued to have empathy issues. The father’s failure to engage with psychological assistance, his lack of transparency and honesty about past events, and lack of self-awareness all caused the expert to reconsider the pace at which unsupervised time with X would be implemented, but ultimately did not change her substantive recommendation that time should eventually progress to unsupervised time.
The Court does not accept Ms D’s recommendations. The Court realises that the matters put to her in cross-examination about the father’s evidence could not possibly convey the full extent of the Court’s concerns about the father, previously articulated in these reasons.
But there are other reasons why supervised time is the only option available to the Court.
X’s time with the father, even supervised time, would on the evidence before the Court create an emotional burden not just for the mother, but for Mr C and B. The lived experience of the older boys and the mother is of pervasive family violence perpetrated on them by the father, or on the others in their presence. Their estrangement from the father is a direct result of this. The Court is uncomfortable with any depiction of the older boys’ experiences of the father as being catastrophisation. Indeed, the firm view of this Court is that they are presenting their traumatic experiences as they were, without exaggeration. Their concern for X is completely understandable in this light. Their reluctance to participate in any therapeutic intervention is once again completely understandable in view of their experiences. Their concerns might be mitigated by supervision, but any unsupervised time would be problematic for them. Even supervision creates emotional burdens, which is best mitigated by reducing the frequency of the same.
For X, this presents an almost insurmountable problem. When he spends time with the father he moves from a home environment which is justifiably concerned for his welfare based on the lived experience of the rest of his family, to an environment where, from the father’s perspective, there is no risk at all. X, who clearly wants to have a relationship with the father, is placed in an impossible bind. It was commonly acknowledged that X is a sensitive child. He is sensitive to the feelings of both his brothers, and the father. The Court is concerned that his sensitivity might cause him to suppress any adverse experiences in his father’s household. As Ms D stated in cross-examination, X may “… bottle it up, which is a problem”. X may become guarded about what he tells his family at home about his experiences with the father.
The attitudinal changes that are not apparent in the life of the father mean that the risk of harm to X is insidious, and difficult to manage. It is the transmission of attitudes that is perhaps the greatest problem, but attitudes are conveyed not just in words and actions, but also in silence and inaction, thus making this much more difficult to monitor.
Ms D’s warnings about identity or recognition contact are nonetheless important, but do not inform the Court’s decision in this case. The maintenance of X’s relationship with the father is, by law, subservient to protecting him from the insidious and subtle risk of emotional harm which the father presents. Supervised and limited contact also supports the mother and X’s brothers, as well as X himself in terms of strengthening the family unit.
ORDERS IN THE BEST INTERESTS OF X
For the reasons set out above the Court believes that the father’s time with X must be supervised and the focus now turns to the frequency with which it should occur.
X does not have a meaningful relationship with the father but would certainly benefit from having the same. However, for the reasons articulated above, he needs to be protected, certainly from the risk of psychological harm presented by his father but, conceivably, also the risk of physical harm. Both X’s brothers were the subject of physical violence perpetrated by the father. The Court believes that the risk of this is accentuated as X individuates as he goes through adolescence.
Whilst X does wish to have a relationship with the father, the Court is satisfied that in the circumstances of this case, that can be achieved through spending time with the father four times per year as proposed by the mother. Whilst X’s views would, arguably, be better met by increasing the frequency of supervised time with the father, the Court’s concern is that this would increase the stress on the family unit consisting of the mother, X, and his two brothers, having regard to their lived experience of the father. X’s family unit is worth protecting given the challenges facing the older boys, the struggles they have experienced, and the burden carried by the mother. It is a cohesive, functional family unit that is emerging from an intensely stressful time in their lives. It is the experience of this Court that family violence casts a giant shadow long after the events have passed. This family has not yet emerged from that shadow. It needs to be protected until that happens.
Another reason for progressing very cautiously in this case is that even though X wants to spend more time with the father, the impact of this change on him is unknown. He has not seen his father since mid-2019, four years ago.
The father’s capacity to parent X, even on the limited confines of supervision, is questionable due to the attitudinal concerns that the Court has about him. The father missed the opportunity he had to convince the Court that he had changed in a meaningful way.
On balance, the Court prefers the orders proposed by the mother as being more workable in the long-term, as keeping alive what relationship exists between the father and X, and as providing a platform for a future relationship with the father when X is ready.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 14 June 2023
SCHEDULE ONE
1.That the parties have equal shared parental responsibility for the children, B born 2005 and X born 2011, collectively the children.
2.That the children live with the mother.
3.That B spend time and communicate with the father in accordance with his wishes.
4.Pursuant to s 117(3) of the Family Law Act 1975 (Cth) (the Act) the mother be restrained by injunction from relocating the residence of the children outside the Sydney metropolitan area.
5.That the father spend time with X as follows:
a.for a period of 4 months from the date of these Orders, commencing on the first Saturday on which the supervision agency has availability to provide supervision, and on each alternate Saturday thereafter, for a period of 3 hours as specified by the supervision agency, supervised by K Services (the supervision agency),
b.for a period of 4 months from the conclusion of the period of time specified in Order 5(a) above, commencing on the first Saturday following the conclusion of that period of time, from 2pm to 5pm on a weekend day each alternate weekend, with that weekend day to be a Saturday then a Sunday in alternating rotation,
c.for a period of 4 months from the conclusion of the period of time specified in Order 5(b) above, commencing on the first Saturday following the conclusion of that period of time from 9am to 5pm on a weekend day each alternate weekend, with that weekend day to be a Saturday then a Sunday in alternating rotation,
d.for a period of 3 months from the conclusion of the period of time specified in Order 5(c) above, commencing on the first Friday following the conclusion of that period of time and on each alternate weekend thereafter from after school (or 5pm if not a school day) Friday to 5pm Saturday,
e.for a period of 3 months from the conclusion of the period of time specified in Order 5(d) above, commencing on the first Friday following the conclusion of that period of time and on each alternate weekend thereafter from after school (or 5pm if not a school day) Friday to 5pm Sunday, and
f.commencing on the first Friday following the conclusion of the period of time specified in Order 5(e) above and on each alternate weekend thereafter from after school (or 5pm if not a school day) Friday to before school (or 9am if not a school day) Monday.
6.In addition to the time provided for in Order 5(f) above, following the conclusion of the period of time specified in Order 5(e) above, that the father spend time with X as follows:
a.for the first week of each school holiday period following Terms 1, 2 and 3 each year, from after school on the last day of school term to 5pm 7 days thereafter,
b.for the first week of each year, from 9am on 1 January to 5pm on 8 January, from 9am to 5pm on Fathers’ Day each year, and
c.from 9am on 24 December to 9am on 25 December in even numbered years and
d.from 9am on 25 December to 9am on 26 December in odd numbered years.
7.That, to give effect to Order 5(a) above:
a.within 7 days of the date of these Orders each party do all acts and things and sign all documents necessary to effect or complete registration with the supervision agency,
b.the father pay all costs associated with supervision by the supervision agency as and when such costs fall due for payment, and
c.subject to the availability of a representative of and by prior arrangement with the supervision agency, the father be at liberty to spend his supervised time with X at a location other than a Contact Centre operated by the supervision agency.
8.That the father’s time with X pursuant to Orders 5 and 6 above be suspended as follows:
a.from 9am to 5pm on Mothers’ Day each year, and
b.from 9am on 24 December to 9am on 25 December in odd numbered years and from 9am on 25 December to 9am on 26 December in even numbered years.
9.That, for the purpose of the father spending time with X in accordance with these Orders, changeover take place as follows:
a.in the event that the father’s time with X is to be supervised by the supervision agency, the mother deliver X to and collect X from the supervision agency or such other location as notified by the supervision agency to the mother in writing no less than 24 hours prior to the commencement of the father’s time with X,
b.in the event that the father’s time with X commences after and/ or concludes before school, the father collect X from and return X to school,
c.in all other circumstances, at McDonalds in Suburb L, and that neither party approach within 20 metres of the other party or the other party’s vehicle at any time during changeover.
10.That the father have liberty to communicate with X via X’s own mobile phone, and that the mother be restrained by injunction pursuant to s 117(3) of the Act from hindering or interfering in any way with communications between the father and X, and from remaining in the presence or hearing range of X while he is communicating with his father.
11.That the parties communicate with one another to give effect to Order 1 above and in relation to spend time arrangements and any other issues regarding X via the Our Family Wizard app, and that within 7 days of the date of these Orders the parties do all acts and things, including downloading the relevant app and paying any applicable fee, to give effect to this Order.
12.That, for the purposes of ss 68P and 68Q of the Act:
a.a declaration pursuant to s 68P(1)(a) of the Act that Orders 5 to 11 above are orders which provide for a child, X, to spend time with a person, the Applicant father, or which expressly or impliedly require or authorise the father to spend time with X,
b.a declaration pursuant to s 68P(2)(a) of the Act that those orders or some of them are inconsistent with an existing family violence order that is in place for the protection of X, being Apprehended Domestic Violence Order as varied in late 2020 (the ADVO), and
c.pursuant to s 68Q(1) of the Act, to the extent of any inconsistency between these Orders and the provisions of the ADVO, the provisions of the ADVO are invalid.
13.In the event that either party refuses or neglects to sign a document, deed or instrument required to be signed by or on behalf of that party in accordance with these Orders, including but not limited to documents necessary to effect or complete registration with the supervision agency, that pursuant to s 106A of the Act a Registrar of this Court be appointed to sign the document, deed or instrument in the name of that party and to do all acts and things necessary to give validity and operation to the document, deed or instrument.
14.That the mother pay the father’s costs of and incidental to these proceedings.
SCHEDULE TWO
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEY
DIVISION 1File No. SYC6535/2020
BETWEEN
MR AYNESWORTH
(Applicant Father)AND
MS AYNESWORTH
(Respondent Mother)
and
INDEPENDENT CHILDREN’S LAWYER
MOTHER’S PROPOSED MINUTE OF FINAL ORDERSIT IS ORDERED:
1.That all previous parenting orders are discharged.
2.That the Mother has sole parental responsibility for the children, B born 2005 and X born 2011 (referred to collectively herein as ‘the children’).
Live With/Spend Time
3.That the children live with the Mother.
4.That B will spend time with and communicate with the Father in accordance with his wishes.
5.That X spends time with the Father as agreed between the parents in writing and in the absence of agreement as follows:
5.1.On the first Saturday of March each year for a period of 4 hours as supervised by M Services;
5.2.If the Father's birthday falls on a Saturday then on the Father's birthday otherwise, on the first Saturday following the Father’s birthday each year for a period of 4 hours as supervised by M Services;
5.3.On Father's Day each year for a period of 4 hours as supervised by M Services;
5.4.On the first Sunday of December each year for a period of 4 hours as supervised by M Services;
5.5.At all other times as agreed between the Mother and Father in writing.
6.To give effect to Order 5 herein, within 48 hours of these orders, the Mother and the Father will do all acts, things and sign all documents necessa1y to schedule M Services to supervise X's time with the Father.
7.The Father will responsible for any and all fees charged by M Services to supervise his time with X.
Restraints
8.That the Mother and Father are restrained from denigrating the other parent, their friends, domestic partners or families whilst they have care of the children and will remove the children from any environment in which such denigration is occurring.
9.The Father is restrained from consuming alcohol beyond a blood alcohol concentration of 0.05% whilst the children are in his care or within the 24 hours immediately prior to the children entering their· care.
10.The Father is restrained from consuming illegal drugs or drugs for which the Father does not have a valid prescription whilst the children are in his care or within the 24 hours immediately prior to the children entering their care.
11.The Father is restrained from harassing, molesting or stalking the Mother and/or the children;
12.The Father is restrained from causing or threatening to cause bodily harm to the Mother and/or the children;
13.The Father is restrained from yelling, shouting, swearing or using any abusive or offensive language toward the children or in their presence.
14.The Father is restrained from removing or attempting to remove or procuring another person to remove the children from school.
15.The Father is restrained from contacting the children via telephone or by other electronic means unless otherwise provided for in these orders.
16.The Father is restrained from:
16.1.Approaching the Mother;
16.2.Trying to find the residential address of the Mother;
16.3.Contacting the Mother by any means except as provided for in these orders; and
16.4.Being within 100 metres of the Mother's residence or her place of employment.
Communication
17.The Mother and Father will communicate with each other in relation to medical emergencies, changeover or as required by these orders via the Our Family Wizard mobile telephone application. In the event that the Our Family Wizard mobile telephone application ceases to exist, the parents will communicate via email.
18.The Mother will facilitate the children contacting the Father at all reasonable times at the request of the children.
General
19.The Mother will notify the Father within 6 hours of an event of any significant illness or injury suffered by the children requiring admittance into hospital and will provide details of the injury, illness and/or medical treatment to the Father.
20.These Orders shall be taken as an authority for the child's school to authorise the provision of information to the Mother and Father, at the requesting parent’s expense about the children including, but not limited to:
20.1.Reports;
20.2.Invitations;
20.3.Circulars;
20.4.School photograph order forms; and
20.5.Notices.
21.These Orders shall be taken as an authority for all the child's treating medical practitioner(s) or allied health worker(s) to authorise such professional to provide information to the Mother and Father, at the requesting parent's expense about the child, including, but not limited to;
21.1Referrals;
21.2Treatment;
21.3Medication; and
21.4Any other information regarding medical history.
Travel
22.Pursuant to Section 65Y of the Family Law Act 1975, the Mother is permitted to travel with the children from the Commonwealth of Australia during the times the children are in her care.
23.Pursuant to Section 11(l)(b) of the Australian Passport Act 2005, the Mother is permitted to travel with the children from the Commonwealth of Australia during the times the children are in her care and for such purposes, the Mother is permitted to apply for the issue of a renewal of an Australian Passport for the children under the provisions of Section 11(4)(b)(i) of the Australian Passport Act 2005, without the Father's consent.
24.For the purpose of Order 22, the Mother will serve the Father with an itinerary of travel no later than 4 weeks before departure which is to include:
24.1.departure and return dates;
24.2.location or locations the children will be travelling to;
24.3.the dates on which the children will arrive and depart each location;
24.4.Copies of certificates of travel insurance for the children.
25.The Mother will retain the children's passports and be responsible for their safe-keeping.
26.That, for the purposes of Sections 68P and 68Q of the Family Law Act 1975:
26.1.a declaration pursuant to section 68P(l)(a) of the Family Law Act 1975 that the orders herein which provide for a child, X, to spend time with a person, the Applicant Father, or which expressly or impliedly require or auhtorise the Father to spend time with X,
26.2.a declaration pursuant to section 68P(2)(a) of the Family Law Act 1975 that those orders or some of them are inconsistent with an existing family violence order that is in place for the protection of X, being Apprehended Domestic Violence Order as varied in late 2020 (the ADVO), and
26.3.pursuant to section 68Q(l) of the Family Law Act 1975, to the extent of any inconsistency between these Orders and the provisions of the ADVO, the provisions of the ADVO are invalid.
27.That the Father pays the Mother's costs of and incidental to these proceedings.
SCHEDULE THREE
Family Law Act 1975
IN THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA
AT SYDNEY SYC 6535/2020BETWEEN MR AYNESWORTH
AND MS AYNESWORTH
AND THE INDEPENDENT CHILDRENS LAWYER
MINUTE OF ORDER ON BEHALF OF THE ICL
Noting that Final orders were made in relation to parental responsibility and live with the Court makes the following Orders for X to spend time with his father:1.From the date of these orders that X is to spend time with the father on the first Saturday and third Saturday of each month for a period of 4 hours supervised by M Services, N Services or similar contact service.
2.That the mother and the father are do all things, sign all documents and provide all consents in relation the engagement of the contact services referred to in order 1 herein and for the purpose of giving effect to order 1.
Medical
3.That the mother is to contact the father as soon as practicable upon the happening of any of the following;
a.The child becoming seriously ill;
b.The child becoming hospitalised; or
c.The child being involved in an accident.
Schooling/ extracurricular activity
4.The mother is to provide such requisite consents and/or authorities that may be required by any school, or extracurricular activity that the child attends, to enable the father to receive (at the father’s own expense) reports, photographs, order forms, newsletters and such other material as may ordinarily be communicated to parents.
5.The father is at liberty to attend on and communicate with any person involved in X’s educational, sporting, or extra-curricular activities.
Restraints
6.That both parents are restrained from discussing the other parent, their family and/or any partner in the presence or hearing of the child or permitting others to do so, in a negative way, including criticising or making derogatory statements, or from allowing any third party to do so.
7.Both parties are restrained from consuming alcohol to excess whilst X is in their care, or within 12 hours of them coming into their care.
8.Both parties are restrained from allowing the children to be exposed to family violence during any time that they are in their care and shall immediately remove them from any environment where this is taking place.
Authorities
9.These orders are sufficient authority for the father to obtain (at his cost) information in relation to X from any medical professional treating X.
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5
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