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.
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- AGLC
- Aynesworth & Aynesworth [2023] FedCFamC1F 471
- Case
- [2023] FedCFamC1F 471
- Decision Date
CaseChat Overview and Summary
The case of Aynesworth & Aynesworth involved a dispute between the father, the applicant, and the mother, the respondent, regarding the time their son, X, should spend with his father, as well as the conditions under which such time should be spent. The case was heard in the Family Court of Australia. The central issue was the determination of the appropriate parenting arrangements for X, with particular focus on the frequency and nature of his contact with his father. The father proposed a more frequent and eventually unsupervised contact, while the mother suggested limited supervised contact.
The court was tasked with evaluating the evidence presented by both parties and the Independent Children’s Lawyer, as well as considering the expert recommendations and the welfare of the child. The court needed to assess the credibility of the father's evidence, given his past history of family violence and the implications this had on his proposed contact arrangements. The court also had to weigh the expert opinion, which recommended supervised contact, against the father's assertions of personal transformation and reduced risk to the child.
The court found the father to be an unimpressive and unconvincing witness, with evidence of past inconsistencies, exaggerations, and evasions. These findings significantly impacted the father's credibility and his ability to persuade the court that he was a suitable environment for unsupervised contact with X. The court concluded that the father had not demonstrated sufficient change or insight to warrant unsupervised contact, particularly given the history of family violence. The mother's proposal for limited supervised contact was deemed more appropriate, aligning with the expert recommendations and the best interests of the child.
Based on the findings, the court ordered that X should have supervised contact with his father, initially at a frequency recommended by the expert and the Independent Children’s Lawyer, with a potential for gradual increase subject to ongoing assessments. The court also mandated that both parents engage in relevant therapies and make use of the Family Violence Support Service provided by the court.
The court was tasked with evaluating the evidence presented by both parties and the Independent Children’s Lawyer, as well as considering the expert recommendations and the welfare of the child. The court needed to assess the credibility of the father's evidence, given his past history of family violence and the implications this had on his proposed contact arrangements. The court also had to weigh the expert opinion, which recommended supervised contact, against the father's assertions of personal transformation and reduced risk to the child.
The court found the father to be an unimpressive and unconvincing witness, with evidence of past inconsistencies, exaggerations, and evasions. These findings significantly impacted the father's credibility and his ability to persuade the court that he was a suitable environment for unsupervised contact with X. The court concluded that the father had not demonstrated sufficient change or insight to warrant unsupervised contact, particularly given the history of family violence. The mother's proposal for limited supervised contact was deemed more appropriate, aligning with the expert recommendations and the best interests of the child.
Based on the findings, the court ordered that X should have supervised contact with his father, initially at a frequency recommended by the expert and the Independent Children’s Lawyer, with a potential for gradual increase subject to ongoing assessments. The court also mandated that both parents engage in relevant therapies and make use of the Family Violence Support Service provided by the court.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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