Legal Research
Cases
Ayton & Ayton

Ayton & Ayton

Case [2022] FedCFamC2F 1856 21 October 2022

Parental Responsibility

Family Violence

Child's Best Interests

Supervision of Parental Contact

Injunctions

Costs

Family Law

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ayton & Ayton [2022] FedCFamC2F 1856

File number(s): NCC 841 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 21 October 2022

Catchwords: FAMILY LAW – parenting – two children aged 12 and 10 – what time if any to be spent with father – what conditions if any to be imposed - whether the father poses an unacceptable risk and if so, whether the risk could be sufficiently mitigated – family violence and conflict - poor emotional dysregulation with little insight into impact – professional supervision for time to be spent quarterly - regular written communication appropriate – prescriptive restraints and injunctions – after older child turns 14, time with father to be at sole discretion of mother – best interests of children

Legislation:
Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 68B, 68C

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Berys & Berys [2022] FedCFamC2F 1162

Blinko & Blinko [2015] FamCAFC 146

Cross & Beaumont [2008] FamCAFC 68

Dunst & Dunst [2016] FamCAFC 15

Eastley & Eastley [2021] FedCFamC1F 212

Gallagher & Gomez [2017] FamCA 944

Hollister & Gosselin [2016] FamCA 759

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane [2020] FamCA 99

Mazorski & Albright [2007] FamCA 520

Medlon & Medlon (No. 6) (Indemnity costs) [2015] FamCAFC 157

Nada & Nettle (Costs) [2014] FamCAFC 207

Napier & Hepburn [2006] FamCA 1316

PBF(as child representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL [2005] FamCA 158

Re Andrew [1996] FamCA 43

R & C [1993] FamCA 62

Sedgley & Sedgley [1995] FamCA 154

Sweet & Sweet [2022] FedCFamC2F 676

Division: Division 2 Family Law

Number of paragraphs: 209

Date of hearing: 17-19 October 2022

Place: Newcastle

Counsel for the Applicant: Mr Murray

Solicitor for the Applicant: Nash Allen Williams & Wotton

Counsel for the Respondent: Mr Matthews

Solicitor for the Respondent: Taperell Rutledge Lawyers

Counsel for the Independent Children's Lawyer: Ms Cantrall (Solicitor Advocate)

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

NCC 841 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR AYTON

Applicant

AND:
MS AYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

21 OCTOBER 2022

THE COURT ORDERS THAT:
1.The respondent MS AYTON (‘the mother’) shall have sole parental responsibility for the children, X born 2010 and Y born 2012, collectively described as ‘the children’.
2.The children shall live with the mother.
3.Up until 19 August 2024, the children shall spend time with the applicant MR AYTON (‘the father’) on a professionally supervised basis on four (4) occasions each year during:
(a)the week in which Y’s birthday falls;
(b)the last week of Term 2 as exercised by X’s school;
(c)the week in which X’s birthday falls; and
(d)the last week of Term 4 as exercised by X’s school,

with the period described as “week” meaning from Monday to Sunday.
4.To facilitate Order 3:
(a)The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ayton & Ayton

Details

AGLC: Ayton & Ayton [2022] FedCFamC2F 1856
Case: [2022] FedCFamC2F 1856
Decision Date

CaseChat Overview and Summary

The matter of Ayton & Ayton [2022] FedCFamC2F 1856 involved a parenting dispute between the father, Mr Ayton, and the mother, Ms Ayton, concerning their two children, X and Y. The dispute arose following a serious incident of family violence involving the father and his then-partner, Ms D, in which the children were present. The court was required to decide whether the children should spend any time with the father, and if so, under what conditions. The court also had to determine the appropriate allocation of parental responsibility and address the financial implications of the proceedings.

The court found that the father posed an unacceptable risk of harm to the children due to his history of family violence and poor emotional regulation. The court was not satisfied that the father could sufficiently mitigate these risks, despite professional recommendations. The court also found that the mother's parenting capacity could be compromised by her genuine fear of the father. The court concluded that the children's best interests were served by a limited and supervised contact regime with the father, supplemented by written communication. The court imposed extensive injunctive and restraining orders to protect the children and the mother from the father's behaviour.

In relation to costs, the court found that the mother should not contribute to the costs of the Independent Children's Lawyer due to her financial hardship. The court ordered the father to contribute $4,774 towards the costs of the Independent Children's Lawyer, reflecting his failure to disclose his financial circumstances and his outstanding child support liability.

Orders