MOYNE & ASHBY - [2014] FCCA 2309

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOYNE & ASHBY

[2014] FCCA 2309

Catchwords:
FAMILY LAW – Parenting – competing proposals as to who is to be primary parent – issues of unacceptable risk – family violence – whether interim orders and period of supervised time appropriate – mother seeks orders for no direct time between two children with special needs and the father – father seeks live-with orders.

FAMILY LAW – Property – husband disputes the existence of de-facto relationship – contributions – s.90SF factors – spousal maintenance – child support departure.

Legislation:

Family Law Act 1975

Evidence Act 1995 (Cth)

A & A (1998) FLC 92-800
Champness & Hanson (2009) FLC 93-407
Hickey & Hickey and Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
Jones v Dunkel (1959) HCA 8
M & M (1998) FLC 91-979
McCall & Clark (2009) FLC 93-405
Napier & Hepburn (2006) FLC 93-303
PST & CPR [2006] FMCAfam 36
Re. L (contact: - domestic violence) (2000) 2 FLR 334
Stanford & Stanford (2012) 293 ALR 70
U & U (2002) CLR 238

Applicant:

MS MOYNE

Respondent:

MR ASHBY

File Number:

MLC 2884 of 2012

Judgment of:

Judge McGuire

Hearing dates:

13 & 14 March 2014

Date of Last Submission:

10 June 2014

Delivered at:

Melbourne

Delivered on:

14 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Nehmy

Solicitors for the Applicant:

Berry Family Law

Solicitors for the Respondent:

Unrepresented

FINAL ORDERS

Parenting

That all previous orders in respect of the children X born (omitted) 2005 (“X”) and Y born (omitted) 2008 (“Y”) be discharged.
That the mother have sole parental responsibility for X and Y provided that the mother provide the father with copies of each of the children’s school reports within 7 days of receipt and that she advise the father prudently in writing of any serious medical issues involving either of the children.
X and Y live with the mother.
Time between the father and the children, X and Y, be reserved.
The communication between the father and the children, X and Y, take place but be limited as follows:
(a)By letter or card not more frequently than once each calendar month and on each of the children’s birthdays, the father’s birthday, Christmas and Easter;
(b)That the mother be able to vet the contents of such letters/cards and have the discretion to refuse to hand the letters/cards to the children if she is of the view that the contents of such letters/cards are inappropriate provided that should she so refuse any such letters/cards then within seven days of receipt she is to advise the father in writing of the reason for her refusal and to invite a substitute letter/card for that period;
(c)That the mother encourage and assist the children and each of them in making replies to the father’s correspondence within 7 days of receipt;
(d)Written communications between the children and the father (and, if necessary, between the parties for the purposes of these orders) take place through a third party address…

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 MOYNE & ASHBY

Details

AGLC: MOYNE & ASHBY [2014] FCCA 2309
Case: [2014] FCCA 2309
Decision Date: 14 November 2014

CaseChat Overview and Summary

This matter concerned competing parenting and property applications between the parties, Moyne and Ashby. The primary dispute in the parenting proceedings involved the mother’s request for orders preventing any direct time between the father and their two children, who have special needs, due to allegations of unacceptable risk and family violence. Conversely, the father sought live-with orders for the children. In the property proceedings, the husband disputed the existence of a de facto relationship, and the court was also required to consider contributions, the factors under s 90SF of the relevant Act, spousal maintenance, and child support departure.

The court was required to determine several key legal issues. Firstly, in relation to parenting, the court had to assess whether there was an unacceptable risk posed by the father to the children, and consequently, whether interim orders for supervised time were appropriate. Secondly, the court needed to determine whether a de facto relationship existed between the parties for the purposes of property settlement. If a de facto relationship was found to exist, the court would then need to assess the parties' contributions and apply the relevant factors under s 90SF of the Act to determine the division of property, as well as consider claims for spousal maintenance and child support departure.

The court's reasoning and application of legal principles would have involved a detailed examination of the evidence presented regarding the allegations of family violence and unacceptable risk to the children, applying the relevant legislative tests for interim parenting orders and the best interests of the children. In the property proceedings, the court would have analysed the evidence to establish the duration and nature of the relationship to determine if it met the criteria for a de facto relationship. If established, the court would have undertaken a detailed assessment of financial and non-financial contributions, considered the future needs of the parties and children, and applied the statutory factors under s 90SF to achieve a just and equitable outcome. The court would also have considered the principles governing spousal maintenance and child support departure applications.

Orders