MOYNE & ASHBY
[2014] FCCA 2309
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOYNE & ASHBY | [2014] FCCA 2309 |
| Catchwords: 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 to be nominated by the mother.
That the father be and is hereby restrained from otherwise contacting the children directly or indirectly by himself or his agents without the express written consent of the mother.
Spousal maintenance
That the applicant’s application for spousal maintenance be dismissed.
Child support
That the applicant’s application for departure from child support assessment be dismissed.
Property
Pursuant to Section 90RD of the Family Law Act 1975 the court declares that the applicant, Ms Moyne and the respondent, Mr Ashby were in a de facto relationship between July 2003 and January 2011.
Within 60 days of the date of these orders the respondent pay to the applicant a lump sum of $968, 984.00.
Should the respondent fail to make the payment referred to in paragraph (10) hereof then the applicant have liberty to apply in respect of the sale of real property registered in the name of the respondent.
That the respondent be and is hereby restrained from selling, transferring, further encumbering or otherwise dealing with the properties situate at Property K, Property B, Property L, and Property C, all in Victoria or any of them until the payment pursuant to Order 10 hereof is made or order of the Court and that this order shall entitle the applicant to protect her interest by lodgement of caveats against the titles of such properties.
In all other respects each of the parties be entitled to the exclusion of the other to all property, including real property, chattels, personalty, motor vehicles and superannuation entitlements (subject to these orders) in the possession of or under the control of that party as at the date of these orders.
Each of the parties be solely responsible for and indemnify the other in respect of any liabilities attaching to any of the assets to be retained by that party pursuant to these orders.
Superannuation
That pursuant to section 90MS of the Family Law Act 1975, there be an alteration of the superannuation interests of the parties to the following effect:-
(a)that a base amount of $31, 661.00 is allocated as required by section 90MT(4) of the Family Law Act 1975 to the applicant out of the respondent’s interest in the (omitted) superannuation scheme;
(b)that, in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:-
(i)the applicant is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(ii)the respondent’s entitlement and the entitlement of such other person to whom a splittable payment may be made out of the respondent’s interest in the aforesaid superannuation account is correspondingly reduced;
(c)that the trustee of the (omitted) Superannuation fund (“the trustee”) shall do all such things and sign all such documents as may be necessary to:-
(i)calculate, in accordance with the requirements of the Family Law Act 1975, and the Family Law (Superannuation) Regulations 2001 the entitlement to the applicant created in clause 15 (a) above of this order; and
(ii)pay the entitlement whenever the trustee makes a splittable payment out of the respondent’s interest in the (omitted) superannuation scheme;
(d)that this order have effect from the operative date, and that the operative date is four business days after the date of service of a sealed copy of these orders on the trustee;
(e)that this order binds the trustee of the (omitted) Scheme; and
(f)that after the service of the payment split notice, pursuant to rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the applicant shall do all acts and things as may be necessary, including but not limited to, exercising her request, pursuant to rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994, for the rollover or transfer of the transferrable benefits out of the respondent’s interest in the (omitted) Superannuation Scheme to an account or fund of the applicant’s choosing, in accordance with rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
IT IS NOTED that publication of this judgment under the pseudonym Moyne & Ashby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2884 of 2012
| MS MOYNE |
Applicant
And
| MR ASHBY |
Respondent
REASONS FOR JUDGMENT
The applications
There is a broad spectrum of issues between these parties, including:
a)the parenting and living arrangements for the parties’ two children; X, born (omitted) 2005 (aged nine years) and Y, born (omitted) 2008 (aged six years);
b)the jurisdiction of the court to deal with the property of the parties and whether they were in a de facto relationship at all, and if so, whether separation took place prior to the relevant date for jurisdiction being conferred in March 2009;
c)if the court has jurisdiction, then what is a just and equitable alteration of the parties’ property interests;
d)if the court has jurisdiction then consideration of the applicant’s application for spousal maintenance;
e)the applicant’s application for a departure order in respect of current child support assessment payable by the father.
The applicant seeks orders as follows:
Children
a)that the mother have sole parental responsibility for Y and X;
b)that Y and X live with the mother;
c)that the father communicate with the children by cards, letters and gifts with such communications and gifts to be vetted by the mother and otherwise the children’s time with the father be reserved;
d)that the mother keep the father advised by email of major decisions relating to the children’s health, education and/or religion, and that she authorise any school that the children may attend to send to the father, at his expense, school photographs and reports;
Property and spousal maintenance
e)that the respondent pay to the applicant a cash sum so as to effect a division of non-superannuation property as to 70 per cent in favour of the applicant and 30 per cent in favour of the respondent;
f)that five per cent of the payment referred to in (v) above be designated a payment to which section 77A of the Family Law Act 1975 (“the Act”), be attributable to spousal maintenance for the applicant;
g)that there be a superannuation splitting order in respect of the respondent’s (omitted) superannuation fund with a base amount of $32,961 in favour of the applicant;
Child support
h)that pursuant to section 116(1)(b) of the Child Support Assessment Act (1989) there be a departure order from current and future assessment of the respondent so as to provide for a lump sum child support for the children, X and Y, in a quantum of $179,400 (calculated at the rate of $150 per week per child until each of the children attains the age of 18 years) or, alternatively, that the respondent pay the sum of $150 per week per child indexed to CPI each year with such sum to be paid into a bank account nominated by the mother on the first day of each calendar month.
Orders sought by the respondent
Mr Ashby seeks an order that X and Y live with him. Given his argument and, in particular, regarding the mother’s alleged violence towards the children, I infer that he also seeks orders for sole parental responsibility.
Mr Ashby’s position in respect of the children’s time with the mother varied throughout the proceedings. He initially sought supervised time. However, by the time of his final submissions Mr Ashby proposed orders whereby the children spend every second weekend and one evening from after school until dinnertime each week with the mother.
Mr Ashby was similarly vague in respect of his proposals for property settlement. He was consistent, however, in his argument that the court had no jurisdiction based on either there being no de facto relationship between he and Ms Moyne or that separation took place prior to the court achieving jurisdiction in March 2009.
Mr Ashby mounts a similar argument in respect of there being no order for spousal maintenance.
Mr Ashby seeks an order that X and Y live with him and hence he would not see himself being liable to pay child support.
In his final address, however, he conceded that, should the children live with the mother then he would pay child support as assessed by the Registrar and hence I infer that he argues against any departure order.
Conduct of the proceedings
The trial in this matter proceeded over a number of days stretching from December 2013 through to June 2014. The matter had been listed for trial on previous occasions but adjourned as not ready.
The applicant, Ms Moyne, was represented by solicitors and counsel throughout the proceedings.
Mr Ashby’s conduct of the proceedings was problematic. He commenced the trial acting for himself. He was represented for counsel on one day of the trial in April 2014. By the conclusion of the trial he was again acting for himself.
It was clear to me that Mr Ashby struggled with the procedure and often in articulating his case. Consequently, great care was taken at the start of the trial and throughout to explain the procedure to Mr Ashby and to provide him with copies of the relevant parts of the legislation. He was permitted to have a McKenzie friend assist on the first day of the trial. During submissions he was permitted to have his partner sit at the bar table and take notes.
Mr Ashby was incarcerated during the course of the trial in respect of charges of breach of intervention orders. On another occasion he did not attend court and without explanation, only for the court to learn that he had apparently attempted suicide and been hospitalised contemporaneously with new charges in respect of the breach of intervention order.
My observations of Mr Ashby were that he was unsophisticated in his understanding and use of language. He was prone to repetition. He regularly displayed an emotional temperament in court. He conceded that he has suffered a depressive illness and it is clear on the evidence before the court that Mr Ashby endured an extremely difficult and traumatic childhood. There is unchallenged evidence before the court by way of a psychiatric assessment on Mr Ashby from Dr A, who notes Mr Ashby’s difficulties at school with learning and speech. Both those difficulties were abundantly apparent to me and it was for these reasons that the court offered and allowed every assistance for Mr Ashby.
Dr A in his report at page 3 in respect of Mr Ashby states:
Mr Ashby, as aforementioned, described learning difficulties in childhood. He also described autistic features including difficulties with speech, being obsessional and preoccupied with detail, being concrete and non-amenable to change, social deficits and deficits in terms of emotional interaction. He was never treated for autism or diagnosed as such.
Dr A opines that Mr Ashby has some signs of autism and at page 5 of his report:
Also, given Mr Ashby’s learning difficulties, I wonder whether there is also an element of intellectual impairment and it would be important for him to have further neuropsychological testing to clarify this issue and if he has demonstrated cognitive deficits, to recommend and put in place measures to optimise his cognitive functioning.
The observations and opinions of Dr A were readily apparent to the court. Nevertheless, it was my observation that Mr Ashby was able to argue his case (albeit often repeatedly). Mr Ashby conducted himself with the utmost courtesy to the court and in his cross-examination of the applicant.
Background
Mr Ashby is 35 years of age. He is an only child. His father is deceased. His mother has suffered historical issues with bipolar disorder. Mr Ashby is currently a carer for his mother.
Mr Ashby is in a relationship with Ms S. They live together between Ms S’ home and Mr Ashby’s mother’s home. Ms S has two children. Ms S provided affidavits but they were ultimately not relied upon by Mr Ashby and she was not called to give evidence.
Mr Ashby is a (occupation omitted) by trade. He has historically enjoyed an income of as much as $100,000 - $120,000 per annum. He has more recently been off work due to injury and receiving employment insurance.
Ms Moyne is also 35 years of age. She lives with the children and her own father, Mr R. She denies Mr Ashby’s allegation that she has re-partnered with a Mr D and says that he is only a family friend.
Ms Moyne receives a Centrelink benefit for herself and the children. Her evidence and that of her father is that she is significantly subsidised by Mr R for her own and the children’s financial support.
Both X and Y are diagnosed with autism and various other learning and social difficulties. Expert evidence was adduced in this regard. Mr Ashby was equivocal in his evidence and concessions in respect of the children’s condition. Whilst he more lately conceded the diagnosis of autism, Mr Ashby preferred that the children were at the lower end of the spectrum, socially functioning, and that the mother exaggerated the children’s alleged conditions in order to obtain a financial advantage for herself.
The children have not had direct contact with Mr Ashby since May 2013 when state court intervention orders were obtained by the mother.
Ms Moyne says that the parties were in a de facto relationship from about mid-2003 until 28 January 2011.
Mr Ashby challenged Ms Moyne’s view of the relationship. He at times argued that there was no de facto relationship. He said that the parties lived separate and independent lives evidenced by his own regular solo holidays and his propensity for nightclubbing. He appears to concede that they at times shared a residence but suggests that he lived independently in a flat within the home.
In other evidence Mr Ashby might be interpreted as conceding a relationship but says, at best, that it was a relationship between 2005 and January 2009.
Ms Moyne alleges a serious and significant history of family violence at the hands of Mr Ashby. She says that she was hospitalised on one occasion after being punched to the head. She has taken numerous state court intervention orders against Mr Ashby. He has been convicted of breach of those orders. He has been imprisoned. She adduced evidence from Ms M, who is a counsellor with Women’s Health West. That organisation have designated Ms Moyne as “being at high risk of fatal harm”.
Mr Ashby denies the allegations of violence directed at him. He accuses the mother of being a malicious liar. He says that she is supported in her dishonesty by her family witnesses. He argues that he has not had the opportunity to put his version of history to the mother’s professional witnesses and that they are simply reporting her lies.
To the contrary, Mr Ashby charges the mother as being violent in her temperament and towards the children. He alleges that she deliberately burned one of the children with boiling water. He alleges that she maliciously and deliberately killed the family dog. He says that she has been aggressive and violent towards him.
From 2003 Mr Ashby has become the registered proprietor of four separate residential properties. Ms Moyne says that these properties were purchased during the relationship (with the first one being purchased just before the parties commenced living together). She says that she has contributed directly and indirectly towards the equity in those properties.
Mr Ashby argues that Ms Moyne has made no contribution towards the properties. He says that there was no de facto relationship. He says that his mother is the beneficial owner of a property at Property L, although his name appears on the title. He says that this property was purchased with money bequeathed to his mother from his late father and that he simply purchased the property on her behalf with the mother as “nominee”.
In respect of the other three properties, he argues that they were purchased by him so as to achieve an investment portfolio. He says the properties at Property K and Property C were purchased by him prior to 2005 which is when he says any de facto relationship started although his primary position remains that there was no such relationship.
The evidence
The applicant, Ms Moyne, relied on her four affidavits sworn 2 April 2012, 21 November 2013 (trial affidavit), 12 December 2013 and 12 December 2013 (no. 2).
The applicant also swore a financial statement on 22 November 2013.
Ms Moyne adduced evidence from the following:
i)Dr A – psychiatric assessment and report on both parties – affidavit sworn 11 November 2013;
ii)affidavit of Mr R sworn 9 November 2013;
iii)affidavit of Ms L – child psychologist – sworn 22 November 2013;
iv)affidavit of Mr D sworn 15 April 2013;
v)affidavit of Ms M sworn 13 November 2013;
vi)affidavit of Mr M sworn 22 November 2013;
vii)affidavit of Ms O sworn 10 April 2013;
viii)affidavit of Ms F sworn 15 April 2013 (partner of Mr R);
ix)affidavit of Ms B sworn 10 April 2013;
x)affidavit of Mr S (valuer) sworn 10 April 2013;
xi)affidavit of Ms R (valuer) sworn 10 April 2014.
The affidavits of Ms B, Ms O, Mr S and Ms R were read into evidence without being required by Mr Ashby for cross-examination. He cross-examined the remainder of the mother’s witnesses.
Mr Ashby relied on his two affidavits sworn 9 April and 10 December 2013 together with a financial statement of 16 April 2013.
Despite Mr Ashby causing affidavits to be filed from Ms S and his mother, he ultimately did not read those affidavits into evidence and hence the deponents were not cross-examined. Ms S was, however, interviewed for the purposes of the family report.
Family report
The court was greatly assisted in respect of the children’s issues by a family report prepared by Ms E and dated 28 October 2013. Ms E interviewed the parties and the children together with the maternal grandfather and Ms S. Ms E conducted telephone consultations with Ms O (children’s occupational therapist) and Ms B (children’s speech therapist).
Ms E was cross-examined by counsel for the mother and, somewhat fortuitously, gave her evidence on the one day that the father was represented and hence was cross-examined by his counsel, Ms C.
Ms Moyne reported to Ms E that she preferred an ongoing cessation of contact between the children and their father and that she would feel anxious about supervised time even at a contact centre.[1]
[1] Family report paragraph 21
Ms Moyne reported harassing and abusive correspondence from Mr Ashby’s partner, Ms S.
Ms E reported Mr Ashby as accusing the mother of physically abusing and manipulating the children. He suggested that Ms Moyne might suffer from a bipolar or narcissistic disorder. He implied to Ms E that the children’s autism was “at least partly a result of Ms Moyne’s manipulation of them”.
Mr Ashby repeated his denials of family violence alleged against him and again made the allegations against Ms Moyne particularised above.
Ms E spoke with Mr R in respect of what appears to be an allegation by him that the maternal grandfather, Mr R, has sexually abused the child X.
These allegations appear in Mr Ashby’s affidavit material. He refers to X sleeping with the grandfather. He particularises allegations of sexual contact. At paragraph 30 of her report, Ms E says:
Secondly, Mr Ashby still believes that the maternal grandfather, Mr R, has sexually abused X despite the Department of Human Services (DHS) Child Protection Unit’s investigation and dismissal of this claim. Mr Ashby reported that when X allegedly made a disclosure of abuse to him, he immediately took the children to the local DHS office to make a report but was “kicked out”. Mr Ashby then began to free associate about the maternal grandfather’s childhood, at which point his narrative impressed as delusional.
Consistent with his position in court, Mr Ashby put various proposals to Ms E in respect of the children’s living arrangements. At paragraph 34 of the report, she says:
Mr Ashby consistently contradicted himself in the interview when discussing his wishes for the children. He was clear that he wishes to become the full-time carer and for Ms Moyne to have supervised time only with the children at a Contact Centre for minimal hours per fortnight. In one breath, he argued that they should have “no contact to get their self-esteem back, it would be tough at the start but then it would be okay; after a month or two they will be back on track”. He elaborated that they would have company in Ms S’s children and he would provide the structure they needed. In the next breath, he argued that the children should have as much contact with their mother as possible but “I don’t know how”.
At paragraph 35, Ms E reports of two voicemail recordings received by her from Mr Ashby some days after the interview. The first is of him questioning Y and of that the child being distressed. Ms E understands Mr Ashby to be attempting to elicit grievances from Y against his mother. Ms S features in the background to the recording. The second recording is of a discussion between Mr R and Mr Ashby and continuing as a recording of a conversation between Ms Moyne and the maternal grandfather obviously made without their knowledge.
Ms E had the advantage of seeing and speaking with both children. Notably, they both refused to see their father for the assessment process.
Ms E evaluates both X and Y as being “particularly vulnerable due to their respective diagnoses of autism”. She opines that their difficulties have been compounded by exposure to family violence.
In respect of Mr Ashby, Ms E concludes at paragraph 57:
In the interview with the writer, Mr Ashby impressed as someone with poor insight into the evolution and demise of the relationship and lacking in any sense of self-responsibility in both. The accusations he levelled at Ms Moyne and the maternal grandfather in the interview to support his affidavit impressed as irrational, malicious and most unlikely to be substantiated if they were tested. Mr Ashby’s articulation and vocabulary are unsophisticated and his blaming of Ms Moyne simplistic, but it appears that he has elaborate interpretations about Ms Moyne and her father which fuel his convictions.
At paragraph 62, Ms E comments on the father’s proposal of a change of residence for the children, thus:
It also reveals a simplistic idea that his children could seamlessly blend into a stepfamily with a replacement mother figure and two step-siblings. Such a rupture from the primary attachment figure into a stepfamily would be detrimental to any child but these children in particular, with their social and emotional deficits and high anxiety, would not cope. Whilst Mr Ashby expresses a belated intention to learn about his children’s respective autism, he appears to lose sight of the crucial role their mother has had in mitigating the incapacitating social, psychological, behavioural and developmental aspects of this disorder.
At paragraph 53 and in respect of Ms Moyne, Ms E concludes:
Ms Moyne impressed as a doting mother with a demonstrated capacity to be positive and resilient when faced with significant challenges, including family violence and having two children with special needs and associated behavioural issues. … Unlike Mr Ashby, she showed retrospective insight into her contribution to the problematic relationship formation with him, including her naiveté. It seems that, with the assistance of counselling from Women’s Health West, she has become more robust and mature and, in the context of family violence and breakdown, sees herself as the protector of the children.
The writer does not assess Ms Moyne to be a perpetrator of family violence, nor to have a drug or alcohol issue or any mental health issues, all of which Mr Ashby alleges.
Ms E notes the children’s primary and strong attachment to the mother.
Ms E then makes a recommendation that the children spend limited supervised time with the father in a contact centre. By the nature of such a proposal, it would be interim in its effect and subject to a report from the contact centre and an updated family report. Significantly, however, at paragraph 67 and 68 Ms E observes:
Neither party is likely to endorse the recommendation that the children spend limited, supervised time with Mr Ashby since Ms Moyne would rather no contact at all and Mr Ashby wishes to be the primary carer with the children having very limited and supervised time with their mother. Whilst Ms Moyne will find taking the children to a contact centre disruptive to her current routine, she does impress as being able to potentially comply with the future orders. … If the court were to make such provisions for limited, supervised time at a contact centre, it is anticipated that Mr Ashby’s current sense of injustice and feelings of rage would be compounded. It is likely he would feel that he was being denied his perceived rights as a parent. … Whilst he expresses a genuine yearning to be an active father to his children, he is blinkered by a hostility and revenge towards Ms Moyne and has been unable to put these aside when he is with his children. (This is evident in his self-admitted “interrogation” of X and the distribution to this right of a recorded conversation of Mr Ashby and Y).
In cross-examination by counsel for the mother, Ms E agreed that Mr Ashby would have significant difficulty in refraining from denigrating the mother and the paternal grandfather to the children. She confirmed that Mr Ashby still articulated his view that Mr R had sexually abused X.
Counsel for the mother then put to Ms E a series of events that had occurred since her interviews for the report, notably the father’s attempted suicide in early 2014 and the further charges of breach of intervention order to be heard in mid-2014, and including the allegation that he had uploaded court documents to a Facebook account “Dads With No Voice”. There are also four counts of alleged stalking Ms Moyne from December 2013. Ms E conceded her concerns as to these matters but maintained that “very limited supervised time in a contact centre is arguably still appropriate”. She based this opinion on the children being able to maintain a limited relationship but also their identity with their father. She responded to counsel:
...this factual platform has not reached the stage of no contact.
It was put to her that it would be contrary to the children’s interests, where by reason of their autism when they benefit by routine and order, for time with their father to recommence only to then cease should he again be imprisoned which is a prospect. Ms E agreed that this would be contrary to the children’s interests and that her recommendation should perhaps await on the state court events listed for mid-2014. As of the date of preparing these reasons there had been no re-opening by either party to bring evidence of what has occurred in the state criminal courts.
Ms E also agreed that it might be in the children’s best interests for her recommendation to wait until there be some further psychiatric assessment and/or assistance given Mr Ashby given his suicide attempt in February 2014. She opined that Mr Ashby ideally would be assisted by a suitably qualified psychiatrist with experience in dealing with men suffering anger management issues.
In cross-examination by Ms C for Mr Ashby, Ms E agreed that there has been a substantial gap in the children seeing their father and that their attachment and identity would benefit by immediate contact. She agreed that the children’s safety and inappropriate comments from Mr Ashby could be safeguarded by the use of the contact centre.
Evidence of Dr A – psychiatric assessments
Dr A assessed the mother on 26 November 2013. He noted at page 2 of his report:
She had no abnormality of affect, thought, perception or cognition. In terms of insight, she appeared to be a motivated, attentive mother with good insight into her own psychological condition and she was accepting of ongoing counselling.
Dr A concluded that Ms Moyne:
…impressed as a motivated, devoted mother with no sign of any mental health conditions. Specifically, she presents with no evidence of narcissistic personality disorder or bipolar disorder. … The allegations about mental health and behaviour made against Ms Moyne are of course a matter for the court to adjudicate on, but I could find no evidence to substantiate any of Mr Ashby’s claims.
Dr A also assessed Mr Ashby on 27 November 2013. He observed:
His affect appeared restricted in range and intensity. He denied any current suicidal ideations. There was no abnormality of thought, form or perception. In terms of cognition, he appeared fairly concrete in his thinking. His attention and concentration appeared adequate as did his recall. In terms of insight, he recognised he suffered from depression and was accepting of treatment. He also recognised that he had some autistic features in his presentation. He adamantly denied any difficulties in terms of anger management and did not believe that he needed any assistance in relation to this.
In respect of Mr Ashby, Dr A concluded:
Mr Ashby has had a difficult background with significant physical abuse from his father and his mother suffering a severe mental illness.
He has suffered from a recurrent major depressive disorder, which is currently being appropriately treated with medication and support through a psychiatrist.
Mr Ashby also has some signs of autism, which has never been formally diagnosed, and it would be worthwhile for him to be seen by an autism specialist.…
There is also a significant concern about Mr Ashby’s propensity to violence and this is a matter of significant dispute, which of course is up to the court to determine. Other courts have determined his guilt in respect to Ms Moyne and another assault matter. It [sic] this propensity to violence is found by the court, it would most likely reflect antisocial personality traits rather than a major psychiatric disorder.
If the court does determine that the allegations that have been made by Ms Moyne are substantiated, then it would be very important for Mr Ashby to have significant input in terms of anger management and control of his moods.
Also, given Mr Ashby’s learning difficulties, I wonder whether there is also an element of intellectual impairment and it would be important for him to have further neuropsychological testing to clarify this issue and if he has demonstrated cognitive deficits, to recommend and put in place measures to optimise his cognitive functioning.…
In the setting of significant allegations of violence that he disputes, I cannot be definitive in terms of impairment in his ability to have contact with the children. The depression and autistic features of themselves do not preclude ability to parent the children.
The mother’s case – children
The mother says that there should be no direct contact between the children and their father. She says that Mr Ashby has an ongoing propensity for family violence and that the children have witnessed this behaviour. She says that he has no insight into the children’s needs and evidenced by him interrogating and interviewing them as provided to the family reporter. She further says that Mr Ashby has shown a propensity to make false and malicious allegations in respect of the children and, most significantly, that Mr R has sexually abused X.
The tenor of her counsel’s final submission is that any future direct time between Mr Ashby and the children is dependent upon him receiving psychiatric assistance and then a psychiatric assessment showing that he had developed the necessary insight into his own behaviour and the children’s needs.
The mother says that these two children are particularly vulnerable by reason of their diagnoses of autism and that Mr Ashby does not accept the diagnoses and hence would be unable or unlikely to provide the children with the necessary assistance, routine and order.
The father’s case – the children
The father says that the children should live with him given that the mother has falsely accused him of family violence. To the contrary, he says that she has herself a propensity for violence towards the children and to him. He cites particulars of her spitting at him and attacking him during the course of the relationship. He says that she has deliberately burned a child with boiling water. He suggests that she deliberately killed the family dog.
It is clear that Mr Ashby continues to suspect and allege that his son has been sexually abused by the paternal grandfather.
Mr Ashby does not concede the seriousness of the children’s autism as alleged by the mother. He alleges that she manipulates their circumstances for her own financial ends.
Mr Ashby implies throughout his argument that the mother’s intent is to deny the children a relationship with him.
He says that he can provide the children with a family unit together with Ms S and her two children.
Relevant law – children
Fundamentally and pursuant to section 60CA of the Act, I must have the best interests of Y and X as my paramount consideration.
I determine the best interests of the children by reference to the objects and principles of the part of the Act provided in section 60B and then by a more pragmatic reference of the probative evidence and the parties’ proposals to the mandatory considerations set out in section 60CC of the Act.
Section 60B provides the objects and principles of the legislation as follows:
(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).
The mother seeks an order for sole parental responsibility for Y and X. I infer that the father seeks a similar order in his favour. Section 61DA of the Act provides a presumption that parents have equal shared parental responsibility for their children. That presumption does not apply if the court is satisfied that there has been family violence or abuse of a child within the definitions in the Act. Alternatively, that presumption is rebutted by evidence satisfying the court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility. Significantly, should the presumption apply and not be rebutted then the court is obliged to follow a pathway of consideration of the children’s parenting and living arrangements. Specifically, the court is to consider whether the children’s best interests are served by them living equal time between their parents. If this option is not both in the children’s best interests and reasonably practicable then the court moves to consider whether the children spending “substantial and significant time” between their parents is both in their best interests and reasonably practicable.
The father in his final address argued that the children live with him but spend each second weekend and one evening per week with the mother. The mother’s position is bluntly that the children spend no time with the father. Neither position is therefore in accordance with either of the equal time or substantial and significant time options. Nevertheless, I am not confined to a decision between the options offered to me by the parties. Rather I must make orders which I determine are in the children’s best interests.
The matters in section 60CC(2) and (3) to be addressed are the following:
(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.
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.
Legal principles - unacceptable risk
The thrust of the mother’s case is that time for the children with the father will present them with an unacceptable risk of emotional or psychological harm. Further, I infer from the mother’s argument that she suggests that the children could be at risk of physical harm due to the father’s propensity for physical violence and his anger management issues.
The father argues that the children are at risk of sexual abuse at the hands of the paternal grandfather and implies that the mother lacks protective insight. He also argues that the children are at risk of physical harm from the mother herself and I infer that he argues these children to be at risk of psychological harm due to the mother’s manipulation of their diagnosis of autism and her preventing any direct relationship between himself and the children.
The difficulties for courts in dealing with the concept of “unacceptable risk” are well-established and have been thoroughly considered in the authorities. The difficulty must been seen within the context of the prospective nature of the concept of “risk” and of the orders themselves. Within a vacuum of consideration, there will always be a “risk” to children of inappropriate behaviour or danger. It is the adjective “unacceptable” which ultimately determines the orders that the court will make. In PST & CPR[2], Walters FM (as he then was) insightfully observed the possible conundrum for the courts, thus:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[2] [2006] FMCAfam 36 at [71]
Over many years the courts have developed a number of principles in dealing with matters of “unacceptable risk” and most often involving allegations of sexual abuse. Such principles, however, also apply to issues of unacceptable risk of psychological, emotional or physical abuse. The High Court in M & M[3] observed:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests, the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[3] (1998) FLC 91-979 at page 77,081
The Full Court in A & A[4] in a judgment handed down after M & M, noted at page 84,959:
The task which the court was required to perform was to determine whether the evidence was such as to establish that there would be unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
…The primary question which the court should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
[4] (1998) FLC 92-800
Importantly, the courts in confronting issues and allegations of unacceptable risk have consistently understood that the making of orders which sever a direct relationship between a parent and a child should be decisions of last resort and made only after the consideration of all other options, including the placing of conditions, such as supervision, on such time.[5] The Act and the courts have historically acknowledged the prima facie importance of a relationship between child and parent and hence the courts consider options such as supervision and therapeutic assistance in leaving the door ajar to reinstatement of time between child and parent even after an order for no time - with.
[5] Sedgley & Sedgley (1995) FLC 92-623
Issues of family violence and/or a violent temperament often enter the consideration of unacceptable risk for children. Dame Elizabeth Butler-Sloss in an English judgment of Re. L (contact: - domestic violence)[6] observed:
In cases of proved domestic violence, and in cases or of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
[6] (2000) 2 FLR 334 at 338
It is unambiguously the mother’s case here that she has been subjected to repeated domestic violence but, importantly, that the father denies the allegations and lacks insight into the impact of his behaviour on both the mother and the children.
Issues of unacceptable risk and a proposal to cease all time between children and parent brings forth further consideration. It may be that the cessation of time - with between a parent (even if he or she be the perpetrator of the abuse) and child will itself present a serious risk of harm itself. In U & U[7] the High Court accepted as “self-evidently true” that children benefit from developing and keeping good relationships with both parents. That entitlement of the child is displaced only if the balance of the best interests favours otherwise. I note, in the matter now before me, that the family reporter placed emphasis in the balancing process on these children maintaining an identity and connection with the father albeit through limited supervised direct time.
[7] (2002) CLR 238 at 285
Importantly, courts dealing with Family Law matters and issues of risk should not lapse into the role of Criminal Courts in attempting to make findings of guilt or innocence. As the High Court said in M & M [1980] 166 CLR 69 at 776:
…It is a mistake to think the Family Court is under the same duty to resolve, in a definitive way, the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying the party for a criminal offence…
Rather, the test for this court is to determine, on the balance of probabilities, whether the welfare of Y and X will be at risk physically, sexually, psychologically or emotionally by continued time with the father or, on the father’s case, by the children living with the mother. Hence, the task for this court is to make findings of fact on the balance of probabilities.[8] Whilst no onus rests on a party to change a status quo and it is the children’s best interests which are ultimately determinative of the orders the court makes, it remains that a party asserting a fact does carry an onus of proof on “the balance of probabilities” to establish that assertion and in making its findings to that standard the court must take into account the following:
a)the nature of the cause of action or defence;
b)the nature of the subject matter of the proceedings; and
c)the gravity of the matters alleged.
[8] Section 140 of the Evidence Act 1995 (Cth)
The difficulties in dealing with allegations of unacceptable risk in Family Law matters is properly put into context by the Full Court in Napier & Hepburn[9] making it clear that the task for courts is not to find a solution which will eliminate any chance of serious harm to children. Rather, the duty is to balance the harm that will follow if the risk is not minimised or removed, as against the normal, healthy relationship between parent and child not being permitted to prosper.
[9] (2006) FLC 93-303
Children’s best interests – section 60CC factors
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents.
This is a primary consideration together with that under section 60CC(2)(b). This consideration is at the crux of the father’s case. He says that the mother manipulates and alienates the children from him. He says only by the children living with him will they be able to have a meaningful relationship with both of their parents.
This consideration for the court is a prospective one and one based on the quality of time between children and parent rather than simply a distribution of quantity of time. Nevertheless, whilst making orders of a prospective nature into the future, the court must consider the current nature of the relationship between the children and the parents[10].
[10] McCall & Clark (2009) FLC 93-405
It is clear on the evidence before me that the relationship between the children and their father is currently problematic and certainly not a meaningful one. There has been no direct contact since May 2013. These are young children who carry intellectual and emotional disabilities. They refused to see their father at the interviews for the family report. The connection between them and their father is tenuous, if at all. This non contentious fact can, of course, support the arguments for each parent.
It is self-evident that the mother’s proposal that the children have no direct contact with their father is contrary to them having a meaningful relationship with him. Notably, the family reporter advocates direct time, albeit with supervision, in order to maintain these children’s identity with their father. Nevertheless, and whilst a primary consideration, this is just one among numerous considerations which must be referenced to the evidence and weighed in determining orders that are ultimately in the best interests of the children.
As the Full Court in Champness & Hansen[11] noted:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make orders most likely to ensure the children had “a meaningful relationship” with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, S60CC(2)(a) directs the court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
[11] (2009) FLC 93-407
The thrust of the mother’s argument is directed to this consideration. There are a number of relevant factors inherent in the consideration including the mother’s allegations of serious physical violence to her; the father’s allegations of violence by the mother towards the children and to him; the mother’s allegations of the children being exposed to the father’s violence and violent temperament; the father’s own demeanour, including suicidal ideation; the alleged lack of insight in the father in respect of his behaviour; and the father’s allegations or suggestions that one child has been sexually abused by the maternal grandfather.
The mother’s allegations involve a direct issue of credit. She says that she has been attacked and threatened by the father. She particularises her allegations including that she was punched to the head. She says that she has been choked by the applicant in the presence of the child X. She says that on 14 March 2013 he made a threat via the maternal grandfather to “slit her throat”. She says that her home and her friend’s vehicle have been vandalised with threatening comments. She says that she has been stalked by the respondent and even threatened at the courthouse when making application for an intervention order. Significantly, she says that the respondent’s behaviour has been consistent and ongoing. Her trial affidavit goes to great length in particularising the allegations.[12]
[12] See applicant’s trial affidavit, paragraphs 33-63
The mother adduces corroborating evidence from her father. She adduces expert evidence from (omitted) HealthWest as to her being “at high risk of fatal harm”. She has obtained numerous intervention orders and I infer on the basis of other courts being satisfied to the requisite degree of the need for intervention orders. Importantly, there have been proven breaches of the intervention orders although the findings of fact in the other Court is not, of course, admissible to prove a fact at issue in this Court [13] subject to the exceptions which may be applicable[14]. Mr Ashby has spent time in prison on at least two occasions in respect of these allegations.
[13] Evidence Act 1995 (Cth) section 91
[14] Evidence Act 1995 (Cth) section 93
Mr Ashby has consistently denied the allegations of violence. He says that they are fabricated by Ms Moyne. He offers conspiracy theories such as the improper involvement of a particular police officer. Overall, however, Mr Ashby was unconvincing in his denials when cross-examined by counsel for the mother. He tendered photographs suggesting that the mother exaggerated her injuries. They too were unconvincing and, in my view, of little assistance to his argument. His attempts at justification or explanation of some incidents were unsatisfactory. For instance, when challenged as to an incident on 21 March 2013 at the children’s school where he is alleged to have pointed his finger in a gun gesture towards the mother accompanied by threatening comments such as, “The kids will be without their mother,” and, “You’re gone now. I’m going to organise this now,” his explanation that he was suggesting the mother would be imprisoned for perjury was simply unbelievable.
Further, the child X has disclosed to his counsellor that he witnessed the mother being choked by the father and hence there is some corroboration of the mother’s allegations. Similarly the maternal grandfather gave corroborating evidence.
On the balance of probabilities, I have little difficulty in accepting the version of events of the mother as against those of the father. I find that there have been episodes of direct physical violence, stalking and threats perpetrated by the father against the mother. Her evidence was consistent and believable. It was corroborated. It was well particularised and withstood cross-examination. To the contrary, the father’s evidence was uncorroborated and inconsistent with his general demeanour and history of behaviour, including his suicidal ideation and his convictions for breach of intervention order.
Mr Ashby makes serious allegations of sexual abuse by the maternal grandfather against the child X. I dismiss these allegations as being pure fabrication. Mr R gave evidence and was cross-examined. He was an impressive witness. To the contrary, the father was vague and evasive in his evidence in this respect. He at times made particular charges against the grandfather. At other times he claimed only to be seeking clarification from authorities on account of the child sharing a bed with the grandfather. I am satisfied that Mr Ashby’s allegations are opportunistic, malicious and false.
Similarly, I am satisfied that Mr Ashby’s allegations of violence by the mother on the children are without substance. I had the benefit of seeing and hearing both parties give their evidence and be cross-examined. The mother was an impressive witness. She was able to give a reasonable explanation in respect of an accident involving some hot water being spilt on a child. She was consistent in her denial of any deliberate act. I make similar findings in respect of the allegation put by Mr Ashby to the mother in the witness box that she had deliberately killed the family dog.
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the children’s views.
These are young children. They both suffer from autism and other learning difficulties. They would not ordinarily be seen as able to rationalise their views and preferences in respect of their parenting and living arrangements. Significantly, however, both boys were reluctant to see their father at the interview process for the family report.
At paragraph 40 of the report, Ms E observes:
When the writer encouraged X to meet his father that afternoon in the Family Court playroom, X’s face became serious for the first time, and he responded quickly and emphatically, “Nuh, nuh!” The writer asked him to elaborate, and he responded, “He fights with my Mum. He got angry. He says bad things to my mum…he gets angry if I go to him and he gets angry if I don’t, so my mum doesn’t know what to do!” He then added, with an anxious facial expression, “He nearly choked my mum!”
X’s reluctance was shared by his younger brother, Y. There are, of course, two possible explanations for the children’s hesitation in seeing their father. Firstly, and according to the mother, they have witnessed the father’s violent behaviour and anger and simply are fearful of seeing him. Alternatively, and as proffered by Mr Ashby, the children have been manipulated by their mother and, in a sense, alienated from him by reason of her false and malicious comments about him. Nevertheless, and whatever the reason, these children still remain reluctant to have direct contact with their father.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the children’s parents and other persons.
Under the heading “Evaluation” at paragraph 55 of her report, Ms E says:
The children at the centre of this dispute, X and X, are particularly vulnerable due to their respective diagnoses of autism. Family violence has been a feature of their young lives and arguably compounded the symptoms and deficits integral to Autism Disorder. The evaluations and recommendations in this report must therefore accommodate the special needs of these vulnerable children above and beyond the guiding principle of the child’s best interests.
Whilst the children are at different points in the spectrum of autism, they impressed as a close, mutually supportive sibling group. Their relationship to each other, as well as that to the world beyond the family, must be preserved and prioritised.
These children have a primary attachment to their mother. Their relationship with their father is tenuous by reason of no direct contact for some 18 months and perhaps compounded the children’s diagnoses of autism where they seek and require routine and certainty in their daily lives.
Mr Ashby says that the children have been alienated from him by their mother. This issue was considered by the family reporter who notes at paragraph 65:
This report must assess also whether Ms Moyne is alienating her children from their father. The question of the alignment or alienation of the children is complex. The children’s attachment was arguably stronger to their mother in the early years, whilst the parental relationship was unhappy. This was due to her being the primary carer and Mr Ashby absenting himself, by his own admission, to clubs in the evening or going on holidays, rather than consistently perpetrating family violence. However, once the family violence became entrenched and severe, Ms Moyne’s vigilance towards the children heightened necessarily.
This writer believes that, rather than conducting a deliberate campaign to alienate the children from their father, Ms Moyne has become genuinely fearful for her and her children’s safety. It is unsurprising, then, that Ms Moyne has become less willing to entertain unsupervised or overnight time for the children with their father, as she had been earlier post-separation. She feels supported in her rationale by her counsellor (who has assessed her as a high risk of fatal harm) and the Occupational and Speech Therapists with whom she has been working for two and six years, respectively, and who are keen to advocate for these children.
The early intervention services have unanimously stressed the importance of a structured routine and stability and do not recommend overnight time in a relatively new stepfamily environment with Mr Ashby.
Mr Ashby offers his family unit comprising himself, Ms S and her children as an option. However, he chose not to adduce evidence from Ms S. Other than Mr Ashby’s own evidence, I therefore know nothing of her relationship with the children or indeed whether one exists at all I know nothing of her ability to deal with these children’s special needs or whether she might share Mr Ashby’s opinion as to where X and Y sit on the autism spectrum.
Section 60CC(3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions on major long-term issues in respect of the children and to spend time with the children/communicate with the children.
It is clear that the mother was the delegated primary parent when the children were young. The father, by his own admission (and in support of his contention that there was no de facto relationship with the mother) speaks of his own absences at nightclubs and on solo holidays.
The father’s role with these children has effectively ceased since May 2013 when direct contact stopped due to what the mother says was the father’s propensity for violence.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents and any other person or relative.
These children have effectively been separated from their father since about May 2013. They are still young children. They are both diagnosed with autism and hence require certainty and routine in their lives. The experts recognise other learning or social difficulties in the children.
With some qualifications, the family reporter still recommends reintegration of these children to the father by way of limited supervised time. Nevertheless, Ms E notes what she refers to as “the compelling feedback from both children and their stated fear of their father’s anger…”. She notes the children’s aversion to spending time with their father. She notes the anticipated separation anxiety for these children in leaving their mother. Even so, and in terms of establishing and maintaining their identity, Ms E recommends (at paragraph 70 of her report) that “they have an opportunity to be re-integrated with their father in the safe, time-limited environment of a contact centre.”
The father’s proposal represents a quantum change in these children’s lives. He concedes the mother to have been the primary parent. It is clear that it is she who attended to these boys’ special needs. The Family Reporter recognises the mother as the children’s primary attachment. Mr Ashby anticipates X and Y living in a blended family as distinct from their recent experience of living with a sole parent. These are all potential dramatic changes and the court would need to be convinced that Mr Ashby and Ms S have the insight and physical and emotional tools to assist the boys transition successfully.
Section 60CC(3)(e) – the practicality difficulty and expense of the children spending time with and communicating with a parent and whether that practical time or expense will substantially affect the children’s right to maintain personal relationships and direct contact on a regular basis.
An issue noted by the family report would be the reluctance of either parent to adopt her proposal of a reintegration of the children to the father by way of limited supervised time at a contact centre. The mother’s position by the end of the trial was firmly that these children should have no direct contact with their father but perhaps always subject to him receiving psychiatric assistance and an assessment satisfactory to the court.
For his part, the father’s demeanour suggests that he would see no reason for a condition of supervision being imposed on his time with the children. Indeed, he consistently maintains that the children should live primarily with him. He denies anger management issues. He denies alleged violent tendencies. The question for the court, therefore, is whether either parent could or would accept the nature and limitations of supervised time as suggested by the family reporter?
Section 60CC(3)(f) – the capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs.
I am satisfied that the mother has a demonstrated capacity to care for the children, physically, emotionally and intellectually. She has quite clearly, on the evidence, attended to their special needs by way of therapists and counsellors. She has done so without assistance by the father and, arguably, without his acceptance of the children’s diagnoses. She has enjoyed the assistance, actually and financially, of her own father.
The father proposes that X and Y live primarily with him. I am not satisfied that he understands or accepts the children’s diagnoses of autism. He maintains that the mother exaggerates the children’s conditions. His position is contrary to the expert evidence. His evidence in the witness box failed to convince me that he possesses the requisite insight into his children’s conditions. His capacity to care for the children must necessarily be compromised. His actual capacity is also something of an unknown given the flux in time since direct contact and his own concession that he delegated primary care to the mother whilst pursuing his own social life and holidays.
Both Mr Ashby has his partner, Ms S, have regularly sent the mother threatening and critical communications. They have uploaded discrete court documents on to public Facebook pages aimed at criticising the mother and the court system. They have both shown disrespect for this mother’s role in attempting to parent two vulnerable young children. Consequently, the court must necessarily be left with doubt as to this father’s capacity to attend to his children’s emotional and intellectual needs.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
X and Y have special needs. As well as autism, X “also presented with a diagnosis of significant sensory processing difficulties and expressive language difficulties[15]. X requires regular professional intervention. His complex behavioural difficulties include anxiety, hyperactivity, impulse control, social skill difficulties, safety issues, behavioural management/strategies and education strategies.
[15] affidavit Ms L, page 10
As well as autism, Y suffers distress and anxiety with regard to separation from his mother.
Mr Ashby himself has recently suffered from depression. He admits to an attempted suicide during the course of these proceedings. His poor impulse and anger management control is suggested by his convictions and periods of incarceration in respect of acts of violence. Dr A, in his report, notes that Mr Ashby has been seeing a psychiatrist, Dr T, on an ongoing basis. Unfortunately, Mr Ashby did not see fit to adduce evidence from his psychiatrist in respect of his mental health.
Dr A notes some signs of autism in Mr Ashby himself but without any formal diagnosis. He suggests some antisocial personality traits and perhaps an element of intellectual impairment. Significantly, Dr A opines that Mr Ashby’s depression and autistic features “of themselves do not preclude ability to parent the children”.
The evidence suggests that Mr Ashby himself was sadly the victim of violence at the hands of his own father and that his mother suffers a bi-polar disorder. Without expert evidence, however, I am unable to relate these historical facts to Mr Ashby’s own behaviour.
Section 60CC(3)(h) (if the children are Aboriginal or Torres Strait Islander)
Not relevant.
Section 60CC(3)(j) and (k) – any family violence involving the children or a member of the children’s family and if a family violence order applies, or has applied, to the children or a member of the children’s family – any relevant issues that can be drawn from the order, taking into account the following: (i) the nature of the orders; (ii) the circumstances in which the order was made; (iii) and the evidence admitted in proceedings for the orders; (iv) any findings made by the court or in proceedings for the orders; (v) any other relevant matters.
Issues of family violence have been dealt with above. The mother has made a number of applications for and obtained intervention orders with the father as respondent. She has included the children on the applications. There have been breaches of the orders. The father has been incarcerated on at least two separate occasions. At the time of preparing these reasons the father faces further counts of breach of intervention order.
I am satisfied that the child X has witnessed at least one instance of family violence when the mother says that she was choked by the father.
I have considered the affidavits of the parties and those of the mother’s witnesses. I have considered the Family Report and Ms E’s evidence in Court. I had the advantages of seeing the parties and some witnesses give evidence in Court.
I am satisfied on the balance of probabilities that the father’s capacity for violent and angry behaviour is broad and consistent. I am satisfied, on the evidence before me, that he has physically assaulted the mother. I am satisfied that he has threatened the mother as instanced in his attendance at the children’s school where he made a gun-gesture towards the mother with accompanying threatening comments. I find it highly likely, on the evidence, that the father vandalised the maternal grandfather’s garage door and the car belonging to the mother’s friend. I am satisfied that the father’s involvement in comments and uploading of material on to Facebook pages constitutes family violence within its broad definition. I make the same comments towards his partner, Ms S.
I am satisfied that the father’s allegations of violence against the mother and the paternal grandfather are without substance and made opportunistically so as to shore up his case.
The mother has ongoing state court intervention orders with the father as respondent. At the time of preparing these reasons he father is facing yet further criminal charges in respect of alleged breaches of those orders.
Section 60CC(3)(l) – whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
The family reporter proposes interim orders with follow up reports from herself at a contact centre. In so recommending she also notes the children’s difficulties with separation anxiety and the anticipated reluctance of both parents to accept her recommendations.
Any orders that courts make in family law children’s matters such as is now before must be prospective in their nature and subject to many unknowns. These children have a manifest reluctance to have any direct contact with their father. Dr A notes this fact and the difficulties that would follow. Ms E herself notes the same conundrum. It is trite to observe that there must be a benefit for the children in any order that a court makes.
The mother proposes a final order with no direct time between children and father. In this sense, a children’s order can only be “final” in that any significant change in the circumstances of the children or parent can result in further litigation. The mother’s counsel concedes that a positive psychiatric assessment and, perhaps, psychiatric therapy for the father leading to changes in his aggressive behaviour and him gaining a proper insight into his children’s needs would be likely to result in further consideration of the children’s relationship with their father.
The father’s proposal presents numerous unknowns set out above. If the children are to be placed with him and his optimism in any respect proves unjustified that further litigation would be inevitable.
Discussion and conclusions
Any matter involving a proposal that there be no direct relationship between children and a parent is necessarily complex. The Act prima facie recognises the importance of relationships between children and parents. The courts have historically been loathe to cease direct relationships without exploring options involving limitations and conditions on time between children and parents. It is a truism that a complete cessation of a direct relationship is the last resort.
The consideration for the court in this matter involves the broad spectrum of options. The father seeks orders that the children live primarily with him and spend time limited time on alternate weekends and one evening per week with the mother. The mother proposes no direct time between the children and father.
The difficulties are compounded by the children’s intellectual and emotional vulnerabilities and their diagnoses of autism. The father raises issues of alienation and does not accept the full extent of the diagnoses in respect of his children.
Issues of family violence permeate the court’s consideration. The allegations are serious on both sides including allegations of sexual abuse, physical abuse and emotional/psychological abuse.
The consideration for the court is made more difficult by the fact that the father was unrepresented in the trial, with the exception of one day. The father himself is unsophisticated in his thought and his language.
Nevertheless, given the requisite standard of proof, I am able to make a number of findings of fact after consideration of the evidence.
I am satisfied that X and Y have a primary attachment to their mother. She has been the major parental role model and their major carer throughout their lives and even prior to the parties’ separation. She has been the parent who has accepted and attended to their special medical needs.
I find that the father’s allegations of violence against the mother and the maternal grandfather are not made out. I am satisfied that they are opportunistic and reflect the father’s unsophisticated understanding of the court process. For example, the fact that young X should at times share a bed with his grandfather does not, and should not, lead of itself to the serious allegation of sexual abuse. Similarly, the spilling of a cup of tea or hot water does not lead to a finding of the mother deliberately harming one of her children. I am satisfied that this father has taken simple factual circumstances and compounded and exaggerated them for his own ends. I am unable to say whether his making of these allegations is simply malicious, or a factor of his intellectual capacity, or a combination of both.
To the contrary, I am satisfied that Mr Ashby has perpetrated direct violence on the mother. I accept her version of events that occurred in January and November 2013 as set out in her affidavit material. I am satisfied that X witnessed at least one of these events. I have had the advantage of seeing and hearing Mr Ashby giving his evidence in court. Whilst he made every attempt to ingratiate himself to the court and conducted himself with good manners and courtesy, his version of history was unrealistic and at times contradictory. I prefer the mother’s evidence which was consistent, particularised and often corroborated.
Mr Ashby’s attempts at explanation, as for instance in relation to the events at the child’s school, were unsatisfactory. I am satisfied that he has an anger management problems. I am satisfied that he is prone to violent behaviour. I am satisfied that he is prone to unacceptable harassing behaviour as evidenced by the uploading of discrete court material and inappropriate comments on a Facebook page. His evidence in this respect was vague and evasive before finally admitting his role in uploading material to Facebook amounting to publication. I now understand his partner to have been dealt with for these offences. For these reasons, I find that Mr Ashby’s actions were selfish and lacking insight into his own children’s needs. The same finding applies to his “interviewing of the child”.
I am satisfied that these children are reluctant in the extreme to go with their father. The family reporter speaks of separation anxiety. She was unable to convince either child to be seen with their father for the interview process. There is no material before me which supports the father’s claim that the mother has alienated and/or manipulated the children against him. Rather, the father’s lack of insight in interrogating and/or interviewing his children suggests that he himself has contributed largely to these children’s reluctance and that he shows a distinct lack of understanding of his children’s needs.
I am not satisfied that Mr Ashby has the capacity to attend to his children’s intellectual and emotional needs. He varies in his level of acceptance of their diagnoses of autism. The material before me satisfied that both children clearly suffer from this unfortunate condition and associated social and learning difficulties. I remain unconvinced that Mr Ashby has an acceptance or understanding of his children’s conditions.
The fact that Mr Ashby should not read the affidavit of his partner, Ms S, into evidence and hence present her for cross-examination leaves the court with similar lack of satisfaction as to her insight, understanding and capacity. Notably, Ms S has apparently been dealt with under the provisions of the Family Law Act for publicising discrete material in respect of this trial. She did not present herself to deny or explain the abusive text messages that the mother says she received from Ms S. I am, therefore, able to make, and do make, appropriate negative inferences in respect of Ms S. Put simply, I infer that Ms S giving evidence would not have assisted Mr Ashby’s case[16].
[16] Jones v Dunkel[1959] HCA 8
All of the evidence before me supports Ms Moyne as a devoted and insightful mother dealing appropriately with the difficulties presented by her two young boys. I am satisfied that she receives support from the maternal grandfather, Mr R.
The family reporter, Ms E, recommends an interim order with limited supervised time between the children and father. Her argument as to the children establishing and maintaining identity is an understandable and valid one. However, Ms E’s report was prepared prior to the father being subjected to further state court charges. She recognised that the mother’s allegations post the interviews, are significant. She was inclined to agree that it might be better to “hold off” any interim orders in case the children’s routine be further disturbed by yet another period of imprisonment for the father.
Whilst accepting that the children identifying with their father and paternal family is an important consideration, I must also consider the benefit to the children, if any, of the family reporter’s proposal. These are children with special needs. They are reluctant to see their father even within the safe confines of a family report interview. They have not had contact with their father now for some 18 months. I am satisfied that their autism requires routine, order and certainty in their lives. I am not satisfied that Mr Ashby accepts the diagnosis of autism for his sons or its degree.
I am not satisfied that Mr Ashby’s history of volatile behaviour (including an attempted suicide during these proceedings) is conducive to order and routine. These are children who even the family reporter suggests will suffer separation anxiety from their mother.
It follows that I am satisfied that the children’s best interests are served living with the mother. The presumption of equal shared parental responsibility does not apply by reasons of my findings of family violence. As such, I am satisfied also that the children’s best interests are served by the mother having sole parental responsibility for X and Y. The parents do not communicate. There is little prospect of cooperation between them. The mother has always attended to the boys’ specialists. Mr Ashby does not, on my findings, have the same level of acceptance of or insight into the children’s special needs. These all argue against an order for equal shared parental responsibility being in the children’s best interests.
After some lengthy reflection and a weighing of the evidence, I am not satisfied that these children’s best interests are served at this stage by them having any direct contact with their father. I am not satisfied that interim orders are appropriate. This mother has, on my findings, been subjected to assaults and harassment from the father. She is the children’s primary carer. I am of the view that the mother and the children would not benefit from the spectre of these proceedings remaining on foot. Equally, I am not satisfied that supervised time is appropriate or in the children’s best interests. X and Y refused to see their father with the Family Reporter. They have special intellectual and social needs. They are described as “vulnerable”. Supervision is, at best, only a short term measure and should, in my view, be accompanied by a quantum improvement in this father’s insight and behaviour both of which are not yet appropriate.
It does, of course, remain open for Mr Ashby to address the concerns that I have set out above. The onus, however, is on him. He must satisfy a court at a future time that he has dealt with his propensity for violence and improper behaviour towards the children’s mother. He must convince a court that he has developed the necessary understanding and insight into his children’s vulnerability and special needs. I find some merit in the submission of counsel for the mother that this father should receive some psychiatric assistance (which he already apparently receives) and provide the court (and the mother) with psychiatric assessment suggesting that his issues have been addressed and that his circumstances have changed to a degree such that a court should consider direct time between he and his sons. I note evidence that Mr Ashby does see a psychiatrist but that evidence goes no further.
I propose, however, to order that there be a regime of written communication between the children and their father but not with such frequency as to disturb the children in their routines. This will serve to maintain a connection and understanding in the children as to the paternal identity.
Property – jurisdiction
There is a dispute between the parties as to whether they were in a de facto relationship and, if so, the duration of that relationship. More properly, Mr Ashby objects to jurisdiction of the court on two grounds. Firstly, his material and his evidence in court argues his position to be that the parties were never in a de facto relationship. Alternatively, if there was a de facto relationship then he argues that separation occurred in January 2009 which is prior to the conferring of jurisdiction on this court.
Ms Moyne says that the parties met and commenced a relationship in early 2003 and commenced living together in about June or July of that year. She says that they finally separated in late January 2011 when there was a serious violent incident between them. She provides corroborating evidence in the affidavit of her father, Mr R, who says at paragraph 21 and 22 of his affidavit:
I first became aware that Ms Moyne and Mr Ashby had separated in or about January 2011 following an incidence of family violence. Ms Moyne told me that the police sought an intervention order against the Respondent. To the best of my knowledge and recollection, Ms Moyne and Mr Ashby were still living together up until January 2011.
Ms Moyne and Mr Ashby did not separate in January 2009 as he asserts. I recall Mr Ashby attending my 60th birthday at the (omitted) in (omitted) 2009. We also attended my niece’s son’s wedding in (omitted) 2009.
Section 4 AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
The maternal grandfather’s partner, Ms F, gave evidence and was cross-examined by Mr Ashby as to the nature of his relationship with Ms Moyne. He suggested to her that during the relationship he had “lived upstairs”. She disputed this saying they were living together in the same house. Similarly, the mother’s witness Mr M was cross-examined as to this issue by Mr Ashby. Mr M was an impressive witness as to his observations and recollections of Mr Ashby and Ms Moyne as a “couple”. He also referred to events attended by the parties and inconsistent with the position taken by Mr Ashby in respect of the relationship.
Mr Ashby conceded that the parties lived at times in the same home but says that he lived “upstairs in a self-contained flat”. However, perhaps the most significant evidence in this respect comes from the answer by Mr Ashby to the very first question put to him in cross-examination by counsel for the mother. That question was:
Q: You agree you were in a relationship with my client. Was it de facto?
R: I’m not 100 per cent sure of the meaning. Not really.
Q: You agree it was a relationship and you lived together?
R: Correct.
Mr Ashby says that the relationship ended in January 2009. This contention is against the weight of the evidence of Ms Moyne and her witnesses. Mr Ashby adduces no evidence to corroborate his claim, despite there being available evidence from his mother and/or his partner.
Whilst I am satisfied that Mr Ashby may not have always seen himself in a traditionally committed relationship given his propensity for nightclubbing and holidays, I am satisfied on the balance of probabilities that these parties were in a relationship and lived together between mid-2003 and January 2011. Significantly, there are two children of the parties. The relationship endured for more than seven years. There is evidence of public recognition of the relationship. Generally, as to credit I prefer the evidence of Ms Moyne and her witnesses over that of Mr Ashby.
Mr Ashby made valiant attempts in cross-examination of the mother and her witnesses to establish the date of separation as January 2009. He was unsuccessful in this regard and the witnesses were consistent in their evidence as to the separation date being January 2011. Further, the mother and the witnesses were able to point to specific events and family occasions consistent with the mother’s version of the separation date.
Mr Ashby’s argument was not assisted by evidence that he referenced, on two separate occasions, Ms Moyne as his emergency contact on outgoing immigration passenger cards certified after his alleged date of separation.
Property – relevant law
Recent authorities establish a clear pathway for the court in determining what, if any, alteration of property interests takes place between the parties to a marriage or de facto relationship.
Firstly, the court must establish the existing legal and equitable interests of each of the parties in property and apply a value to those interests. Superannuation is to be treated as property for these purposes.
Following the decision of the High Court in Stanford & Stanford[17]the trial judge must then consider whether it is just and equitable, in all of the circumstances, for the court to alter the property interests of the parties?
[17] (2012) 293 ALR 70 at [79]
This is a consideration not to be conflated with a simple examination of the contributions and relevant section 90SF factors. In my view, the multi-step process identified by the Full Court in Hickey & Hickey and Attorney-General of the Commonwealth (Intervener[18])remains relevant but subject to the above consideration identified by the court in Stanford. The court is to identify and value, as at the date of the hearing, the parties’ legal and equitable interests in property, including liabilities and financial resources. The court is then to identify, assess and attribute weight to the parties contributions to that property pool taking into account the matters set out in section 90SN of the Act. The court then moves to identify, assess and attribute weight to the relevant factors set out in section 90SF of the Act and then make a further adjustment between the parties, if appropriate. Permeating this entire process is a consideration of whether the proposed orders are just and equitable.
[18] (2003) FLC 93-143 at [39]
In a matter involving such complex issues of credit, fortunately, the contents of the property pool here does not appear to be in dispute. There is also unchallenged evidence from valuers.
The greater majority of the property pool consists of four pieces of real property registered in the name of Mr Ashby. They are best described in his trial affidavit at paragraph 6 as follows:
My current assets include the following: - (a) my property located at Property C, which is now worth approximately $480,000. (b) My property located at Property K, which is now worth approximately $415,000. (c) My property at Property B, which is now worth approximately $500,000. (d) My property located at Property L, which is now worth approximately $918,000.
I do not have any current liabilities.
It is fair to say that the force of cross-examination and evidence in this matter was in respect of the children’s issues. Mr Ashby’s case was simply that there was not de facto relationship and that Ms Moyne, in any event, made no contribution to the properties which were purchased as his portfolio and registered in his sole name. Whilst Mr Ashby says that he has no liabilities, it is clear that there is a mortgage secured by properties registered in his name such mortgage loan liability sitting at $512, 972 (this is a prime example of the inherent contradictions in much of Mr Ashby’s evidence in respect of many of the issues before me and thus the more difficult forensic exercise for the court).
Given that Mr Ashby made no challenge to the version of the property pool set out in the applicant’s case outline and given that it refers to the same properties as does Mr Ashby’s affidavit and given the lack of issue as to valuation, I accept the property pool as set out by the applicant as follows:
Assets
Property K: $415,000
Property B: $625,000
Property L: $918,000
Property C: $480,000
Ford motor vehicle (Mr Ashby): $10,000
(omitted) Commodore (Ms Moyne – sold): $4500
Mr Ashby's (omitted) Bank account: $16,852
Ms Moyne's (omitted) Bank account: $500
Household contents (not valued: not known
Total: $2, 469, 852
Liabilities
(omitted) Bank Loan (secured by Property K, Property B, Property C and Property L properties) (Mr Ashby) $512,972
(omitted) Bank investment loan (Mr Ashby) $1913;
(omitted) credit card (Ms Moyne) $5500
(omitted) Bank MasterCard (Ms Moyne) $11,500
Total: $531, 885
NET: $1, 937, 967
The current superannuation entitlements of the parties on the best evidence before me comprise the following
Ms Moyne superannuation: $2601
Mr Ashby superannuation: $65,923
TOTAL: $68,534
The applicant concedes that in June 2012 she accessed her superannuation under hardship provisions and withdrew $10,000, which netted her $7850. Her unchallenged evidence is that these funds were applied to meet living and medical expenses together with legal costs. There was no precise breakdown of how the money was disbursed.
Ms Moyne says that the Property K property was purchased in 2003 and only a couple of months prior to the parties entering a de facto relationship. Her unchallenged evidence is that the property was purchased with the assistance of a mortgage loan and that Mr Ashby’s equity was minimal. He says that he purchased Property K in 2003 and that he did so by way of savings of $150,000 and the balance borrowed from (omitted) Bank, secured by mortgage. The court was not assisted by any documents evidencing the assertions of either party in respect of the purchase of the Property K property. In cross-examination each party did not focus on this issue. I note, however, that Mr Ashby was in well-paid employment as at the time. I note the current significant equity now in his property portfolio. I also note that Property K property was purchased prior to the parties committing to a de facto relationship and solely in the name of Mr Ashby. In the absence of any evidence to the contrary, and on the balance of probabilities, I prefer Mr Ashby’s evidence that he provided cash of $150,000 to the purchase of the Property K property.
There is also an issue between the parties as to the status of the Property L property which is indisputably registered in the name of Mr Ashby. At paragraph 29 of his affidavit of 9 April 2013, Mr Ashby says this in respect of that property:
In 2008, following the finalisation of my father’s estate, my mother advanced amounts exceeding $400,000 to me in order for me to purchase a property for her at Property L. The purchase price of $800,000 was raised from the following sources: (a) moneys advanced by my mother; (b) borrowings secured by first mortgage from (omitted) Bank Loans.
Mr Ashby argues that the beneficial owner of the Property L property is his mother. He says it was purchased by a contract noting himself “or nominee” as purchaser. The inference I might reasonably draw is that his mother is a pensioner and perhaps would suffer some financial detriment if she was the legal owner of an investment property. Whilst I understand such practice to be not uncommon, the fact remains that the Property L property is and remains registered in the name of Mr Ashby. Even on Mr Ashby’s argument he is confronted with difficulties from the presumption of advancement in showing whether in fact he holds the property subject to a resulting trust in favour of his mother. Unsurprisingly, such a complex legal concept was not raised or argued by Mr Ashby.
Significantly, Mr Ashby did not see fit to rely on an affidavit from his mother and expose her to cross-examination on this issue. To my mind, the best evidence is the registration of title in Mr Ashby’s name and I am satisfied that he is the legal and beneficial owner of the Property L property. Nevertheless, and on the unchallenged evidence available to me and including the concession made by the mother that she is aware of a bequest from Mr Ashby’s late father’s estate, I am prepared to accept that a contribution of $400,000 was provided by or on behalf of Mr Ashby to assist in the purchase of the Property L property. This is therefore a substantial contribution by him to the property pool.
The majority of the property pool consists of real property registered in the name of Mr Ashby. On my findings, the relationship of these parties commenced some 11 years ago. The parties cohabited for about seven and a half years. There are two children of the relationship. The parties have lived at times in the properties registered in Mr Ashby’s name. Both parties have been in employment at times during the relationship. Other contributory factors are relevant. In all of the circumstances, I am satisfied that it is just and equitable in this matter to alter the property interests of the parties in respect of the pool set out above.
Contributions
On my findings above, there have been two substantial direct financial contributions by Mr Ashby to the property pool involving an initial contribution of $150,000 and a later contribution from an inheritance of $400,000. These are significant contributions within the context of the value of the pool and should be afforded due weight given that they are directly traceable to the substantial equity in real estate now in that property pool. The relationship was not a short one. The direct financial contributions of Mr Ashby represent significant value in the pool. However, these contributions must be seen and weighed against the various other contributions of both parties within the context of the last eleven years and where there are two children with special needs.
Mr Ashby was employed as a (omitted) with a good income for the majority of the relationship. Ms Moyne was employed for the early part of the relationship and, understandably, occupied in the care of the children from 2005. The irresistible finding is that she was and remains the person who primarily cared for the children. In this sense, I see their contributions during the relationship as being equal.
I must also consider post-separation contributions since January 2011. X and Y have lived with the mother since separation. They have had no contact with the father since May 2013. The mother has been primarily responsible for their financial support given that only minimal child support has been paid by Mr Ashby now for some time. In my view, the mother should be given some credit for her post-separation contribution to the children.
In respect of contributions, I find the father’s direct financial contributions to be significant but set off to a degree by the mother’s superior post-separation contribution to the children. In respect of contributions only, I will adjust the property as to 67.5% per cent to Mr Ashby and 32.5% per cent to Ms Moyne.
There are a number of relevant considerations under section 90SF of the Act which will weigh towards a further adjustment in Ms Moyne’s favour. She is and will remain the primary and sole carer for X and Y. They are children with special needs. The unchallenged evidence is that the cost alone of treating professionals for these two children amounts to $320 per week. Ms Moyne meets these expenses currently only with the assistance of her father.
These children are young, and Ms Moyne is likely to endure these responsibilities at least until X and Y achieve their majority and probably for longer. The special and complex needs of these two children, reasonably in my opinion, preclude Ms Moyne from pursuing employment. To the contrary, Mr Ashby has qualifications and experience as a (omitted) which can bring him a good income. The evidence as to his current inability to work is vague and uncertain but, in any event, he appears to have been in receipt of employment insurance to compensate for the loss of his wages. He did, however, offer that the insurance payment may have ceased due to the evidence contrary to his claimed incapacity. Regardless, I am satisfied that he has skills and experience to re-enter the workforce. He also receives rentals from his portfolio of various properties. I also note the nature and quantum of the property pool.
In all of the circumstances, I am of the view that an adjustment in favour of Ms Moyne in respect of the section 90SF factors of 17.5 per cent of the property pool is appropriate.
I calculate, therefore, that Ms Moyne should receive 50 per cent of the property pool and hence Mr Ashby retain 50 per cent.
In the absence of any evidence as to when the superannuation entitlements of the parties were acquired I accept the submission of counsel for Ms Moyne that there be a splitting order in respect of superannuation entitlements so as to equate to a 50/50 division of total entitlements to each party. In doing so, I do not think it proper to include the proportion of her superannuation received by Ms Moyne post-separation on account of hardship. I agree that she did suffer financial hardship at the time. She was obliged in respect of the special expenses for the children and has received minimal child support from Mr Ashby.
On the property pool set out above, I calculate that there be a splitting order with a base amount of $31,661 from Mr Ashby's (omitted) superannuation.
The real property portfolio is registered in Mr Ashby’s name. He gives every indication of wishing to retain and pursue his property portfolio. The mother’s counsel, in final submissions, says that she does not seek to take her entitlement in the form of real estate. Consequently, I will make my orders in the form of a cash adjustment from Mr Ashby to Ms Moyne but failing which there will necessarily need to be a sale of property to satisfy Ms Moyne’s claim. I calculate the net value of the tangible property pool to be $1,937,967. 50 per cent would give Ms Moyne an entitlement of $968, 984 but subject to those assets and liabilities she retains from the pool set out above. She has assets of $5,000.00 value and liabilities in the pool totally $17, 000.00. she will therefore receive a cash adjustment of $980, 984. I will give Ms Moyne liberty to apply in the event of Mr Ashby being unable to satisfy the cash payment.
The court notes that evidence of procedural fairness to the respondent’s (omitted) superannuation fund has not been provided and all property and superannuation orders will be made on a draft basis until this is received.
Spousal maintenance
The orders sought by the applicant involve an amount pursuant to section 90SH of the Act being a lump sum equivalent to five per cent of the property pool attributed to spousal maintenance.
In making any order for spousal maintenance, I must first be satisfied as to the following:
i)that the applicant has needs in the quantum of spousal maintenance sought;
ii)that the applicant is unable to attend to her own needs;
iii)only upon the satisfaction of the two criteria above will the court then turn to consider the ability of the respondent to contribute to the applicant’s maintenance.
Again, little or no focus was placed on this issue in the material before the court and, in particular, in cross-examination. I note that the order I make would give Ms Moyne a cash element of $980, 984. I can only speculate as to how Ms Moyne might wisely utilise or invest those moneys. They do, however, represent a substantial sum. There is no evidence as to what return she could expect from prudent investment although I must infer it to be a not insignificant amount. Given the dearth of evidence, I cannot be satisfied that Ms Moyne would be unable to meet her own particular needs. Consequently, on the evidence, she has not satisfied the criteria for an award of spousal maintenance. That part of the application will be dismissed.
Child support departure
There seems little dispute that Mr Ashby currently pays a minimal, and perhaps statutory minimum, of child support for his two children. In this sense he is obviously morally culpable given the clear evidence as to the special needs and consequent expenses for these two young children being $320 per week for specialists alone. His evidence although vague, suggests an income from employment insurance. It is not surprising, therefore, that the mother seeks a departure order from current assessment. She relies simply on the special circumstances of the costs of maintaining the children, as evidenced above. She deposes that the current administrative assessment is $49 per week. She therefore seeks a lump sum payment of $179,400 or, alternatively, a departure order from current assessment to $150 per week per child for each of X and Y.
On an examination of all of the evidence, I am at a loss to understand why there should be a current assessment of $49 per week applicable to Mr Ashby. His own financial statement discloses an annual income of $125,000 per annum gross being $61,000 by way of rental income and $63,000 from income protection insurance. There was the vague evidence, however, that the income protection insurance may have been cancelled after some private detective investigations and film disclosed Mr Ashby to be more capable of work than he had indicated to his insurer. When challenged on this evidence, Mr Ashby indicated that he would be returning to work as a (omitted) or otherwise be engaged in the caring of his mother.
Whilst it is open for me to consider a departure order from current assessment on the basis of there being concurrent proceedings before me, I am troubled again by the lack of evidence. To my mind, it remains open for Ms Moyne to proceed by way of objection or review on the current assessment and to provide full and proper materials to the Child Support Registrar. I note, for instance, that the applicant’s counsel, in his submissions, indicates that calculations of Mr Ashby’s obligation should be based on a property pool of near $2 million. However, the orders that I make above will severely diminish that pool in the hands of Mr Ashby and consequently his net rental income. I am not armed with sufficient particulars to make such calculations with any degree of certainty. There is also the uncertainty as to Mr Ashby’s current income in the sense of his income protection insurance being possibly cancelled and/or he returning to the workforce. The strongest likelihood, on the evidence before me, is that Ms Moyne could approach the Child Support Agency with reasonable confidence in seeking an objection or review of the current assessment which to my mind is incongruous in any event in its quantum with the income conceded by Mr Ashby in his financial statement. Unfortunately, the material before me does not allow me to substitute the role of the agency in making proper assessments and calculations and to do so on a speculative, rather than evidentiary, basis might in fact do an injustice to the children and this mother.
I certify that the preceding one-hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 14 November 2014
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Family Law
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