Masson and Parsons & Anor - [2018] FamCA 823

FAMILY COURT OF AUSTRALIA

MASSON & PARSONS AND ANOR

[2018] FamCA 823

FAMILY LAW – PRACTICE AND PROCEDURE – Interim proceedings – Where the respondents contend the Independent Children’s Lawyer’s appointment has ceased due to the determination of the respondents’ appeal to the Full Court, even though matter remitted for re-trial – Where the Court considers rule 8.02(5) of the Family Law Rules 2004 (Cth) – Where the Independent Children’s Lawyer has standing.

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where children conceived by artificial insemination – Where the first respondent is the biological mother of both children – Where the applicant provided the semen for artificial conception of the eldest child – Where the semen for conception of the youngest child was provided by an anonymous donor – Where the primary judge made orders in October 2017 providing for both children to spend time with the applicant, but the orders were successfully appealed and the proceedings remitted for re-trial – Where the respondents filed an Application in a Case seeking interim orders for the eldest child to spend less time with the applicant and for the youngest child to only spend time with the applicant at their discretion – Where the applicant and the Independent Children’s Lawyer both oppose the respondents’ application – Where the respondents complied with the existing orders until July 2018 when the youngest child resisted spending time with the applicant – Where the eldest child continues to spend time with the applicant in accordance with the existing orders – Where there is no evidence of any risk of harm to the children in either household – Where children both have important relationships with the applicant – Where application is dismissed and existing orders remain operable until the re-trial – Where the respondents ordered to present the children for interview with the Independent Children’s Lawyer – Where the respondents are ordered to pay the applicant’s costs on a party/party basis.

FAMILY LAW – CHILDREN – Parental responsibility – Where allocation of parental responsibility for the children is not in dispute – Where respondents seek injunctions restraining the applicant from representing himself or his partner as the children’s parents, attending the children’s school and taking the children outside Australia – Where no orders for injunctions.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60H, 61DA, 64B, 65D, 65AA, 65C, 65DAA, 69C

Family Law Rules 2004 (Cth) r 8.02(5)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2016) FLC 93-286
Masson & Parsons & Anor (2017) 58 Fam LR 1; [2017] FamCA 789
Parsons & Anor & Masson [2018] FamCAFC 115

APPLICANT:

Robert Masson

RESPONDENTS:

Susan Parsons & Margaret Parsons

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

FILE NUMBER:

SYC

3963

2015

DATE DELIVERED:

18 September 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

18 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Masson and Parsons & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 823
Decision Date: 18 September 2018

CaseChat Overview and Summary

In *Masson and Parsons & Anor*, Austin J of the Family Court of Australia considered an application for interim parenting orders and the standing of an Independent Children’s Lawyer (ICL) in proceedings that had been remitted for re-trial. The dispute concerned the time the applicant spent with two children, one conceived via artificial insemination using the applicant's sperm and the other using donor sperm, where the first respondent is the biological mother. The respondents sought to vary existing orders that provided for the children to spend time with the applicant, arguing for significantly reduced or discretionary time for the youngest child. The applicant and the ICL opposed this application.

The court was required to determine whether the ICL’s appointment had ceased following the respondents’ successful appeal to the Full Court, despite the matter being remitted for re-trial, and whether the ICL retained standing. Additionally, the court had to consider the respondents’ application for interim orders regarding the children’s time with the applicant, and their separate application for injunctions restraining the applicant from certain actions related to parental responsibility.

Austin J reasoned that rule 8.02(5) of the *Family Law Rules 2004* (Cth) preserved the ICL’s appointment in circumstances where proceedings are remitted for re-trial. The court found that the ICL therefore had standing. Regarding the interim parenting orders, the court noted the existing orders had been complied with until July 2018, and that both children had important relationships with the applicant, with no evidence of risk of harm. Consequently, the respondents’ application for interim orders was dismissed, and the existing orders were to remain in place until the re-trial. The court also dismissed the respondents’ application for injunctions.

The court ordered that the respondents pay the applicant’s costs of the interim hearing on a party/party basis. By consent, the respondents were ordered to ensure the children’s presentation for interview with the ICL. Certain outstanding applications were referred back to the Docket Registrar for further procedural directions.

Orders

Orders of the court

The Application in a Case filed by the respondents on 7 August 2018 is dismissed.

Save as to costs, the Amended Response to an Application in a Case filed by the applicant on 16 September 2018 is dismissed.

The respondents shall pay the applicant’s costs of and incidental to the interim hearing calculated on a party/party basis in the sum agreed or assessed.

BY CONSENT IT IS FURTHER ORDERED

The respondents shall ensure the presentation of the subject children to the Independent Children’s Lawyer for interview at a time, date and place reasonably nominated by the Independent Children’s Lawyer.

The following outstanding applications are referred back to the Docket Registrar for further procedural directions:

a. The Application Contravention filed by the applicant on 31 July 2018;

b. The Amended Initiating Application filed on 8 March 2017; and

c. The Amended Response filed on 24 February 2017.

NOTATION

A. The respondents do not require the publication of reasons for Order 3 hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.