Masson and Parsons & Anor (No 2) - [2020] FamCA 585

FAMILY COURT OF AUSTRALIA

MASSON & PARSONS AND ANOR (NO. 2)

[2020] FamCA 585

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – Application by the respondents to stay the orders requiring the first respondent to enter into good behaviour bonds and for the respondents to ensure the child spends compensatory time with the applicant, pending the determination of the appeal – Exercise of discretion – Where the first respondent’s entry into the good behaviour bonds is not inconvenient and will not render her appeal nugatory – Where the respondents adduced no evidence as to why it necessary or desirable to stay the order ensuring the child spends compensatory time with the applicant – Where no proper basis to stay the orders – Application dismissed – No order as to costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Interim suspension of parenting orders – Application by the respondents to suspend the orders requiring the youngest child to spend time with the applicant, pending the final determination of prospective applications to discharge, vary or suspend existing orders – Where the parties intend to make applications pursuant to s 70NBA of the Family Law Act 1975 (Cth), but have not yet done so – Where such applications have not been particularised – Where there is no evidence that an interim variation of orders is in the youngest child’s best interests – Where there is no basis to entertain applications for interim relief when there is no particularised application for final relief – Where there are multiple impediments to the application – Application dismissed – No order as to costs.

FAMILY LAW – PRACTICE AND PROCEDURE – Contravention proceedings – Directions – Where the essence of the contravention application was determined by orders made in June 2020 – Where neither party has particularised an application pursuant to s 70NBA of the Family Law Act 1975 (Cth) as foreshadowed at the contravention hearing – Where the parties should formally commence fresh proceedings if they wish to amend the operable orders – Where the remainder of the Application-Contravention is dismissed – No order as to costs.

Family Law Act 1975 (Cth) ss 70NBA, 70NCB, 70NEB, 70NECA, 117

Family Law Rules 2004 (Cth) rr 1.04, 1.07, 5.01, 5.08

Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Masson & Parsons [2018] FamCA 823

APPLICANT:

Mr Masson

RESPONDENTS:

Ms S Parsons & Ms M Parsons

FILE NUMBER:

SYC

3963

2015

DATE DELIVERED:

3 July 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle (via telephone)

JUDGMENT OF:

Austin J

HEARING DATE:

3 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cantrall

SOLICITOR FOR THE APPLICANT:

Steiner Legal Pty Ltd

COUNSEL FOR THE RESPONDENTS:

Ms McMahon

SOLICITOR FOR THE RESPONDENTS:

Harris Kelly & Associates Lawyers

Orders

IT IS ORDERED THAT

The Application in a Case filed on 26 June 2020 is dismissed, with no order as to costs.
The Application…

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.

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Details

Case: [2020] FamCA 585
Decision Date: 3 July 2020

CaseChat Overview and Summary

In *Masson and Parsons & Anor (No 2)*, Austin J of the Family Court of Australia considered applications by the respondents seeking to stay or suspend various orders made by the court. The applications concerned orders requiring the first respondent to enter into good behaviour bonds, for the respondents to ensure compensatory time between a child and the applicant, and for the interim suspension of orders for the youngest child to spend time with the applicant. The respondents also sought directions regarding contravention proceedings.

The court was required to determine whether to grant a stay of the good behaviour bond and compensatory time orders pending appeal, and whether to grant an interim suspension of parenting orders for the youngest child. Additionally, the court needed to consider the appropriate course for the contravention proceedings, particularly in light of foreshadowed but unparticularised applications under s 70NBA of the *Family Law Act 1975* (Cth).

Austin J dismissed the application for a stay of the good behaviour bonds, finding that their entry was not inconvenient and would not render the appeal nugatory. The application to stay the compensatory time order was also dismissed for lack of evidence and proper basis. The application to suspend parenting orders for the youngest child was refused, as no particularised application for final relief had been made, and there was no evidence that interim suspension was in the child's best interests. The contravention proceedings were largely dismissed, with the court directing that fresh proceedings should be formally commenced if the parties wished to amend the operative orders, as neither party had particularised the s 70NBA applications foreshadowed at the contravention hearing.

The court ordered that the applications filed on 26 June 2020 and 2 July 2020 be dismissed, with no order as to costs. The Application-Contravention filed on 11 May 2020 was also dismissed, save for orders made on 23 June 2020, with no order as to costs.

Orders

Orders of the court

IT IS ORDERED THAT

The Application in a Case filed on 26 June 2020 is dismissed, with no order as to costs.

The Application in a Case filed on 2 July 2020 is dismissed, with no order as to costs.

Save for the Orders made on 23 June 2020, the Application-Contravention filed on 11 May 2020 is dismissed, with no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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