Masson and Parsons & Anor (No 2)
[2020] FamCA 585
•3 July 2020
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 | of | 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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masson & Parsons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 3963 of 2015
| Mr Masson |
Applicant
And
| Ms S Parsons & Ms M Parsons |
Respondents
EX TEMPORE REASONS FOR JUDGMENT
On 23 June 2020, I found the respondents had contravened operable parenting orders in March 2020 and April 2020. As a consequence, I ordered the first respondent to enter into two separate good behaviour bonds and ordered both respondents to ensure that the eldest of the two children who live with them spends compensatory time with the applicant.
Within the contravention proceedings, both the respondents and the applicant intended to make applications pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) to discharge, vary or suspend the operative parenting orders in one way or another. Those applications were listed before me today (3 July 2020) for further procedural directions.
In addition, the parties’ respective costs applications arising out of the dispute determined by the orders made on 23 June 2020 were listed for hearing today.
The respondents appealed from the substantive orders made on 23 June 2020 and have since filed two interlocutory applications, which they now want me to urgently consider. They are as follows:
a)First, an Application in a Case filed by them on 26 June 2020, which effectively seeks a stay of the appealed orders, pending determination of the appeal. Although the application implies (in proposed Order 4) that the respondents also seek an adjournment of the directions hearing fixed for today in respect of the parties’ prospective applications to discharge, vary or suspend the operable parenting orders until after the appeal is determined, their counsel informed me that is not, in fact, so.
b)Secondly, an Application in a Case filed by them on 2 July 2020, effectively seeking to urgently suspend some of the operable parenting orders, pending the ultimate determination of the parties’ prospective applications to amend the operable parenting orders pursuant to s 70NBA of the Act.
Application in a Case – 26 June 2020
In support of this application, the respondents relied upon the affidavit of the first respondent filed on 26 June 2020. The affidavit says nothing of relevance, save that the first respondent wants the appealed orders stayed so she does not have to enter into the good behaviour bonds before the appeal is heard and determined.
The discretion to stay the operation of orders pending an appeal should only be exercised where circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the eventual determination of the appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or where, for whatever other reason, there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222-223). The court should also consider the prospects of the appeal and where the balance of convenience lies (Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 685).
As to the balance of convenience, no inconvenience at all would be incurred by the first respondent entering into the good behaviour bonds before the appeal is determined. The bonds only require her to comply with existing orders, which is her legal obligation in any event. Any breach of the bonds by her could sound in a different penalty (s 70NECA), but that same outcome could result from another proven contravention and further sanction imposed under Part VII, Division 13A of the Act, regardless of her entry into the bonds. Importantly, the good behaviour bonds are intended to induce the first respondent’s future compliance with orders, not to gratuitously punish her.
Nor would the first respondent’s entry into the good behaviour bonds now render her appeal nugatory. I reject any submission to the contrary. If the appeal succeeds, the appealed orders will be presumably set aside and the bonds annulled.
I am prepared to accept at face value the submission that the appeal is bona fide and there is no need to comment any further on the prospects of its success.
In my view, there is no proper basis upon which to stay Orders 1 and 2 made on 23 June 2020.
As things stand, the first respondent has not entered the good behaviour bonds. They remain unexecuted. The Registrar apparently cancelled the appointment with the first respondent on 26 June 2020 for the bonds to be executed until this application is determined. Section 70NECA of the Act specifies the ramifications for a party breaching a good behaviour bond, but it says nothing about the ramifications of a party refusing to enter into a good behaviour bond pursuant to a valid and enforceable court order. A persistent refusal to do so is liable to be construed as a contempt of the court, potentially exposing the first respondent to even more serious repercussions. It would therefore be unwise for her to delay any further her compliance with Orders 1 and 2 made on 23 June 2020.
The allied application to stay Order 4, requiring the respondents to ensure the subject child spends compensatory time with the applicant is also dismissed. There is no reason to stay the order. The respondents adduced no evidence at all as to why it is necessary or even desirable.
The respondents admit the subject child missed two visits with the applicant, amounting to approximately five days in all. Their defence of the contravention application was merely that they did everything within their power to ensure the child spent time with the applicant, which defence failed in relation to two particular visits. Even if they are vindicated on appeal, the child still missed spending about five days with the applicant. There is no argument about that. The respondents admit they have been able to persuade the child to comply with the orders since April 2020, so one is inclined to infer the child should benefit from catching up on the missed time with the applicant.
The application to stay Order 4 flies in the face of the respondents’ counsel’s submission made during the contravention hearing to the effect that the respondents would “gladly offer” make-up time. Even the appeal from that particular order is difficult to fathom, given the concession – unless, of course, the concession was disingenuous.
Application in a Case – 2 July 2020
In support of this application, the respondents relied on the affidavit of the first respondent filed on 2 July 2020.
The essence of this application was proposed Order 3, which was stated in these terms:
That orders 10.2, 10.3, 10.5, 10.6 and 11 of the Orders dated 23 March 2018 are suspended pending the conclusion of the Section 70NBA Application…
(As per the original)
Those particular orders, which were first made on 3 October 2017 (but subsequently amended under the slip rule in both November 2017 and March 2018) made provision for the two children who live with the respondents to spend time with the applicant.
The respondents’ counsel clarified during the hearing that the proposed interim suspension of those orders is only intended to relate to the youngest child – not to both children. In any event, the application was opposed by the applicant.
In the contravention proceedings, I found there was no contravention of the operable parenting orders in respect of the youngest child because, on 8 February 2020, the applicant sent the respondents an email saying he did not intend to enforce the orders in respect of that child any longer. Save for a period of about seven weeks in early 2019, the youngest child has not spent much, if any, time with the applicant since mid-2018.
On 26 June 2020, the applicant’s lawyer sent the respondents’ lawyer a letter advising them that the applicant rescinded his email of 8 February 2020 and now does intend to invoke the operative orders by requiring the youngest child to spend time with him.
The applicant invited the respondents to propose how the youngest child’s interaction with him could be restored gradually, but the respondents did not submit any such proposal. Their response to the letter was to file the Application in a Case seeking to suspend the operable orders so the youngest child does not have to spend any time at all with the applicant – at least until the prospective dispute over the discharge, variation or suspension of the operable parenting orders is finally determined.
Therein lies the flaw of this interim application: the respondents want to now summarily suspend the operable parenting orders which they implicitly admit can only be properly discharged, varied or suspended following a final hearing upon tested evidence. I accept the applicant’s submission that this really amounts to an attempt to pre-empt the outcome of a final hearing.
Even if that is not consciously intended, I also accept the applicant’s submission that there is no evidence that any such variation is in the best interests of either child, particularly given the respondents’ counsel’s submission during the hearing that it would be “better if the sisters stay together”.
A similar application to this one was made by the respondents once before in September 2018 (Masson & Parsons [2018] FamCA 823), but was dismissed. No substantive application has since been filed by them to amend the operable parenting orders.
In the present absence of any particularised final parenting proposals, there is no basis to entertain applications for interim relief (r 5.01(1)(a) of the Family Law Rules 2004 (Cth) (“the Rules”)).
Even absent that impediment, there are many others, such as:
a)There is no evidence at all that suspension of the orders would be in the youngest child’s best interests. The only basis of the application is that the youngest child has not spent time with the applicant for over a year and the respondents do not want it to resume. Their wish is not necessarily consistent with the child’s best interests (r 5.08(a)).
b)The respondents made no reasonable and genuine attempt to settle the interlocutory dispute before filing the Application in a Case (r 5.03(1)). The applicant invited their offer on 26 June 2020 and they refused to respond.
c)It is not necessary to make the order proposed by the respondents (r 5.08(c)). They would simply prefer it to be made.
d)The manner in which the respondents urgently petition the Court to impulsively make interim orders, which could potentially have a significant emotional effect upon both children, is not consistent with the main purpose of the Rules (r 5.08(d)), because:
i)the way in which the respondents have sought this interim relief is not conducive to resolution of the litigation in a just and timely manner at a cost to the parties and the Court which is reasonable (r 1.04);
ii)the urgent interim application is made on threadbare evidence, which does not enable it to be determined fairly (r 1.07(a));
iii)entertaining the urgent interim application does not encourage the parties to negotiate a compromise (r 1.07(b)) and, in fact, would be an advertisement to other litigants that they need not negotiate at all; and
iv)these parties have already exhausted a disproportionately large share of the Court’s resources (r 1.07(e)) and they ought not be given any more time unless it truly is unavoidable.
The application will be dismissed, as the applicant sought.
The respondents sought their costs of this application, but there is no justification for it. The application was misconceived and was wholly unsuccessful. The ordinary rule under s 117(1) of the Act will apply.
Procedural Directions
At the contravention hearing on 9 June 2020, both the respondents and the applicant foreshadowed prospective applications under s 70NBA of the Act to discharge, vary or suspend the operable parenting orders. That aspect of their dispute was listed for procedural directions today.
At this point in time, nothing is known of the parties’ respective proposals. Significantly:
a)neither party has particularised to me, either orally or in writing, the precise way in which they assert the operable orders should be discharged, varied or suspended on a final basis; and
b)neither party has instituted fresh proceedings under Part VII of the Act since the operative orders were first made by Cleary J in October 2017, nor since the appeal process was completed before the High Court of Australia in June 2019.
The essence of the Application-Contravention was determined by the appealed orders made on 23 June 2020. Two contraventions were found proven and they were sanctioned. I see no point in keeping the Application-Contravention (filed on 11 May 2020) alive simply to give the parties the platform to eventually make oral applications to discharge, vary or suspend the existing orders (made nearly three years ago) in reliance upon s 70NBA of the Act.
I accept the respondent’s submission that, at least implicitly, s 70NBA of the Act is reserved for use to ensure that operable orders are only discharged, varied or suspended so as to cure anomalies in the orders which are exposed by the parties’ contravention dispute – not to authorise the wholesale or profound restructure of long-standing parenting arrangements.
I am inclined to the view that any application to amend the orders made in October 2017 is best achieved by dismissing the remainder of the Application-Contravention and by leaving it to the parties to commence fresh proceedings under Part VII, Division 6 of the Act when they feel the time is ripe.
Costs of the hearing on 9 June 2020
In respect of the contravention proceedings, determined by the orders made on 23 June 2020:
a)the respondents sought costs on a party/party basis against the applicant, which he resisted; and
b)the applicant sought costs on a party/party basis against the respondents, which they resisted.
Their respective applications off-set one another and should be dismissed for the following reasons.
The applicant succeeded in proving two contraventions against the respondents, which they strenuously resisted. Those proceedings were necessitated by the respondents’ failure to comply with operable parenting orders (s 117(2A)(d)) and the Act expressly recognises that persons who contravene orders may be required to pay the costs of the party who proves their contravention (s 70NEB(1)(f)).
By contrast, the respondents successfully had many counts of their alleged contravention dismissed. Although they could not assert the applicant was wholly unsuccessful (s 117(2A)(e)), they contend their relative success should sound in costs (ss 70NCB(1) and 70NCB(2)(b)(i)).
The parties were not legally aided (s 117(2A)(b)) and they did not contend their financial circumstances either militated in favour of their own application or thwarted the opposing application (s 117(2A)(a)).
The parties accept the discretionary nature of the decision. Ultimately the applicant and the respondents each enjoyed some measure of success in the contravention proceedings. I am not persuaded by any argument that only two counts of many were ultimately proven, thereby suggesting the respondents are more entitled than the applicant to costs. Nor am I persuaded that the volume of documents marshalled by the parties in their respective prosecution and defence of the proceedings is an influential feature of the proceedings. I reject the submission made by the respondents, either expressly or impliedly, that the applicant’s reliance upon one affidavit and a large volume of annexures somehow reveals his misconduct in the proceedings, when only two counts of many were eventually sustained (117(2A)(c)). It was a hard-fought case, confined to one day of hearing.
In my view, there should be no order as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 3 July 2020.
Associate:
Date: 22 July 2020
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