MASSON & PARSONS - [2020] FamCA 479

FAMILY COURT OF AUSTRALIA

MASSON & PARSONS

[2020] FamCA 479

FAMILY LAW – CHILDREN – CONTRAVENTION – SANCTIONS – Application alleging multiple contraventions of final parenting orders – Where there are two children aged 12 and 11 years – Where the applicant is the biological father of the eldest child – Where the applicant abandoned numerous counts prior to the hearing – Where the applicant could not established a prima facie case in respect of some counts – Where the remaining two counts are pressed only in respect of the eldest child – Where the Court is satisfied on the balance of probabilities that the remaining contraventions are established – Where the first count is proven against both respondents, but the first named respondent’s contravention is more serious – Where the second count is proven against only the first named respondent – Where the established contraventions are sanctioned under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where two good behaviour bonds are imposed on the first named respondent to be served cumulatively – Where no good behaviour bond is imposed on the second named respondent – Where compensatory time is ordered for the eldest child to spend with the applicant – Costs reserved.

Family Law Act 1975 (Cth) Pt VII, Divs 12A, 13A, ss 62B, 65DA, 69ZN, 69ZQ, 69ZX, 70NAC, 70NAE, 70NAF, 70NBA, 70NEA, 70NFA

Family Law Rules 2004 (Cth) r 21.08

Masson & Parsons [2018] FamCA 823
Masson v Parsons (2019) 368 ALR 583
Parsons & Masson (2018) FLC 93-846

APPLICANT:

Mr Masson

RESPONDENTS:

Ms S Parsons & Ms M Parsons

FILE NUMBER:

SYC

3963

2015

DATE DELIVERED:

23 June 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

9 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Steiner Legal Pty Ltd

COUNSEL FOR THE RESPONDENTS:

Ms McMahon

SOLICITOR FOR THE RESPONDENTS:

Harris Kelly & Associates Lawyers

Orders

Upon finding that Ms S Parsons contravened Order 10.2.1.2 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) between 27 March 2020 and 31 March 2020, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), Ms S Parsons shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:
(a) The bond shall be without surety or security;
(b)To be of good behavior for the duration of the bond, which shall include compliance with all existing and future orders made between the parties under the Family Law Act 1975 (Cth); and
(c)The bond shall be for a period of four months, commencing on the date she enters into the bond.
Upon finding that Ms S Parsons contravened Order 10.2.1.1 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) on 6 April 2020, pursuant to Subdivision E of Division…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading MASSON & PARSONS

Details

AGLC: MASSON & PARSONS [2020] FamCA 479
Case: [2020] FamCA 479
Decision Date: 23 June 2020

CaseChat Overview and Summary

In proceedings before Austin J, the court considered applications concerning alleged contraventions of parenting orders made on 3 October 2017, as amended. The parties involved were Ms S Parsons and Ms M Parsons, who were found to have contravened specific orders relating to the period between 27 March 2020 and 31 March 2020, and on 6 April 2020.

The primary legal issues before the court were whether Ms S Parsons and Ms M Parsons had contravened the existing parenting orders, and if so, what sanctions or orders should be imposed pursuant to Subdivision E of Division 13A of Part VII of the *Family Law Act 1975* (Cth). The court was also required to consider the appropriate compensatory time for the child and the future of the parenting orders themselves.

Austin J found that Ms S Parsons had contravened Order 10.2.1.2 between 27 March 2020 and 31 March 2020, and Order 10.2.1.1 on 6 April 2020. For these contraventions, Ms S Parsons was ordered to enter into good behaviour bonds for four months and two months respectively, served cumulatively. Ms M Parsons was also found to have contravened Order 10.2.1.2 between 27 March 2020 and 31 March 2020, but no further sanction was imposed beyond compensatory time. Pursuant to s 70NEB(1)(b) of the *Family Law Act 1975* (Cth), the respondents were ordered to ensure the eldest child spends five compensatory days with the applicant within the next three months. The proceedings were adjourned for further directions regarding applications to discharge, vary, or suspend the parenting orders, and costs were reserved.

Orders

Orders of the court

Upon finding that Ms S Parsons contravened Order 10.2.1.2 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) between 27 March 2020 and 31 March 2020, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), Ms S Parsons shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a) The bond shall be without surety or security;

(b) To be of good behavior for the duration of the bond, which shall include compliance with all existing and future orders made between the parties under the Family Law Act 1975 (Cth); and

Upon finding that Ms S Parsons contravened Order 10.2.1.1 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) on 6 April 2020, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), Ms S Parsons shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a) The bond shall be without surety or security;

(b) To be of good behavior for the duration of the bond, which shall include compliance with all existing and future orders made between the parties under the Family Law Act 1975 (Cth); and

Upon finding that Ms M Parsons contravened Order 10.2.1.2 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) between 27 March 2020 and 31 March 2020, no further sanction is imposed save for that provided in Order 4 hereof.

For the contraventions set out in Orders 1, 2 and 3 hereof, pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth), the respondents shall ensure that the eldest child (B, born … 2007) spends compensatory time with the applicant for five extra days (each day comprising complete 24 hour periods) within the next three months, on the days nominated by the applicant in writing no less than seven days in advance.

Pursuant to s 70NEB(1)(c) of the Family Law Act 1975 (Cth), the proceedings are adjourned to 9.30 am on Friday 3 July 2020 for further procedural directions in respect of the applications respectively made by the applicant and the respondents to discharge, vary or suspend the parenting orders made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018).

Costs of the hearing on 9 June 2020 are reserved to Friday 3 July 2020.

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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