Legal Research
Cases
Masterson & Braxton

Masterson & Braxton

Case [2022] FedCFamC2F 1635 27 October 2022

Jurisdiction

Best Interests of the Child

No judgment structure available for this case.

Type to search within this case.

Federal Circuit and Family Court of Australia
(DIVISION 2)
Masterson & Braxton [2022] FedCFamC2F 1635

File number(s): NCC 4050 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 27 October 2022

Catchwords: FAMILY LAW – Parenting – threshold – costs - where a party withheld children contrary to final parenting orders - to determine if parenting proceedings may be re-opened for a third time for children now aged 10 and 8 – reliance of the principle in Rice & Asplund – prima facie case of changed circumstances to justify further litigation not established - final orders made in 2019 are confirmed and the mother to pay costs of Independent Children’s Lawyer - best interests of children – delayed start in payment of costs by instalments just and appropriate

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Carriel & Lendrum [2015] FamCAFC 43

CDW v LVE [2015] WASCA 247; (2015) FLC 93-683; 54 Fam LR 297

Cross & Beaumont [2008] FamCAFC 68

Defrey & Radnor [2021] FamCAFC 67

King & Finneran [2001] FamCA 344

Marsden & Winch [2009] FamCAFC 152

Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157

Nada & Nettle (Costs) [2014] FamCAFC 207

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158

Rice & Asplund [1978] FamCA 84

SPS & PLS [2008] FamCAFC 16

Stern & Colli [2022] FedCFamC1A 95

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law

Number of paragraphs: 107

Date of hearing: 24 October 2022

Place: Newcastle

Solicitor for the Applicant: Mr Quinn, Intercept Law

Solicitor for the Respondent: Self represented litigant

Solicitor for the Independent Children's Lawyer: Ms Fielden, Fielden & Associates
ORDERS

NCC 4050 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MASTERSON

Applicant

AND:
MS BRAXTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

27 OCTOBER 2022

THE COURT ORDERS THAT:
1.The final orders made 19 June 2019 are confirmed.
2.The mother is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $1,650.00 and paid by fortnightly instalments of $25.00 commencing Friday 27 January 2023.
3.All outstanding applications are withdrawn and dismissed.

THE COURT NOTES THAT:
A.Pursuant to s 117(4)(a) of the Family Law Act 1975 (Cth), the court is prohibited from making a costs order against the father because he is legally aided in these proceedings; whereas such prohibition does not apply to the mother, since she has never received legal aid since the commencement of these proceedings last year.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order…

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 Masterson & Braxton

Details

AGLC: Masterson & Braxton [2022] FedCFamC2F 1635
Case: [2022] FedCFamC2F 1635
Decision Date

CaseChat Overview and Summary

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons delivered orally amenable to being read. The mother and the father have been litigating about their children since the oldest child was six months of age. That boy is now 10 years of age. The mother says that the father poses a risk of harm to the children, mainly from sexual abuse, neglect and his own mental health deficits. For these reasons, the mother wants a third round of parenting litigation to proceed. The father and the Independent Children's Lawyer (ICL) do not. What should I do? These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) between the Applicant, MR MASTERSON (the father) and the Respondent, MS BRAXTON (the mother). Unless otherwise specified, any reference to 'the Act' or a legislative provision shall be a reference to the Family Law Act 1975 (Cth). Out of respect for each person's gender and social status, other than parties and the children, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns. The issues to be determined by the Court were whether the mother's application to commence parenting proceedings should be dismissed in reliance on the principle espoused in the decision of Rice & Asplund [1978] FamCA 84 and whether any costs order should be made. On 19 June 2019, the final orders were made after a defended trial. Even earlier than that, on 7 May 2013, the first round of litigation resulted in the making of final parenting orders by consent. The mother's most salient contention was that about four months after the final orders, she became aware of text messages between her biological daughter, K, and her daughter's friend, N, that allege that the father had sexually abused K years earlier. The mother says that this information means it is open for the Court to find that a significant change in circumstances has occurred, because this circumstance was not something considered at trial, and demands a re-consideration of whether the final orders meet the best interests of the children. However, despite being aware of this circumstance, the mother did not inform this Court about the issue until after she was served with a recovery application, over two years later. There were other alleged changes in circumstances contended as well, and I will explore all of the contentions in due course. For the reasons which follow, I will: (a) not permit the re-opening of the parenting proceedings, (b) order that the mother make a contribution towards the costs of the Independent Children's Lawyer fixed in the sum of $1,650 and payable to Legal Aid New South Wales by way of fortnightly instalments of $25 commencing in about three months' time; and (c) dismiss all outstanding applications. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Kearney delivered orally on 27 October 2022. Associate: Dated: 28 November 2022

Orders