Ongal and Materns - [2017] FamCA 143

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS

[2017] FamCA 143

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – where father sought leave to file a contravention application – the father alleges the mother breached previous Court orders – whether the proceedings are vexatious - where father also seeks parenting orders in circumstances where such an order is inappropriate – where the application brought by the father was originally limited to a contravention application – whether the father is entitled to the benefit of the order – whether the mother has a reasonable excuse for non-compliance of the order – where the Court grants leave for the father to file a contravention application

Family Law Act 1975 (Cth) s 70NBA, 102QE

Vlug & Poulos (1997) FLC 92-778
Acres & Cannon (No 3) [2016] FamCA 795

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

2107

2007

DATE DELIVERED:

2 February 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

2 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Litigant In Person by telephone

SOLICITOR FOR THE RESPONDENT:

Orders

That leave is given for the father to file an application alleging contravention of orders and an affidavit in support as set out in annexures B and C of the father’s affidavit filed 20 September 2016;
That upon the filing of the Application for Contravention, the matter be listed for hearing at 2 pm on 3 February 2017;
That the Application in a Case filed 27 January 2017 be dismissed NOTING that it has been filed without leave of the Court.

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 Ongal & Materns 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 ADELAIDE

FILE NUMBER: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The proceedings before the Court arise upon an application in a case filed by Mr Ongal (“the father”), seeking various orders but in particular that leave be given for the filing of a contravention application. The father has also sought other orders which are set out in paragraphs 4 and 5 of the application in a case dated 20 September 2016 and are clearly directed to matters of parenting and, by their language, are demonstrably inflammatory and inappropriate. Ms Materns (“the mother”) opposes the application and seeks that it be…

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 Ongal and Materns

Details

AGLC: Ongal and Materns [2017] FamCA 143
Case: [2017] FamCA 143
Decision Date: 2 February 2017

CaseChat Overview and Summary

In the matter of *Ongal and Materns*, heard before Berman J, the father sought leave to file an application alleging contravention of existing orders, supported by an affidavit. The father had also filed an "Application in a Case" without prior leave of the Court.

The primary legal issues before the Court were whether to grant the father leave to file his application alleging contravention of orders, and whether to dismiss the "Application in a Case" filed without leave.

Berman J granted the father leave to file the application alleging contravention of orders, as detailed in annexures B and C of his affidavit. The Court also ordered that upon the filing of this contravention application, the matter be listed for hearing on a specified date. Critically, the Court dismissed the father's "Application in a Case" filed on 27 January 2017, noting that it had been filed without the necessary leave of the Court.

Orders

Orders of the court

That leave is given for the father to file an application alleging contravention of orders and an affidavit in support as set out in annexures B and C of the father’s affidavit filed 20 September 2016;

That upon the filing of the Application for Contravention, the matter be listed for hearing at 2 pm on 3 February 2017;

That the Application in a Case filed 27 January 2017 be dismissed NOTING that it has been filed without leave of the Court.

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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