Ongal and Materns
[2017] FamCA 143
•2 February 2017
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 |
| APPLICANT: | Mr Ongal |
| RESPONDENT: | Ms Materns |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | ADC | 2107 | of | 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 dismissed.
There is considerable history to this matter well-known to the parties. The relationship between the parties began in about 2000. L was born in 2001 and M was born in 2004 (collectively “the children”). The relationship concluded in or about 2004. It is the case that the parties have been in ongoing and highly conflictual litigation since that date.
Orders were made by Strickland J in 2007 and then further Orders made by Burr J on 16 April 2008 which restrained the parties by injunction from filing further applications, affidavits or other materials without first obtaining leave of the Court, save and except as may be referred to in paragraphs 10 and 11 of the Orders. At present, the Court file reflects that some 224 documents have been filed since the first proceedings. Clearly, this is a matter where there has been a high level of dispute, and there is a clear basis for understanding why it would be that the Court considered that the litigation between the parties had reached a level where it was no longer in the interests of the children, and was contrary to public policy, in the sense of the extraordinary amount of time needed to be invested in the matter by the Court.
The current orders that regulate the arrangements in respect of the children are to be considered by reference to an Order made by Dawe J on 4 December 2013 and further orders made by the Full Court on 30 April 2015, following a hearing on 11 November 2014. The Full Court Orders have some impact on the Orders of 4 December 2013, and whilst they are matters that were clearly of significance to the parties in terms of the litigation that occurred in respect of those issues, the detail of the Order is not a matter that I need to bring to account in order to determine whether leave to institute further proceedings should be given.
The application in a case filed on 20 September 2016 was supported by an affidavit filed on the same date. The affidavit of the father is a straightforward document that sets out all that generally is required at least to start the process. The father would seek leave to file a proposed contravention application which is annexure B to the affidavit and an affidavit in support of the contravention application which is annexure C. The Application for Contravention in its proposed form is clear and it alleges two breaches of the relevant orders of 4 December 2013, as amended by the subsequent orders of the Full Court in 2015.
It alleges that at 11.00 am on 19 September 2016 at Town W, the mother denigrated the father in front of M and sought to alienate M from the father, to the doctor. The second count alleges a breach of 3(b) of the Orders of 4 December 2013 that the mother refused to allow M contact with the father from Thursday, 15 September 2016 through to Monday, 19 September 2016. The proposed affidavit at annexure C sets out the details and the particulars of what the father alleges was sufficient to support the discharge of his obligation in respect of an assertion as to contravention, namely, that there has not been compliance with the orders.
It is a matter for the respondent in a contravention application to bear the onus of proof as to whether there is any reasonable excuse pursuant to the Family Law Act 1975 (Cth) (“the Act”). To some extent, the matters that I raised with the parties are well-known to them. The Court has heard and determined a number of contravention applications in respect of various issues of complaint and concern that each of the parties have raised. Orders made by Her Honour on 4 December 2013 deal with matters of contravention and provide the basis for the current Orders following the exercise of Her Honour’s discretion pursuant to s 70NBA of the Act.
Accordingly, there is a long history of both applications in respect of parenting issues and also applications in respect of contravention or alleged breaches of the orders, notwithstanding that leave was required from orders made in 2008. On 26 October 2016, Orders were made for the father to file an affidavit which complied with the requirements of s 102QE(3) of the Act, and that the father serve on the mother the Application in a Case of 20 September 2016 and his affidavits, but also the further affidavits of 24 October 2016 and a further affidavit pursuant to s 102QE(3) of the Act.
The father complied with those orders, and by reference to his affidavit of 9 November 2016, there is a history of the various applications that have been filed, not just in this jurisdiction but in respect of any jurisdiction, although the matters generally relate to parenting considerations in this Court with some consideration of matters of child support. The father’s further affidavit material, in particular of 24 October 2016, sets out a range of matters that are not considered relevant to issues in respect of whether leave should be given.
Indeed, under the heading of “Further brief history of Allegations and Manipulation of DRs”, the father seeks to ventilate matters that go back as far as September 2004. There are references made to CPS investigations. There are references made to CAMHS, medical and other notes and a range of other issues that have little or no relevance to the application that was to be heard and determined by the Court, namely, whether or not leave should be granted for the father to bring the contravention application as foreshadowed. On 14 December 2016, further orders were made by me listing the hearing of the father’s application to today and ordering that the father file and serve a limited affidavit in response to the mother’s affidavit filed 12 December 2016.
The mother filed a further affidavit dated 22 December 2016 that dealt with the extent to which independent or other arrangements were made in respect of the children transitioning from their school to the father’s care. As was explained to the parties, the issues were relevant in order to try and put into perspective the extent of the contravention proceedings given that it appears to deal with a short period of time rather than a reconsideration of parenting orders.
As matters have transpired, it would appear from the affidavit material that whilst other arrangements may have occurred after September of 2016, those matters are irrelevant to the determination of the contravention as is being alleged by the father. Without leave, the father filed an application in a case on 27 January 2017, supported by an affidavit. The orders sought, whilst purported by the father to be in consequence of his application for leave is clearly not the case. The orders are demonstrably by way of parenting considerations, as is clear by proposed order 3 which seeks that leave be granted for a filing of a final orders application seeking interim and final orders for residence of the children with the father in Adelaide, for leave to issue subpoena, for leave to involve CAMHS with the children, L and M, and for the provision of documents that relate to various aspects of the children’s lives going back as far as 2004.
An order is also sought that in some way seeks to deal with issues in respect of Centrelink and the preservation of the current care arrangements, “For FTB purposes to counter the mothers evidenced claim” with also a further order sought that the mother pay by way of bank transfer the cost involved in the father’s attendance at Town W. The father was challenged as to whether he understood the application in a case did not relate to the matters currently under consideration by the Court, namely, the application for leave but rather dealt with matters of parenting and other tangentially related proceedings.
I have indicated to the parties that I do not propose to deal with the application in a case and whilst, at first instance, I indicated I intended to uplift the document, I think in all the circumstances it would be better that the application would be dismissed but remain on the Court file. I did not consider that the application in a case ought to have any currency in respect of the limited scope of the hearing today. The procedure for bringing an application seeking leave is designed so that a person who is protected by the order is not vexed by spurious applications for leave. In this case, both parties are subject to the requirement to seek leave before further proceedings can be issued.
As discussed, there is a procedure that is mandatorily required to be followed before the Court should consider a leave application. It may seem that the obligations are pedantic and unnecessary, but such an observation would be trite and belies the necessary focus of the Court before leave can be granted. An affidavit must be filed which complies with s 102QE of the Act and must list all applications for leave. It must list all other proceedings brought in any Australian Court or Tribunal.
The affidavit must set out the facts, whether supportive of adverse, known to the applicant in relation to the application. It must not be served on the person unless the Court orders. That has occurred. The Court must then consider whether to dismiss or grant the application. Obviously if the application is dismissed, then that brings the proceedings to an end. If the application is successful, then the Court must consider, clearly and carefully, what orders should be made. The focus must predominantly and primarily be to determine whether the Court is satisfied that the proceedings are not vexatious.
I am assisted in various decisions of this Court, in particular Vlug & Poulos (1997) FLC 92-778, where the Full Court made it clear that the power to limit the abilities of the parties to bring proceedings should be exercised with caution and reserved for the clearest possible cases. In the decision of Acres & Cannon (No 3) [2016] FamCA 795 Rees J had to consider the father’s application in a case seeking leave to file an initiating application seeking parenting orders. The mother did not participate in the proceedings. The father had complied and the issue before Court was whether the proceedings were vexatious.
The decision is helpful in that it refers to a history of Federal Court and Family Court decisions in determining whether proceedings should be considered vexatious. Her Honour considered that there were three questions that were seminal to a decision:-
(1)Were the proceedings an abuse of the process of the Court?
(2)Were the proceeding instituted to harass or annoy or cause delay or detriment?
(3)Were the proceedings instituted without reasonable grounds?
Her Honour found that the proceedings were without reasonable grounds and were therefore vexatious.
There are a number of factors that are relevant. It is not simply a matter of considering the best interests of the child or children, although that may well be a strong consideration. The focus is clearly on whether the application should be considered an abuse of process and vexatious. That brings to account matters of public policy. There are matters in this Court, and presumably in other courts, that consume enormous amounts of court time. It may be difficult for the parties involved in these highly conflictual disputes to understand and recognise that issues of funding and the utilisation of increasingly scant resources to attempt to continuously resolve matters brought by the parties without regard to the ability of a court to easily deal with them is a relevant consideration.
Nonetheless, the very concept of an order being made on the basis that it is vexatious brings to account those very real considerations. It might be considered that this case falls into that category. There is, however, significant differences between the matter that is the subject of the father’s application and the matter that was dealt with by Her Honour in Acres & Cannon (No 3) (supra) and, indeed, in a number of other authorities. One of the differences is that there is in place orders which provide that the children should spend time and live with each of the parties, but in the confines of this case that the children should spend time with the father. The application by the father is both in respect of a contravention application but also to reconsider the parenting considerations. If the application had been limited to the sorts of orders that he was seeking in his application of 27 January 2017, I would consider the application to be vexatious and I would not grant leave.
The application initially brought by the father was limited to a contravention application in respect of a limited period. The father alleges that the child, M, has not spent time with him now for a significant period of time. The mother’s position is that she concedes that the child did not spend time with the father but that a reasonable excuse exists. If it gets to the point where leave is given for the contravention application to be heard, I do not ignore that the contravention application as proposed by the father has two alleged breaches.
The broad issue is that where the father is entitled to the benefit of the order and there is a concession that he does benefit from the order, the focus is not upon the father, but rather, then must turn to the mother as to whether she is able to put forward a reasonable excuse for the non-compliance. Indeed, the mother well understands the issues given her previous contravention proceedings.
On balance, the issues are finely poised. I am conscious, however, that what is being sought is not a review or a consideration of the parenting issues, but rather, that the father says he has an order and he is entitled to seek compliance. Whilst there has been a history of contravention proceedings that have been brought by each of the parties against the other and have been dealt with by the Courts, I do not consider that the current contravention application might be considered as simply a further extension of previous contravention proceedings. Rather, the current application arises in respect of an order that is not challenged in terms of its current operation and in respect of which there is a concession that at least as far as the child, M, is concerned, the child does not attend and spend time with the father.
It seems that with considerable reluctance, leave should be granted. It needs to be emphasised that leave is given only in respect of the contravention application and affidavit in support. Leave is not given in respect of any further or other application.
I am conscious of the extent to which this matter has consumed the Court’s time, but I am also of the view that to further delay the hearing of the contravention does not assist either of the parties. It is a narrow matter and is able to be dealt with quickly. I have inquired of the parties whether they would be available to hear and determine the contravention proceedings on Friday, 3 February 2017 and I am told not without some inconvenience to them, but nonetheless with their consent, that the matter can be heard expeditiously. I propose to do so. There is no prejudice caused to the father in that his application and affidavit filed on 20 September 2016 annexes the application for contravention and the affidavit in support of that contravention.
To the extent that there may be affidavit evidence from the mother that goes directly to the matter is of no consequence. The mother is entitled to either rely upon that which she has filed or, indeed, to remain silent or to give oral evidence if she chooses once the Court has determined that there is a case to meet. Accordingly, there can be no prejudice to the mother. This is clearly a case where these parties come before the Court with significant experience in respect of Court process and procedure, having been self-represented litigants over a long period of time. The mother is also aware of what is being alleged in the contravention application, being annexure B to the father’s affidavit of 20 September 2016, and the affidavit filed in support. It is a short document,
the issues are narrow and the matter is to be heard and determined within the two hours that I propose to allow for the hearing.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 February 2017.
Associate:
Date: 13 March 2017