Ongal and Materns (No. 2)

[2014] FamCA 458

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO. 2) [2014] FamCA 458

FAMILY LAW – CHILDREN – Application in a Case – Mother sought slight alteration to existing parenting orders – father opposed any alteration – consideration of the rule in Rice & Asplund (1979) FLC 90-725 – best interests of the children – application dismissed.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Materns

RESPONDENT: Mr Ongal

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 2107 of 2007

DATE DELIVERED: 18 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. The Application in a Case filed by the mother on 27 February 2014 and the father’s Amended Response to the Application in a Case filed on 7 May 2014 are dismissed and removed from the active pending cases list.

2. The Application in a Case filed by the father on 10 June 2014 is dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2107 of 2007

Ms Materns

Applicant

And

Mr Ongal

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today the hearing in relation to the Application in a Case by the mother seeking changes in the orders that relate to the times the children should spend with the father.  I have previously granted leave for the mother to bring the application in relation to paragraphs 3(a) and 3(b), but apparently not in relation to paragraph 3(g).  The orders of 4 December 2013 were made after hearing considerable submissions.  The matter was dealt with by way of detailed judgment which I delivered on that day. 

2. The Court is primarily concerned about the best interests of the children.  The children of the parties are L who was born in 2001 and M who was born in 2004.  It is of considerable concern to the Court that the parties who are the parents of the children have been involved in ongoing litigation for many years.  The decision and orders of 4 December 2013 are the subject of appeal by the father to the Full Court which is yet to be heard. 

3. I now have the fresh matters before me today. 

4. The mother’s Application in a Case seeking minor changes to the times and arrangements for the father to spend time with the children, and the father’s response to that application filed on 7 May 2014 seeks amendments to the orders by way of slip rule, and that the application of the mother be dismissed. 

5. In this matter it is appropriate to take into account the past history of the matter, I cannot by way of ex tempore reasons do more than refer to the reasons which were given on 4 December 2013 setting out the ongoing history of the matter.  In those reasons for judgment I also deal with the factors which are relevant when determining what is in the best interests of the children. 

6. One of the significant factors in this matter is the ongoing litigation between the parties cannot be seen to be in the best interests of the children.  Previously, and many years ago, orders were made which restricted the parties from bringing applications before the Court without seeking leave of the Court.  Those orders were made by another Judge years ago.  Notwithstanding that there has been ongoing litigation. 

7. When considering whether leave should be granted in relation to orders sought in paragraph 3(g) and whether the orders sought by the mother should be made altering the times for the handover I take into account the authorities of Rice & Asplund (1979) FLC 90-725 and consider carefully the factors which would make it appropriate for there to be further orders made taking into account the recent orders of December 2013.

8. Weighing up all of the factors in relation to what is in the best interests of the children, and the factors in relation to the Rice & Asplund principles I am not satisfied that it is in the best interests of the children for there to be leave granted in relation to the paragraph 3(g) application.  Nor am I satisfied that it is appropriate or in the best interests of the children to make any orders concerning the variation of the orders made on 4 December 2013 which are sought by either the father or the mother. 

9. The orders of 4 December 2013 are currently awaiting determination by the Full Court who will make the appropriate decision in due course. 

10. Therefore the Application in a Case is dismissed and the response to that Application in a Case filed by the father is dismissed.

11. The only matter that therefore remains outstanding is the application filed by the father seeking leave to serve the mother by way of electronic means.  As I have dismissed all current proceedings between the parties it would not be appropriate for me to grant leave to the father to bring such an Application in a Case if it were necessary. 

12. The only outstanding proceedings therefore are the proceedings in the Full Court, and I would not make an order in relation to service of Full Court documents. 

13. Therefore the Application in a Case filed by the father on 10 June 2014 in relation to seeking permission to serve the mother by way of electronic means is also dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 June 2014.

Associate: 

Date:  27 June 2014