Ongal and Materns (No. 2)

[2013] FamCA 945

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO. 2) [2013] FamCA 945

FAMILY LAW – PRACTICE AND PROCEDURE – Where an order exists requiring the parties to seek leave from a Judge of this Court before filing any material – consideration of whether leave should be granted – prospects of success – best interests – orders made dismissing both parties’ applications in a case.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ongal

RESPONDENT: Ms Materns

FILE NUMBER: ADC 2107 of 2007

DATE DELIVERED: 4 December 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 September 2013,
10 October 2013 and
24 October 2013

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 2 September 2013 is dismissed and removed from the active pending list.

2. The Application in a Case filed by the father on 9 October 2013 is dismissed and removed from the active pending 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

Mr Ongal

Applicant

And

Ms Materns

Respondent

REASONS FOR JUDGMENT

Introduction

1. The relationship between Ms Materns, (“the mother”) and Mr Ongal, (“the father”) began in 2000.  The parties’ first child, L was born in 2001 and is now 12.  The parties’ second child, M was born in 2004 and is now 9.  The relationship ended in the latter half of 2004. 

2. Litigation between the parties concerning the parenting arrangements for their children in the wake of the relationship breakdown commenced shortly after cohabitation ended and continues to this day.

3. Order 9(e) of the orders made by Justice Burr on 16 April 2008 state that:

   The parties are restrained and an injunction is hereby granted restraining each of them from filing any further Applications, Affidavits or other materials without first obtaining leave of a Judge of this Court to do so SAVE AND EXCEPT as referred to in paragraphs 10 and 11 hereof.[1]

   [1]          The exceptions contained in paragraph 10 and 11 of the orders refer to “one-off”          filings and as such have no continuing application. 

4. Over 100 documents have been filed since that order was made.  It is counterproductive to seek, as the father does, to retrospectively invalidate orders of this Court or the Federal Circuit Court that were made in the absence of a grant of leave pursuant to order 9(e).  However, a Judge of this Court thought such an order was necessary over 5 years ago.  This Court and the Federal Circuit Court should examine more carefully documents being filed in these proceedings in the future. 

5. It is with those considerations in mind that I turn to the parties’ respective Applications in a Case.

The Mother’s Application in a Case

1. This Application in a Case was filed by the mother on 2 September 2013.  It seeks the following orders:

   1.I seek leave for this Application for a contravention June long weekend 2013 of 8, 9 and 10 of June 2013 to be heard. 

   2.I seek an enforcement of the injunction of para 12 of Order 4 June 2008.

   3.I seek an injunction prohibiting the father, his Malaysian wife, his stepdaughter, his son to his Malaysian wife, and any other of the fathers family and the fathers wife’s family emailing or mobile phone text messaging or approaching my brother [Mr A] and his family or any other member of my family; including my father and mother, my brother [Mr B], and any of our spouses and their children regarding family law matters, personal matters, health matters, educational matters and living arrangements.

   4.That the father pay all associated costs in all court proceedings.

2. Paragraphs 2, 3 and 4 of this Application in a Case were dismissed on 10 October 2013.  This judgment considers paragraph 1 of this Application in a Case. 

3. A copy of the Application for Contravention Orders that the mother seeks leave to file was handed in with the Application in a Case.  It alleges two counts of contravention against the father. 

4. Count 1 allegedly occurred on “Saturday 1/09/2012” at “8.56am” at the “[C Sportsground], [Town W]”, where it is alleged that the “Respondent without reasonable excuse breached injunction and attended the child [M’s] [football] game.”

5. Count 2 allegedly occurred on “Saturday 8/6/2013” at “8.00am”, “12.12pm” and “2.22pm”; “Sunday 9/6/2013” at “9:15am” and “1.18pm”; and “Monday 10/6/2013” at “11.40pm” at “[E Sportsground], [Suburb G]”, where it is alleged that the “Respondent without reasonable excuse breached injunction and attended [L’s] [football] game.”

6. Both counts are said to be in breach of order “12 of 4/6/2008 Order.”  That order states that:

   Pending the conclusion of the aforesaid mediation to be identified by the Independent Children’s Lawyer pursuant to paragraph 11 hereof, both parties are restrained and an injunction is hereby granted restraining each of them from attending at any weekend sporting or other social commitments of the children during such times as the children are not in their primary care.

7. The “aforesaid mediation” is a reference to order 11 of the orders made by Justice Burr on 4 June 2008, which provides that:

   The parties attend a process of parenting and family mediation at a centre (preferably in [Town W]) identified by the Independent Children’s Lawyer and advised to the parties.

8. The father submitted that order 12 of the orders made by Justice Burr on 4 June 2008 is spent.  The comments of Justice Burr on 27 October 2011 as evidenced in the transcript annexed to the mother’s affidavit filed in support of this Application confirms this to be the case.  His Honour relevantly states:

   Right, so as I read it, the injunction says both of you are restrained from attending at any weekend sporting or other social commitment of the children during such times as the children are not in their primary care pending the conclusion of mediation in compliance with paragraph 11 of the orders made on 4 June.  Well, mediation has concluded, so my interpretation of that order is that that’s dead and buried, so the only question or not it be sustained independently of the way that order reads.

9. Accordingly, I am of the view that the mother’s proposed Application for Contravention Orders has no prospects of success.  I deny the mother leave to file the Application. 

The Father’s Application in a Case

1. This Application in a Case was filed by the father on 9 October 2013.  It seeks the following orders:

   1.I ask that these matters be dealt with urgently on 10^th October 2013 as they affect the other scheduled matters that day.

   2.I seek leave to file an application as regards the specific unaddressed matter (from my application filed 6^th August 2013) of the removal of the Contravention proceedings before FM Brown in 2010 that ended with the order dated 17^th March 2011, on the basis that this proceeding was commenced by the mother without seeking leave of a Justice of the Family Court as required by order 9(e) of the orders made 16^th April 2008. 

   3.I seek leave to file an application to remove the child support proceedings before FM Brown, that commenced 24^th April 2008 and included a cross-application from the mother, and that ended with orders dated 15^th March 2009, on the basis that these applications were filed without seeking leave of a Justice of the Family Court as required by order 9(e) of the orders made 16^th April 2008, and also on the basis of my residency. I was not legally subject to the Child Support Assessment Act because no legal application for child support under the Act was submitted and processed by the child support agency in Feb 2005, and hence I was not legally subject to the child support assessment applications on which the proceeding before FM Brown departed from.

   4.I seek leave to file and proceed with my Initiating Application filed 13^th August 2013 as regards child support departures as required by Justice Dawe at the hearing on 4^th September 2013, and in reference to the order 9(e) of the Family Court orders made 16^th April 2008. 

   5.I seek leave to file a Contravention Application against the mother, as regards the specific unaddressed matter from my application filed 19^th August 2013.  This is as regards her long term refusal to use the correct and legal surnames of the children, in defiance of paragraph 9(c) of the Family Court orders filed 27^th February 2007.  Such leave is required under order 9(e) of the orders made 16th April 2008.

   6.I seek leave to file an Application in a Case seeking modification of orders.

2. Paragraphs 2 and 3 of this Application in a Case were dismissed on 24 October 2013.  Paragraph 1 is no longer relevant.  This judgment will consider paragraphs 4, 5 and 6 of this Application.   

3. Paragraph 4 seeks leave to proceed with an Initiating Application that was filed on 13 August 2013.  That application seeks the following orders:

   1.I seek leave to depart from three child support assessment decisions that are outside 18 months but within seven years.

   2.I seek leave to depart from the administrative decision of the Child Support Registrar made 23^rd October 2006, for the child support period of 14^th August 2006 until 29^th February 2007, that set the fathers child support at $400 per month. 

   3.I seek leave to depart from the administrative decision of the Child Support Registrar made 23^rd October 2006 for the child support period of 1^st March 2007 to 27th August 2007 that set the fathers child support income at $100k per annum.

   4.I seek leave to depart from the departure decision made 15^th May 2009 by Federal Magistrate Brown that set the fathers child support income at $60k per annum from 31^st October 2008 until 31^st October 2009. 

   5.I seek an order setting my child support amount at the legal minimum for all the affected periods. 

   6.I seek an order that grants costs of contact for the father since February 2005 and henceforth at $1600 per month, until the children are 18 years of age, on the basis of his weekly travel to and from [Town W] to support contact with the children.

   7.I seek repayment of costs ordered by FM Brown from the Legal Services Commission and I seek costs from the Child Support Agency for this           proceeding as a result of the assessment, objection and correction failings by that agency.

4. The father filed a Notice of Appeal against the decision of FM Brown (as he then was) made on 15 May 2009 on 13 September 2013.  That decision of FM Brown dealt with the issue of whether a departure from the administrative decision of the Child Support Registrar dated 23 October 2006 was warranted.  A recently filed appeal will consider the correctness of the judgment of FM Brown.  The orders sought in the appeal are extremely similar to those sought in this mooted Initiating Application, namely:

   1.I seek an order setting my child support amount at the legal minimum for all periods under review, including those I sought departure from and as regards the departure granted on the cross-application.

   2.I seek repayment of costs ordered by FM Brown from the Legal Services Commission.

   3.I seek an order for costs.

   4.I seek dismissal of all the orders of FM Brown. 

   5.I seek an order granting costs of contact for the father at the sum of $1600 per month until children are 18 years of age, as regards travel to/from [Town W].

5. I do not consider that I, as a first instance judge of this Court, am in a position to make any of the orders sought by the father in his Initiating Application.  They are matters for the Appeal Division.  As the father’s proposed Initiating Application has no merit and no chance of success, I decline to grant the father leave to proceed with it. 

6. Paragraph 5 seeks leave to file an Application for Contravention Orders against the mother in respect of what is said to be her “long term refusal” to comply with order 9(c) of the consent orders certified by Justice Strickland on 27 February 2007. 

7. Order 9(c) restrains the parties from “causing or permitting the said children to be known by any surname other than ‘[Materns-Ongal]’”. 

8. The father claims his proposed Application for Contravention Orders “will further and necessarily enable additional injunctive orders to be made against the mother’s family members in that regard.” It is said that such “action against the mother and injunctive orders against her family members are necessary to deny them the ability to manipulate the children and involve them in conflicts and confusions about their surnames.”

9. I do not consider that it is in the best interests of the children for leave to be granted for this Application for Contravention Orders to proceed.  I have consolidated the parenting orders applicable to this matter in the judgment handed down contemporaneously with this judgment.  Order 9(c) continues to be in force.  The mother is on notice of that.  In addition, I am unable to make the orders that the father requests against non-parties such as the mother’s extended family. 

10. It is in the best interests of the children that their parents comply with orders of this Court.  However, it is also clearly in the best interests of these children that litigation ends.  Neither L nor M are likely to be able to remember a time in which their parents were not litigating.  It is a tragic fact that the parties have been litigating for over twice as long as they were in a relationship.  The best interests of the children do not warrant the granting of leave for the father to proceed with his mooted Application for Contravention Orders. 

11. Paragraph 6 seeks “leave to file an Application in a Case seeking modification of orders.”  The modifications that are sought are set out at paragraphs [30] to [32] of the father’s affidavit filed 9 October 2013. 

12. In summary, the father seeks two modifications:

    a)Firstly, he asks that order 9(e) of the orders made by Justice Burr on 16 April 2008 be revised as “it is not in the proper form, has and is resulting in significantly higher load on the parties and the Courts as regards proper and necessary applications, as well as unnecessary delay in the filing and progress of matters.”  The order is said to have “previously and unfortunately prevented urgent requests for injunctive and recovery orders” from the father to prevent and curtail the contraventions by the mother in April 2012. 

    He instead seeks “an order that still provides the Family Court with the ability at the first hearing (urgent if necessary) to grant or refuse leave to proceed with any such applications that are filed in Family Court, whilst maintaining the necessary prior leave of the Family Court to then file in the Federal Magistrates Court.”  (Now known as “Federal Circuit Court”).

    b)Secondly, he seeks a “new order for the children’s passports” that would enable them to visit relatives who live overseas.  The specific order sought is expanded upon in paragraph [32] of the father’s affidavit filed 13 February 2013. 

13. Modifications to order 9(e) have been made in the judgment concerning previous Applications for Contravention Orders that has been handed down contemporaneously with this judgment.  I do not see that any further modifications are necessary. 

14. I have also canvassed the issue of whether an order should be made concerning the children’s passports in that judgment.  For the reasons contained therein, I decided against such an order. 

15. I therefore deny the father leave to file an application in accordance with paragraph 6 of this Application in a Case.

Conclusion

1. For the foregoing reasons, I make the orders that appear at page 2 of this judgment.  The parties should seriously consider my comments in this judgment if they are planning to file any further applications in this Court.  These proceedings are approaching their tenth birthday.  So is M.  For the benefit of the children, litigation should cease. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 November 2013.

Associate: 

Date:  4 December 2013