Ongal and Materns (No. 2)

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…