Ongal and Materns (No 3) - [2013] FamCA 946

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO. 3)

[2013] FamCA 946

FAMILY LAW – ORDERS – contravention – where the mother’s first application for contravention orders alleged two counts of contravention – where the father admitted both counts of contravention – where the father was found not to have a reasonable excuse for the two admitted counts of contravention – consideration of what orders to make arising out of these findings – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – consideration of what orders to make under s 70NEB of the Family Law Act 1975 (Cth) – orders made requiring the father to enter into a bond in accordance with s 70NEC of the Family Law Act 1975 (Cth).

FAMILY LAW – ORDERS – contravention – where the mother’s second application for contravention orders alleged two counts of contravention – where the application was dismissed at an earlier hearing – consideration of what orders to make arising out of these findings – no orders made.

FAMILY LAW – ORDERS – contravention – where the father’s application for contravention orders alleged four counts of contravention – where the mother admitted all counts of contravention – where the mother was found to have a reasonable excuse for the four admitted counts of contravention – consideration of what orders to make arising out of these findings – no orders made.

FAMILY LAW – ORDERS – contravention – consideration of s 70NBA of the Family Law Act 1975 (Cth) – best interests – orders made.

Family Law Act 1975 (Cth) ss 70NAA; 70NAE; 70NBA; 70NCB; 70NDB; 70NDC; 70NEA; 70NEB; 70NEC; 70NECA; 70NFA; 70NFB; 102QB; 102QC;117
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)

Rice & Asplund (1979) FLC 90-275
B & P [2000] FamCA 392
Sandler & Kerrington [2007] FamCA 479
Irvin & Carr [2007] FamCA 492
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072
Dobbs & Brayson [2007] FamCA 1261
Oscar & Traynor [2008] FamCAFC 158
Tasman & Tisdall [2008] FamCA 458
Brown & Crawford [2009] FamCA 96
Gervasis & Purdy [2009] FamCA 255
Yates & Turner [2009[ FamCA 887
Pearce & Cole (No. 4) [2009] FamCA 1221
McClintock & Levier (2009) 233 FLR 179
Gravis & Major [2010] FamCAFC 239
McLory & McLory [2010] FamCA 305
Pickering & Pickering (No. 4) [2010] FamCA 981
Abud & Abud [2010] FamCA 1132
Skinner & Cluny [2011] FamCA 429
Spencer & Verity [2012] FamCAFC 210
Ongal & Materns [2012] FamCA 1144
Gillman & Taggart [2012] FMCAfam 1226
Ongal &Materns [2013] FamCA 283

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

ADC

2107

2007

DATE DELIVERED:

4 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

22 May 2013,
4 September 2013,
10 October 2013,…

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.

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Details

Case: [2013] FamCA 946
Decision Date: 4 December 2013

CaseChat Overview and Summary

In this matter before Dawe J of the Family Court of Australia, the court considered multiple applications for contravention orders. The mother's first application alleged two counts of contravention by the father, which he admitted and for which he was found to have no reasonable excuse. The mother's second application alleged two counts of contravention by the father, which had been dismissed at an earlier hearing. The father's application alleged four counts of contravention by the mother, all of which she admitted but for which she was found to have a reasonable excuse.

The primary legal issues before the court were to determine what orders should be made arising from the findings of contravention, specifically considering the application of Subdivision E or Subdivision F of Division 13A of Part VII of the *Family Law Act 1975* (Cth), and what orders to make under s 70NEB of the Act. The court also considered the best interests of the children pursuant to s 70NBA of the Act.

The court reasoned that given the father's admitted contraventions for which he had no reasonable excuse, it was appropriate to make orders requiring him to enter into a bond under s 70NEC of the Act. The father was ordered to enter into a two-year bond with a $1,000 security, conditional upon his good behaviour and compliance with all current and future parenting orders. The mother's second contravention application was dismissed, as was the father's contravention application, with no orders made in relation to those matters. The court also made and continued various parenting orders concerning the children's living arrangements, time spent with each parent, handovers, communication between parents, and other related matters, all of which were made in the best interests of the children. Furthermore, the court imposed restrictions on the parties filing further applications without leave.

Orders

Orders of the court

Pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”):

The following parenting orders are either continued or are now made and all other orders relating to the children are discharged:

The parties do have equal shared parental responsibility for the children L born … 2001 and M born … 2004.

The said children do live with the mother.

The said children spend time with the father as follows:-

(a) from 3.25 pm Thursday 5 December 2013 until 8.25 am Friday 6 December 2013 and in each alternate week thereafter PROVIDED THAT always that if on any such Thursday the said children shall have a “pupil free day” then the children do spend time with the father on that day from 9.00 am;

(b) from 3.25 pm Thursday 30 January 2014 until 8.25 am Monday 3 February 2014 and in each alternate week thereafter PROVIDED THAT always that firstly if on any such Thursday the said children shall have a “pupil free day” then the children shall spend time with the father on that day from 9.00 am and secondly if any such Monday shall fall on a public holiday then the father shall return the children to school at 8.50 am on the following Tuesday;

(c) for the first half of the end of Term 1, end of Term 2 and end of Term 3 school holidays in each year from 2.25pm on the last day of the school term until 5.00pm on the second Saturday of each such period UPON NOTING that:-

(i) paragraph 3(a) and 3(b) hereof shall be suspended during such school holiday periods and Christmas school holiday periods (referred to hereunder); and

(ii) paragraph 3(c) as it relates to the end of Term 1 school holidays is suspended during the periods of time that the children are to be with the mother at Easter pursuant to paragraph 3(f) below;

(d) for the first half of the Christmas school holiday period in 2014/2015, and in each alternate year thereafter, commencing from the conclusion of school on the last day of term until 5.00pm on the Saturday closest to the midpoint of said Christmas school holiday period (to the intent that each party shall have equal time with the said children during such Christmas school holiday period);

(e) for the second half of the Christmas school holiday period in 2013/2014, and in each alternate year thereafter, commencing 5.00pm on the Saturday closest to the midpoint of said Christmas school holiday period until 8.50am on the first day of term in the New Year (to the intent that each party shall have equal time with the said children during such Christmas school holiday period);

(f) from 3.25pm on Maundy Thursday 2015 until 5.00pm on the following Easter Monday and each alternate Easter thereafter UPON CONDITION that the children are to spend time with the mother from 3.25pm on Maundy Thursday 2014 until 5.00pm on the following Monday and each alternate Easter thereafter;

(g) on the weekend including Father’s Day from 3.25 pm on the preceding Friday until 8.50 am on the succeeding Monday, reserving for the mother the weekend including Mother’s Day from 3.25 pm on the preceding Friday until 8.50am on the succeeding Monday.

All handovers on days when one or both of the children are attending school shall occur at the children’s school in relation to that child or children but that otherwise all handovers that do not take place at the children’s school take place inside the Town W Police Station with the father to leave the police station and its vicinity immediately upon handing over or collecting the said children and the mother to remain inside the Town W Police Station for 5 minutes after handover.

No member of the mother’s family be present at handover, either inside or outside the Town W Police Station nor within 100 metres of the Town W Police Station, save and except in the case of illness, accident or emergency when either party may nominate another person to attend handovers.

Each party is at liberty to attend all school fixtures and events to which parents are ordinarily invited.

Each party do keep the other informed as to the names and contact details of the children’s medical and health professionals noting that the father will ensure that the said children attend the same general practitioner as nominated by the mother.

The father and the mother are each restrained and an injunction is hereby granted restraining each of them from:

(a) videotaping the other at school or at handovers or sporting fixtures;

(b) discussing proceedings under the Act in the presence of or in the hearing of the children or permitting any other person to do so;

(c) abusing or denigrating the other parent to the children or in the presence of the children and from permitting any other person to do so;

(d) abusing or denigrating the partner of the other parent or any children of the other parent’s partner and from permitting any other person to do so;

(e) causing or permitting the children to be known by any surname other than “Materns-Ongal”;

(f) seeking to alienate the children from the other parent;

(g) telephoning the other UPON NOTING that any communication between the parties is to be confined to issues concerning the children and is to be restricted to email and SMS communication.

The father do ensure that the children attend Friday evening sports training during school terms UPON CONDITION that the mother do inform the father on the giving of seven [7] days’ notice in writing of any change or any expressed desire for change by the said children.

10.

The parties are restrained from filing any further Applications, Affidavits or other material in the Family Court of Australia without first obtaining leave of a Judge of this Court in the following manner:

(a) any such application for leave to file such material will, in the first instance, be listed for hearing before a Judge in chambers;

(b) any such application for leave is to be facilitated by the applicant party annexing to the material for which leave is sought to be filed a written application specifying with particularity the orders sought together with an affidavit setting out the basis for such orders and a written argument in support of the Court granting permission to allow such material to be filed;

(c) unless otherwise ordered by the court, any such application for leave shall not be served on the other party to the proceedings;

(d) the Court shall thereafter deliver written reasons for its decision with respect to permission being granted or denied to file the relevant material.

11.

In circumstances where either of the parties makes application for parenting orders to the Federal Circuit Court of Australia, the applicant party shall attach to such application a copy of these orders.

IT IS FURTHER ORDERED THAT:

12.

Within seven [7] days from today the father MR ONGAL enter into a bond for a period of TWO YEARS without surety but with ONE THOUSAND DOLLARS [$1,000.00] as security upon the following conditions:

(a) Be of good behaviour during the period of the bond; and

(b) Comply with all current and future parenting orders.

13.

The mother’s Application for Contravention Orders filed on 13 July 2012 is otherwise dismissed.

14.

The father’s Application for Contravention Orders filed on 16 July 2012 is dismissed without further order.

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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