ONGAL & MATERNS - [2013] FamCA 283

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS

[2013] FamCA 283

FAMILY LAW – ORDERS – contravention – where the mother’s application for contravention orders alleges two counts of contravention – where the primary order concerned the time the children are to spend with the father – where the father admits both counts of contravention – consideration of whether the father had a reasonable excuse for contravention – where the father claims he did not believe he was required to comply with the orders given his belief that the mother had contravened the orders – consideration of s 70NAE(2) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established.

FAMILY LAW – ORDERS – contravention – where the mother’s application for contravention orders alleges two counts of contravention – where the primary order concerned the time the children are to spend with the father – application dismissed as the orders which formed the basis of the application were no longer operative at the time of the alleged contraventions.

FAMILY LAW – ORDERS – contravention – where the father’s application for contravention orders alleges four counts of contravention – where the primary order concerned the time the children are to spend with the father – where the mother admits all four counts of contravention – consideration of whether the mother had a reasonable excuse for contravention – where the mother claims that the orders do not provide for the father to spend time with the children as alleged in his application for contravention orders – consideration of s 70NAE(2) of the Family Law Act 1975 (Cth) – reasonable excuse for contravention established.

Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NBA, 70NDB,

Family Law Rules 2004 (Cth) r 21.08

In the marriage of Gaunt (1978) 4 Fam LR 305
Mitty & Mitty [2012] FamCA 329
Taikato v R (1996) 186 CLR 454

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

ADC

2107

2007

DATE DELIVERED:

1 May 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

20 December 2012,
12 March 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

The contravention applications are adjourned to Wednesday 22 May 2013 at 2.15 pm before the Honourable Justice Dawe for the Court to hear submissions from each of the parties in relation to the orders.

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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns two applications for contravention orders filed by Ms Materns (“the mother”) on 13 July 2012 and one application for contravention orders filed by Mr Ongal (“the father”) on 16 July 2012.

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

AGLC: ONGAL & MATERNS [2013] FamCA 283
Case: [2013] FamCA 283
Decision Date: 1 May 2013

CaseChat Overview and Summary

In the Family Court of Australia, Justice Dawe considered cross-applications for contravention orders. The mother alleged two contraventions by the father concerning the children's time with him, while the father alleged four contraventions by the mother concerning the same issue.

The court was required to determine whether the father had a reasonable excuse for contravening the primary orders, as contemplated by s 70NAE(2) of the *Family Law Act 1975* (Cth). Additionally, the court had to consider whether the mother had a reasonable excuse for her admitted contraventions, particularly in light of her assertion that the orders did not provide for the father to spend time with the children as alleged.

Regarding the mother's application, the father admitted both counts of contravention. However, the court found that the father did not establish a reasonable excuse, rejecting his claim that he believed he was not required to comply due to the mother's alleged contraventions. Despite this, the mother's application was ultimately dismissed because the orders forming the basis of her allegations were no longer operative at the time of the contraventions. In relation to the father's application, the mother admitted all four counts of contravention. The court found that the mother had a reasonable excuse for these contraventions, accepting her argument that the operative orders did not require the children to spend time with the father in the manner he alleged.

The contravention applications were adjourned for further submissions from the parties regarding the court's orders.

Orders

Orders of the court

The contravention applications are adjourned to Wednesday 22 May 2013 at 2.15 pm before the Honourable Justice Dawe for the Court to hear submissions from each of the parties in relation to the orders.

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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