ONGAL & MATERNS

[2012] FamCA 1144

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS [2012] FamCA 1144

FAMILY LAW – ORDERS – contravention – where the mother alleges the father has contravened an order that had previously been suspended by a Federal Magistrate – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ongal

RESPONDENT: Ms  Materns

FILE NUMBER: ADC 2107 of 2007

DATE DELIVERED: 20 December 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 December 2012

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

By Consent it is Ordered that

1. Paragraphs 5 (i)(f), 5 (i)(h) and 5 (i)(i) are discharged and in lieu thereof:

1.1for the current December 2012 / January 2013 school holidays the father spend time with the children L born … June 2001 and M born … May 2004:

1.1.1from now until 24 December 2012;  and

1.1.2from 9.00 am on 29 December 2012 until 9.00 am on 11 January 2013

with all handovers to continue in accordance with the orders of 27 February 2007 as amended by the orders of 4 June 2008;

IT IS FURTHER ORDERED THAT

1. Further consideration of the Orders for Easter and 2013 / 2014 school holiday period is adjourned to Wednesday 30 January 2013 at 10.00 am before the Honourable Justice Dawe.

1. The mother is at liberty to attend the adjourned date on 30 January 2013 at 10.00 am by telephone link PROVIDED THAT she supplies the Case Coordinator with a landline and a facsimile number at least seven [7] days before the adjourned date.

1. The mother’s Contravention Application filed on 13 July 2012 in relation to the 23 December 2011 contravention is dismissed.

1. The father’s Contravention Application filed on 16 July 2012 is adjourned for further consideration to 30 January 2013 at 10.00 am before the Honourable Justice Dawe.

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

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The mother has filed an application asking for the father’s application for contravention orders filed on 16 July 2012 to be dismissed as an abuse of process or struck out.  The mother’s application is predicated on the nature of the orders sought by the father and the timing in which these orders were sought. 

2. I accept that the allegations in relation to alleged contravention in 2010 are what could be described as “old allegations.”  However, given the history of this matter, I do not consider that it is appropriate to declare at this stage, the commencement of the proceedings, and on the material before me, that the application should be struck out as either an abuse of process or for any other reason.

3. It may be determined in due course that orders that I may make upon either dismissing the father’s application for contravention orders or finding that there has been a contravention back in 2010 will be of little value to either party.  However, I am not disposed and do not consider it appropriate in these circumstances to dismiss the contravention application.  I will continue to hear the matter.

4. The application for contravention orders with which I am currently dealing was filed by the mother.  It alleges that the father contravened paragraphs 5(i)(h) and 5(i)(i) of the order of 27 February 2007. 

5. The Court has received the evidence of the mother.  She has been cross-examined by the father. 

6. It came to the Court’s attention when that process had been completed that paragraphs 5(f), (h) and (i) of the orders of 27 February 2007 were suspended by order of FM Brown on 26 November 2010.  The order reads as follows:

   Upon application made to the Court by Ms Lindsay of counsel for the applicant and Mr McQuade of counsel for the respondent, upon noting the parties intend a different Christmas period arrangement to apply to cover the period of school holidays from 8.50 am on 10 December 2010 to commencement of school at 8.50 am on 31 January 2011, not by consent, but not opposed, the Court orders that

   (1)    paragraphs 5(f), (h) and (i) of the orders made 27 February 2007 be suspended; 

   (2)    paragraph 7 of the orders made 4 June 2008 be suspended; 

   (3)    the father do spend time with the children, [L] and [M], for the second half of the 2010/2011 Christmas school holiday period commencing at 3.20 pm on 5 January 2011 and concluding at the commencement of school or 8.50 am on 31 January 2011 to the effect that the mother has uninterrupted care of the said children between the conclusion of school on 3.20 pm on 10 December 2010 and 3.20 pm on 5 January 2011; 

   (4)    the mother’s contravention application filed 12 July 2010 be fixed for final hearing before Brown FM on 17 March 2011 at 10 am, noting one day allowed.

7. It is clear in this order of FM Brown that there is no specific time set for the suspension of paragraphs 5(f), (h) and (i) of the orders of 27 February 2007.  It simply states that the orders are suspended.  It then goes on, as I have noted, to make specific provision for the father’s time with the children in the school holiday period for the 2010/2011 December/January school holidays. 

8. I have searched the remainder of the file, looking at orders made by the Federal Magistrates Court, by Registrars of the Courts, and by Justice Burr (as he then was) and I can find no order reinstating paragraphs 5(f), (h) and (i) of the orders of 27 February 2007.  

9. It is clear, however, that the parties have assumed that those orders were reinstated as the time the father has spent with the children has continued since the order of November 2010 in accordance with these orders.

10. However, the matter now before me is an application dealing with contravention of orders.  The Court must consider contravention applications seriously. They require people to be dealt with for failing to comply with orders.  In this case, even though it appears to be a technical error on behalf of the Court when the order was made in November 2010, the orders that form the subject of this application for contravention have been suspended and not reinstated.  On that basis, therefore, I dismiss the contravention application filed by the mother so far as it relates to the alleged contravention of the February 2007 orders in December 2011.

11. Having dismissed the application for contravention, the Court still has the power to make orders varying the parenting orders concerning the children.  I have heard submissions about the orders the parties would propose in lieu of reinstating the orders of February 2007.

12. The evidence of the mother would take more than the time I would normally sit on for in order to complete the matter.  I would then have to hear submissions about the evidence that I have heard.  Therefore, it does not appear appropriate to commence the evidence of the mother today.  On the adjourned date (30 January 2013 at 10:00 am) I will resume the hearing of the evidence in relation to the contravention application brought by the father, dealing both with the 1 and 2 April 2010 evidence in response from the mother and then continuing to hear the evidence of both parties in relation to the alleged contraventions for April 2012.  

13. The matters are accordingly adjourned to 30 January 2013 at 10:00 am before me.  

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 December 2012.

Associate: 

Date:  2 April 2013