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

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

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

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.

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.

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

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

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.
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.
It may be determined…

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 [2012] FamCA 1144
Case: [2012] FamCA 1144
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Ongal (the applicant father) and Ms Materns (the respondent mother) were involved in proceedings concerning contravention applications. The mother had alleged that the father had contravened specific orders made on 27 February 2007. The father had also filed a contravention application.

The primary legal issue before the Court was whether the father had contravened the orders of 27 February 2007, as alleged by the mother, given that those specific orders had been suspended by a previous order of a Federal Magistrate on 26 November 2010. The Court also considered the father's contravention application and the mother's application to dismiss it as an abuse of process.

Justice Dawe noted that the orders of 27 February 2007, specifically paragraphs 5(f), (h), and (i), had been suspended by FM Brown on 26 November 2010. The suspension order did not specify a date for its cessation, and no subsequent order reinstating these paragraphs was found on the court file. Despite the parties' apparent assumption that the orders had been reinstated, the Court found that, on the basis of the existing orders, the paragraphs the mother alleged were contravened had indeed been suspended and not reinstated. Consequently, the mother's contravention application was dismissed.

The Court further ordered that certain paragraphs of the 27 February 2007 orders be discharged and replaced with new provisions for the father's time with the children during the December 2012/January 2013 school holidays. Further consideration of holiday orders for Easter and the 2013/2014 school holiday period was adjourned. The father's contravention application was also adjourned for further consideration.

Orders