ONGAL & MATERNS
[2017] FamCAFC 207
•3 October 2017
FAMILY COURT OF AUSTRALIA
| ONGAL & MATERNS | [2017] FamCAFC 207 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Contravention – Appeal again orders made in favour of the appellant not pressed – Appeal against dismissal of the appellant’s contravention application – Held no error by the primary judge – Appeals dismissed. FAMILY LAW – APPEAL – Application to adduce fresh evidence – Evidence should have been introduced by the appellant in re-examination at the hearing – Application dismissed. |
| Family Law Act 1975 (Cth) s 70NBA |
| APPELLANT: | Mr Ongal |
| RESPONDENT: | Ms Materns |
| FILE NUMBER: | ADC | 2107 | of | 2007 |
| APPEAL NUMBERS: | SOA | 16 | of | 2017 |
| SOA | 17 | of | 2017 |
| DATE DELIVERED: | 3 October 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Murphy JJ |
| HEARING DATE: | 3 October 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 February 2017; 3 February 2017 |
| LOWER COURT MNC: | [2017] FamCA 143 [2017] FamCA 144 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person via telephone |
Orders
The appeals SOA 16 of 2017 and SOA 17 of 2017 be dismissed.
The application in an appeal filed 19 September 2017 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 16 of 2017 and SOA 17 of 2017
File Number: ADC 2107 of 2007
| Mr Ongal |
Appellant
And
| Ms Materns |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Thackray J
The Full Court has before it two Notices of Appeal filed by Mr Ongal (“the father”). Both are opposed by the respondent, Ms Materns (“the mother”).
The background to the litigation is lengthy and unfortunate, and concerns the welfare of the two children of the mother and the father, who have, for many years, been living with the mother and spending time with the father.
The parties have been engaged in significant litigation which has led a number of judges over the years to attempt to place some limits on their capacity to initiate even more litigation.
The most recent effort to curb the litigation was an order made by Dawe J on 4 December 2013 (“Order 10”) which relevantly stated:
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.
In 2016, the father was aggrieved by the mother’s actions which he considered breached the operative orders relating to his time with the children.
Significantly, at the time, there was an order made by consent by Dawe J relating to the father’s regular time with his children, varying the 4 December 2013 order. Subsequently, there were appeal proceedings and, on 29 April 2015, the Full Court made orders making some further, very minor and, for present purposes, I think, irrelevant variations to the existing contact regime.
Last year, the father availed himself of the liberty granted by Order 10 and filed an application to obtain leave to commence proceedings in relation to alleged contraventions of the parenting orders. The matter came before Berman J who, having considered what the father had brought before him ex parte, saw it as being appropriate for the matter to be entertained by the Court, and notice was then given to the mother, who began to participate in the proceedings.
The matter came before Berman J on 2 February 2017 to determine whether the father should be granted leave to commence proceedings. Having heard argument, his Honour granted leave to the father to proceed with the contravention application attached to his application for leave.
For reasons that have been discussed in the hearing today, although the father was successful in what appeared to be the primary application before his Honour, the father sought to appeal against an order made on 2 February 2017.
The order of 2 February 2017 was the subject of the first of the two appeals before us, SOA 16 of 2017. I need say nothing further in relation to that appeal because, when the matter was explored with the father today, he sensibly saw there was no point in pursuing his grievance in relation to that part of the proceedings and that appeal was therefore not pressed.
This left for determination appeal SOA 17 of 2017, which deals with an order made by Berman J on 3 February 2017. What had transpired on the previous day was that his Honour had given the father leave to agitate his contravention application and also, with the agreement of both parties, then proceeded to list the matter for hearing on the following afternoon.
When the proceedings commenced before his Honour on 3 February, the father was permitted to file the contravention application. In this application, the father essentially complained about two different events closely related in time.
Doctor’s visit on 19 September 2016
It was asserted that on 19 September 2016, in breach of orders 8(c) and 8(f) made by Dawe J on 4 December 2013, “the mother denigrated the father in front of [M] and sought to alienate [M] from the father to the doctor”. Although not elegantly expressed, the father’s concerns related to what he understood to have occurred when the mother took M (one of the parties’ children) to the doctor on 19 September 2016.
In support of this alleged contravention, the father annexed to his affidavit a note made by the doctor following the mother’s visit to the surgery with M. The relevant part of that document is set out at [13] of his Honour’s reasons and states (errors in original):
Progress notes, [M], date of birth … 2004. Monday, September 19 2016 … Dr [W]. Boy come with mum and started crying. He says he did not want to go with his dad. He abusive all the time. Dad he is there in the school to take him. He scared about dad and forcefully take him so. I told the mother to involve the police and take their help. Breathing fine. Neuro obs fine. No tummy upset or cramps.
Otherwise, in support of his application, the father relied on paragraph 20 of his affidavit in which he set out what he and his partner had allegedly been told by the doctor when they visited the surgery to ascertain what had transpired between the mother, the doctor and M on 19 September 2016.
The first thing that can be said in relation to this is that the doctor’s note, which was received into evidence uncontroversially, did not provide any evidence to establish that the mother, in the presence of the child, had denigrated or alienated the father.
The second thing that can be said is that the father’s evidence about what he had allegedly been told by the doctor was hearsay. There was also evidence that the doctor had refused to confirm his alleged statement in writing, and the doctor was not in court to give evidence of what occurred on 19 September. I recognise that the father complains about this, saying the matter was brought on for hearing so quickly that he was not in a position to subpoena the doctor to give evidence. However, the father agreed to the matter being listed on very short notice and it is now not open to him to complain that he was not given sufficient time in which to remedy what was an obvious deficiency in his case.
Ultimately, his Honour had some evidence before him which did not provide a proper basis for a finding of denigration or alienation and, otherwise, the case was entirely supported by hearsay evidence. In those circumstances, his Honour found that there was no evidence on which the mother could possibly be found to have breached an order and dismissed the complaint.
The father, when these matters were explained to him today, seemed to understand readily enough the difficulty associated with his case. In my view, what the primary judge did was entirely appropriate and could not be the subject of reasonable complaint.
There was also a secondary argument that his Honour had not adequately in his reasons addressed the alienation aspect of the father’s complaint. In my view, his Honour was right in grouping together, as the father had done in his complaint, the two aspects of denigration and alienation and considered that both of them failed for the same reason, namely, that they required the evidence of the doctor, which was lacking.
Spending time with the father – 15 to 19 September 2016
The second alleged contravention concerned the events of the weekend of 15 to 19 September 2016 when it was said that, in breach of order 3(b), the mother had refused “to give [M] contact with his father for thurs to monday”.
The manner in which this aspect of the matter proceeded was not entirely satisfactory. It appears that, prior to the hearing, his Honour had explored the parameters of the dispute and had obtained a concession from the mother that there was, prima facie, a breach of the order which would require the mother to give evidence of the reasonable excuse which she claimed to have for M not spending time with the father on that weekend.
There was much evidence and discussion between the mother, the father and the bench at trial about various matters but significantly, for the purposes of this appeal, during the course of the mother’s cross‑examination of the father, it became apparent that the parents had entered into some informal arrangement which varied the terms of the earlier court order.
It seems that it then became apparent to the mother during the cross‑examination that this was potentially a means by which she would be excused from having breached the order because, as the mother put it in the course of an exchange with his Honour, there was in fact at the time no orders in place and instead there was an agreement between the mother and the father.
This undoubtedly came as a surprise to the father, given what had earlier been said about the parameters of the mother’s defence but, nevertheless, in the course of the hearing and without complaint, it became obvious that this was indeed her defence to the charge. Relevantly, during cross-examination the following exchange occurred between the father and his Honour:
[THE FATHER:] The change in orders that we privately negotiated freed up a Thursday and Friday every other week in which the mother could arrange the appointments - - -
[HIS HONOUR:] What do you mean privately negotiated? I thought we were dealing with the orders of 4 December 2013? --- We are.
So are you saying that they reflect the private negotiation, or are you saying that there is some other arrangement?---At the time, there was a change that we privately made, which meant that the short week contact, the Thursday night only contact in the intervening week, was tacked on to the end of the long week’s contact, so I would then have contact Thursday night, Friday night, Saturday, Sunday night, Monday night, and that Monday night’s contact would be instead of Thursday contact of the next week, and that was to – to – that was in the interests of the children to – to reduce the number of handovers, and it freed up a Thursday and Friday each week for the mother to do the … appointments.
Well, not so much – so what you’re saying is that the order of 4 December 2013, as at the date of this alleged contravention, count 2, order 3(a), which - - -?---Yes.
- - - was the Thursday night, was no longer applicable?---Yes.
Order 3(b) was applicable, and that’s - - -?---Yes.
- - - why you’ve alleged it as the order that has not been complied with?---Yes, your Honour.
(Transcript, 3 February 2017, p 34 – 35)
The mother was then brought into the discussion and stated:
[I] [t]hink you’ve actually raised something that I forgot to mention, is that, yes, neither of those paragraphs [of order 3] were actually operative at that time of the – his alleged breach because they weren’t in their entirety.
(Transcript, 3 February 2017, p 36)
Following this, the mother continued to cross-examine the father and after some back and forth his Honour intervened:
HIS HONOUR: My interpretation – my understanding of what [the father] has said is that 3(a) was discharged - - -?---No, your Honour.
- - - and in some way the provisions of 3(b); namely, from Thursday afternoon to Monday morning; was extended until Tuesday morning. Now, that’s what I’ve understood. [The father], is that a wrong understanding?---Yes. Can I just clarify again?
Please do?---So no orders were discharged. I don’t have the power - - -
No. I won’t say discharged; that’s not right?--- - - - to discharge an order.
The - - -?---3 – we did a private agreement - - -
Yes. Okay?--- - - - as a temporary trial to move 3(a), which was Thursday 3.25 to Friday 8.50, to Monday at 3.25 to Tuesday 8.50. It did not, in any way, affect 3(b), and of course - - -
Well, it did, because it extended the provisions of 3(b), not by formal variation, but by informal agreement?---No, because I did not have contact between 8.50 until 3.25
…
When – well, let’s try and get to the bottom of it. When do you say this private agreement came into place? When did you do it?---I – I think it was June.
…
Then, as a result of the agreement, something happened, didn’t it?---Yes, your Honour.
And, on an informal basis – and I’m not attributing any formality to a change to the underlying orders - - -?---Yes.
(Transcript, 3 February 2017, p 39 – 40)
It is apparent from the exchange that the father readily acknowledged that there was an informal arrangement between the parents and that this had an impact on the way in which the children were to spend time with him.
The father protested that it was only paragraph 3(a) of the orders which were the subject of variation and that paragraph 3(b) remained in place. In some respects, respectfully, it might seem that this argument was a little disingenuous given that one of the first things the father did following the weekend on which the contravention allegedly occurred was to text the mother, stating:
Given seriousness of what you did over last 5 days and especially today I am reverting to filed court orders on an emergency basis and will see the [children] on thurs [sic] and every week to deny you longer gaps for your denigration and manipulation…
From this it seems the father was effectively cancelling the informal arrangement and reverting to the terms of the court order. It was common ground that there was a provision in the informal agreement for either parent to terminate the agreement by giving notice to the other party.
What the father seeks to do now is to bring before this Court, by way of an application to adduce further evidence, various pieces of correspondence that he considers would place a different light on the informal agreement. But, what the father ought to have done instead was, having seen the change in the mother’s defence at trial, sought to bring that evidence before the judge during the course of his re-examination. There was nothing in the transcript to indicate that, if the father had sought to bring further evidence before the primary judge of the matters that had been raised belatedly in the course of the cross-examination, he would have been denied the opportunity to do so.
Speaking for myself, I am not persuaded that it would be appropriate, particularly in dealing with an appeal against an order relating to a contravention application, for the father to be given permission to rely upon documentation that could have been presented to the primary judge and which was likely to be controversial in relation to its interpretation. More fundamentally, however, the material raises issues as to just what was in place between the parents at the time. The judge’s view expressed in the reasons that he gave ex tempore was, in effect, that what was in place between the parents at the time was an informal arrangement and that, accordingly, it was not open to the father to seek to have the mother found in contravention of the court order.
The fact that the agreement bore some very close resemblance in some respects to the order, in my view, does not gainsay the proposition that his Honour was entirely correct to consider that the arrangement that was in place was an informal one; that there was considerable confusion in relation to aspects of it; and that, for those reasons, it would be inappropriate to find that the mother had any case to answer in relation to a contravention of an order.
One aspect of the matter that troubles me, and which was the subject of submissions by the father, was the failure of the primary judge to allow either party to make submissions before his Honour proceeded to give his judgment. As the transcript reveals, the case having taken the considerable turn that I have described; the cross-examination of the father having been completed; and the father having the opportunity to re-examine himself; his Honour then proceeded immediately to judgment.
With great respect to his Honour, I think the preferable course would have been to call upon the father at least to make submissions as to whether the evidence about the informal arrangement was fatal to his case. It should be noted, however, that this matter had been listed on very short notice; it was listed on a Friday afternoon in a registry where the judge is the only judge sitting regularly at first instance and the matter was being completed late in the afternoon.
One can readily perceive that his Honour saw from the evidence, properly in my opinion, that there was nothing further that the father could possibly say that would have remedied the clear defect in his case. Furthermore, the father had already made submissions in the course of his evidence which indicated what he would have said in his closing address, had he been given an opportunity to make one. In a nutshell, the father’s case was that part of the order still existed and that was the part he was complaining about having been breached; however, his Honour, for good reasons, was not prepared to accept that. So whilst, in my view, there was an alternative way in which the matter could have proceeded, ultimately, no prejudice was caused to the father.
Section 70NBA
The final matter to consider is the father’s complaint that his Honour failed to make orders under section 70NBA of the Family Law Act 1975 (Cth) dealing with parenting issues between the mother and the father.
His Honour properly considered this matter in his reasons stating
35.I do not consider that any issues arise in respect of the limited compass of this contravention application that would invite or give rise to a consideration of the Court to exercise its discretion under section 70NBA of the Family Law Act 1975 (Cth), namely to consider issues relating to parenting. Indeed, it would be inappropriate to do so in the circumstances of a case where the parties and each of them are subject to an order that they require leave before any application can be filed.
I see no error in his Honour’s approach in not being prepared, following the course of these limited contravention proceedings relating to just a few days in the lives of the children, to make any change to the parenting orders.
In saying that his Honour was quite correct in adopting this approach, I would not wish to be seen as accepting that there is anything appropriate about the underlying circumstances in which the father was at the time – and apparently still is now – not having the contact to which he is entitled under the order. It should also be said that nothing that the judge did – and nothing that we are doing today – in any way limits the legal avenues available to the father.
The father is prima facie entitled to have the fruit of the order by which he is meant to be spending time with his children. In the event that he is not having this time, he can, pursuant to Order 10, institute appropriate proceedings and seek leave to bring an application before the Court either for alternative parenting orders and/or contravention orders which would not face the technical difficulty that faced the father today.
It must be completely and clearly understood that all that his Honour did on the occasion in question was to deal with one isolated incident in the lives of the children on a basis that his Honour was entitled to according to law. Nothing that his Honour said or did or anything that we say or do here today in any way otherwise restricts the rights available to both parents in relation to ongoing issues concerning their children.
For all of those reasons, I would dismiss both of the appeals and I would also dismiss the application in an appeal.
Strickland J
I agree with the reasons delivered by the presiding judge and with the orders proposed.
Murphy J
For the reasons given by Justice Thackray, I agree that the father’s application to adduce further evidence and each of his two appeals should all be dismissed. I also seek to be associated with and agree with his Honour’s comments regarding the underlying appropriateness of the conduct giving rise to the proceedings and to the alternative rights that may be available to the father.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Murphy JJ) delivered on 3 October 2017.
Associate:
Date: 5/12/17
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