ONGAL & MATERNS - [2017] FamCAFC 207

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

2007

APPEAL NUMBERS:	SOA	16	of	2017
APPEAL NUMBERS:	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…

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.

Continue reading ONGAL & MATERNS

Details

AGLC: ONGAL & MATERNS [2017] FamCAFC 207
Case: [2017] FamCAFC 207
Decision Date: 3 October 2017

CaseChat Overview and Summary

The case of Ongal & Materns involved an appeal concerning family law matters, specifically regarding the allocation of time a child should spend with each parent. The appeals were lodged against the Family Court of Australia, with the appellant, Ongal, challenging the decisions of the primary judge. The primary judge had dismissed Ongal’s application for contravention, which pertained to the respondent, Materns, allegedly not adhering to agreed parenting arrangements. Additionally, Ongal sought to introduce fresh evidence during the appeal process, which the primary judge had rejected.

The legal issues at the core of this appeal were whether the primary judge erred in dismissing Ongal’s contravention application and in denying permission to adduce fresh evidence. The appeal hinged on whether the primary judge correctly exercised their discretion in rejecting Ongal’s application to introduce new evidence, which was deemed to have been available at the original hearing. The court had to consider whether the primary judge's decisions were reasonable and whether there was any error in the application of the law or in the exercise of discretion.

The court found no error in the primary judge’s decisions. The reasoning was that the fresh evidence Ongal sought to introduce should have been presented during the re-examination phase at the original hearing, and the failure to do so was not sufficiently justified. Furthermore, the court considered that the primary judge had appropriately exercised their discretion in dismissing the contravention application, as there was no clear evidence of a significant change in circumstances that warranted a review of the existing parenting orders. Consequently, the court upheld the primary judge’s decisions and dismissed both the appeal and the application to adduce fresh evidence.

The final orders of the court were that the appeals filed under SOA 16 of 2017 and SOA 17 of 2017 be dismissed, and that the application to adduce fresh evidence filed on 19 September 2017 also be dismissed. These orders were subject to formal entry in the Court’s records.

Orders

Orders of the court

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.

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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