Ongal & Materns

Case [2015] FamCAFC 68

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS [2015] FamCAFC 68

FAMILY LAW – APPEAL – CONTRAVENTION – Where both parties admitted to breaching orders – Where the trial judge found that both parties misunderstood the orders, but excused the mother and not the father – The trial judge erred by overlooking the father’s attempts to use the appropriate court processes before breaching the orders – The trial judge erred in the exercise of her discretion – Appeal allowed in part – Mother’s contravention application dismissed and order for the father to enter into a bond discharged.

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge altered existing parenting orders after deciding contravention applications – The trial judge erred in relation to some of the orders made – Appeal allowed in part – Re-exercise of discretion.

FAMILY LAW – APPEAL – COSTS – No orders for costs sought, but the father sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – The trial judge was not assisted by the way in which the matter was presented – The trial judge attempted to provide a new suite of orders with a view to reducing future conflict between the parties – Substantial public resources have already been devoted to the first instance proceedings – Request for costs certificate declined.

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), Schedule 3

Family Law Act 1975 (Cth) – s 70NAC, s 70NAE, s 70NAF, s 70NBA, s 70NEB,
   s 70NFB, s 118
Federal Proceedings (Costs) Act 1981 (Cth)
Mallet v Mallet (1984) 156 CLR 605
Marsden & Winch (2013) FLC 93-560
Lovell v Lovell (1950) 81 CLR 513
Stanford v Stanford (2012) 247 CLR 108
APPELLANT: Mr Ongal
RESPONDENT: Ms Materns
FILE NUMBER: ADC 2107 of 2007
APPEAL NUMBER: SOA 3 of 2014
DATE DELIVERED: 30 April 2015
PLACE DELIVERED: Perth
PLACE HEARD: Adelaide
JUDGMENT OF: Thackray, Strickland & Aldridge JJ
HEARING DATE: 11 November 2014
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 4 December 2013
LOWER COURT MNC: [2013] FamCA 945
[2013] FamCA 946

REPRESENTATION

THE APPELLANT: In person
THE RESPONDENT: In person

Orders

  1. The father’s application in an appeal filed on 27 October 2014 be allowed only to the extent that he be permitted to introduce as further evidence in the appeal a copy of the order made on 5 February 2014.

  2. The appeal filed on 2 January 2014 be allowed in part.

  3. Paragraphs 12 and 13 of the orders made on 4 December 2013 (dealing with the mother’s contravention application and requiring the father to enter into a bond) be set aside.

  4. The mother’s contravention application filed on 13 July 2012 be dismissed.

  5. The parenting orders made on 4 December 2013 be amended as follows:

    (a)Subparagraphs 3(a) and 3(b), as amended by the order made on 5 February 2014, be amended by replacing “8.25 am” with “8.50 am or ten minutes before the commencement of school (whichever is the earlier) on” in…

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AGLC
Ongal & Materns [2015] FamCAFC 68
Case
[2015] FamCAFC 68
Decision Date

CaseChat Overview and Summary

This appeal concerns a family law matter involving the parents of children, Ongal and Materns. The primary judge had made orders regarding parenting arrangements and contraventions. The father appealed certain aspects of these orders. The central legal issues were whether the primary judge erred in excusing the mother's contraventions but not the father's, whether the primary judge misapplied her discretion when altering parenting orders following the contravention applications, and whether the father should be granted a costs certificate. The court found that the primary judge had erred by not considering the father's attempts to use the appropriate court processes before breaching the orders, and thus, the primary judge's exercise of discretion was flawed. The court also determined that some of the altered parenting orders were incorrect and required re-exercise of discretion. The appeal was allowed in part, with specific orders set aside, the mother's contravention application dismissed, and certain parenting orders amended. The court declined to grant the father a costs certificate, considering the substantial resources already invested in the case.

The reasoning behind the court's decision involved a detailed analysis of the primary judge's application of the concept of "reasonable excuse" under the Family Law Act. The court emphasised that both parties misunderstood the orders, but found the primary judge had not adequately considered the father's actions and attempts to address the contraventions properly. The court highlighted that a party's subjective belief about the orders does not constitute a reasonable excuse. Additionally, the court noted that altering parenting orders post-contravention applications was inappropriate unless specific grounds were met. The court also declined to grant a costs certificate, given the extensive resources already devoted to the case and the manner in which the matter was presented to the trial judge.

Orders

Orders of the court

1.

The father’s application in an appeal filed on 27 October 2014 be allowed only to the extent that he be permitted to introduce as further evidence in the appeal a copy of the order made on 5 February 2014.

2.

The appeal filed on 2 January 2014 be allowed in part.

3.

Paragraphs 12 and 13 of the orders made on 4 December 2013 (dealing with the mother’s contravention application and requiring the father to enter into a bond) be set aside.

4.

The mother’s contravention application filed on 13 July 2012 be dismissed.

5.

The parenting orders made on 4 December 2013 be amended as follows:

(a) Subparagraphs 3(a) and 3(b), as amended by the order made on 5 February 2014, be amended by replacing “8.25 am” with “8.50 am or ten minutes before the commencement of school (whichever is the earlier) on” in both instances.

(b) Subparagraphs 3(d) and 3(e) be amended by deleting the words “the Saturday closest to” before the words “the midpoint” in both instances.

(c) Subparagraph 3(f) be amended by replacing “5.00 pm on the following Easter Monday” with “8.50 am on the following Easter Tuesday or ten minutes before the commencement of school on that day (whichever is the earlier)” in both instances.

(d) Paragraph 7 be discharged and substituted with the following paragraph:

Each party shall keep the other informed as to the names and contact details of the children’s medical professionals. The father shall ensure that the children attend the same medical practitioner as nominated by the mother when the children are in [Town W]. If the children attend a medical practitioner outside [Town W] whilst in the father’s care, the father shall notify the mother in writing, provide details of any advice received and medication prescribed, and authorise the medical practitioner to speak with the children’s medical practitioner in [Town W].

(e) Paragraph 9 be amended by replacing “Friday” with “Thursday”.

6.

The appeal is otherwise dismissed.

7.

There be no order for costs in relation to the appeal.

8.

The father’s oral application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In her reasons of 1 May 2013, the trial judge dealt with the April 2012 breach in the following terms (original emphasis, document references omitted): Evidence and submissions of the parties concerning the mother’s … application for Contravention Orders…35.… The father claims that it was the “mother who contravened this order by denying [him his] first week of school holidays”. Therefore, he alleges that order 5(i)(d) of the Consent Orders certified on 2 February 2007 [sic] … was “no longer in operation because it was impossible for [him] to satisfy the conditions of this order and take the first half of the orders”.36.At the hearing of this application for contravention orders, the father admitted the contraventions but claimed to have a reasonable excuse for the reason discussed in paragraph 35 of this judgment. The father was unable to explain why he believed an order simply ceased operating if it was contravened by a party. …38.The father advanced his final submissions concerning the existence of his reasonable excuse first. He claimed to be in “response mode” following the alleged contravention of the wife, and that “no matter what [he] did, the order would be broken”. Further, he “thought it was reasonable that I make sure the children have substantial contact with their father”. He then reiterated that he “didn’t realise that an obligation still remained in terms of part of the order, even though part of the order had been contravened”. …Consideration of the mother’s … application for Contravention Orders40.The father admits the contraventions that form the substance of this application for contravention orders. He claims to have a reasonable excuse for these contraventions. The father must prove on the balance of probabilities that he had a reasonable excuse for this contravention. (Section 70NAF(1)—(2) and 70NDA(c)). …42.Subsection 70NAE(2) provides that a person is taken to have had a reasonable excuse for contravening an order if the contravention occurred “because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it” and “the Court is satisfied that the respondent ought to be excused in respect of the contravention”. 43.Rees J relied upon the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in the High Court decision of Taikato v R (1996) 186 CLR 454 in her recent decision of Mitty v Mitty [2012] FamCA 329 concerning the meaning of reasonable excuse in the context of applications for contravention orders. At paragraph 15 of the Mitty decision, her Honour states:“In Taikato v R (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of reasonable excuse in relation to which their Honours said:The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception… (page 464, footnotes omitted)…However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the Courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a Court makes its decision. They effectively require the Courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the Courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”… (p 466)”44.The provisions of section 70NAE(2) can be seen as requiring both positive and normative considerations. First, the Court is asked to determine whether the father actually did not understand the orders. I find that, in the instant case, the father genuinely believed he was not required to comply with the orders given his belief (which I also find was genuine, though not necessarily correct) that the mother had contravened the orders.45.Next, the Court is asked to determine whether the respondent ought to be excused in respect of the contravention. It is at this stage of the consideration that the extracted judgment of Rees J becomes relevant to the case at hand. Namely, “the Courts must give effect to the will of parliament and give effect to their own ideas of what is a reasonable excuse.” 46.In the instant case, I am not satisfied that the father ought to be excused in respect of his admitted contraventions. It is illogical that the contravention of an order by one party somehow allows the other party to contravene that order. The correct approach for dealing with contraventions of orders of this Court is to file an application for contravention orders. The father knows this and has utilised this mechanism on more than one occasion in these proceedings. The correct approach is not to “return fire” with a contravention in response to an opposing parties alleged contravention. The father’s belief is symptomatic of the “tit for tat” conduct between the parties in these proceedings that is in no way beneficial to the welfare of their children.47.The fact that the father thought he was acting in the best interests of the children in contravening the order is irrelevant to the determination of whether he had a reasonable excuse for his contraventions. As noted by the Full Court of the Family Court (Evatt CJ, Emery SJ and Hogan J) in the case of In the marriage of Gaunt (1978) 4 Fam LR 305 at 308: “A party’s subjective view of the rights and wrongs of a decision cannot be relied on as ‘just cause or excuse’ or ‘reasonable cause’.”48.As such, I find that the father has failed to establish on the balance of probabilities that he ought to be excused for the contravention as outlined in the mother’s first application for contravention orders.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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