Ongal & Materns (No 2) - [2017] FamCA 144

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO 2)

[2017] FamCA 144

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – where applicant father has been given leave to bring an application for contravention – where father alleges two counts of contravention – where the mother denies any contravention – where court one was dismissed by the Court due to lack of evidence – where count two was dismissed as the father failed to make out a prima facie case – where the Court held there was an informal agreement between the parties and no contravention of Orders

Family Law Act 1975 (Cth) s 70NBA

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

2107

2007

DATE DELIVERED:

3 February 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

3 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Litigant In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1.The Application for Contravention filed by the father on 3 February 2017 and pursuant to leave given by me on 2 February 2017 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns (No 2) 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

The matter comes before the Court today in respect of an application alleging contravention of Orders made on 4 December 2013 but properly to be read in conjunction with orders made by the Full Court on 30 April 2015. For reasons that will become apparent, the amendment to what I might describe generically as the operative Orders of 4 December 2013 are not materially altered by the amendment to the order made by the Full Court on 30 April 2015.
The application for contravention and the affidavit in support have now been filed as separate documents. Those documents first appeared on the Court file as annexures to the father's affidavit of 20 September 2016 filed in support of his application for leave to institute proceedings. I do not propose to supplement the lengthy extempore reasons that I provided yesterday afternoon in granting leave to Mr Ongal (“the father”) to bring the application for contravention.
It should be stated, however, that notwithstanding that the application for contravention and the affidavit annexed to his affidavit of 20 September 2016 were annexures, care had been exercised by the father to ensure that the documents were comprehensive and complete and that notwithstanding that they were annexures, the documents were the subject of execution on oath by the father. The affidavit was described as being the affidavit in support of the application for contravention.
There are two counts that have been identified in the application and…

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 (No 2)

Details

AGLC: Ongal & Materns (No 2) [2017] FamCA 144
Case: [2017] FamCA 144
Decision Date: 3 February 2017

CaseChat Overview and Summary

The applicant father sought to bring an application for contravention against the respondent mother concerning alleged breaches of parenting orders. The father alleged two counts of contravention, while the mother denied any contravention. The matter came before Berman J in the Family Court of Australia.

The primary legal issue before the Court was whether the mother had contravened the existing parenting orders. Specifically, the Court was required to determine if the evidence presented by the father established, on the balance of probabilities, that the mother had failed to comply with the orders as alleged in the two counts.

Berman J dismissed the first count of contravention due to a lack of evidence presented by the father. The second count was also dismissed as the father failed to establish a prima facie case. The Court found that an informal agreement existed between the parties regarding the child's time with each parent, and that the mother's actions did not constitute a contravention of the formal orders. Consequently, the application for contravention was dismissed.

Orders

Orders of the court

1. The Application for Contravention filed by the father on 3 February 2017 and pursuant to leave given by me on 2 February 2017 is dismissed.

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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