SANKAR & RAI - [2020] FCCA 392

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANKAR & RAI

[2020] FCCA 392

Catchwords:
FAMILY LAW – Application – contravention – reasonable excuse established – orders stayed.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE, 70NEA, 70NFA, 70NAA, 70NDA, 70NAF, 70NAC, 70NBA

Cases cited:

Childers & Leslie (2008) FLC 93-356
In the marriage of O’Brien (1993) FLC 92-396
Taikato v R (1996) 186 CLR 454

Applicant:

MR SANKAR

Respondent:

MS RAI

File Number:

PAC 3262 of 2013

Judgment of:

Judge Obradovic

Hearing date:

16 December 2019

Date of Last Submission:

16 December 2019

Delivered at:

Parramatta

Delivered on:

2 March 2020

REPRESENTATION

Appearing for the Applicant:

Mr Navarrete

Solicitors for the Applicant:

MN Lawyers & Associates Pty Ltd

Counsel for the Respondent:

Mr Battley

Solicitors for the Respondent:

Katsoolis & Co

ORDERS

A finding be recorded that the Respondent contravened the orders of the Federal Circuit Court made on 8 March 2016 in that:
(a)On 20 April 2019 at 9am at A Street, Suburb B, the Respondent, with reasonable excuse, failed to deliver the children, X born in 2005 and Y born in 2007 to A Street, Suburb B New South Wales for the purpose of spending time with the applicant, in breach of Order 2(c) of the Court Orders dated 8 March 2016.
(b)On 2 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales), the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.
(c)On 8 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.
(d)On 16 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(a) of the Court Orders dated 8 March 2016.
Paragraph 2 of the final parenting orders made by consent on 8 March 2016 is stayed.
Each party pay his or her own costs of and incidental to the contravention proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Sankar & Rai is…

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: Sankar and Rai [2020] FCCA 392
Case: [2020] FCCA 392
Decision Date: 2 March 2020

CaseChat Overview and Summary

In the matter of Sankar & Rai, heard before Judge Obradovic, the applicant sought to establish that the respondent had contravened parenting orders made on 8 March 2016. The alleged contraventions related to the respondent's failure to deliver the children for the applicant's time and to facilitate the children spending time with the applicant on several specified dates in April and May 2019.

The court was required to determine whether the respondent had contravened the parenting orders as alleged by the applicant. Crucially, the court also had to consider whether the respondent had established a reasonable excuse for any contraventions found.

Judge Obradovic found that the respondent had contravened the orders on multiple occasions, specifically failing to deliver the children and hindering the applicant's time with them. However, the court also found that the respondent had established a reasonable excuse for these contraventions. Consequently, the court ordered that paragraph 2 of the final parenting orders made on 8 March 2016 be stayed and that each party bear their own costs of the contravention proceedings.

Orders

Orders of the court

A finding be recorded that the Respondent contravened the orders of the Federal Circuit Court made on 8 March 2016 in that:

(a) On 20 April 2019 at 9am at A Street, Suburb B, the Respondent, with reasonable excuse, failed to deliver the children, X born in 2005 and Y born in 2007 to A Street, Suburb B New South Wales for the purpose of spending time with the applicant, in breach of Order 2(c) of the Court Orders dated 8 March 2016.

(b) On 2 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales), the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.

(c) On 8 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.

(d) On 16 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(a) of the Court Orders dated 8 March 2016.

Paragraph 2 of the final parenting orders made by consent on 8 March 2016 is stayed.

Each party pay his or her own costs of and incidental to the contravention proceedings.

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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