Sankar & Rai - [2021] FedCFamC2F 398

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sankar & Rai [2021] FedCFamC2F 398

File number(s): PAC 3262 of 2013

Judgment of: JUDGE OBRADOVIC

Date of judgment: 3 December 2021

Catchwords: FAMILY LAW – Contravention – alleged contraventions established – no reasonable excused established.

Legislation: Family Law Act 1975 (Cth) ss 11F, 70NAA, 70NAC, 70NAE, 70, NAF

Cases cited: Childers & Leslie [2008] FamCAFC 5
O’Brien & O’Brien [1992] FamCA 52
Rai & Sankar & Anor (No.2) [2020] FCCA 2913
Sankar & Rai [2020] FCCA 392
Taikato v R [1996] HCA 28

Division: Division 2 Family Law

Number of paragraphs: 74

Date of last submission/s: 3 August 2021

Date of hearing: 8 March and 27 April 2021

Place: Parramatta

Appearing for the Applicant: Mr Navarrete

Solicitor for the Applicant: MN Lawyers & Associates

Counsel for the Respondent: Mr Battley

Solicitor for the Respondent: Katsoolis & Co
ORDERS

PAC 3262 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN: MR SANKAR

AND: MS RAI

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

3 DECEMBER 2021

THE COURT ORDERS THAT:
(1)A finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court of Australia made on 29 October 2020 in that:
(a)By 6 November 2020, the Respondent failed to do all acts and things to register with G Families to allow the father to spend time with the children, X, born in 2005 and Y, born in 2007 supervised by G Families, in contravention of Order 2(a) of the Orders made on 29 October 2020.
(b)By 8 December 2020, the Respondent failed to comply with all reasonable requests or directions of the staff of G Families to arrange the father to spend time with the children, X, born in 2005 and Y, born in 2007 on 5 December 2020, in contravention of Order 3(e) of the Orders made on 29 October 2020

(2)The matter is listed for directions at 2:15pm on 9 December 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sankar & Rai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:

The parents of X, born in 2005 now 16 years old and Y, born in 2007 now 14 years old, continue the parenting dispute…

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 Sankar & Rai

Details

AGLC: Sankar & Rai [2021] FedCFamC2F 398
Case: [2021] FedCFamC2F 398
Decision Date

CaseChat Overview and Summary

The parents of two children, X and Y, continued their long-running parenting dispute in the Federal Circuit and Family Court of Australia. The father brought a contravention application alleging that the mother had failed to comply with orders made in October 2020 that the children spend supervised time with him. The mother pleaded not guilty to the charges. The Court found that the mother had not established a reasonable excuse for her failure to comply with the orders. The Court ordered that the mother had contravened the orders without reasonable excuse. The Court ordered that the matter be listed for further directions.

The Court considered the evidence and submissions in respect of the mother’s reasonable excuse argument. The mother did not establish a reasonable excuse for her failure to comply with the orders that the children spend supervised time with the father. The mother’s evidence showed that she had not completed the necessary forms to register with the supervision service by the date required by the orders. Nor did the mother provide any reasonable explanation as to when she had actually received the forms, completed them, and returned them to the supervision service. The mother also did not respond to requests by the supervision service as to the location where the supervised time was to occur. The mother had the benefit of the Court’s previous judgments and was well aware of her obligations pursuant to the orders. The mother’s disagreement with the Court’s decision was not a reasonable excuse. The mother’s serious disrespect for Court orders was obvious. The Court found that the mother’s intentional failure to comply with the October Orders was in no way necessary to protect the health or safety of the children. The mother had not established a reasonable excuse in respect of her failure to comply with the October Orders.

Orders