Sankar & Rai (No 2)
[2022] FedCFamC2F 323
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sankar & Rai (No 2) [2022] FedCFamC2F 323
File number(s): PAC 3262 of 2013 Judgment of: JUDGE OBRADOVIC Date of judgment: 25 March 2022 Catchwords: FAMILY LAW – Contravention – Sentence – more serious contravention – costs awarded – orders discharged. Legislation: Family Law Act 1975 (Cth) ss. 70NAA, 70NAE, 70NAF, 70NBA, 70NEA, 70NFA, 70NFB. Cases cited: Daymond & Joslyn [2021] FedCFamC1F 2
Garrety & Steyn [2021] FamCA 67
Kalant & Jordain (No.3) [2021] FamCA 191
McClintock & Levier [2009] FamCAFC 62
Oswin & Oswin [2019] FamCAFC 164
Sankar & Rai [2020] FCCA 392
Sankar & Rai (No.2) [2020] FCCA 2913
Sankar & Rai [2021] FedCFamC2F 398
Whitfiled & More & Anor [2019] FCWA 250
Division: Division 2 Family Law Number of paragraphs: 29 Date of last submission/s: 3 February 2022 Date of hearing: On the papers 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
Applicant
AND: MS RAI
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to section 70NFB(2)(g) of the Family Law Act 1975 (Cth), the Respondent shall within 42 days pay the Applicant’s costs in the amount of $19,800.
2.Pursuant to section 70NBA(1) of the Family Law Act 1975 (Cth), orders (1) to (4) made on 29 October 2020 are discharged.
3.The substantive proceedings are listed for directions at 10am on 14 April 2022.
4.The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.
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:
On 3 December 2021, the Court recorded findings 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.[1]
[1] Sankar & Rai [2021] FedCFamC2F 398 (“Sankar [2021]”)
These are Reasons for Judgment in respect of penalty to be imposed following the findings referred to above.
Relevant Legal Principles
The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”).
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s.70NAA. In summary it deals in turn with:
(a)Preliminary matters, including definitions and a provision relating to the standard of proof (s.70NAF): subdivision A;
(b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
(c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
(d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
(e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E; and
(f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F.
Subdivision E of the Act applies if no previous sanctions have been imposed for a past contravention, or if, irrespective, the Court considers it is more appropriate to apply subdivision E.[2]
[2] Sub-ss.70NEA(1), (2), (3) and s.70NFA(4); see also Masson & Parsons [2020] FamCA 479
Subdivision F of the Act applies if the Respondent’s contravention manifests serious disregard of the obligations created by the subject order.[3]
[3] Sub-s.70NAE(4) and sub-ss.70NFA(1) and (2)
In Daymond & Joslyn[4] Deputy Chief Justice McClelland referred to the relevant principles in respect to the imposition of a penalty arising from a contravention of the Act, as follows:
a) The focus of a court in dealing with a contravention application under Div 13A of Pt VII is in making orders which will enforce future compliance with its orders.
b) The court’s focus is on the individual party.
c) A penalty imposed to deter other likeminded persons would constitute an error of law.
d) The court can have regard to criminal sentencing principles.
e) If there are multiple contraventions in relation to which the court determines to impose a “global” sanction, particular care is required to ensure the total sanction is not manifestly excessive.
f) Reasons must be provided for the imposition of a particular sanction.
[4] [2021] FedCFamC1F 2
It is with those principles in mind that the Court has determined the penalty to be imposed for the contraventions as recorded.
Procedural History
The parties have been involved in litigation concerning their two children for the best part of the last 8 and a half years that is, since August 2013, when the Applicant commenced proceedings seeking parenting and property orders.
The history of the animosity between the parties can be gleaned from the Court’s three earlier written Reasons for Judgment: Sankar & Rai [2020] FCCA 392; Sankar & Rai (No.2) [2020] FCCA 2913 and Sankar & Rai [2021] FedCFamC2F 398.
Relevantly, in March 2020, the Court recorded a finding[5] that the Respondent had contravened the orders of the Court made on 8 March 2016 on four specified occasions, each with a reasonable excuse. The Court stayed paragraph 2 of the final parenting orders made by consent on 8 March 2016.
[5] Sankar & Rai [2020] FCCA 392
Following the orders of 2 March 2020 consequent upon the Court’s findings of the Respondent having contravened Court orders on 4 occasions with reasonable excuse, on 29 October 2020 the Court determined a further interim application by the Applicant for time with the children.[6]
[6] Rai & Sankar & Anor (No.2) [2020] FCCA 2913
What then followed was a finding by the Court on 3 December 2021 that the Respondent had contravened the orders of 29 October 2020, on two occasions and without reasonable excuse.[7]
[7] Sankar [2021]
Court’s Determination
The contraventions are reflective of the entrenched and long-standing conflict between the parties.
The Court’s focus in dealing with the contraventions must be in making orders which will enforce future compliance with its orders.[8] The emphasis is upon the individual party and orders and future compliance. These are the principles which the Court applied when it stayed paragraph 2 of the final orders in March 2020, and these are the principles which the Court will now continue to apply.
[8] McClintock & Levier [2009] FamCAFC 62 cited with approval in Oswin & Oswin [2019] FamCAFC 164 at [37]
While it is tempting to deal with the Respondent’s recalcitrant conduct by way of punitive orders and punishment for the contravention, including to denounce the non-compliant conduct, the Court would be in error if it were to do so.[9]
[9] Whitfiled & More & Anor [2019] FCWA 250 at [25]; Kalant & Jordain (No.3) [2021] FamCA 191 at [5]
As noted, the Court has previously recorded a finding that the Respondent, with reasonable excuse contravened orders made on 8 March 2016. Furthermore, the Court is satisfied that the Respondent has behaved in a way that showed serious disregard for her obligations under the primary order.[10] As such, the contraventions will be dealt with pursuant to subdivision F.[11]
[10] s.70NAE(4); s.70NFA(2)
[11] Div 13A, Part VII of the Act.
In its Reasons for Judgment[12] with respect to whether the contraventions had been established, the Court noted as follows:
[42] The Court was and continues to be well aware of the children’s stated fears and the history of allegations of family violence against the father. The October Orders were not the subject of any appeal and they remain on foot. The parties have an obligation to comply with the orders of this Court.
[12] Sankar [2021]
This was said in the context of the Court’s earlier decision and findings that as at October 2020, there still existed “… the opportunity for the children to have a meaningful relationship with the father. He is, and was, an important person in their lives. With the safety guards in place, the risk to the children does not outweigh the benefit of a meaningful relationship.”
In its Reasons for Judgment[13] with respect to whether the contraventions had been established, the Court found as follows:
[70] The mother did not bring the children to either of the two nominated venues at the time and date which was arranged by the supervisor. Her suggestion that the reason she did not do so, is because she had not been satisfied as to the appropriate qualifications of the proposed supervisor is not accepted as being a reasonable excuse for her contravention of the order.
[71] The mother has had the benefit of the two most recent judgements referred to earlier and she has been an engaged litigant. She is well aware of what her obligations are pursuant to the October Orders. Her disagreement with the Court’s decision is not a reasonable excuse. It is clear from the mother’s evidence, that she places more weight on the opinion of Mr E than she does on Court orders. Her serious disrespect for Court orders is obvious.
[72] In circumstances where supervised time had been ordered, 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.
[13] Sankar [2021]
Despite the Court’s findings that the Respondent contravened the primary order without reasonable excuse, there is no evidence to date that the Respondent is now complying with the orders of 29 October 2020 or that the children are spending time with the father in accordance with the orders currently in force. This is in the context of the complex history of these proceedings and the fact that the children had initially stopped spending time with their father in September 2018, and have not spent time with him since.
X, the parties’ older child is about to turn 17. Y has recently turned 15. Given the children’s ages and the evidence in the mother’s case to date as to their continued attitude towards spending time with the father, together with the mother’s lack of encouragement for the children to spend time with the father, it is difficult to see what order if any, would ensure future compliance with Court orders.
Unfortunately for X and Y it seems that the time for their father to be involved in their childhoods is almost over. If there is to be any relationship between them, it is likely that it would have to be at the children’s instigation. The father has made it abundantly clear that he has never stopped wanting to have a relationship with his children, and that this is the reason why he has kept returning to Court time and time again. The father continues to want to have a relationship with his children and in that vein presses for the Court to impose a two year good behaviour bond upon the mother, and for the Court to make a costs order against her.
Section 117(1) of the Act ordinarily requires each party to proceedings under the Act to bear his/her own costs, however it is expressly subject to s.70NFB(1) of the Act.[14]
[14] Garrety & Steyn [2021] FamCA 67 at [64]
Having determined that this is a more serious contravention to be dealt with under subdivision F, the Court must make an order under s.70NFB(2)(g), namely that the Respondent pay all of the costs of the Applicant, unless the Court is satisfied that it would not be in the best interests of the children to make that order.[15]
[15] s.70NFB(1)(a)
The Court is not satisfied that it would not be in the best interests of the children to make an order that the Respondent pay the Applicant’s costs, and as such a costs order will be made.
Next, turning to the Court’s obligation to consider making another order under s.70NFB(2) following the making of the costs order. Given that the focus in dealing with the contraventions must be in making orders which will enforce future compliance with its orders, and being mindful of the matters referred to in paragraphs [17] – [23], and particularly [22] above, the Court is not satisfied that it would be appropriate to make any further orders pursuant to s.70NFB(2).
It is however appropriate to provide the children with a break from the continued parental conflict and ongoing proceedings. To that end, it is appropriate that the Court exercise its power pursuant to subdivision B and discharge the interim parenting orders of 29 October 2020.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
30 I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 25 March 2022
0
9
0