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…

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 (No 2)

Details

AGLC: Sankar & Rai (No 2) [2022] FedCFamC2F 323
Case: [2022] FedCFamC2F 323
Decision Date

CaseChat Overview and Summary

The case of Sankar & Rai (No 2) involves a dispute between Mr Sankar and Ms Rai concerning parenting orders relating to their two children, X and Y. The matter was heard in the Federal Circuit and Family Court of Australia, Division 2. The primary issues before the Court were whether the Respondent had contravened specific parenting orders without reasonable excuse, and if so, what penalties should be imposed.

The Court had to determine whether Ms Rai contravened certain parenting orders made on 29 October 2020, and if so, whether there was a reasonable excuse for the contravention. The Court considered the nature of the contraventions, the Respondent's past behavior, and the impact on the children. It was established that Ms Rai failed to comply with the orders without reasonable excuse. The Court also had to decide on the appropriate penalty under the Family Law Act 1975 (Cth), considering the principles of enforcing compliance and the specific provisions for more serious contraventions.

Judge Obradovic concluded that the Respondent's actions constituted more serious contraventions without reasonable excuse. The Court focused on enforcing future compliance and ensuring the children's best interests. Given the seriousness of the contraventions, the Court ordered that Ms Rai pay Mr Sankar's costs in the amount of $19,800. Additionally, the Court discharged the interim parenting orders made on 29 October 2020 to provide the children a break from ongoing conflict. The substantive proceedings were scheduled for a directions hearing, with the parties required to file a jointly drafted statement of issues and a minute of order.

Orders