Sathra and Sathra (No 2) - [2012] FamCA 935

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA (NO. 2)

[2012] FamCA 935

FAMILY LAW – CHILDREN – where the mother alleges the father has been violent and aggressive towards her and the children – where the father asserts the children have been coached by the mother and maternal family – whether the eldest child should be allowed to choose if she spends time with the father - whether the younger child should spend time with the father without her elder sibling - where both parties have filed a significant number of contravention applications and applications in a case – where the parties consented to an order restraining them from instituting proceedings relating to the children without leave.

FAMILY LAW – CHILD SUPPORT – whether child support orders which were made in the context of a final property arrangement between the parties should be varied – where the mother agreed the father should be given credit against child support arrears for costs orders in his favour.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Marsden & Winch [2012] FamCA 557
In the Marriage of Gilmour (1995) FLC 92-591

In the Marriage of Bryant (1996) FLC 92-690

APPLICANT:

Mr Sathra

RESPONDENT:

Ms Sathra

INDEPENDENT CHILDREN’S LAWYER:

Mr Adamson

FILE NUMBER:

SYF

5076

2003

DATE DELIVERED:

2 November 2012

PLACE DELIVERED:

Cairns

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 - 6 June 2012; 8 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Reynolds

SOLICITOR FOR THE APPLICANT:

Brian Samuels & Associates

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Barnett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adamson Solicitors

Orders

Parenting

All previous parenting orders are discharged.
Except as provided in order 28, the Respondent mother is to have sole parental responsibility for the children of the marriage M Sathra born … January 1998 (“M”) and L Sathra born … March 2000 (“L”) (“the children”), including the ability to travel with them overseas.
The mother give notice to the father in writing or by email of any major decision she intends to make about the children’s education or medical care, or major decision relevant to their long term care, welfare or development at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.
Each parent shall have the responsibility for making day to day decisions in relation to the care, welfare and development of the children while the children are in the care of that parent.
The children shall live with the mother.
The parties may at any time either generally or in respect of a specific occasion, vary these orders by both agreeing in writing to do so provided that the children shall not spend time with their father or communicate with the father after the end of the third…

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

Case: [2012] FamCA 935
Decision Date: 2 November 2012

CaseChat Overview and Summary

In the matter of *Sathra and Sathra (No 2)*, Watts J of the Family Court of Australia considered a dispute between the mother and father concerning their two children, M and L. The mother alleged violence and aggression from the father towards her and the children, while the father asserted the children had been coached by the mother and her family. The proceedings were characterised by a significant number of contravention applications and applications in a case filed by both parties, and they had previously consented to an order requiring leave to institute further proceedings relating to the children. The court also addressed an application to vary child support orders made in the context of a final property settlement, with the mother agreeing to give the father credit against child support arrears for costs orders in his favour.

The primary legal issues before the court were whether the eldest child, M, should be permitted to choose whether to spend time with the father, and whether the younger child, L, should spend time with the father independently of her elder sibling. The court was also required to determine the appropriate parenting arrangements for the children, considering the allegations of family violence and parental alienation.

Watts J discharged all previous parenting orders. The court found that the mother should have sole parental responsibility for the children, including the ability to travel with them overseas. The mother was ordered to provide the father with notice of any major decisions regarding the children's education, medical care, or long-term welfare, and to consider any views he expressed in writing within 21 days. Day-to-day decisions were to be made by the parent with whom the children were residing. The children were to live with the mother. The court made specific orders for the father to spend time with both children together between the date of the orders and the end of the third school term in 2013, with detailed provisions for the frequency, location, and duration of these visits, including requirements for notice, accommodation, and attendance at extracurricular activities. Crucially, the orders stipulated that the children were not to spend time with or communicate with the father in a manner inconsistent with the specific orders after the end of the third school term in 2013.

Orders

Orders of the court

Parenting

All previous parenting orders are discharged.

Except as provided in order 28, the Respondent mother is to have sole parental responsibility for the children of the marriage M Sathra born … January 1998 (“M”) and L Sathra born … March 2000 (“L”) (“the children”), including the ability to travel with them overseas.

The mother give notice to the father in writing or by email of any major decision she intends to make about the children’s education or medical care, or major decision relevant to their long term care, welfare or development at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.

Each parent shall have the responsibility for making day to day decisions in relation to the care, welfare and development of the children while the children are in the care of that parent.

The children shall live with the mother.

The parties may at any time either generally or in respect of a specific occasion, vary these orders by both agreeing in writing to do so provided that the children shall not spend time with their father or communicate with the father after the end of the third term school holidays in 2013, in a way that is inconsistent with order 14.

The father is to spend time with the children together between the date of these Orders and until the end of the third school term 2013 in Sydney from Friday at 6:00pm until Sunday 5:30pm one weekend a month, as agreed by the parents, in consultation with the children, in the event of no agreement the father shall spend time with the children the first weekend of the month. Should that weekend be a long weekend because the Friday is a pupil free day or a public holiday, the children’s time with the father shall commence on the Thursday evening at 6:00pm. If the weekend is a long weekend because the Monday is a pupil free day or a public holiday the children’s time with the father shall end at 5:30pm on the Monday.

In addition to the time in Sydney pursuant to order 7 and until the end of the third school term 2013, the father is to spend time with the children together in Newcastle no more frequently than one weekend in any one month, for a period no longer than from Friday after school until Sunday at 4:00pm, if the following requirements are met:

8.1. The father gives the mother 14 days notice in writing to her email address in the following form:

“I am available to have the children from insert time on insert date to insert time on insert date (if applicable). I shall be staying overnight at insert address.”

8.2. The mother is to give notice in writing to the father at least 7 days before the time nominated in the notice referred to in order 8.1 of all extra curricular activities and any social activities which the children are to be involved in during their time with the father.

8.3. The father ensures that the children attend all extra-curricular activities and any social activities referred to in the notice given pursuant to 8.2.

8.4. If overnight time is to occur, the father shall have appropriate accommodation including separate beds for himself and each child.

8.5.

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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