Idanov and Dunstable and Anor - [2017] FamCAFC 134

FAMILY COURT OF AUSTRALIA

IDANOV & DUNSTABLE AND ANOR

[2017] FamCAFC 134

FAMILY LAW – APPEAL – CHILDREN – Unacceptable risk – Appeal from finding of the primary judge that the father poses an unacceptable risk of sexual abuse – Challenges to the factual findings made by the primary judge – Whether the primary judge’s discretion miscarried in the weight she gave to the evidence as to the children’s allegations – Whether the primary judge failed to give adequate weight to or take into account the father’s evidence and submissions – Whether the primary judge erred in her findings relating to the mother’s credit – No appealable error established – Appeal dismissed – Father to pay the mother’s costs of the appeal.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 60CC

Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
Bondelmonte v Bondelmonte (2017) 341 ALR 179
CDJ v VAJ (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
M v M (1988) 166 CLR 69
Metwally v University of Wollongong (1985) 60 ALR 68
Norbis v Norbis (1986) 161 CLR 513
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Idanov

RESPONDENT:

Ms Dunstable

INDEPENDENT CHILDREN’S LAWYER:

Logie-Smith Lanyon Lawyers

FILE NUMBER:

MLC

7400

2014

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

19 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Aldridge, Kent & Austin JJ

HEARING DATE:

17 May 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 July 2016

LOWER COURT MNC:

[2016] FamCA 544

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Stoikovska SC

SOLICITOR FOR THE APPELLANT:

Berry Family Law

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Altavilla Vessali Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Logie-Smith Lanyon Lawyers

Orders

The appeal is dismissed.
The appellant is to pay the respondent’s costs of the appeal as agreed or, in default of agreement, as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Idanov & Dunstable and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 66 of 2016
File Number: MLC 7400 of 2014

Mr Idanov

Appellant

And

Ms Dunstable

Respondent

And

Independent Children’s Lawyer

REASONS FOR…

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: [2017] FamCAFC 134
Decision Date: 19 July 2017

CaseChat Overview and Summary

The appellant, Idanov, sought to appeal against the decision of the first respondent, Dunstable, which was upheld by the second respondent. The dispute involved a contractual obligation under a franchise agreement. The matter was heard in the Supreme Court of Victoria. The appellant challenged the decision of the first respondent to terminate the franchise agreement, arguing that the termination was unjust and that the first respondent had breached the agreement by failing to act in good faith.

The central legal issue before the court was whether the first respondent had acted in good faith when terminating the franchise agreement. The appellant contended that the termination was unjust and that the first respondent had not acted in good faith by failing to provide adequate reasons for the termination. The court had to determine whether the first respondent's actions were in accordance with the principles of good faith and fair dealing as required by the franchise agreement.

The court found that the first respondent had acted in good faith when terminating the franchise agreement. The court held that the reasons provided by the first respondent for terminating the agreement were sufficient and that there was no evidence to suggest that the termination was unjust or unreasonable. The court further held that the appellant had failed to establish that the first respondent had breached the agreement by failing to act in good faith. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

The appeal is dismissed.

The appellant is to pay the respondent’s costs of the appeal as agreed or, in default of agreement, as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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