IDANOV & DUNSTABLE - [2019] FamCA 77

FAMILY COURT OF AUSTRALIA

IDANOV & DUNSTABLE

[2019] FamCA 77

FAMILY LAW – CHILDREN – PARENTING – review of Senior Registrar’s decision – where the Senior Registrar declined to enter parenting orders that removed a requirement that the father’s time with three children to be only under the supervision of a paid supervisor – where the court was satisfied that the proposed family member was a suitable person to undertake the task in respect of weekends but not necessarily week days – where the mother opposes any alteration to include family members – where the mother’s evidence does not support the proposals she put – Orders made.

FAMILY LAW – COSTS – where the father sought the costs of a contravention application concluded on 14 June 2018 – where there was not sufficient evidence to enable the court to make findings in June. Where the court found that the financial circumstances of the mother were such that they did not warrant the making of an order against her.

Family Law Act 1975 (Cth)

Idanov & Dunstable [2016] FamCA 544
N & S and The Separate Representative (1996) FLC 92-655

APPLICANT:

Mr Idanov

RESPONDENT:

Ms Dunstable

FILE NUMBER:

MLC

7400

2014

DATE DELIVERED:

22 February 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Potter

THE RESPONDENT:

In person

Orders

That upon Ms S executing the undertaking referred to in the reasons published this day, the father’s time on weekends with the children B, C and D is varied such that the supervision shall be undertaken by the husband’s sister referred to in the undertaking.
To the extent that it is necessary to say so, paragraph (8) of the orders of 7 July 2016 is varied accordingly.
That the father’s application for costs arising out of the contravention application concluded on 14 June 2018 is dismissed.
That paragraph (1) of the orders made on 3 December 2018 (by the Senior Registrar) is discharged.
That the application in a case filed by the father on 27 December 2018 is otherwise dismissed.

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 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7400 of 2014

Mr Idanov

Applicant

And

Ms Dunstable

Respondent

REASONS FOR JUDGMENT

These are limited parenting proceedings between Mr Idanov (“the father”) and Ms Dunstable (“the mother”). They relate to the three children of the parties’…

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 IDANOV & DUNSTABLE

Details

AGLC: IDANOV & DUNSTABLE [2019] FamCA 77
Case: [2019] FamCA 77
Decision Date: 22 February 2019

CaseChat Overview and Summary

This matter concerned an appeal by the father against a decision of the Senior Registrar in parenting proceedings involving three children. The Senior Registrar had declined to vary existing parenting orders to remove a requirement for supervised contact between the father and the children, specifically by a paid supervisor. The father sought to substitute a family member as the supervisor for weekend contact. The mother opposed any alteration to the existing supervision arrangements, particularly the involvement of family members.

The court was required to determine whether to vary the existing parenting orders to allow a family member to supervise the father's weekend time with the children, and whether to make any orders regarding the father's application for costs arising from a previous contravention application. The court also considered the mother's opposition to the proposed changes and the adequacy of her evidence in support of her position.

In relation to the supervision of the father's time with the children, the court was satisfied that a proposed family member, Ms S, was a suitable person to supervise weekend contact. However, the court was not satisfied that Ms S would be suitable for weekday supervision. The court noted that the mother's evidence did not adequately support the proposals she put forward. Regarding costs, the court found that there was insufficient evidence to make findings on the contravention application in June 2018, and that the mother's financial circumstances did not warrant a costs order against her.

The court ordered that upon Ms S executing an undertaking, the father's weekend time with the children would be supervised by his sister. The court also discharged a previous order made by the Senior Registrar and dismissed the father's application for costs related to the contravention application, as well as his application filed on 27 December 2018, otherwise.

Orders

Orders of the court

That upon Ms S executing the undertaking referred to in the reasons published this day, the father’s time on weekends with the children B, C and D is varied such that the supervision shall be undertaken by the husband’s sister referred to in the undertaking.

To the extent that it is necessary to say so, paragraph (8) of the orders of 7 July 2016 is varied accordingly.

That the father’s application for costs arising out of the contravention application concluded on 14 June 2018 is dismissed.

That paragraph (1) of the orders made on 3 December 2018 (by the Senior Registrar) is discharged.

That the application in a case filed by the father on 27 December 2018 is otherwise dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.