IDANOV & DUNSTABLE - [2018] FamCA 440

FAMILY COURT OF AUSTRALIA

IDANOV & DUNSTABLE

[2018] FamCA 440

FAMILY LAW – CONTRAVENTION APPLICATION – where the mother admits the many breaches but says she has a reasonable excuse based on the safety of the children – where that evidence is dependent upon the relevant supervisors having some cogent and admissible reason for the views they express – where the evidence is not made available – where the court finds there is no reasonable excuse.

FAMILY LAW – CONTRAVENTION – where the court considers that a bond is the appropriate outcome but gives the mother 24 hours to consider her position – where other options including fines are considered inappropriate as only adversely affecting the children.

FAMILY LAW – PARENTING – Variation Application – where the mother filed an application to discharge contact orders but altered that to seeking only the opportunity to seek specific supervisors of the father’s time with the children – where the father opposes the mother’s proposal and seeks to have his family involved as supervisors – matter adjourned to the Senior Registrar for those matters to be considered on appropriate evidence – where the Court expresses concern about unregulated supervisory companies not being accountable to the court.

Family Law Act 1975 (Cth)

Ackersley & Rialto [2009] FamCA 817

APPLICANT:

Mr Idanov

RESPONDENT:

Ms Dunstable

FILE NUMBER:

MLC

7400

2014

DATE DELIVERED:

14 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Potter
SOLICITOR FOR THE APPLICANT:	Lander & Rogers

THE RESPONDENT:

In Person

Orders

Upon hearing Mr Potter for the applicant father and the respondent mother in person AND UPON the mother conceding the parenting orders had not been complied with and UPON REJECTING her argument of reasonable excuse

IT IS ORDERED:

That by 4.00pm on 15 June 2018, the mother attend upon a registrar of his court and enter into a bond to comply with all orders of the court for a period of 12 months and attend if required to do so.
If the mother fails to attend by 4.00pm on 15 June 2018 as required by paragraph (1), the matter be relisted for further determination.
The mother’s application in a case is adjourned to the Senior Registrar’s list of cases on 19 July 2018 on the issues of:
(a)   Whether there should be variation of the supervision requirements of the orders of Thornton J made on 7 July 2016;
(b)   The father’s application to replace the existing supervision order with a supervisor nominated from his family members; and
(c)   The mother’s request for her whereabouts to remain secret.
That if practicable, on the return date before the senior registrar, all parties have any proposed supervisor available for cross-examination in the event that the senior registrar considers it necessary prior to the execution of any undertaking by such supervisor.
That the mother filed and serve an amended application in a case and any affidavits in support…

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 [2018] FamCA 440
Case: [2018] FamCA 440
Decision Date: 14 June 2018

CaseChat Overview and Summary

In the matter of *Idanov & Dunstable*, the applicant father sought orders for contravention of parenting orders against the respondent mother, who admitted to numerous breaches. The mother contended that her non-compliance was due to a reasonable excuse, specifically relating to the safety of the children, which was predicated on the views of supervisors. However, the court found that the evidence supporting this claim was not made available and therefore rejected the assertion of a reasonable excuse.

The court was required to determine whether the mother had a reasonable excuse for contravening the parenting orders. Additionally, the court considered the appropriate outcome for the contravention, weighing options such as a bond against other penalties that might negatively impact the children. The court also addressed the mother's application to vary existing contact orders, which she later modified to seek the opportunity to nominate specific supervisors for the father's time with the children, a proposal opposed by the father who wished to involve his family members as supervisors.

Justice Cronin rejected the mother's argument of reasonable excuse for the contraventions, finding that the necessary evidence was lacking. The court determined that a bond was the appropriate outcome for the contravention, but granted the mother 24 hours to consider her position before finalising this order. The court expressed concern regarding the accountability of unregulated supervisory companies to the court. The mother's application to vary the supervision requirements was adjourned to the Senior Registrar for consideration, along with the father's application to appoint family members as supervisors and the mother's request for secrecy regarding her whereabouts. The court also stipulated that any proposed supervisor should be available for cross-examination.

Orders

Orders of the court

Upon hearing Mr Potter for the applicant father and the respondent mother in person AND UPON the mother conceding the parenting orders had not been complied with and UPON REJECTING her argument of reasonable excuse

IT IS ORDERED:

That by 4.00pm on 15 June 2018, the mother attend upon a registrar of his court and enter into a bond to comply with all orders of the court for a period of 12 months and attend if required to do so.

If the mother fails to attend by 4.00pm on 15 June 2018 as required by paragraph (1), the matter be relisted for further determination.

The mother’s application in a case is adjourned to the Senior Registrar’s list of cases on 19 July 2018 on the issues of:

(a) Whether there should be variation of the supervision requirements of the orders of Thornton J made on 7 July 2016;

(b) The father’s application to replace the existing supervision order with a supervisor nominated from his family members; and

That if practicable, on the return date before the senior registrar, all parties have any proposed supervisor available for cross-examination in the event that the senior registrar considers it necessary prior to the execution of any undertaking by such supervisor.

That the mother filed and serve an amended application in a case and any affidavits in support therefore in respect of the above issues by no later than 4.00pm on 27 June 2018.

That the father file and serve any response together with any affidavit material upon which he relies in respect of the said issues by no later than 4.00pm on 12 July 2018.

That both parties file and serve a statement of financial circumstances.

That the father’s costs of the contravention proceedings are reserved to the senior registrar’s list of cases for determination if practicable but otherwise returned for determination in the future by the Honourable Justice Cronin.

That the contravention application of the father 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

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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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