IDANOV & DUNSTABLE - [2016] FamCA 544

FAMILY COURT OF AUSTRALIA

IDANOV & DUNSTABLE

[2016] FamCA 544

FAMILY LAW – CHILDREN – final parenting orders – mother alleges sexual abuse of three children by father – where the children have participated in multiple interviews with professionals – where the mother’s reporting of the children’s allegations is inconsistent – whether the parents should have equal shared parental responsibility – whether the mother has coached the children to make false allegations against the father – whether the children spending unsupervised time with the father amounts to an unacceptable risk – whether the children’s time with the father should be supervised.

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 68P
Evidence Act 1995 (Cth), ss 128, 140

Briginshaw v Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344 at [68]
M v M (1988) 166 CLR 69
McCoy v Wessex [2007] FamCA 489
N & S and the Separate Representative (1996) FLC 92-655
Slater & Light (2013) 48 Fam LR 573
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Idanov

RESPONDENT:

Ms Dunstable

INDEPENDENT CHILDREN’S LAWYER:

Logie-Smith Lanyon

FILE NUMBER:

MLC

7400

2014

DATE DELIVERED:

7 July 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

5, 6, 9, 10, 11 & 12 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Devries

SOLICITOR FOR THE APPLICANT:

Berry Family Law

COUNSEL FOR THE RESPONDENT:

Ms O'Connell

SOLICITOR FOR THE RESPONDENT:

Altavilla Vessali

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gardiner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Logie-Smith Lanyon

Orders

IT IS ORDERED THAT

All previous parenting orders be discharged
The mother have sole parental responsibility for the major long term issues of the children B born … 2007, C born … 2009 and D born … 2011 (“the children”).
Except in the event of an emergency involving the children, the mother shall consult the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father, in writing, about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)the mother shall give the father fourteen (14) days thereafter to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change; and
(b)keep each other informed of the names, addresses and contact details of any medical or other health professionals who treat the children, or any of them; and
(c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health…

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 [2016] FamCA 544
Case: [2016] FamCA 544
Decision Date: 7 July 2016

CaseChat Overview and Summary

In the matter of *Idanov & Dunstable*, Thornton J considered parenting orders concerning three children. The dispute involved the allocation of parental responsibility and the nature and extent of the children's time with each parent. The court was tasked with determining the best interests of the children in light of the circumstances presented.

The central legal issues before the court were: (1) whether to discharge existing parenting orders; (2) how to allocate sole parental responsibility for major long-term issues; (3) the extent to which the parents should consult each other regarding decisions affecting the children; (4) the arrangements for the children to spend time with the father; and (5) the ongoing role of the Independent Children's Lawyer.

Thornton J ordered the discharge of all previous parenting orders. The mother was granted sole parental responsibility for major long-term issues concerning the children, with specific provisions requiring her to consult the father in writing regarding proposed decisions and to consider his response before making a final decision. The children were ordered to live with the mother. Time spent with the father was to be supervised, limited in duration, and facilitated by an independent professional supervision service, with the father bearing the costs of this supervision. The court also made detailed orders regarding the ongoing communication and information sharing between the parents concerning the children's health, education, and general welfare. The appointment of the Independent Children's Lawyer was to be discharged after 30 days.

Orders

Orders of the court

IT IS ORDERED THAT

All previous parenting orders be discharged

The mother have sole parental responsibility for the major long term issues of the children B born … 2007, C born … 2009 and D born … 2011 (“the children”).

Except in the event of an emergency involving the children, the mother shall consult the father about decisions to be made in the exercise of her sole parental responsibility as follows:

(a) the mother shall inform the father, in writing, about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

(b) the mother shall give the father fourteen (14) days thereafter to respond; and

(d) the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

The mother and father shall:

(a) keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change; and

(b) keep each other informed of the names, addresses and contact details of any medical or other health professionals who treat the children, or any of them; and

(c) inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the children, or any of them; and

(d) keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the children, or any of them.

By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the children to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities.

By this Order, the mother and father authorise any medical or other health professionals who treat the children to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about his attendance and treatment.

The children live with the mother.

Unless otherwise agreed between the parents in writing, the children spend time and communicate with the father for a period of up to:

(a) 3 hours on a weekday each week after school; and

(b) 5 hours on a weekend day each week;

with such time to occur on a supervised basis at E Family Services, or such other independent professional supervision service or contact centre as recommended by the Independent Children’s Lawyer and at such times as may be facilitated by that supervision service.

For the purpose of the children’s time with their father pursuant to Order (8) herein, and insofar as is necessary, the parents shall both register with the nominated supervision service and complete an intake interview and attend to all other requirements of that service to facilitate supervised time between the children and the father.

10.

The costs of the children’s supervised time with their father pursuant to Order (8) herein shall be paid by the father.

11.

The appointment of the Independent Children’s Lawyer is to be discharged after a period of 30 days from the date of this order.

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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