Idanov & Dunstable (No. 2) - [2018] FamCA 1134

FAMILY COURT OF AUSTRALIA

IDANOV & DUNSTABLE (NO. 2)

[2018] FamCA 1134

FAMILY LAW – CONTRAVENTION – where respondent wife does not attend – where no contact with a child is occurring and the reasons are unclear – application for a warrant for arrest sought and granted on the basis of the wife’s evasive material.

FAMILY LAW – COSTS – where the wife does not explain her absence – order for costs made.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Idanov

RESPONDENT:

Ms Dunstable

FILE NUMBER:

MLC

7400

2014

DATE DELIVERED:

8 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tatarka

SOLICITOR FOR THE APPLICANT:

Lander and Rogers

THE RESPONDENT:

No appearance

Orders

That the contravention application is adjourned to 10.00 am on 5 June 2018 for hearing.
That a warrant issue for the arrest of MS DUNSTABLE, Q Street, Suburb R to be executed by all Officers of Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia and upon the execution of the said warrant MS DUNSTABLE be released upon an undertaking of bail (under the relevant Victorian legislation) to attend this Court at 10.00 am on 5 June 2018.
That the respondent pay the applicant’s costs fixed in the sum of $2677.

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 (No. 2) 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

This is an application which has its genesis in a dispute between the husband and the wife that goes back to 2014. There are many documents on this file, and it looks like the dispute between the parties has a long way to go. It was recently transferred to this Court by the Federal Circuit Court presumably on the basis of some complexity. The issue that comes before the Court today is the husband’s application that the wife be dealt with for contravention of a parenting order. That parenting order is of some considerable duration. The contravention application, however, was filed as long ago as early 2017 in the Federal Circuit Court and seems to have wandered along ultimately to be transferred here.
When the parties came before a registrar on 23 March, they reached agreement that the contravention application be adjourned to today’s…

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 (No. 2)

Details

AGLC: Idanov & Dunstable (No. 2) [2018] FamCA 1134
Case: [2018] FamCA 1134
Decision Date: 8 May 2018

CaseChat Overview and Summary

In the matter of *Idanov & Dunstable (No. 2)*, the applicant, Mr. Idanov, sought orders against the respondent, Ms. Dunstable, concerning alleged contraventions of a family law order. The specific nature of the contravention related to a child and the absence of contact, with the reasons for this lack of contact being unclear. The court, presided over by Cronin J, was asked to consider an application for a warrant for the arrest of Ms. Dunstable, which was granted on the basis of her evasive material.

The primary legal issues before the court were whether Ms. Dunstable had contravened the existing family law order, and if so, what orders should be made. A significant aspect of the proceedings involved the court's consideration of issuing a warrant for the respondent's arrest due to her non-attendance and the lack of explanation for her absence and the cessation of contact with the child. The court also had to determine the appropriate orders regarding costs.

Cronin J reasoned that the issuance of an arrest warrant was justified given Ms. Dunstable's failure to attend court and her evasive conduct, which prevented the court from understanding the reasons for the lack of contact with the child. The court found that Ms. Dunstable had contravened the family law order. Consequently, the court adjourned the contravention application for a further hearing and ordered that a warrant issue for Ms. Dunstable's arrest, with provisions for her release on bail upon undertaking to attend the adjourned hearing. Furthermore, the court ordered Ms. Dunstable to pay the applicant's costs, fixed at $2677.

Orders

Orders of the court

1. That the contravention application is adjourned to 10.00 am on 5 June 2018 for hearing.

2. That a warrant issue for the arrest of MS DUNSTABLE, Q Street, Suburb R to be executed by all Officers of Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia and upon the execution of the said warrant MS DUNSTABLE be released upon an undertaking of bail (under the relevant Victorian legislation) to attend this Court at 10.00 am on 5 June 2018.

3. That the respondent pay the applicant’s costs fixed in the sum of $2677.

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.