Harty & Anor and Chilton & Anor - [2018] FamCA 366

FAMILY COURT OF AUSTRALIA

HARTY AND ANOR & CHILTON AND ANOR

[2018] FamCA 366

FAMILY LAW – CHILDREN – Request for Intervention – Where the maternal aunt and maternal grandmother have jointly applied for orders in respect of three children – Where the father is not participating in proceedings at this stage – Where there are concerns held about the parenting capacity of both parents – Where there are allegations of family violence, substance abuse, homelessness, mental health difficulties and neglect – Where the oldest child has attempted to harm herself – Where there may be concerns about the welfare of the children in the Applicants’ households – Where the Department of Family and Community Services is requested to intervene.

Family Law Act 1975 (Cth) ss 69ZW, 91B

Tallant & Kelsey (No. 3) [2016] FamCA 933

APPLICANTS:

Ms Harty & Ms A Chilton

FIRST RESPONDENT:

Ms B Chilton

SECOND RESPONDENT:

Mr Dyson

INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan

FILE NUMBER:

PAC

1747

2018

DATE DELIVERED:

24 May 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

2 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Watts McCray

SOLICITOR FOR THE FIRST RESPONDENT:

Ms Pilkington as Duty Solicitor

THE SECOND RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders

As it appears to the court the children in this Application may be “under the care (however described) of a person under a child welfare law” pursuant s69ZK of the Family Law Act, the written consent of a child welfare officer of the NSW Department of Family and Community Services is sought in relation to the continuation of these proceedings.
For reasons to be given in a judgment to be published from chambers, the Department of Family and Community Services is invited to intervene in these proceedings.
Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.
In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.
Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.
Each of the parents are to attend and the those responsible for the children shall make the children available to Child Dispute Services at 9.00am on 24 May 2018 for the purposes of the Child Responsive Program and are to do all things required of them in relation to the appointment for participation in the program.
Both Respondents are to file and serve a Response setting out the orders they wish the court to make by 22 May 2018.

THE COURT NOTES

(A)The mother is assisted today on a duty basis but all steps are being taken for an Application…

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: [2018] FamCA 366
Decision Date: 24 May 2018

CaseChat Overview and Summary

In proceedings before Hannam J, the applicants, identified as Harty & Anor, sought interim orders concerning the children C and D. The respondents, Chilton & Anor, were also parties to the dispute. The court noted that the children may be "under the care (however described) of a person under a child welfare law" pursuant to s 69ZK of the *Family Law Act 1975* (Cth).

The primary legal issues before the court involved determining the appropriate interim care arrangements for the children and addressing potential child welfare concerns. This included the need to obtain consent from a child welfare officer, the potential intervention of the Department of Family and Community Services, and the mother's compliance with drug testing. The court also considered the children's participation in a Child Responsive Program and the filing of responses and outlines of case by the parties.

Hannam J reasoned that given the potential involvement of child welfare laws, the consent of a child welfare officer was necessary for the proceedings to continue. The court also invited the Department of Family and Community Services to intervene, requesting the Secretary to file a Notice of Intervention and granting leave for the Secretary or a delegate to inspect and copy court documents. The court ordered that the children were to live with the applicant maternal grandmother until the interim hearing, unless varied or revoked. Further orders were made regarding the mother's attendance at a Child Responsive Program, her participation in supervised urinalysis testing, and a restraint on her from altering her hair pending potential hair follicle testing. The court also directed the mother to provide details of her partner and file a Notice of Risk.

Orders

Orders of the court

As it appears to the court the children in this Application may be “under the care (however described) of a person under a child welfare law” pursuant s69ZK of the Family Law Act, the written consent of a child welfare officer of the NSW Department of Family and Community Services is sought in relation to the continuation of these proceedings.

For reasons to be given in a judgment to be published from chambers, the Department of Family and Community Services is invited to intervene in these proceedings.

Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.

Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

Each of the parents are to attend and the those responsible for the children shall make the children available to Child Dispute Services at 9.00am on 24 May 2018 for the purposes of the Child Responsive Program and are to do all things required of them in relation to the appointment for participation in the program.

Both Respondents are to file and serve a Response setting out the orders they wish the court to make by 22 May 2018.

THE COURT NOTES

(A) The mother is assisted today on a duty basis but all steps are being taken for an Application for Legal Aid to be made as soon as practicable.

THE COURT ORDERS

The Applicants’ Interim Application and any competing Interim Application that may be made by the Respondents are listed for hearing at 10am on 1 June 2018 for two hours.

The allocated Family Consultant is requested to have the Memorandum for court available by 30 May 2018.

10.

The legal representatives are to file and outline of case by 31 May 2018.

11.

The Independent Children’s Lawyer has liberty to make contact with the schools directly to obtain any additional relevant information as to the current wellbeing of the children that may not have been contained in the documents produced on subpoena.

12.

Within 48 hours, the mother is to provide to the Independent Children’s Lawyer the full name and date of birth of her partner Mr B.

13.

The mother is to subject herself to a supervised chain of custody urinalysis test within 48hours of these orders and shall provide those results to the Independent Children’s Lawyer immediately as they become available.

14.

The mother is to bear the cost of such urinalysis.

15.

The mother is also to comply with any further requests made by the Independent Children’s Lawyer in relation to random supervised chain of custody urinalysis.

16.

Details in relation to communication with the mother for the purposes of urinalysis are to be provided to the Independent Children’s Lawyer forthwith by the mother.

THE COURT NOTES

(B) The mother consents in principle to further drug testing by way of hair follicle testing and such orders will be considered at the Interim Hearing.

THE COURT ORDERS

17.

Between now and the Interim Hearing the mother is restrained from cutting or colouring or otherwise treating her hair.

18.

If the Independent Children’s Lawyer wishes to relist the matter on 24hrs notice for the courts consideration of any immediate and significant welfare issues, such arrangements may be made directly with my Associate.

19.

The Respondent mother is to file and serve a Notice of Risk by 22 May 2018.

20.

Until 4pm on 1 June 2018 unless earlier varied or revoked the children C born … 2007 and D born … 2009 are to live with the Applicant maternal grandmother.

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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