Kalmar and Kurz - [2020] FamCA 121

FAMILY COURT OF AUSTRALIA

KALMAR & KURZ

[2020] FamCA 121

FAMILY LAW – CHILDREN – Request for intervention – Where the Department of Family and Community Services (“the Department”) (as it was then known) previously declined to intervene – Where orders previously made that the child live with father’s former partner (“the stepmother”) at a time when the child lived with the father and stepmother and the father was incarcerated and there existed risks of harm to the child being returned to mother’s primary care – Where father is no longer in custody – Where allegations of physical abuse of the child made against stepmother – Where stepmother filed a Notice of Discontinuance – Where there are current concerns held about the wellbeing of the child in the care of either parent based on family consultant’s report.

Family Law Act 1975 (Cth) s 91B
Family Law Rules 2004 (Cth) r 24.13

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

APPLICANT:

Mr Kalmar

RESPONDENT:

Ms Kurz

INDEPENDENT CHILDREN’S LAWYER:

Shedden Lawyers

FILE NUMBER:

PAC

5209

2017

DATE DELIVERED:

28 February 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

King & York Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lee

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

Pending further order

Order 3 of the orders of the Federal Circuit Court on 16 November 2018 is discharged.
Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Communities and Justice 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 Communities and Justice, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.
The Department of Communities and Justice is requested to respond to the above request by 20 March 2020.
In the event the Department decide to intervene, a legal representative will be required to be in attendance at the interim hearing on 24 March 2020 and the intervener is to file any Minute of Order or affidavit upon which they may seek to rely by 20 March 2020.

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 Kalmar & Kurz 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…

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 Kalmar and Kurz

Details

AGLC: Kalmar and Kurz [2020] FamCA 121
Case: [2020] FamCA 121
Decision Date: 28 February 2020

CaseChat Overview and Summary

In the matter of *Kalmar and Kurz*, heard by Hannam J, the proceedings concerned an application for intervention by the Secretary of the NSW Department of Communities and Justice. The specific dispute and the nature of the underlying family law matter are not detailed in the provided text, but the orders indicate a need for the Department's involvement.

The primary legal issue before the Court was whether to grant leave for the Secretary of the NSW Department of Communities and Justice to intervene in the proceedings and to inspect court documents. This required consideration of the relevant provisions of the *Family Law Act 1975* (Cth) and the *Family Law Rules 2004* (Cth) concerning intervention and access to court records.

Hannam J reasoned that intervention by the Secretary was appropriate, likely due to concerns for the welfare of a child or other matters requiring the Department's expertise and statutory responsibilities. The Court ordered the discharge of a previous order, requested the Secretary to intervene, and stipulated the filing of a Notice of Intervention. Leave was granted for the Secretary to inspect and copy documents on the court file. The Department was requested to respond to the intervention request and to have legal representation present at an upcoming interim hearing, with any supporting documents to be filed by a specified date.

Orders

Orders of the court

Pending further order

Order 3 of the orders of the Federal Circuit Court on 16 November 2018 is discharged.

Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Communities and Justice 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 Communities and Justice, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

The Department of Communities and Justice is requested to respond to the above request by 20 March 2020.

In the event the Department decide to intervene, a legal representative will be required to be in attendance at the interim hearing on 24 March 2020 and the intervener is to file any Minute of Order or affidavit upon which they may seek to rely by 20 March 2020.

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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