Kayne and Ebison - [2019] FamCA 771

FAMILY COURT OF AUSTRALIA

KAYNE & EBISON

[2019] FamCA 771

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 the father appears to have relinquished the children into the care of the mother – Where there are concerns held about the wellbeing of the children in the care of the mother – Where Department is requested to intervene.

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

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

APPLICANT:

Mr Kayne

RESPONDENT:

Ms Ebison

INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

FILE NUMBER:

PAC

6350

2017

DATE DELIVERED:

24 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

No Appearance

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

Orders

THE COURT NOTES

A. Neither parent appears today and the Independent Children’s Lawyer informs the court that the mother has advised her by telephone that since 3 October 2019 the children have been in her full time care. Having regard to the contents of the family report which recommended supervised time with the mother only, a further invitation to intervene in the proceedings will be given to the Department of Communities and Justice.

THE COURT ORDERS THAT

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.
The family report and Child Responsive Program Memorandum is to be provided to the Department along with a short Reasons for the request to intervene.
Both the mother and the father are to attend in person at 2.15pm on 20 November 2019.

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 Kayne & Ebison 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 PARRAMATTA

FILE NUMBER: PAC 6350 of 2017

Mr…

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 Kayne and Ebison

Details

AGLC: Kayne and Ebison [2019] FamCA 771
Case: [2019] FamCA 771
Decision Date: 24 October 2019

CaseChat Overview and Summary

In the matter of *Kayne and Ebison*, heard by Hannam J, the proceedings concerned the care and welfare of children. Neither parent attended the hearing. The Independent Children’s Lawyer informed the Court that the mother had stated the children had been in her full-time care since 3 October 2019.

The central legal issue before the Court was whether to permit the intervention of the Department of Communities and Justice (formerly the Department of Family and Community Services) in the proceedings, given the circumstances of the children's care and the recommendations of a family report.

Hannam J reasoned that, in light of the family report's recommendation for supervised time with the mother only, and the mother's assertion of full-time care, it was appropriate to invite the Department to intervene. The Court applied principles relating to the intervention of state authorities in family law proceedings to ensure the best interests of the children were considered.

The Court ordered the Secretary of the NSW Department of Family and Community Services to intervene in the proceedings pursuant to section 91B of the *Family Law Act 1975* (Cth). The Secretary, if intervening, was to file and serve a Notice of Intervention promptly. Leave was granted for the Secretary, or a delegate, to inspect and copy documents on the Court file. The family report and Child Responsive Program Memorandum were to be provided to the Department, along with reasons for the intervention request. Both parents were ordered to attend court in person on 20 November 2019.

Orders

Orders of the court

THE COURT NOTES

THE COURT ORDERS THAT

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.

The family report and Child Responsive Program Memorandum is to be provided to the Department along with a short Reasons for the request to intervene.

Both the mother and the father are to attend in person at 2.15pm on 20 November 2019.

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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