Olgun and Neilson and Anor - [2014] FamCA 25

FAMILY COURT OF AUSTRALIA

OLGUN & NEILSON AND ANOR

[2014] FamCA 25

FAMILY LAW – CHILDREN – Interim parenting – Applicant is a non-parent seeking live with or spend time with orders and parental responsibility – Where the parents have previously relinquished the care of the children to the Applicant – Protection of the children from harm – Best interest of the children – Whether an order in respect of parental responsibility should be made on an interim basis

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61C(1)

Goode & Goode (2006) FLC 93-286, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13
Valentine & Lacerra & Anor (2013) FLC 93-539; [2013] FamCAFC 53

APPLICANT:

Ms Olgun

FIRST RESPONDENT:

Ms Neilson

SECOND RESPONDENT:

Mr Thornburn

INDEPENDENT CHILDREN’S LAWYER:

Ms Grew

FILE NUMBER:

PAC

4207

2013

DATE DELIVERED:

24 January 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

13 & 16 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Claremont Legal

SOLICITOR FOR THE FIRST

RESPONDENT:

D M Roberts & Co

SOLICITOR FOR THE SECOND RESPONDENT:

Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Matthews Folbigg Pty Limited

Orders

The interim orders as sought in the Amended Initiating Application filed 22 November 2013 by the Applicant are dismissed.
The mother is restrained from leaving any of the children in the sole care of her mother, Ms B.
Neither party shall denigrate any other party in the presence or hearing of the children.
Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Director-General of the NSW Department of Family and Community Services is requested to intervene in these proceedings.
In the event that the Director-General intervenes, he or his delegate is to file and serve a Notice of Intervention by no later than close of business on 30 April 2014.
Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Director-General of the NSW Department of Family and Community Services, or his delegate, to inspect and copy any documents on the Court file forming part of the Court record.
The matter is otherwise stood over, awaiting the preparation of a family report anticipated to be ready in late April 2014, to a date to be fixed no less than seven (7) days following the release of the report.

Notation

A copy of these Reasons for Judgment is to be provided to the Director-General of the Department of Family and Community Services to assist the Director-General in deciding whether to intervene in the proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olgun & Neilson and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4207 of 2013

Ms Olgun

Applicant

And

Ms Neilson

First Respondent

And

Mr Thornburn
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

T, aged six, C,…

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: [2014] FamCA 25
Decision Date: 24 January 2014

CaseChat Overview and Summary

In the matter of *Olgun and Neilson and Anor*, Hannam J of the Family Court of Australia considered an application by the father (the applicant) seeking interim orders concerning the care of the parties' children. The mother opposed the application.

The primary legal issues before the Court were whether to grant the interim orders sought by the father, specifically concerning the children's living arrangements and the mother's care of them, and whether to involve the Director-General of the NSW Department of Family and Community Services in the proceedings. The Court also had to determine whether to make orders restraining the parties from denigrating each other in the presence of the children.

Hannam J dismissed the father's interim orders as sought in the Amended Initiating Application. However, the Court made orders restraining the mother from leaving the children in the sole care of her mother, Ms B, and prohibiting either party from denigrating the other in the presence or hearing of the children. Crucially, pursuant to section 91B of the *Family Law Act 1975* (Cth), the Court requested the intervention of the Director-General of the NSW Department of Family and Community Services, directing that a Notice of Intervention be filed by 30 April 2014 if the Director-General intervened. Leave was also granted for the Director-General to inspect and copy court documents. The matter was otherwise adjourned pending the preparation of a family report.

Orders

Orders of the court

The interim orders as sought in the Amended Initiating Application filed 22 November 2013 by the Applicant are dismissed.

The mother is restrained from leaving any of the children in the sole care of her mother, Ms B.

Neither party shall denigrate any other party in the presence or hearing of the children.

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

In the event that the Director-General intervenes, he or his delegate is to file and serve a Notice of Intervention by no later than close of business on 30 April 2014.

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

The matter is otherwise stood over, awaiting the preparation of a family report anticipated to be ready in late April 2014, to a date to be fixed no less than seven (7) days following the release of the report.

Notation

A copy of these Reasons for Judgment is to be provided to the Director-General of the Department of Family and Community Services to assist the Director-General in deciding whether to intervene in the proceedings.

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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