OLGUN & NEILSON & THORNBURN

[2013] FamCA 1171

FAMILY COURT OF AUSTRALIA

OLGUN & NEILSON & THORNBURN [2013] FamCA 1171

JURISDICTION – Section 65C of the Family Law Act 1975 (Cth) – Who can make an application for parenting orders – Whether a person having had the care of the children is a person concerned with the care, welfare or development of the children

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)

KAM & MJR & JIG (1999) FLC 92-847; (1999) 24 Fam LR 656; [1998] FamCA 1896

APPLICANT: Ms Olgun

1st RESPONDENT: Ms Neilson

2nd RESPONDENT: Mr Thornburn

INDEPENDENT CHILDREN’S LAWYER: Ms Grew

FILE NUMBER: PAC 4207 of 2013

DATE DELIVERED: 24 October 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 22 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Mestroni of Claremont Legal

SOLICITOR FOR THE 1ST RESPONDENT: Mr Corbin of D M Roberts & Co

SOLICITOR FOR THE 2ND RESPONDENT: Mr Gonzalez of Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Grew of Matthews Folbigg Pty Ltd

Orders

1. The Court finds that the Applicant is a person concerned with the “care, welfare and development” of the subject children pursuant to section 65C of the Family Law Act 1975 (Cth).

2. 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.

3. In the event the Director-General intervenes, he is to file and serve a Notice of Intervention forthwith.

4. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olgun & Neilson & Thornburn 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

1. This matter concerns the standing of Ms Olgun, a former friend of the parents of four children, to bring an application for parenting orders in relation to those children before this Court. 

2. The Family Law Act 1975 (Cth) (“the Act”) provides that applications for parenting orders may be sought by parents, the child concerned, a grandparent or “any other person concerned with the care, welfare or development of the child”. I must determine whether Ms Olgun (“the Applicant”) is such a person.

The Facts

1. Ms Neilson (“the mother”) and Mr Thornburn (“the father”) have five children together.  This application concerns four of them - T, who is six, C, who is four, W, who is two, and S, who is one (“the children”).  The Applicant was a friend and neighbour of the mother.  The parents are no longer in a relationship, and from the beginning of 2013 at least the mother had sole care of the children.

2. For reasons and in circumstances which are in dispute, the Applicant came to have care of each of the children.  Whilst the mother and father express concern about the Applicant’s motives, there is no dispute that from around the early or mid 2013, the mother agreed that the Applicant could take care of the children. 

3. Virtually every other matter is in dispute in these proceedings, including the Applicant’s assertion that she has had care of S since shortly after she was born. It suffices to say that the Applicant makes very serious allegations concerning the care and protection of the children, which, in my view, if true, would easily fall within the definition of the children being at risk of significant harm under section 23 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).  Further, the very fact of the mother voluntarily placing the children in the care of the Applicant, of itself, raises issues of serious concern. 

4. Notwithstanding the allegations in relation to the care and protection of these children, it is common ground that the Department of Family and Community Services have not intervened in relation to them, even though the mother’s other two children are currently in care. On the basis of my concerns, I will also be requesting the Director-General to intervene in this case under section 91B of the Family Law Act 1975 (Cth).

5. The motives of the Applicant and the quality of the care she has provided are also matters of dispute.

The Law to be Applied & Submissions

1. Section 65C of the Act provides that:-

   A parenting order in relation to a child may be applied for by:

   (a)either or both of the child’s parents; or

   (b)the child; or

   (ba)     a grandparent of the child; or

   (c)any other person concerned with the care, welfare or development of the child.

2. It is submitted on behalf of the Applicant that she is a person concerned with the care of the four children to which these proceedings relate on the basis that she has been, for some time, the primary carer of them. 

3. All parties have relied upon the consideration by His Honour Burr J of the matter of jurisdiction in KAM & MJR & JIG[1], where His Honour considered that the concept of “concern” ought to be afforded a wide interpretation.  It is submitted that, in this case, as the Applicant has had a direct role in caring for the children for some time that she easily satisfies this test. 

   [1](1999) FLC 92-847; (1999) 24 Fam LR 656; [1998] FamCA 1896

4. It is also submitted by the Applicant that taking a broad approach supports the objects of Part VII of the Act. Although the Act does not intrude into matters governed by State legislation or responsibility, it is contended that the Court’s Magellan case management protocol represents an acknowledgement that there is a gap between state and federal jurisdiction and that there will be cases where there are risks to children which inevitably do not meet the threshold under state law for intervention on the basis of “significant risk of harm”. On this basis, it is submitted by the Applicant that section 65C(c) be afforded the widest possible interpretation.

5. Finally, reliance is also placed on behalf of the Applicant on comments His Honour Burr J also made in the matter of KAM (supra) in the context of efficient disposal of the Court’s business, that it would be unfortunate and unnecessary to undertake separate enquiries, in separate hearings, to establish whether or not a person is concerned with the care, welfare or development of the child, separate from the determination of what might be in the child’s best interests.  In this matter, it is submitted that any concerns as to the parent or Applicant’s fitness and ability to parent the children are issues to be properly addressed at a hearing on the merits of the matter, and are not issues bearing on the grant of the Court’s jurisdiction. 

6. Each of the parents raise matters concerning the Applicant’s fitness and ability to parent the children, the motives of the Applicant in assuming the care of the children and bringing the Application, and the circumstances of the mother relinquishing the children into the Applicant’s care, as matters to which I should have regard in determining whether the Applicant is a person concerned with the care, welfare or development of the children. 

7. In my view, these are matters which go to the merits of the application the Applicant makes to the Court in the event that she is found to have standing. 

8. In my view, the most critical fact is that the parents do not dispute that the mother voluntarily relinquished the care of the children to the Applicant some months ago. 

9. It is submitted on behalf of the mother that there is insufficient evidence for the Court to conclude that the Applicant has in fact cared for the children and that the evidence only supports that the children have lived with the Applicant for a period of time.  In my view, there is no conclusion available, in light of their age in particular, other than that the children have been cared for by the Applicant. 

10. Much of the submissions made on behalf of the father is concerned with a contention that the appropriate forum to determine matters involving care and protection of children is the Children’s Court and that the appropriate legal pathway is an application being brought by the Director-General, where children have been removed from their parents on the grounds of care and protection.  In this case, in my view, it is critical that these children have not been removed but were voluntarily placed by the mother into the care of the Applicant. 

11. In my view, the words “concerned with” in the relevant section of the Act are ordinary English words which should be given their ordinary meaning. According to the Macquarie Concise Dictionary, “concern”, when used as a verb, means “relate to, to be connected with, to be of interest or importance to”. The Applicant in this matter clearly falls within the definition of a person concerned with the care of these children on this basis.

12. There is, in my view, no reason to limit the definition, and considering the degree of the involvement in the care of these children over a lengthy period of time, the Applicant is a person concerned with the care of the children.

13. Section 65C of the Act does not require the person to be concerned with each of the “care, welfare or development” of a child. On the basis of her connection to the children’s care, I find that she is a person who has standing to make an application for parenting orders in this Court.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 October 2013.

Associate:                 

Date:    24 October 2013