Reid and Hastings - [2017] FamCA 1019

FAMILY COURT OF AUSTRALIA

REID & HASTINGS

[2017] FamCA 1019

FAMILY LAW – CHILDREN – REQUEST FOR INTERVENTION – Where the Department of Family and Community Services is requested to intervene in the proceedings – Where the eldest child is living in a youth refuge – Where there are concerns as to the child’s wellbeing – Where there are concerns as to whether either parent has the capacity to care for the child – Where urgent assistance is needed – Where the Department may be the only person or agency in a position to assist.

Family Law Act 1975 (Cth) s 91B

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

APPLICANT:

Ms Reid

RESPONDENT:

Mr Hastings

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

PAC

138

2014

DATE DELIVERED:

11 December 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

11 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Gonzalez & Co

SELF-REPRESENTED RESPONDENT:

In person via telephone link

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

THE COURT NOTES
(A)On 25 January 2017 orders were made including that the child C (the child) born shall live with her mother and spend time with her father in accordance with her wishes.
(B)Final hearing with respect to the child’s parenting arrangements is to commence on 29 January 2018.
(C)On approximately 2 November 2017 the child left her mother’s care and was subsequently provided accommodation in a youth refuge through B Services. I understand that this placement is for a period of six weeks and that the case worker from the Department of Family and Community Services has reported that the aim is to restore the child to one of her parents.
(D)For the purposes of the final hearing appointments have been made for the child to meet with the expert appointed in these proceedings to prepare an updated report concerning a range of matters including the child’s current living circumstances.
(E)For the purposes of:
(a)       providing the court with up to date and accurate information in relation to Departmental involvement with the child,
(b)       providing assistance for the child to attend the appointment with the expert which both parents may currently be unable to do,
(c)       in relation to the proceedings generally where it may be found that neither parent is in a position to have the child live with them and maintain her living with them,
(d)       The Department is invited to intervene in the proceedings.
THE COURT ORDERS THAT

The proceedings are listed for further directions at 9.30am on 18 December 2017.
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 by 18 December 2017.
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…

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 Reid and Hastings

Details

AGLC: Reid and Hastings [2017] FamCA 1019
Case: [2017] FamCA 1019
Decision Date: 11 December 2017

CaseChat Overview and Summary

In the matter of *Reid and Hastings*, heard before Hannam J, the proceedings concerned a dispute between the parties, the nature of which is not specified in the provided text. The court's orders indicate a need for further directions and the potential intervention of the Secretary of the NSW Department of Family and Community Services.

The primary legal issue before the court was whether the Secretary of the NSW Department of Family and Community Services should be permitted to intervene in the proceedings. This required the court to consider the relevant provisions of the *Family Law Act 1975* (Cth) and the *Family Law Rules 2004* (Cth) concerning intervention and access to court documents.

Hannam J ordered that the Secretary of the NSW Department of Family and Community Services be requested to intervene in the proceedings pursuant to Section 91B of the *Family Law Act 1975* (Cth). If the Secretary intervened, they were to file and serve a Notice of Intervention by 18 December 2017. Furthermore, leave was granted pursuant to Rule 24.13 of the *Family Law Rules 2004* (Cth) for the Secretary, or their delegate, to inspect and copy documents on the court file. The court also requested the attendance of an officer from the Department on the adjourned date. The parties were informed that leave would likely be granted to rely on an additional affidavit concerning matters arising after the filing of their consolidated affidavits. The proceedings were adjourned for further directions on 18 December 2017.

Orders

Orders of the court

The proceedings are listed for further directions at 9.30am on 18 December 2017.

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 by 18 December 2017.

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 Court requests that an officer from the Department attend court on the adjourned date 18 December 2017.

THE COURT NOTES

(F) The parties can assume that leave will be granted to rely upon an additional affidavit (as well as their respective consolidated affidavits) relating only to matters which have arisen since the consolidated affidavit was filed.

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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