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

FAMILY COURT OF AUSTRALIA

TALLANT & KELSEY (NO 3)

[2016] FamCA 933

FAMILY LAW – CHILDREN - Child related proceedings – Department of Family and Community Service invited to intervene in the proceedings.

Family Law Act 1975 (Cth)91B

APPLICANT:

Ms Tallant

RESPONDENT:

Mr Kelsey

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley

FILE NUMBER:

PAC

3364

2013

DATE DELIVERED:

4 November 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

4 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Women's Legal Service NSW

SOLICITOR FOR THE RESPONDENT:

No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley

Orders

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 COURT NOTES

A. A short Judgement will be published with respect to the request for the Department of Family and Community Services to intervene.

IT IS ORDERED THAT

The hearing dates for the resumed hearing commencing 5 December 2016 are confirmed.

THE COURT NOTES

B. The father has not complied with directions and orders made with respect to the preparation of the matter for the resumed hearing. In the event that he does not appear at the resumed hearing the matter will be determined on an undefended basis and in his absence.

THE COURT ORDERS THAT

Each of the parties is to file and serve an Affidavit by 24 November 2016 concerning the following matters:
a. Any contact between the father and the children subsequent to 10 June 2016;
b.Any matters relevant to the children’s welfare and wellbeing subsequent to
10 June 2016 including but not limited to the children’s pattern of attendance at a school;
c.Any other matter relevant to the best interests of the children arising from events subsequent to 10 June 2016.
The parties have liberty to issue any subpoena as they regard relevant to matters arsing after 10 June 2016. Such subpoenas are to be returned and inspected prior to the resumed hearing.
The father is restrained from spending time with the children or either of them other than in accordance with the orders of 10 June 2016, except in the course of the update assessment of Mr R.
The mother is restrained from taking any steps that facilitate or enable the father to spend time with the children or either of them other than in accordance with the orders of 10 June 2016, except in the course of the update assessment of Mr R.

Note: The form of the order is subject to the entry of the order in the…

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 Tallant & Kelsey (No. 3)

Details

AGLC: Tallant & Kelsey (No. 3) [2016] FamCA 933
Case: [2016] FamCA 933
Decision Date: 4 November 2016

CaseChat Overview and Summary

In proceedings before Hannam J of the Family Court of Australia, the dispute concerned the welfare and wellbeing of children. The court considered a request for the Secretary of the NSW Department of Family and Community Services to intervene in the proceedings.

The primary legal issue before the court was whether to grant leave for the Secretary to intervene and, if so, to make consequential orders regarding the filing and service of a Notice of Intervention and access to court documents. The court also addressed directions for the upcoming resumed hearing, including the father's compliance with previous orders and the filing of affidavits by both parties concerning matters arising after 10 June 2016. Further issues included the parties' liberty to issue subpoenas and interim orders restraining the father from spending time with the children, and the mother from facilitating such contact, outside of specific assessment circumstances.

Hannam J ordered that the Secretary of the NSW Department of Family and Community Services be requested to intervene in the proceedings pursuant to s 91B of the *Family Law Act 1975* (Cth). Leave was granted for the Secretary to inspect and copy documents on the court file. The court confirmed the hearing dates for the resumed hearing commencing 5 December 2016, noting that the matter would proceed undefended if the father failed to appear. Both parties were ordered to file and serve affidavits concerning the children's welfare and contact with the father since 10 June 2016. The father was restrained from spending time with the children except as per prior orders or during an assessment, and the mother was similarly restrained from facilitating contact outside these parameters.

Orders

Orders of the court

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 COURT NOTES

A. A short Judgement will be published with respect to the request for the Department of Family and Community Services to intervene.

IT IS ORDERED THAT

The hearing dates for the resumed hearing commencing 5 December 2016 are confirmed.

THE COURT NOTES

B. The father has not complied with directions and orders made with respect to the preparation of the matter for the resumed hearing. In the event that he does not appear at the resumed hearing the matter will be determined on an undefended basis and in his absence.

THE COURT ORDERS THAT

Each of the parties is to file and serve an Affidavit by 24 November 2016 concerning the following matters:

a. Any contact between the father and the children subsequent to 10 June 2016;

b. Any matters relevant to the children’s welfare and wellbeing subsequent to

10 June 2016 including but not limited to the children’s pattern of attendance at a school;

c. Any other matter relevant to the best interests of the children arising from events subsequent to 10 June 2016.

The parties have liberty to issue any subpoena as they regard relevant to matters arsing after 10 June 2016. Such subpoenas are to be returned and inspected prior to the resumed hearing.

The father is restrained from spending time with the children or either of them other than in accordance with the orders of 10 June 2016, except in the course of the update assessment of Mr R.

The mother is restrained from taking any steps that facilitate or enable the father to spend time with the children or either of them other than in accordance with the orders of 10 June 2016, except in the course of the update assessment of Mr R.

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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