Argyle and Trabalga & Ors

[2012] FamCA 336

FAMILY COURT OF AUSTRALIA

ARGYLE & TRABALGA AND ORS [2012] FamCA 336

FAMILY LAW - INJUNCTIONS - Ex parte and Interlocutory - Sought to restrain a new born child being removed from hospital other than by the father.

FAMILY LAW - INTERVENTION – By Department of Family and Community Service in relation to Minister assuming interim parental responsibility of the child.

FAMILY LAW - JURISDICTION – Section 69ZK of Family Law Act 1975 (Cth) as to jurisdiction of Family Court of Australia where child under care of a person under a child welfare law.

Family Law Act 1975 (Cth)
Children and Young Persons (Care and Protection) Act 1988 (NSW)

APPLICANT: Mr Argyle

FIRST RESPONDENT: Ms Trabalga

SECOND RESPONDENT: Department of Community & Family Services

THIRD RESPONDENT: Ms Bryant

FILE NUMBER: PAC 1085 of 2012

DATE DELIVERED: 22 March 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 19 and 22 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE FIRST 

RESPONDENT:

In person

COUNSEL FOR SECOND RESPONDENT

Mr McLachlan

Crown Solicitors

SOLICITOR FOR THIRD RESPONDENT No appearance

Orders

1. That I declare, so far as is necessary, that this Court has no jurisdiction to entertain the Application filed on 13 March 2012 and accordingly I dismiss that Application.

2. All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Argyle & Trabalga and Ors is 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 1085 of 2012

Mr Argyle

Applicant Father

And

Ms Trabalga

Respondent Mother

And

Department of Community & Family Services

Second Respondent

And

Ms Bryant

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter came before me today having been adjourned from a duty list on Monday last.  The application before the Court is that commenced by Mr Argyle in an Initiating Application filed on 13 March 2012.  That document sought orders that on an interim basis leave of the Court be granted to file the application and to proceed ex parte; secondly, that interlocutory orders be made restraining any person from removing a new born child from hospital; thirdly, that the grandmother, Ms Bryant, be joined in the proceedings.

2. The application showed Mr Argyle as the Applicant and Ms Trabalga as the First Respondent and the Department of Community Services as a Second Respondent.  It was supported by an affidavit filed on the same day, which showed Mr Argyle as the Applicant, Ms Trabalga as the First Respondent and Ms Bryant as a Second Respondent.

3. The orders sought relate to the child L who was born in March 2012.  Subsequent to the filing of the affidavit of the father, to which I have referred, I received an affidavit from a Ms M who describes herself as an employee of Community Services, Department of Human Services and holding the position of Manager Casework, Child Protection with Community Services.

Brief background

1. That affidavit gives me a brief history.  The parts that I consider to be relevant in respect of the subject child are to be found from paragraph 34 onwards within that affidavit.  I summarise them as follows:-

   ·    On 7 March 2012, the (then unnamed) baby was assumed into the care of the Department. 

   ·    On 12 March 2012, the Director-General filed a Care Application in the Children’s Court. 

   ·    On 13 March 2012, a contested hearing occurred at that Court and Orders were made.

2. Those Orders are annexure B to the affidavit of Ms M.  It is clear that the Order made on the 13 March 2012 placed the child under parental responsibility of the Minister until 4.00 pm on the 23 March 2012.

The law to be applied

1. The law is clear. Section 69ZK(1) of the Family Law Act 1975 (Cth) as amended says this:

   (1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

   (a)the order is expressed to come into effect when the child ceases to be under that care; or

   (b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

2. The Order, to which I have already made reference, being the Order of the Children’s Court of the 13 March 2012, clearly places the subject child under the care of a person, i.e., the Minister, pursuant to a child welfare law, in this case, the Children and Young Persons (Care and Protection) Act 1988 (NSW).  

3. Further, I am satisfied from paragraph 39 of the affidavit of Ms M that the Director-General does not consent to this matter being determined in the Family Court of Australia. 

4. Accordingly, I declare that this Court has no jurisdiction to entertain the Applicant’s application and accordingly, that application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 22 March 2012.

Legal Associate:      

Date:    10 May 2012