B and J and Ors
[2003] FMCAfam 469
•13 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & J & ORS | [2003] FMCAfam 469 |
| FAMILY LAW – Children – Contact – Application by mother. PRACTICE AND PROCEDURE – Jurisdiction – Child welfare law – whether Federal Magistrates Court has jurisdiction to make contact orders where existing permanent care orders made by Children’s Court – whether section 69ZK or section 60H applies in States other than Tasmania. Family Law Act 1975 (Cth) ss.60D, 60H, 69ZK Children and Young Persons Act 1989 (Vic) s.112 |
| Applicant: | K L B |
| First Respondent: | T J |
| Second Respondent: | P W |
| Third Respondent: | C A D |
| File No: | MLM 7461 of 2002 |
| Delivered on: | 13 October 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 13 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Ms Clarke |
| Solicitors for the Applicant: | Belleli King & Associates |
There was no appearance by or on behalf of the First Respondent.
| Solicitor for the Second Respondent: | Ms Earl |
| Solicitors for the Second Respondent: | Harwood Andrews Lawyers |
| Counsel for the Third Respondent: | Mr Crabtree |
| Solicitors for the Third Respondent: | Robertson Hyetts |
ORDERS
The Application is adjourned to Monday 19 January 2004 for further mention.
NOTED:
(a)The parties intend that supervised contact is to take place at the Fairground Contact Centre at B.
(b)The parties intend that the Applicant mother is to undertake blood sampling procedures to detect the presence in her bloodstream of illicit drugs at such times as the solicitors for the Third Respondent grandmother shall request; and
(c)The parties intend that an application is to be made to the Children’s Court to vary or discharge the Permanent Care Orders made by that Court on 27 May 1999 in respect of the children H L J born 1 February 1995 and Y L B born 24 February 1996.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 7461 of 2002
| K L B |
Applicant
And
| T J |
First Respondent
And
| P W |
Second Respondent
And
| C A D |
Third Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of two little girls aged 8 years and 7 years for contact with them on alternate weekends, for part of the school holidays, on Mother’s Day and on their birthdays and the Applicant’s birthday. The First Respondent is the father of the older child, and the Second Respondent is the father of the younger child. The Third Respondent is the mother of the Second Respondent, so she is the paternal grandmother of the younger child.
The First and Second Respondent have each filed a Response, but the Third Respondent appears not to have done so. She has, however, filed an affidavit. The First Respondent seeks orders defining the Applicant’s contact whilst the Second Respondent, in his Response, asks the Court to dismiss the Application.
When the matter came before the Court on Monday 13th October, the parties, after some discussion between their legal advisers, prepared Minutes of Proposed Orders, which they sought to have made until further order. I indicated that I doubted that the Court had the jurisdiction to make those orders and undertook to provide reasons. These are my reasons.
Background
The Applicant resided with the First Respondent from 1993 to March 1995. The elder child was born on 1st February 1995. After the parties separated, the Applicant commenced residing with the Second Respondent until he was incarcerated in the Youth Training Centre for a period of six (6) months. She was pregnant with the younger child, and gave birth to her on 23rd February 1996.
The Applicant and the Second Respondent resumed their relationship after the Second Respondent’s release, but he was subsequently imprisoned later in 1996. The Second Respondent has spent a number of periods in prison since then and is currently on remand awaiting sentence.
The mother is currently on remand in the D P F C awaiting trial in the County Court. She was previously residing in a drug rehabilitation centre.
The two children were removed from the care of the mother by the Department of Human Services in July 1997. Both children have resided with the Third Respondent grandmother since approximately October 1997.
On 27th May 1999 the Children’s Court at B made a Permanent Care Order in respect of each child, pursuant to section 112 of the Children and Young Persons Act 1989 (Vic). In each case, the Children’s Court granted custody and guardianship of the children to the Third Respondent. The Court also ordered that:
“The mother, K B, have supervised access to the children once per month.”
The Permanent Care Orders remain in force.
Restrictions on making orders under the Family Law Act where a child welfare law applies.
The Children and Young Persons Act 1989 (Vic) is a “child welfare law” for the purposes of the Family Law Act. Section 60D(1) defines “child welfare law” as:
“A law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.”
Sub-regulation 12B(2) provides that, for the purposes of the definition of “child welfare law”, each of the State and Territory laws in Column 2 of Schedule 5 to those regulations is a prescribed law. Schedule 5 includes some, but not all, of the sections of the Children and Young Persons Act 1989. Item 12(e) of that Schedule includes sections 104 to 112, with the exception of “an undertaking or a supervision order other than a supervision order subject to a condition relating to where a child is to live”.
I am of the view that a Permanent Care Order pursuant to the provisions of section 112 of the Children and Young Persons Act is a child welfare law for the purposes of the Family Law Act. The Orders made by the Children’s Court on 27th May 1999 provide that custody and guardianship of the children was granted to the Third Respondent. As those Orders remain in force, I am satisfied that the two children in this matter are under the care of a person under a child welfare law.
Section 69ZK of the Family Law Act provides that a Court having jurisdiction under that Act must not make an order under the Act in relation to a child “who is under the care (however described) of a person under a child welfare law” unless certain conditions are fulfilled. I will not deal with those conditions at this stage, as it appears that section 69ZK is not in force in the State of Victoria, or in any other State or Territory of Australia with the exception of Tasmania. Rather confusingly, section 60H of the Family Law Act remains in force throughout most of Australia.
The reason for this peculiarity is set out in the commentary to section 69ZK that appears in Volume 1 of “Australian Family Law” by the Honourable Justice Richard Chisholm, published by Butterworths:
“The original provision was section 10 (amended in 1983). Section 10 was repealed by Act No 181 of 1987 and replaced by section 60H. The essence of the present position resulted from Act No 22 of 1992, the Law and Justice Amendment Act 1992. …It included an amended version of section 60H, corresponding to what is now section 69ZK. But it provided in substance that the amended version of section 60H(1) would apply in the states only where a proclamation had been made to that effect. In the absence of such a proclamation, the former version of section 60H remained in force. This situation is the same since the 1995 amendments. A proclamation has been made only in respect of Tasmania.[1]…Thus the provision that is in force in all states where no proclamation has been made – ie all states except Tasmania – is section 60H as it was before the 1992 Act.”[2]
[1] With effect from 1 November 1995 (Commonwealth of Australia Gazette No GN 42, 25 October 1995)
[2] At page 1348.3
The relevant law as it applies in Victoria, and all other States except Tasmania, is the version of section 60H that was in force prior to the coming into force of the Law and Justice Amendment Act 1992, the relevant parts of which say:
“(1) A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be”.
Nothing in this Act, and no decree made under this Act, affects:
“…the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed in the custody of, or under the guardianship, care and control or supervision of, a person:
(the other paragraphs of this sub-section are not relevant)
Where it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child”.
Conclusions
It appears to me that this Court has no power to make any order under the Family Law Act in relation to these two children whilst the Permanent Care Orders made by the Children’s Court remain in force. I have been informed from the Bar table that the parties, on being made aware of this jurisdictional difficulty, intend to apply to the Children’s Court to obtain the orders that they seek. I propose to adjourn these proceedings to allow that Application to be made.
In the course of discussion before me, it was suggested that the parties could seek the consent of the proper officer of the Department of Human Services to the proposed amendments to the orders. Unfortunately, whilst section 69ZK(1)(b) would allow such a sensible step to be taken, providing as it does for such an order to be made if “the written consent of a child welfare officer of the relevant State or Territory has been obtained”, I am satisfied that section 69ZK does not apply anywhere other than Tasmania. The law that does apply, the pre-1992 version of section 60H does not contain any such provision.
I have noted that the parties have agreed to certain contact arrangements, but the only order that I believe I have jurisdiction to make is one adjourning the proceedings to await the outcome of proceedings in the Children’s Court.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 20 October 2003
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