Department Of Family and Community Services NSW and Traynor and Anor
[2014] FCCA 1781
•7 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW & TRAYNOR & ANOR | [2014] FCCA 1781 |
| Catchwords: FAMILY LAW – Children – Family Law Watch List – whether child’s name should be placed on Family Law Watch List – whether respondents should be restrained from removing child from Australia. FAMILY LAW – Children – Publication order – whether an order should be made permitting the publication of the child’s name and other details that would identify the child. |
| Legislation: Family Law Act 1975 (Cth), ss.67Q, 67T, 67V, 69ZK, 121 Children and Young Persons (Care and Protection) Act 1998 (NSW) ss.4, 69 |
| Cases cited: Director General, NSW Department of Family and Community Services & Whiteley & Anor [2013] FCCA 917 Wade & McPherson [2013]FCCA 1583 |
| Applicant: | SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW |
| First Respondent: | MS TRAYNOR |
| Second Respondent: | MR FINDLAY |
| File Number: | SYC 4826 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 6 August 2014 |
| Date of Last Submission: | 6 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hartstein |
| Solicitors for the Applicant: | NSW Crown Solicitor |
| Solicitor for the First Respondent: | Ms Griffin |
| Solicitors for the First Respondent: | Jacqui Griffin |
| The Second Respondent: | No appearance |
ORDERS
The First and Second Respondents must return the child X born (omitted) 2014 to a delegate of the Minister for Family and Community Services care of (omitted) Community Services Centre, (omitted), in the State of New South Wales forthwith.
A Recovery Order is to issue in accordance with section 67Q of the Family Law Act 1975.
The Marshall and the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police Forces are authorised and directed with such assistance as they require and if necessary by force:
(a)To find and recover the child X and deliver her to the New South Wales Minister for Family and Community Services care of (omitted) Community Services Centre, (omitted), in the State of New South Wales;
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place at which there is at any time reasonable cause to believe that the child X may be found; and
(c)To arrest, without warrant, the First and or Second Respondent in the event that they or either of them again remove or take possession of the child X.
The Application is adjourned to Monday 18 August 2014 for further mention in Court 3A at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Department of Family and Community Services NSW & Traynor & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4826 of 2014
| SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW |
Applicant
And
| MS TRAYNOR |
First Respondent
| MR FINDLAY |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Department of Family and Community Services for a Recovery Order in respect of a little girl named X, who is only 7 months old. The Application is opposed by the Mother, who is the First Respondent.
The Department seeks a Recovery Order as a result of the Mother and Father leaving New South Wales for Victoria on 24th July, after caseworkers from the Department had met with the parents as a result of a report that the Mother was allegedly dosing the child with Phenergan. This claim was not substantiated, but the Department has expressed concerns that the Mother may have obtained the drug Methadone under false pretences.
The day after the parents left for Melbourne, the Department commenced proceedings in the Children’s Court at Parramatta under the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Application was returnable on 29th July 2014. On that date, the Court made an interim order placing the child under the Parental Responsibility of the Minister, pending further order. The proceedings have been adjourned to Friday 15th August and the Department seeks that the child should be returned to New South Wales before that time.
The Mother, by her Response, seeks dismissal of the Application or, in the alternative, an adjournment under the provisions of s.69ZK of the Family Law Act 1975 (Cth).
Orders sought
The Department in its Application seeks orders that:
a)The First and/or Second Respondents should return the child to a delegate of the Minister at the (omitted) Community Services Centre;
b)A Recovery Order is to issue under s.67Q of the Family Law Act;
c)That the Australian Federal Police should be requested to place the name of the child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order; and
d)That the Department be permitted to publish and broadcast the name, date of birth, description and a photograph of the child and the Respondent.
The Court is asked to issue a Recovery Order to the Marshall of the Family Court of Australia. As this Application is before the Federal Circuit of Australia, the order sought should be addressed to the Marshall of this Court, who is, of course, the same individual.
Second, the Court is asked to place the child’s name on the “Airport Watch List” maintained by the Australian Federal Police. The Watch List is now called the Family Law Watch List.
Evidence and Submissions
The Applicant relies on the affidavit of Ms D, affirmed on 4th August 2014. Ms D is a Manager Caseworker employed by the Department at (omitted) Community Centre.
In her affidavit, Ms D deposes that the child has six siblings, whose dates of birth range from (omitted) 2000 to (omitted) 2012. All of those children have been removed from the care of the parents by orders made by the Children’s Court on various dates, mainly 24th June 2013. The Second Respondent is the father of the three youngest of the mother’s six children.
There is a current Application before the Children’s Court at Parramatta for rescission or variation of a care order under s.90 of the Children and Young Persons (Care and Protection) Act, relating to one of the child’s full brothers.
Ms D deposes that the reasons why the children have been removed from the care of their parents are the Mother’s “entrenched drug use (heroin) and the father’s lack of insight into that drug use and ability to parent”.[1] It is further deposed that, although the report that the child X was at significant harm due to being dosed with Phenergan was not substantiated, officers of the Department were concerned about the mother seeking to obtain the drug Methadone under false pretences.
[1] Affidavit of Ms D 4.8.2014 at paragraph [9]
Ms D states that the Mother refused to participate in urinalysis testing and sought to obtain legal advice concerning hair follicle testing. The Department is seeking orders from the Children’s Court for supervision of the child in the parents’ care with a view to assisting the mother to address her long-term drug use.
The Department of Human Services in Victoria is involved with the family. An officer of the Victorian Department advised the New South Wales Department that:
a)They have decided to cancel a warrant for removal of the child;
b)The family indicated a willingness to work with the Victorian Department;
c)The Victorian Department does not consider that it has a basis to apply for a protection order in that State;
d)The Department will undertake a home visit and provide a caseworker for the mother;
e)The Mother has indicated that she intends to remain living in Victoria.
The First Respondent mother relied on an affidavit sworn on 6th August 2014 and faxed to her solicitor. The Mother deposed that there was an interim protection order made in Victoria which was terminated on 2nd June 2014. She has a good relationship with her current caseworker in Victoria and intends to cooperate with her. She intends to undertake urinalysis after having received legal advice.
It is the Mother’s case that she does not ordinarily live in New South Wales and she intends to challenge the jurisdiction of the children’s Court of New South Wales on that basis, under s.4(a) of the Children and Young Persons (Care and Protection) Act. She swore an affidavit in the Children’s Court of New South Wales in other proceedings on 11 July 2014, stating that she has decided to reside permanently in Victoria.
The Mother also intends to challenge the report that was relied by the Department of Family and Community Services on the basis that it is not a “report” for the purposes of s.4(c) of the Act.
Ms Hartstein of Counsel submitted for the Applicant that the Children’s Court had already made an order and this Court should make an order to assist the Children’s Court.
Ms Griffin submitted that the Court is required by s.67V to consider the best interests of the child and that a Recovery Order would not be in the child’s best interests.
Section 69ZK of the Family Law Act
Both parties referred the Court to s.69ZK of the Family Law Act, but to different sub-sections.
Section 69ZK provides at sub-section (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.
This sub-section was considered by the Court in Wade & McPherson[2], where it was held that the Court did not have jurisdiction in a case where an order made by the Children’s Court under s.79(1)(a)(i) of the Children and Young Persons (Care and Protection) Act was in force and there was no consent from the Department of Family and Community Services to bring the Application.
[2] [2013] FCCA 1583
In this case, a letter dated 31 July 2014 from a delegate of the Minister, consenting to the Court exercising jurisdiction forms Annexure “C” to the affidavit of Ms D.
In her Response, the First Respondent mother seeks Interim Orders that:
1. The Application filed 4 August 2014 be dismissed
2. In the alternative, the proceedings be adjourned pursuant to section 69ZK(3) of the Family Law Act 1975.
Sub-section 69ZK(3) states:
If 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.
Sub-section 69ZK(2) provides at paragraph (a):
Nothing in this Act, and no decree under this Act, affects:
(a)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 under the care (however described) of a person under a child welfare law;
In this case, the Department’s Application is next before the Children’s Court at Parramatta on Friday 15 August next.
Conclusions
Whilst the Respondent mother seeks to challenge the jurisdiction of the Children’s Court in the substantive proceedings, that it not a matter with which this Court can be concerned. The question of jurisdiction is purely one for the Children’s Court.
Again, whilst the Respondent submits that there are differing views held by the relevant officers of the New South Wales Department of Family and Community Services and the Victorian Depart of Human Services, an examination of the merits of their respective views is more properly a matter for the Children’s Court.
I have considered the submission that the issue of a Recovery Order would not be in the child’s best interests but I am not persuaded by it.
I am satisfied that the Children’s Court has made an Order on 29th July 2014 and, as Courts should act in aid of each other, I propose to make the Recovery Order sought.
Family Law Watch List Order
The Applicant Department seeks an order that the child’s parents should be restrained from removing or causing or allowing the child to be removed from Australia. There is no evidence before the Court to show that the Respondents are contemplating removing the child from Australia or have the means to do so.
The Department also seeks an order that the child’s name and particulars should be placed on the Family Law Watch List maintained by the Australian Federal Police until further order. Again, I am not satisfied that there is evidence to show that the Respondents are contemplating removing or causing or allowing the child to be removed from Australia, or that they have the means to do so.
Courts should be sparing in making orders that children’s names and particulars should be placed on the Family Law Watch List, as such orders can easily be overlooked once the proceedings are over. The Watch List order can remain and emerge to cause unforeseen difficulties for children years later (see Director General, NSW Department of Family and Community Services & Whiteley & Anor[3]).
[3] [2013] FCCA 917
Publication Order
The Department also seeks an order under s.121 of the Family Law Act permitting the publication and broadcasting of the child’s name, date of birth, description and a photograph. I am not persuaded that there is evidence sufficient to justify such an order.
Adjournment
The current application will be adjourned to Monday 18 August at 10:00 am for mention only. That is the first available date in this Court after the matter is listed before the Children’s Court on 15 August. Unless there is a need to vary or modify one of the orders made today, the Application can otherwise be removed from the Court List on the next occasion.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 7 August 2014
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