DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WILLIAMS

[2015] FamCA 342

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WILLIAMS [2015] FamCA 342

FAMILY LAW – PARENTING – RECOVERY ORDER – where applicant is a state welfare authority – where child subject to welfare order until age of 18 with parental responsibility to the Minister – where delegate of the Minister provides consent to Family Court exercising jurisdiction – where appropriate to make order sought in best interests of the subject child.

Acts Interpretation Act 1901 (Cth) s 2C

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 79, 232
Family Law Act 1975 (Cth) ss 60CA, 60CC, 67T, 67U, ^&V, 69ZK

Department of Family and Community Services New South Wales & Traynor (2014) FCCA 1781
Wade & McPherson (2013) FCCA 1583

APPLICANT: Department Of Family And Community Services

RESPONDENT: Ms Williams

FILE NUMBER: SYC 2735 of 2015

DATE DELIVERED: 1 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 1 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGorry

SOLICITOR FOR THE APPLICANT: Crown Solicitor’s Office

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. The Applicant be exempted from filing a section 60I Family Dispute Resolution Certificate.

2. That compliance with any other Rules so as to facilitate the hearing of this matter today is dispensed with.

3. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the child B born … 1999.

4. Such persons are authorised and directed to find and recover the child B, male, born … 1999 and to deliver the said child to:

   (a)       A delegate of the New South Wales Minister for Family and Community Services on any day that the child is located and recovered; or

   (b)       A delegate of the Victorian Minister for Human Services on any day that the child is located and recovered

   and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found and to use, so far as is necessary, reasonable force in doing (a) and (b).

5. Leave is granted to the Department of Family and Community Services to make application to the listing manager on short notice in relation to the question of publication in appropriate circumstances.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DFCS & Williams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2735 of 2015

Department Of Family And Community Services

Applicant

And

Ms Williams

Respondent

REASONS FOR JUDGMENT

1. The present application is an application filed on 30 April 2015 by the Minister for Family and Community Services. 

2. The notional respondent to that application is the respondent Ms Williams, who is the mother of the subject child B born in 1999.  The circumstances of the mother are not known, as will be referred to later in this reasons for judgment. 

3. The applicant Department seeks orders that in summary provide for:

   a)The issue of a recovery order under section 67U of the Act in relation to the child B born in 1999;

   b)That the Marshal, Deputy-Marshal and all officers of the Australian Federal Police and officers of state and territory police are authorised to locate and recover the child to a delegate of the New South Wales Minister for Community Services or a delegate of the Victorian Minister for Human Services and in doing so, as far as is necessary, use reasonable force;

   c)That pursuant to the provisions of the Act, the Marshal and other officers identified are authorised to stop and search any vehicle, vessels or aircraft, enter premises and, if necessary, use reasonable force in doing so to facilitate the recovery of the child.

4. The application is supported by an affidavit by Ms C sworn on 30 April 2015 and filed on the same day.  Ms C is a case worker employed by the Child and Family District Unit of the Department of Family and Community Services, the applicant in these proceedings. 

5. She tells the Court that the child B was born in 1999. On 8 February 2007 the Children’s Court of New South Wales sitting at F Town made orders pursuant to section 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) allocating parental responsibility for the child to the New South Wales Minister for Family and Community Services. A copy of that order is an exhibit to her affidavit.

6. Ms C says that the case management responsibility for the child was transferred to Region D Family Care, a non-government organisation based in E Town, New South Wales, in early 2010.  That organisation has had responsibility for the child’s day to day care and management and parental responsibility has not been delegated to Region D Family Care, but remains with the Minister.  The agency is an accredited agency, accredited as a designated agency by the Children’s Guardian under the Children and Young Persons (Care and Protection) Regulations 2012 (NSW) to provide out of home care for children and young people.

7. The child has been living in out of home care with persons in F Town, New South Wales, since 2010. Those carers are authorised carers pursuant to Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The child has attended a local high school and he has received assistance with schooling managed by the Region D Family Care organisation.

8. Insofar as the child’s parents are concerned, Ms C says that the child’s biological father is not known.  She understands that the child’s biological mother, Ms Williams, has a transient lifestyle.  The last address known to the Department for the mother was in Brewarrina, New South Wales, in 2006, although it appears there has been some more recent contact with the mother.  The mother, it appears from recent inquiries with Region D Family Care, may have recently moved or been in G Town, New South Wales.

9. Ms C says that the child the child is particularly vulnerable, notwithstanding his age, in the following respects:

   a)the child was assessed by a psychologist in 2014 and assessed as falling within the extremely low range of intellectual ability, placing him within the mild intellectual disability range.  A copy of that report is exhibited to Ms C’s affidavit; and

   b)the child is a known user of drugs, with a history of chroming and smoking marijuana and is suspected of petty theft and crime, presumably for the purposes of maintaining his drug habit.

10. Ms C tells the Court that it is her understanding the child tends to form attachments to people very quickly, but lacks the insight as to whether people are safe to be with and he lacks the ability to pick up on social cues and what is appropriate in social situations.  A behavioural narrative in relation to the child was prepared by the Department in August 2014.  That also is exhibited to her affidavit.

11. Recently in relation to the child, Ms C says that the Department was informed by Region D Family Care prior to 14 April 2015 that consideration was being given to arranging for the child to attend a residential drug rehabilitation facility in relation to his ongoing use of marijuana.  The Youth Support and Advocacy rehabilitation facility at Suburb H in Melbourne was considered the closest appropriate facility to F Town. 

12. On Thursday, 23 April 2015 Ms C received a call from a case worker employed with Region D Family Care, advising that the child had entered the facility, that is, the Youth Support and Advocacy rehabilitation facility, on 14 April 2015 on a voluntary basis.  The Region D Family Care case worker made arrangements for the child to travel to Melbourne and had physically accompanied the child to that facility.

13. On 23 April 2015 the case worker from Region D Family Care travelled to Melbourne to visit the child at the facility to be told that the child had absconded from the facility on the evening of 22 April 2015 and not returned.  The child’s circumstances are presently not known.

14. The Region D Family Care case worker had attended at the Suburb I Police Station in Victoria, endeavouring to make a missing person report, but was not able to do so, as the police informed him they could not act without a safe custody warrant.  The assistance of the applicant Department was enlisted by Region D Family Care in relation to the circumstances of the child.  Ms C spoke to a case worker in the Department of Human Services in Victoria and was informed that that Department could not assist in relation to the child as the child was a temporary resident in Victoria and that the facility, that is, the Youth Support and Advocacy Rehabilitation Facility, would need to seek a safe custody warrant.

15. On 23 April 2015 a Sergeant of Police agreed to enter a missing persons report for the child, marking the report as a high risk of vulnerable minor.  That missing persons report will be circulated in the usual way to all Victorian Police, transit officers and Victorian hospitals and the Police will facilitate normal inquiries in relation to that missing persons report.  Ms C is not aware as to whether the child has any known friends in Melbourne or family and it appears that he is on his own in Victoria.

16. On 24 April 2015 an order for the return of a person under the parental responsibility of the Minister was issued pursuant to section 232 of the Children and Young Persons (Care and Protection) Act 1998.  A copy of that order is exhibited to Ms C’s affidavit.  A copy of that has been provided to the Victorian police. 

17. More recently inquiries have been made in relation to the child and Ms C is aware that the child has entered various messages on his Facebook and has observed messages between him and another male who Ms C believes was also in attendance at the rehabilitation facility with the child.

18. On 23 or 24 April the child’s authorised carer was able to speak to the child by phone.  The child refused to return to the carer’s home and subsequently turned off his Facebook profile and created a subsequent Facebook profile.  That subsequent Facebook profile gives rise to certain concerns in relation to the child’s behaviour.  The Department is now aware from inquiries that the Victorian Police had spoken to a person they believed to be the child’s mother, Ms Williams, and informed her that the child was missing, however, no circumstances are known as to the mother’s whereabouts other than that contact. 

19. On 29 April 2015 Ms C received a call from the Region D Family Care informing her that the child had called his carer’s home on the previous evening and spoken to the female carer’s father.  They did not speak to the child and the child was informed to call back the next day.  There has been no further communication from the child.

20. As at the date of this application, the whereabouts of the child are not known. The Department seeks a recovery order to enable the Police to actively locate and detain the child, if necessary, so he can be returned to the care or custody of the Region D Family Care case workers and returned to his authorised carers. The Department has provided a consent under the provisions of section 69ZK(1)(b) of the Family Law Act 1975 consenting to this Court exercising jurisdiction in relation to the child, particularly in the context of this discrete application.  The Department further seeks an order dispensing with the requirements for a section 60I certificate to facilitate the application being heard on an urgent basis and that order will be made.

21. The jurisdiction of the Court in relation to children that are subject of a child welfare law is the subject of section 69ZK of the Act.  That section provides in subsection (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 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.

22. The Court has been provided with a written consent from the appropriate delegate of the Minister pursuant to section 69ZK(1)(b) and accordingly has jurisdiction. In relation to the operation of this particular provision reference is made to the decisions of Wade & McPherson (2013) FCCA 1583 and Department of Family and Community Services New South Wales & Traynor (2014) FCCA 1781.

23. The application for a recovery order is governed by the provisions of section 67T of the Act that provide that:

    A recovery order in relation to a child may be applied for by, inter alia, …any other person concerned with the care, welfare or development of the child. 

24. It is clear that the Department is not a person. However, provisions of section 2C of the Acts Interpretation Act 1901 (Cth) provides that:

    In any Act, expressions used to denote persons generally, such as “person”, “party” “someone”, “anyone”, “no one”, “one”, “another” or “whoever”, include a body politic or corporate as well as individual.

25. Clearly, the Department has standing to make an application as sought by it today. 

26. In proceedings in relation to a recovery order the court could make such recovery order as it thinks proper.  In all of the circumstances the court is satisfied that the form of the recovery order sought by the Department is appropriate. 

27. In determining whether a recovery order should be made section 67V of the Act provides that:

    The court must have regard to the best interests of the child as a paramount consideration. 

28. The best interests of the child are determined by the provisions of the Act.  In particular section 60CA provides that:

    In deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration.

29. Section 60CC then outlines the primary, subsection (2) and additional subsection (3) considerations that the court is to take into account in determining what are in the best interests of the child. 

30. There is no issue in relation to the question of parental responsibility.  The Minister has parental responsibility by reason of the presently operative child welfare order.

31. The matter before the court today is readily determined by reference to the primary considerations in section 60CC.

32. The primary consideration set out in section 60CC(2)(b) are:

    The need to protect the child from physical or psychological harm or being subjected to, or exposed to, abuse, neglect or family violence.

33. That provision effectively is the sole determinant of the application today and the court need not have regard to the additional considerations set out in section 60CC(3) of the Act, although for the purposes of this judgment the court has had regard in any event to those provisions. 

34. In all of the circumstances the court is satisfied that it is appropriate that there be a recovery order made as sought by the Department. 

35. Among other relief sought by the Department is a request that they be permitted to publish particulars in relation to the child for the purposes of facilitating or aiding recovery.  The terms of the order sought by the Department are that:

    The applicant be permitted to publish and broadcast the name, date of birth, description and photograph of the child, and a description of where the child was last seen. 

36. In circumstances where the court today is ordering a recovery order where there is also a missing person’s report active in the State of Victoria the court is not persuaded at this stage that the publication as sought by the Department is appropriate. 

37. However, the court will grant leave for the Department to apply in relation to that aspect of the application on short notice in appropriate circumstances. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 May 2015.

Associate:

Date:  1 May 2015