Director-General, Communities Services Directorate & Alexander

[2021] FamCA 360

FAMILY COURT OF AUSTRALIA

Director-General, Communities Services Directorate & Alexander [2021] FamCA 360

File number(s):	CAC 2524 of 2020
Judgment of:	GILL J
Date of judgment:	2 June 2021
Catchwords:	FAMILY LAW – CHILDREN – child-related proceedings – pending proceedings in the ACT Children’s Court – consideration of Family Law Act 1975 (Cth) s 69ZK – Family Court of Australia to exercise jurisdiction despite pending ACT Children’s Court proceedings.
Legislation:	Family Law Act 1975 (Cth) ss 65G, 69ZK
Number of paragraphs:	15
Date of hearing:	2 June 2021
Place:	Canberra
Counsel for the Applicant:	Ms Davis
Solicitor for the First Respondent:	Pennicott Weir Lawyers (ACT)
Counsel for the Second Respondent:	Ms Snelling
Solicitor for the Third Respondent:	Robinson McGuinness
Solicitor for the Independent Children's Lawyer:	Jeanine Lloyd & Associates

ORDERS

CAC 2524 of 2020

BETWEEN:

DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE

Applicant

AND:

MS ALEXANDER

First Respondent

MR MILLS

Second Respondent

MS CARY

Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	2 JUNE 2021

THE COURT ORDERS THAT:

1.The Family Court of Australia will exercise its jurisdiction notwithstanding the pendency of the proceedings in the ACT Children's Court. 

2.It is declared that Ms Alexander is a person concerned with the care, welfare and development of X.

3.Until further order X, born … 2010, live with Ms Alexander.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J

1. This matter concerns proceedings relating to X.  X is currently the subject of an order made under the Care Jurisdiction of the Australian Capital Territory by the Children's Court of the Australian Capital Territory (the ACT).  The order that is currently operative in respect of X is an order made in 2013.  Those proceedings have a long and tortured path whereby as at 2021 it is the 2013 orders that are in place following a successful appeal against those orders in the Supreme Court of the ACT, an unsuccessful challenge to that appeal in the Court of Appeal of the ACT and a remittal of those proceedings back to the Children's Court with the 2013 orders to remain in place pending the hearing of the matter. 

2. At present, the matter has not reached a rehearing in the ACT Children's Court but is shortly due to come before the Children's Court Magistrate for the giving of further directions in relation to the matter. 

3. Meanwhile, application has been made by the Director-General, who is responsible for the proceedings in the ACT Children's Court.  In this Court those proceedings have been joined by the foster carer, the father, the mother and now an Independent Children’s Lawyer (the ICL) has joined the proceedings. 

4. The matter comes before me today in order to resolve what interim arrangements may be appropriate for X with the parties being of one mind that the interim orders should be made that sustain X's current living arrangements with the foster carer. By commencing the proceedings the Director-General has fallen within the exception at s 69ZK(1)(b) of the Family Law Act 1975 (Cth) (the Act). That exception allows this Court to exercise jurisdiction in relation to X despite the pendency of the proceedings in the ACT Children's Court. The Director-General advises that on this Court making orders in respect of X that it will discontinue the proceedings in the Children's Court with a consequent discharge of the orders that currently govern X's living arrangements.

5. In determining whether or not to continue to exercise jurisdiction in relation to this matter I am to take into account the matters set out at s 69ZK(3) which says:

   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. 

6. Consequently, I must determine in the further exercise of jurisdiction of this matter whether to simply adjourn the proceedings.

7. Counsel for the Director-General, Ms Davis, has set out cogent reasons for this Court exercising jurisdiction.  Her submissions are not resisted by any of the parties who also seek that the Court exercise jurisdiction in this matter.  In short, the position put forward by the Director-General is that the circumstances of this case now reflect a parenting dispute best dealt with under the provisions of the Family Law Act other than being a dispute as to the care and protection of X.  It is the Director-General's position that it is unlikely that the Children's Court would be able to exercise jurisdiction to make orders in this matter as the current factual circumstances are such that it could not be sustained that there is no parent able and willing to care for X.  However, it is the common position of the parties that there should be arrangements in place for X's living arrangements and that she should not be left in a vacuum on the discontinuation of proceedings in the ACT Children's Court. 

8. In determining what approach to undertake I am mindful that these are child-related proceedings and that one of the principles that I am to apply in relation to child-related proceedings is to take steps to minimise the impact of proceedings upon the child.  It seems from the submissions of Ms Davis, which are supported by the other parties, that it would be highly undesirable for X to be subject to a lacuna in the appropriate arrangements for her care. 

9. Accordingly, there should be no further adjournment of the matter and this Court should exercise its jurisdiction notwithstanding the pendency of the proceedings in the ACT Children's Court. 

10. I declare that Ms Alexander is a person concerned with the care, welfare and development of X.

11. In these proceedings the parties jointly seek an order that X live with her long-term foster carer, Ms Alexander, as an agreed interim parenting order. Ms Alexander is a nonparent and so s 65G of the Act has application. Section 65G(2) provides that the Court must not make the order unless either the parties to the proceedings have attended a conference with a Family Consultant to discuss the matter to be determined by the proposed order or (b) the Court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.

12. I am so satisfied that there are such circumstances in this case.  While one can see the benefit when an order is made in favour of a nonparent of ensuring the parties are appropriately apprised of the necessary considerations in arriving at such a conclusion as being in a child's best interests as may be provided to them by their attendance on a Family Consultant this case is of an unusual nature. 

13. As has been indicated, the bulk of the parties have been involved in litigation in this case since 2013, although involved in varying degrees.  They are all represented and the application to the Court comes in the circumstances that were previously articulated when the Court determined that it should exercise jurisdiction in relation to this matter rather than simply adjourning the proceedings despite the concurrency of proceedings taking place in the ACT Children's Court. 

14. The foster carer, Ms Alexander, has had the care of X for a number of years and each of the parents has had only quite limited time with X. All agree that it is necessary for the stability of X's care arrangements and to ensure that she is not disrupted in a way that may cause her harm that such an order be made on their joint application to the Court to make such an order. It is appropriate that such an order be made despite s 65G(2)(a) not having been complied with.

15. It is ordered that until further order X, born in 2010, live with Ms Alexander.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:       

Dated:       2 June 2021