Director-General, Department of Families & RSP

The Full Federal Court considered an appeal by the Director-General, Department of Families, against a decision of a single judge concerning the welfare of a child, identified as RSP. The Director-General sought to have RSP placed under the guardianship of the Minister for Immigration and Border Protection, with a view to his removal from Australia. The primary dispute concerned the interpretation and application of the *Migration Act 1958* (Cth) and the *Family Law Act 1975* (Cth) in circumstances where a child was subject to child protection proceedings and also potentially subject to removal from Australia under migration law.

The central legal issues before the Full Court were whether the Director-General had properly exercised his powers under the *Migration Act* in seeking to place RSP under ministerial guardianship, and whether the Family Court had erred in its previous findings regarding the child's best interests and the appropriate legal framework for determining his future. Specifically, the court had to determine the interplay between the protective jurisdiction of the Family Court and the executive power vested in the Minister under the *Migration Act*, particularly when those powers might lead to conflicting outcomes for a child.

The Full Court reasoned that the Director-General's actions were not authorised by the *Migration Act* in the manner attempted, as the Act did not contemplate the use of ministerial guardianship for the purpose of removing a child who was already the subject of protective proceedings in the Family Court. The court emphasised that the Family Court's jurisdiction to make orders for the protection and welfare of a child was paramount and that the *Migration Act* could not be used to circumvent or override these protective orders. The principles of statutory interpretation required that the *Migration Act* be read in a way that did not undermine the protective jurisdiction of the Family Court, particularly concerning vulnerable children.

The Full Court allowed the appeal, setting aside the orders of the single judge and remitting the matter to the Family Court for further consideration.