FM v Director-General, Department of Family and Community Services

[2015] HCASL 17

FM

v

DIRECTOR-GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ORS

[2015] HCASL 17
S218/2014

1. The applicant is the mother of the child, Felicity, who is the subject of the proceedings.  The second respondent is Felicity's father.

2. On 16 October 2009, the Children's Court of New South Wales made orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act") allocating parental responsibility (including responsibility for contact) to the Minister until Felicity attained the age of eight years. The orders also allocated parental responsibility to the father for all aspects other than contact until Felicity attained the age of eight years. Felicity attained the age of eight years in November 2011.

3. On 10 August 2012, the Director-General, Family and Community Services, filed an application in the Children's Court pursuant to s 90(2) of the Act seeking to vary orders. The variation sought was "as to contact only", with the intention that that aspect of parental responsibility be allocated to the Minister until Felicity attained the age of 18 years, with all other aspects of parental responsibility being retained by her father.

4. On 26 April 2013, an order was made, in the terms sought by the Minister, but with parental responsibility for contact being allocated to the Minister only until Felicity attained the age of 14 years. 

5. The applicant appealed from the orders of the Children's Court to the District Court. The appeal was by way of "new hearing" pursuant to s 91(2) of the Act. On 11 December 2013, Olsson DCJ made orders, inter alia, discharging all previous care orders and allocating shared parental responsibility to the Minister and the father until Felicity attains the age of 18, with responsibility for contact allocated jointly and responsibility for all other matters allocated solely to the father.

6. There was no right of appeal from Olsson DCJ's orders.  The applicant commenced proceedings in the Court of Appeal of the Supreme Court of New South Wales invoking the Court's supervisory jurisdiction[1].  The Court of Appeal was unanimous in rejecting the applicant's grounds which failed to demonstrate error on the face of the record or jurisdictional error. 

   [1]Supreme Court Act 1970 (NSW), s 69.

7. The applicant applies for special leave to appeal.  The proposed grounds of appeal do not identify with clarity the basis upon which it is sought to impugn the judgment below.  The applicant's summary of argument is prolix and confusing.  The principal ground appears to be that the Commonwealth Powers (Family Law – Children) Act 1986 (NSW), by which the Parliament of New South Wales referred certain powers to the Commonwealth, deprived the court of jurisdiction under the Act to allocate parental responsibility.

8. This issue appears to have been raised obliquely in the Court of Appeal.  Basten JA, giving the leading judgment, noted that the applicant made certain claims for "optional relief" in her summons.  These included a claim to re-open proceedings dealt with by White J in the Equity Division[2].  In those proceedings, the applicant claimed that the power to allocate parental responsibility, where the dispute is one between parents, rests with courts having jurisdiction under Pt VII of the Family Law Act 1975 (Cth) and not with the Children's Court exercising jurisdiction under the Act. White J rejected this argument and the Court of Appeal (Beazley and Macfarlan JJA) refused leave to appeal from that determination[3].  The Court of Appeal declined the invitation to re-open the proceedings before White J.  Basten JA noted that, apart from a submission in reply which was "pejorative but empty of content", no reason was suggested for why an extraordinary order permitting a second application for leave should be entertained[4].

   [2]Re Felicity [2012] NSWSC 494.

   [3]Re Felicity [2013] NSWCA 21.

   [4]Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 at [56].

9. Nothing in the applicant's summary of argument identifies any question suitable for the grant of special leave to appeal.  If leave to appeal were granted, the appeal would have no prospect of success. 

10. The application is dismissed.

11. The first respondent seeks a special costs order against the applicant, namely that the costs be paid by her solicitor Mr George Potkonyak.  No sufficient basis is established for the making of that order. 

12. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

V.M. Bell
5 March 2015 S.J. Gageler