Ford & Department of Child Safety

[2007] FamCA 811

FAMILY COURT OF AUSTRALIA

FORD & DEPARTMENT OF CHILD SAFETY [2007] FamCA 811

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – Whether Federal Magistrate erred in dismissing an application that twin children live with their aunt upon the cessation of child protection orders – Appellant asserted the Federal Magistrate had considered an incorrect statutory provision – No substance in this ground – Appellant submitted the Federal Magistrate erred in failing to consider the application on its merits when exercising jurisdiction under s 69ZK – Within the discretion of the Federal Magistrate to dismiss the application on a summary or threshold basis – Appeal dismissed.

Family Law Act 1975 (Cth), s 69ZK
Child Protection Act 1999 (Qld)
Family Law Amendment Act 1975 (Cth)
Law and Justice Legislation Amendment Act 1992 (Cth)

APPELLANT: Ms L Ford

1ST RESPONDENT:	Ms C Ford
2ND RESPONDENT:	The Chief Executive, Department of Child Safety
FILE NUMBER:	BRC	3236	of	2007

APPEAL NUMBER: NA 35 of 2007

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Canberra

PLACE HEARD: Brisbane

JUDGMENT OF: Bryant CJ, Finn and Kay JJ

HEARING DATE: 2 August 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT HEARING DATE: 24 April 2007

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Shoebridge (Solicitor)

SOLICITOR FOR THE APPELLANT: Simonidis Shoebridge Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Ms Ford appeared on her own behalf

COUNSEL FOR THE 2^ND RESPONDENT:

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Waterman

Crown Law

Order

1. That the appeal be dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Ford and Department of Child Safety.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 35 of 2007
File Number: BRC 3236 of 2007

L Ford

Appellant

And

C Ford

First Respondent

And

The Chief Executive, Department of Child Safety

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 24 April 2007 after a brief hearing Jarrett FM dismissed an application by [Ms L Ford] (to whom we will refer as “the maternal aunt”) for orders that her niece and nephew, who are twins aged three, should live with her, but with such orders only coming in effect “upon the cessation of the current child protection orders of the Chief Executive, Department of Child Safety”.

2. The maternal aunt now appeals his Honour’s dismissal of her application. We will shortly explain his Honour’s reasons for dismissing that application. But it can be said at this introductory stage, that this appeal raises for consideration the discretion which is conferred by s 69ZK of the Family Law Act 1975 (“the Act”) on courts exercising jurisdiction under the Act, to make an order in relation to a child who is “in care” under a State or Territory child welfare law on the basis that the order will only come into effect when the child ceases to be “in care”.

3. Section 69ZK provides:

   (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.

   (2)      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; or

   (b)      any such order made or action taken; or

   (c) the operation of a child welfare law in relation to a child.

   (3) 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.

4. Division 7 (of Part VII of the Act) is concerned with child maintenance.

Background

1. The twin children, who are the subject of this case, were born in May 2004. Because of the difficulties experienced by their mother (principally, it would seem, in relation to, or arising out of, the use of drugs), the twins have been in the care of the maternal aunt since they were about four weeks old pursuant to orders made under the Child Protection Act 1999 (Qld).

2. There were before us copies of orders made under that last-mentioned Act by the Brisbane Children’s Court dated 23 January 2007. Those orders extended until 23 January 2008 orders made on 23 January 2006 whereby the children were placed in the custody of the Chief Executive of the Department of Child Safety. Also before us were authorities dated 23 January 2007 from the Department placing the children in the care of the maternal aunt until 22 January 2008.

3. We understand that similar orders and authorities have been in existence since shortly after the children’s birth, and have been the subject of annual (or other) extension from time to time, although we have not been provided with copies of any of those earlier orders and authorities. But there is no dispute that, as we indicated earlier, the children have been in the care of the Queensland child welfare authorities and the maternal aunt since they were about four weeks old.

4. On 16 March 2007 solicitors acting on behalf of the maternal aunt filed in the Federal Magistrates Court (at Brisbane) an application seeking orders on both an interim and a final basis that the children live with the maternal aunt and spend time with their mother “as may be agreed between the parties”. In relation to the interim orders for the children to live with the maternal aunt and spend time with their mother, a further order was sought in the application, being that such orders “shall take effect upon the cessation of the current child protection orders of the Chief Executive, Department of Child Safety.”

5. The maternal aunt’s application was supported by a lengthy affidavit from her setting out the history of the children and the arrangements for their care. The affidavit also addressed in detail the matters contained in s 60CC of the Act, being the matters which the Court must consider in determining what is in the best interests of a child who is the subject of proceedings before the Court, for the purpose of deciding to make a particular parenting order under the Act.

The proceedings before Jarrett FM on 24 April 2007 

1. When the maternal aunt’s application came before Jarrett FM on 24 April 2007 she was represented by a solicitor, Mr Schoenmaker. The Department of Child Safety was represented by Counsel, Mr Waterman, and the children’s mother appeared on her own behalf.

2. Having been informed by Counsel for the Department that there was a protection order in place in relation to the children until January 2008, his Honour inquired of the maternal aunt’s solicitor (transcript, p 2):

   Well why was this application filed Mr Schoenmaker, given that when it was filed there were protection orders in place?

3. Mr Schoenmaker then explained the reasons for the application in the following way (transcript, p 2):

   MR SCHOENMAKER: Yes, my client was - well, rather my client is anticipating that at some stage or another the department will make its mind up as to what is going to occur with the children.

   FEDERAL MAGISTRATE: Yes.

   MR SCHOENMAKER: And it is at that stage that she would like to have the matter formalised in the Family Court by way of an order.

   FEDERAL MAGISTRATE: But isn't that a matter between the department and the family, given that there is an order in place in respect to these children?

   MR SCHOENMAKER: There is, your Honour, however, there is also a problem in that there has been some reluctance on the part of the mother to allow my client to participate in family meetings convened by the department.

   FEDERAL MAGISTRATE: Yes.

   MR SCHOENMAKER: And given that the children have been with her for all but the first four weeks of their lives, my client has instructed us to make the application.

4. Then in response to his Honour’s further query as to what orders
   Mr Schoenmaker wanted that day, Mr Shoenmaker responded (transcript, p 2 – emphasis added):

   Well there needs to be a direction in respect to the mother, in filing her response to our client's material; also an order for the mother to - an order for the mother to participate in family meetings, that if family meetings are going to occur that the applicant be allowed to participate in those meetings.

5. In relation to the suggestion of an order for the maternal aunt to participate in “family meetings” convened by the Department, his Honour then asked the following question concerning his power to make such an order (transcript, p 2):

   Well what is my power to make that order, given that that's - family meetings is a power exercised by the department, isn't it, under the Child Protection Act?

6. Mr Schoenmarker then referred to s 67ZC of the Act, which as his Honour commented, is “a parens patriae jurisdiction”.

7. Almost immediately after that discussion, his Honour indicated that he was inclined to dismiss the proceedings on the basis that they lacked any utility saying (transcript, p 3):

   Look, my inclination is just to dismiss these proceedings. I just don't see that there is any utility in them at all. They were filed when there was a child protection order in place and by section 60H I can't make any orders in respect of these children. I mean, it is just a misconceived application, isn't it?

8. The following discussion then ensued (transcript, pp 3 – 4):

   MR SCHOENMAKER: Well, your Honour, my client is of the opinion, as are well, that the application should continue because in June or July of this year - - -

   FEDERAL MAGISTRATE: But there are orders in place until January next year.

   MR SCHOENMAKER: That's right.

   FEDERAL MAGISTRATE: Who cares what happens in June or July. There are orders in place until January next year. This Court can't make any orders at all save for orders that might have effect when the child protection order ceases to have effect, whenever that might be, given the department's power to ask for extensions and the like. So the very earliest I could make an order that would have any effect would be January next year, wouldn't it?

   MR SCHOENMAKER: It was my view that there would be a decision made by the department in June/July and that that would be the time that the department would make its mind up as to whether there would be a guardianship order made in regard to the children.

   FEDERAL MAGISTRATE: Right.

   MR SCHOENMAKER: Or whether the mother would be - whether there would be some road back to a reunification between the children and the mother.

   FEDERAL MAGISTRATE: Yes.

   MR SCHOENMAKER: And if there was a guardianship order made at that stage. Because we don't have any confirmation from the department that they would allow our client to remain as a guardian for the children, that there would be basically a step taken by the Family Court to provide for the mother to have residence with the children.

   FEDERAL MAGISTRATE: I don't understand any of that, I have got to tell you. What I do understand is that it is all predicated on certain things happening in the future, the certainty of which is entirely unclear.

9. His Honour then inquired of Mr Waterman as to what the Department’s position was. Mr Waterman replied that it was that it was “premature” for the matter to proceed that day, and he went on to explain why that was so (transcript, p 4).

10. His Honour then raised with Mr Waterman whether the proceedings were “an abuse of process”, and Mr Waterman responded that he struggled “to see the utility of the proceedings in the form in which they have been brought at this stage” (transcript, p 4).

11. Further discussion then ensued between his Honour and Mr Waterman concerning rights of review under State law of decisions of the Department (transcript, pp 4 – 5).

12. Apparently in an endeavour to explain to the mother who, as earlier mentioned, was unrepresented, the issues which arose in relation to the maternal aunt’s application, his Honour said (transcript, pp 5 – 6, emphasis added):

    There is a section in the Family Law Act - a lot of people think it is a section called section 69ZK but I think it is in fact an older section called 60H, but it doesn't matter what it's called - that says that this Court can only make orders or can't make orders where there are child protection proceedings on foot or in place or the child is in the care of the relevant State authority, to have effect immediately.

    The Court can make orders that has effect when the child comes out of or is not governed by a child protection order, or is not under care or supervision of the department any more. But until that time the Court can't make any orders that have immediate effect, so I can't make any orders, it seems to me, that might meet the description of parenting orders under the Family Law Act. Nor would I want to, I don't think, because the matter is obviously in the hands of the department and the department has been working with everybody.

    There might be some dissatisfaction about what the department is doing or not doing but like I said earlier, that is a matter for parties to take up in the way that is available to them in that process; you know, applications to the children's tribunal, whatever it is that is required or maybe to the State Magistrates Court, I don't know. But at the moment, it seems to me that there is nothing to be done in these proceedings and the only decision I have to make is whether I ought do nothing and leave these proceedings on foot and adjourn them to some time later this year, or just dismiss them now and provide for - and leave the parties to bring whatever applications they want to bring under the Family Law Act at an appropriate time which doesn't seem to me to be now.

13. There was then some discussion between his Honour and the mother which has no present relevance. At the conclusion of that discussion, his Honour addressed Mr Shoenmaker saying (transcript, p 7):

    “… I am on the verge of just dismissing this because I don’t see the utility of it.”

14. Mr Schoenmaker responded (transcript, p 7 – emphasis added):

    Well, your Honour, I can see the rationale of your thinking, however, my client has instructed me to persuade or attempt to persuade the Court that the proceedings should remain within the precincts of the Court for the time being. I did have discussions with my colleague and we are both of the opinion that it would be best to adjourn the matter until the department's decision will be made in July.

    There isn't a definite - in respect to that decision, there is - if it is the case that the department will consent to our client becoming the - or rather, if there is a decision by the department that it will withdraw or take a step back from the matter by consenting to withdrawing their proceeding in the Children's Court, then it would be of value for the current application to be mentioned and a decision made on that.

    We would be writing to the department informing them that we have proceedings in the Family Court and given the history of the mother, with respect, it would be of value to have the matter brought to an early conclusion through the Family Court rather than to allow - - -

15. The transcript then records that a judgment was delivered. However we have been informed by the Appeal Registrar that enquiries made of Jarrett FM’s Associate have established that no reasons for judgment were delivered. The formal order made by his Honour was that “the application filed on 16 March 2007 be dismissed”. His Honour’s reasons for that order must therefore be found in the passages of the transcript which we have set out above.

Grounds of appeal

1. The maternal aunt’s amended notice of appeal contained three grounds.

(i) The correct statutory provision

1. One of those grounds (being the ground numbered 3) asserted that his Honour erred in law by “misdirecting himself to consider s 60H of the Family Law Act notwithstanding that that section had no relevance to the application before him.”

2. As appears to be recognised in paragraph 23 of the appellant’s written outline of argument, at an earlier stage in the history of the Act, the section which dealt with the jurisdiction of courts exercising jurisdiction under the Act to make orders concerning a child, who is the subject of arrangements under State and Territory child welfare laws, was numbered “60H”. In other words, a predecessor section to the present s 69ZK was numbered s 60H. (See the Family Law Amendment Act 1987 s 24).

3. It is true that in the passages of transcript quoted in paragraphs 16 and 21 above his Honour did refer to s 60H, although in the latter passage he appears to have recognised that the provisions formerly found in s 60H were now found in
   s 69ZK.

4. The former s 60H (as originally introduced in 1987) provided:

   (1) A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be.

   (2)      Nothing in this Act, and no decree made 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 in the custody of, or under the guardianship, care and control or supervision of, a person;

   (b)any such order made or action taken;

   (c) the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child;

   (d)an order of the kind referred to in paragraph (c); and

   (e)the operation in relation to the child of a child welfare law.

   (3)Where 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.

5. Sub-section 60H(1) was subsequently amended by the Law and Justice Legislation Amendment Act 1992 to provide:

   (1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 6) in relation to a child who is under the guardianship, or in the custody or care and control, 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 such guardianship, or in such custody or care and control, as the case may be; 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.

6. Certain minor amendments were also made to s 60H(2) by that amending Act. However it will be seen that former s 60H (in its final form) was not materially different (at least for present purposes) from present s 69ZK. Thus his Honour’s reference to the former section was of no consequence, and the ground of appeal directed to that reference lacks any substance.

(ii) The scope of the jurisdiction under s 69ZK(1)(a)

1. The remaining two grounds of appeal, regardless of their ultimate outcome, raise an issue of more substance.

2. The terms of those grounds are:

   2.That the learned Federal Magistrate erred in law by finding that he could not make any orders under Section 69ZK of the Family Law Act 1975 (or otherwise) in relation to the subject children until after the expiry of the current Child Protection Orders.

   4.That having made the determination that he was unable to make orders until after the expiry of the current Child Protection Orders, the learned Federal Magistrate the [sic] failed to determine the matter on its merits. In particular the federal magistrate failed to place any or any proper weight on the Affidavit material supporting the Application, of [sic] to have regard to the effect of the Orders sought in the context of the welfare of the children.

3. It must be said at the outset of the discussion of these two grounds that, contrary to the assertion contained in both grounds, his Honour did not find or determine that he could not, or was unable to make orders (under s 69ZK) “until after the expiry of the current Child Protection orders”. On our reading of his Honour’s observations made during the hearing on 24 April 2007, he well understood that he could under s 69ZK make orders in relation to a child who was subject to a child protection order, but he could only do so on the basis that such order would come into effect on the expiration of the child protection order.

4. The essential submission put on behalf of the maternal aunt in support of the two grounds in question was to the effect that when exercising jurisdiction under s 69ZK in relation to a child who is subject to a State or Territory child protection order, the court is required to consider a parenting application fully on its merits, notwithstanding that the order which the court makes will not have immediate operation.

5. In this regard it was submitted that courts exercising jurisdiction in parenting matters under the Act often make orders that will not have effect until some later time, often a considerable time into the future; for example, orders made in relation to a child well under school age commonly provide for the child’s living or holiday arrangements once he or she commences school.

6. Thus, it was submitted for the maternal aunt, his Honour should have determined her application for parenting orders in relation to the twins fully on its merits, that is, by considering the extensive matters directed to the provisions of Part VII of the Act contained in the affidavit of the maternal aunt.

7. We do not agree that in every case where a parenting order is sought under Part VII of the Act in respect of a child who is subject to a child protection order under State or Territory law, that it is necessary for a court exercising jurisdiction under the Act, to consider the application for such an order on its merits. There will be cases when it will be entirely appropriate for the application to be dismissed on what can be described as a summary or threshold basis, and indeed we understood the solicitor for the maternal aunt to concede that it was open to a court in an appropriate case to dismiss such an application on a threshold or summary basis.

8. It will be recalled from the passages of the transcript of the hearing before his Honour earlier set out, that his Honour first expressed some reservation concerning the appropriateness of the maternal aunt’s application, when he was informed that one reason why the maternal aunt sought parenting orders under the Act was to give her standing in family conferences conducted by the Department of Child Safety. As his Honour indicated, if the maternal aunt was dissatisfied with decisions taken by the Department, the appropriate course was for her to seek a remedy under State law rather than by means of proceedings under the Act.

9. However, it appears to us that the more significant reason why his Honour concluded that there was “no utility” at that time in the maternal aunt’s application, and that he should therefore dismiss that application, was because the existing child protection orders and authorised care arrangements were to be in place for another nine months (that is, until late January 2008). Moreover there had already been a three year history of such orders and authorities being extended. Against this background, there was obviously no guarantee that the existing orders and authorities would finally cease to be in force in January 2008; it was possible that they might extend for many years into the future.

10. In these circumstances, there was clearly “no utility” in the court embarking on a hearing in April 2007 on the merits of the maternal aunt’s application. Put simply the needs, capacities and other circumstances of the children, of their natural parents, of the maternal aunt and of any other person interested in the children’s welfare, could well change significantly before the State child protection orders ultimately expired. His Honour was therefore correct in concluding that there was “no utility” in the application at the time when it came before him.

11. The question then becomes whether having concluded that there was no utility in the application at that time, his Honour erred in dismissing rather than adjourning the application particularly in circumstances when both the maternal aunt and the Department sought an adjournment.

12. Although an adjournment of the hearing may well have been a preferable course given the attitude of the Department and given also the provision for adjournments in s 69ZK(3), it cannot, in our opinion, be said that his Honour’s discretion miscarried when he dismissed the maternal aunt’s application. We are supported in this conclusion by the admission made to us by the solicitor for the maternal aunt, that there was no practical disadvantage to his client in having to file a further application at a more appropriate time rather than seek to have the adjourned application re-listed at that later time.

Conclusion

1. In summary therefore we are satisfied that it was a proper exercise of discretion by Jarrett FM to dismiss the application for parenting orders without a hearing on the merits in circumstances where there was no certainty as to the date when those State orders would cease to be in place.

2. Accordingly, the maternal aunt’s appeal must fail.

3. In light of the submissions made at the conclusion of the hearing of the appeal, there will be no order for costs in relation to the appeal.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  13 August 2007