HACKLEY & CALDECOTT

[2009] FamCA 1328

FAMILY COURT OF AUSTRALIA

HACKLEY & CALDECOTT [2009] FamCA 1328

FAMILY LAW – CHILDREN – Procedural Orders – Child Welfare Laws – Whether term “in relation to a child” under s 69ZK of FLA is broad enough to allow for orders sought

Family Law Act 1975 (Cth) s 69ZK

APPLICANT: Ms Hackley

RESPONDENT: Mr Caldecott

INTERVENOR: Department of Communities (Child Safety Services)

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston

FILE NUMBER: BRC 386 of 2009

DATE DELIVERED: 14 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 December 2009

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Couper of
G Couper Solicitor

COUNSEL FOR THE INTERVENOR Mr Selfridge

SOLICITOR FOR THE INTERVENOR Department of Communities (Child Safety Services)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Kingston of
Norman & Kingston

Orders

IT IS ORDERED BY CONSENT THAT:

1. The matter be adjourned to the Magellan Directions Hearing list at 10.00am on 26 February 2010 in order that the Independent Children’s Lawyer may seek leave of the Children’s Court to put the Social Assessment Report of Mr C before the Family Court.

2. The parties file and serve any affidavit material upon which they intend to rely by 4.00pm on 12 February 2010.

3. The Independent Children’s Lawyer file and serve any material by 4.00pm on 19 February 2010

IT IS NOTED that publication of this judgment under the pseudonym Hackley & Caldecott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 386 of 2009

MS HACKLEY

Applicant

And

MR CALDECOTT

Respondent

And

DEPARTMENT OF COMMUNITIES (Child Safety Services)

Intervenor

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, the children, M born in April 2001 and N born in November 2002, are under the care, within the meaning of section 69ZK of the Act, of the Director of the Department of Child Safety pursuant to an interim protection order made, at the instigation of the Department in the Children’s Court of Queensland. 

2. Section 69ZK(1) precludes this court from making orders “in relation to a child who is under the care (however described) of the person under a child welfare law” unless the prescribed conditions are met.

3. Mr Selfridge, who appears for the department today, informs me that the protection order in respect of the children is due to expire on the 18th and that the department intends to seek a further interim order upon its cessation. 

4. Mr Selfridge submits that I should make some procedural orders that lead to an interim determination being made in this court.  Mr Selfridge indicates that the preconditions to this court having power to make orders specified in the subparagraphs (a) and (b) of the section will be met, one way or another, so as to allow this court to make interim orders. 

5. Today Mr Selfridge seeks procedural orders that will allow those interim proceedings to take place.  He submits that interim orders are not orders “in relation to a child” within the meaning of section 69ZK of the Act.  I accept that submission. 

6. The orders sought are orders referrable to the court’s practice and case management so as to allow orders to be made “in relation to a child” rather than the orders themselves fitting that epithet.  Accordingly, it seems to me that this court has power to make procedural orders as sought by Mr Selfridge, notwithstanding the provisions of section 69ZK of the Act.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  10 February 2010