Jaeger & Gaspari
[2021] FCCA 1466
•30 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Jaeger & Gaspari [2021] FCCA 1466
File number: CAC 1776 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 30 June 2021 Catchwords: FAMILY LAW – parenting jurisdictional contest following Orders made in the NSW Children’s Court – Mother seeking permissions from the Minister to commence proceedings – limited consent initially given – Mother later changed Application to re-visit wider suite of Orders – Ministerial consent then withdrawn – where Mother had option to seek a review of Orders in the Children’s Court but instead sought change in parenting Orders in this Court – improper course by Mother to pursue in the light of the Minister’s denial of consent to the proceedings under s.69ZK – Application dismissed Legislation: Children and Young Persons (Care and Protection) Act 1998 NSW, s 90
Family Law Act 1975 (Cth), s 69ZK
Cases cited: Dunstan & Jarrod [2009] FamCA 480 Number of paragraphs: 24 Date of last submission/s: 22 April 2021 Date of hearing: 1 April 2021 Place: Canberra Counsel for the Applicant: Mr L O’Reilly Solicitor for the Applicant: Farrar Gesini Dunn Sydney Solicitor for the Respondent: Self-Represented Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 1776 of 2019 BETWEEN: MS JAEGER
Applicant
AND: MR GASPARI
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS THAT:
1.The Mother’s Initiating Application filed 6 September 2019 be dismissed.
2.Absent any Application in relation to costs being filed within 21 days of the date of these Orders, being by 21 July 2021, there be no Order as to costs.
3.The Independent Children’s Lawyer be discharged.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Jaeger & Gaspari is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
This is an Application by the Mother to vary orders that were made under child welfare legislation in New South Wales regarding the care and welfare of nine-year-old X. The Application is brought under section 69ZK of the Family Law Act1975 (Cth) (“the Act”).
For the reasons that follow, the Application was futile, and because of the precise terms of section 69ZK, it was doomed to fail. It should never have been brought. This is especially so since the Mother could have pursued a review Application in New South Wales under the child welfare legislation referred to later in these reasons.
Moreover, the Mother, through her experienced solicitors in Sydney, were advised multiple times by the New South Wales Department of Communities and Justice that the delegate of the Minister did not relevantly consent to the Application in the form that was brought. As an observation only, the Mother seems to have been ill-advised in the course that she pursued in the face of the terms of the Act, and in the light of the formal opposition of the delegate.
Background
Orders were made by the Children’s Court of New South Wales at City B on 26th October 2016 in relation to the care and welfare of X (born in 2012).
Those Orders were made under the Children and Young Persons (Care and Protection) Act 1998 NSW. The Orders in question were unsuccessfully appealed to the District Court of New South Wales in March 2017.
Those Orders relevantly confirmed that the Father have sole parental responsibility for X until she turns 18 years of age.
By Application filed 9th September 2019, the Mother sought Orders in this Court to vary those made under the child welfare legislation to which I have just referred.
The matter turns on the effect and operation of section 69ZK of the Family Law Act1975 (Cth). That section is set out below (emphasis added):
Child welfare laws not affected
(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) n relation to a child, the first-mentioned court may adjourn any proceedings before it that relate the child.
Orders sought by the Applicant
The Applicant Mother seeks final Orders as set out in her Initiating Application filed 6th September 2019. They are as follows:
1. The Mother and Father have equal shared parental responsibility in relation to X born in 2019 (“X”).
2. During the school term X shall live with the Father and the Mother as follows:
2.1 Week 1: with the Mother from the conclusion of school Monday until the commencement of school Monday in week 2;
2.2 Week 2: with the Father from the conclusion of school Monday until the commencement of school Monday in week 1; and
2.3 Such other times as agreed between the parties.
3. X shall spend time with the Mother and Father during each school holiday as follows:
3.1 With the Mother for the first half of each school holidays; and
3.2 With the Father for the second half of each school holidays.
4. Notwithstanding any other order contained herein and unless otherwise agreed between the parties in writing, the Mother’s time with X shall be suspended on the following occasions when X shall spend time with the Father:
4.1 From the conclusion of school on the Friday prior to Father’s Day until the commencement of school on Monday;
4.2 From 10:00am Christmas Eve until 3:0pm Christmas Day in 2018 and each alternating year thereafter;
4.3 From 3:00pm Christmas Day until 5:00pm Boxing Day 2019 and each alternative year thereafter;
4.4 From 12:30pm until 6:30pm on the Father’s birthday where the Father’s birthday falls on a weekend day and from 4:00pm until 7:00pm where is falls on a weekday.
4.5 From 6:00pm to 8:00pm on X’s birthday where X’s birthday falls on a school day and from 11:00am to 2:00pm where X’s birthday falls on a non-school day.
5. Notwithstanding any other order contained herein and unless otherwise agreed between the parties in writing, the Father’s time with X shall be suspended on the following occasions when X shall spend time with the Mother:
5.1 From the conclusion of school on the Friday prior to Mother’s Day until the commencement of school on Monday;
5.2 From 3:00pm Christmas Day until 5:00pm Boxing in 2018 and each alternating year thereafter;
5.3 From 10:00am Christmas Eve until 3:00pm Christmas Day in 2019 and each alternating year thereafter;
5.4 From 12:30pm until 6:30pm on the Mother’s birthday where the Mother’s birthday falls on a weekend day and from 4:00pm until 7:00pm where is falls on a weekday.
5.5 From 4:00pm to 6:00pm on X’s birthday where X’s birthday falls on a school day and from 2:00pm to 5:00pm where X’s birthday falls on a non-school day.
6. That each party be permitted to travel with the child outside the Commonwealth of Australia during school holiday periods or otherwise as agreed by the parties.
7. That not less than 28 days prior to the Mother or the Father travelling outside the Commonwealth of Australia pursuant to Order 8 with X, the travelling parent shall provide to the other:
7.1 An itinerary for the proposed travel;
7.2 A copy of return airline tickets; and
7.3 Contact information for X and the travelling parent while outside the commonwealth of Australia.
Orders sought by the Respondent
The Respondent Father filed his Response material on 10th March 2020 in which he sought the following final Orders:
1. The Father have all aspects of sole parental responsibility in relation to X born in 2012 (X) per the existing orders of The Childrens Court in relation to X and that all aspects of Parental Responsibility (but for contact) for the child X are allocated to Mr Gaspari (“the Father”) until X until X is 18 years of age.
2. During the school term X shall live with the Father and visit with the Mother every second Monday and every second weekend as follows:
2.1 Week 1: With the Father except for time with the Mother from the conclusion of school Monday (or 6pm) until the commencement of school Tuesday (or 9am on non-school days) on a two week cycle.
2.2 Week 2: With the Father except for time with the Mother from the conclusion of school Friday (or 6pm on non-school days) until the commencement of school Monday (or 9am on non-school days) on a two week cycle.
3. X shall spend time with the Father and the Mother during school holidays as follows:
3.1 With the mother for the first week of each school holidays, then skip a week and every other week during Christmas school holidays from 6pm on the Friday until 6pm on the following Friday.
3.2 With the father for the second week of each school holidays and alternating every other week during the Christmas school holidays from 6pm on the Friday until 6pm on the following Friday.
3.3 Alternating for school holiday periods of more than two weeks
3.4 In even numbered years the first week of each holiday period shall be with Mother and in odd numbered years the first week of each holiday period shall be with the father.
4. Notwithstanding any other order contained herein and unless otherwise agreed between the parties in writing, the Father’s time with X shall be suspended on the following occasions when X shall spend time with the Mother:
4.1 From 6pm on the Saturday prior to the Mother’s Day until the commencement of school on Monday;
4.2 From 3:00pm Christmas Eve until 3:00pm Christmas Day in 2020 and each alternating year thereafter;
4.3 From 3:00pm on Christmas Day until 5:00pm Boxing Day in 2020 and each alternating year thereafter;
4.4 From 6pm on the night before the Mother’s birthday until 6pm the following night
4.5 From 6pm on the night before X’s birthday until 6pm the following night
6. That the Father be permitted to travel with the Child outside the Commonwealth of Australia for a period of not more than 21 days during school holiday periods or as otherwise agreed by the parties.
7. That the Mother be permitted to travel with the Child outside the Commonwealth of Australia for a period of not more than 10 days during school holidays or as otherwise agreed by the parties.
8. That not less than 28 days prior to the Mother travelling with the child outside the Commonwealth of Australia pursuant to Order 6 with X, the Mother shall provide to the father:
8.1 An itinerary for the proposed travel;
8.2 A copy of return airline tickets; and
8.3 Contact information for X and the travelling parent while outside the Commonwealth of Australia.
9.0 That either parent shall be required to cancel or reschedule the proposed travel in the event that proposed travel may be put X’s health and well-being in danger through the potential transmission of disease or other dangerous situations that may exist in the destination country.
10. That should the father have concerns X’s needs for health and well-being are not adequately being met by the Mother then visits with the Mother may be reduced to one Monday night per week from the close of school Monday night (or 6pm on non-school nights) until the start of school or 9am on the following Tuesday.
Orders sought by the Independent Children’s Lawyer
The Orders sought by the Independent Children’s Lawyer are contained in the Case Outline filed 22nd March 2021. They are:
1. That the Mother’s Initiating Application filed 6 September 2019 be dismissed.
2. That the ICL be discharged.
Outline of submissions on behalf of the Applicant
The Applicant filed written submissions ahead of the hearing held on 1st April 2021. They were as follows (footnotes omitted; emphasis in original):
APPLICANT MOTHER’S OUTLINE OF CASE DOCUMENT
A. ISSUES
1. These are parenting proceedings in respect of the parties’ daughter, X [X] born in 2012 currently aged 9 years.
2. The Mother commenced these proceedings on 6 September 2019 in respect of both interim and final parenting Orders. The Father filed his Response and supporting documents on 10 March 2021.
3. X currently lives with the Father and spends time with the Mother, subject to the parties’ agreement, each week from the conclusion of school on Friday until the commencement of school on Monday and in the alternate week from the conclusion of school on Monday until the commencement of school on Tuesday.
4. It is to be noted that by way of Orders dated 27 March 2017 of the District Court of NSW, parental responsibility [including the aspect of contact for X] is allocated to the father until the child attains 18 years of age. [Order 6]
5. The Mother seeks final parenting Orders, in summary, as follows:
5.1. That the parties have equal shared parental responsibility for X;
5.2. That X live with each of the parents on a week about basis during the school term;
5.3. That X live with each of the parents equally during the school holiday periods;
5.4. That the parents be able to travel overseas with X; and
5.5. Special occasion
6. The Father seeks final parenting Orders, in summary, as follows:
6.1. That the Father have sole parental responsibility for X;
6.2. That X live with the Father and spend time with the Mother as follows:
6.2.1. In week 1: From the conclusion of school on Monday until the commencement of school Tuesday; and
6.2.2. In week 2: From the conclusion of school on Friday until the commencement of school on Monday.
6.2.3. Half school holidays;
6.3. That both parents be able to travel overseas with X; and
6.4. That the Father be able to reduce X’s time with the Mother.
7. By way of Orders dated 8 July 2020, the matter is listed for final hearing on 1 April 2021.
8. By way of Orders dated 9 February 2021, Judge Neville made the following orders:
8.1. That the Father be served with a copy of Ms C’s report dated 1 February 2021;
8.2. The Independent Children’s Lawyer meet with the child as soon as practical and convenient; and
8.3. The parties file submissions in relation to the Court’s jurisdiction to make Orders in relation to parental responsibility 14 days prior to the hearing.
9. In summary, the Mother submits that prior to commencing these proceedings she sought and obtain the written consent of a child welfare officer to file an Application for parenting Orders, albeit limited, given the operation of the 27 March 2017 District Court of NSW Orders.
10. The Mother submits that on 15 January 2019, Ms E, Solicitor, who was instructed by officers of the Town D Community Services Centre, that:
“the Secretary has considered the request and the delegate agrees to consent to an Application being made to the relevant court in relation to the spend time with arrangements only, for X.” (emphasis added)
11. The Mother submits that the operation of s69ZK does not purport power on a child welfare officer to limit the Court’s jurisdiction. In this case, limited solely to the “spend time with arrangements for X.”
12. It is also notable that the Orders made by her Honour, Judge Olsson SC of the District Court on 27 March 2017, provided the Father with parental responsibility in respects of all aspects of the X’s life including but not limited to the time she spends with the Mother. It is notable that the 27 March 2017 Orders do not provide for the Mother to spend any time with the child. Such time is to be determined by the Father when he exercises parental Responsibility in accordance with the 27 March 2017 Orders.
13. It is submitted that despite the “child welfare officer” withholding their consent with respect to Parental Responsibility and only providing consent in respect to the spend time arrangement for X, such consent must provide this Court with the ability to consider all of aspects of parental responsibility for the child and not be limited to simply the spend time arrangements for X.
B. Summary of Argument.
1. It is uncontroversial that the 27 March 2017 Orders of the District Court [the District Court Orders] will remain operative at the time of the hearing on 1 April 2021.
2. The District Court Orders are orders made under the Children and Young Persons (Care and Protection) Act 1998 NSW.
3. The parties and the Court have a jurisdictional hurdle to overcome prior to the Court to making Orders pursuant to Part VII of the Family Law Act 1975 (“the Act”). That jurisdictional hurdle is section 69ZK of the Act. Section 69ZK is as follows:
69ZK Child welfare laws not affected
(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. It is acknowledged that X is a child, “who is under the care (howsoever described) of a person under a child welfare law”.
5. The District Court Orders are orders made under the Children and Young Persons (Care and Protection) Act 1998 NSW. It is acknowledged that this is a “child welfare law” within the meaning of section 69ZK.
6. S69ZK(1) of itself is not a complete bar to the Court making parenting Orders as sought by both parents. S69ZK(1)(a) relevantly provides that Court has the ability to make Orders if such, “order is expressed to come into effect when the child ceases to be under that care”.
7. S69ZK(1)(b) provides that the Court can make Orders with, “the written consent of a child welfare officer of the relevant State or Territory had been obtained”. The Mother submits that she sought and obtained such written consent and that such has satisfied s69ZK(1)(b) of the Act.
8. The Mother submits that the Court is able to embark on a determination as to what is in the child’s best interest. And that in doing so, the Court not be limited to exercising in jurisdiction at the whim of the child welfare officer, namely that the Court limit its jurisdiction to consider the time that X spends with the parents.
9. It is submitted that there is no head of power that provides the child welfare officer, with the ability to limit the jurisdiction of the Court. The terms of s69ZK do not provide for restrictions on the categories of matters which the child welfare officer is able to provide their consent. The terms of 69ZK(1)(b) plainly provide for “written consent of a child welfare officer…” .
10. It is submitted that on 15 January 2019, the Mother received the written consent of a child welfare officer and as a result caused to be filed on 6 September 2019, her Initiating Application.
11. On 18 October 2019, the matter was listed before Judge Neville. Orders and Notations were made to progress the matter in this Honourable Court. Of importance was Notation A and B. Relevantly, these notations provide for the following:
A. A representative of the New South Wales Department of Communities and Justice informed the Court via correspondence dated 16 October 2019 that the Department did not consent to the commencement of these proceedings pursuant to s69ZK;
B. No later than close of business on 15 November 2019, the Court request that the New South Wales Department of Communities and Justice notify the Court and the parties as to whether or not they intend to intervene in these proceedings.
12. On 18 November 2019, the Department indicated that they would not intervene in the proceedings.
13. On the question of consent, it is submitted that the Act does not provide for partial consent or conditional consent. The Act plainly provides for written consent. The Mother asserts that she obtained written consent on 15 January 2019. Whilst conditional, the Mother nevertheless obtained such consent within the operation of s69ZK.
14. The Independent Children’s Lawyers by way of written submissions fails to address the issue of consent and whether a child welfare officer can provide conditional consent or alternatively, whether such consent can be withdrawn after the commencement of the proceedings.
15. It is submitted that once the Mother obtain the written consent of the Department to commence proceedings, conditional or otherwise, that she satisfied s69ZK(1)(b) of the Act and this Honourable Court is now in a position to make orders with respect to X.
16. If the Court is against the Mother in this respect, it is submitted that the Court can proceed in the usual manner and consider both parental responsibility and the live with/spend time with arrangements for X, with any parental responsibility order being framed to commence, or come into effect, once the child ceases to be under the care Order.
17. Curiously, the District Court Orders do not provide for the department to have any involvement with the child or the parties. The effect of the Orders is that from 28 March 2018, the Minister no longer has parental responsibility for the child and, instead, the Father has had parental responsibility for the child including the responsibility for determining the time X is to spend with the Mother.
18. In circumstances where 3 years has passed since the Minister has not had any involvement with the child or exercised any aspect of parental responsibility for the child coupled with the failure by the Minister and/or his delegate to intervene and participate in these proceedings, it is submitted that the Court should adopt a pragmatic approach to the issue of consent.
19. The Mother submits that a pragmatic approach is one which is not conditional, both on the Mother and the Court, and an approach where such consent cannot be withdrawn after the proceedings have been commenced.
Independent Children’s Lawyer’s outline of submissions
The Independent Children’s Lawyer’s submissions, filed 22nd March 2021, were as follows:
SUBMISSIONS OF THE ICL
1. These submissions are made pursuant to Order 3 of the Orders made 9 February 2021 and in relation to the Court’s jurisdiction to make Orders in relation to parental responsibility.
Background
2. X born in 2012 (‘X’) was the subject of Children’s Court proceedings in or about 2016.
3. Orders were made by the Children’s Court of NSW at City B on 26 October 2016 including orders which provided that all aspects of parental responsibility including contact be allocated to the Father until X reaches the age of 18 [after a period of 9 months where parental responsibility was allocated to the Minister]. A copy of those orders is set out at page 1 of the Mother’s Tender Bundle.
4. The Mother appealed that decision to the District Court of NSW in or about 2017. The District Court gave a decision on or about 27 March 2017. A copy of that decision is set out at page 13 of the Mother’s Tender Bundle.
5. The Mother’s instructions to her solicitors was that the appeal decision resulted in orders that:
a. The Minister have all aspects of parental responsibility for X for 3 months from the date of the decision;
b. Thereafter, the Father to have all aspects of parental responsibility for X, but for contact, until she reaches 18 years of age;
c. The Minister have parental responsibility for X in relation to contact for a further period of 9 months from the date of the decision; and
d. Thereafter, the Father to have parental responsibility for X in relation to contact, until she reaches 18 years of age.
6. There is no dispute between the parties as to X currently being the subject of Children’s Court orders including that the Father have parental responsibility in relation to all aspects including contact.
7. On or about 10 January 2018, the Mother instructed her solicitors to write to the (then) Department of Families and Communities (‘the Department’) to seek consent pursuant to section 69ZK (1) (B) of the Family Law Act 1975 (‘FLA’) to her commencing proceedings in the family law courts. That letter is set out at page 90 of the Mother’s Tender Bundle.
8. On 16 January 2018, the Department responded to the Mother’s solicitors in the negative (that is, refusing consent) and citing the short time since the matter was litigated in the District Court of NSW and the persistent concerns about the level of conflict and risk issues associated with the Mother. That letter is set out at page 90 of the Mother’s Tender Bundle.
9. Various correspondence other passed between the Mother’s solicitors and the Department in January and March 2018 which is not referred in these submissions but which is set out in the Mother’s Tender Bundle at pages 95 and 100.
10. On 6 December 2018 the Mother’s solicitors again wrote to the Department seeking consent to commence proceedings in the family law court and noting a further year had passed since the District Court of NSW appeal.
11. On 15 January 2019, the Department wrote to the Mother’s solicitor indicating that ‘…the delegate agrees to consent to an Application being made to the relevant court in relation to the spend time with arrangements only, for X.’
12. That letter further noted that ‘In order of the Secretary to provide such consent, you will need to make the Application and provide a copy to this Department so that the court can be formally advised as to consent.’ That letter is set out at page 103 of the Mother’s Tender Bundle.
13. On 6 September 2019, the Mother commenced proceedings in the Federal Circuit Court seeking final orders including:
a. That the parties have equal shared parental responsibility for the child;
b. For a week-about arrangement for X during Term time;
c. For half of each school holiday period;
d. For particular time on special occasions; and
e. Allowing for overseas travel.
14. The Father filed a response on 10 March 2020 seeking orders including:
a. For sole parental responsibility for X;
b. For X to spend 4 nights each fortnight with the Mother during Term time;
c. For school holiday time; and
d. Allowing for overseas travel.
15. The Mother has not filed any further affidavit material since her affidavit filed 6 September 2019.
16. The Father has not participated in the proceedings since the filing of his affidavit and responding material on 10 March 2020.
17. The orders made by the Court on 18 October 2019 indicate that the Department communicated to the Court that it did not consent to the commencement of these proceedings.
18. The Court invited the Department to intervene at that time. The ICL understands the Department declined to intervene on the basis the Court did not have jurisdiction to make any orders in relation to X.
19. The ICL was appointed on 3 March 2020.
The Parties’ Positions
20. The ICL understands the Mother’s position to be that (with reference to the email sent to the Court dated 15 January 2021):
a. Both the Mother and Father seek that the Court make orders for X. The ICL notes this appears to be based on the Father having filed responding documents and therefore – presumably – acquiesced to the Court’s jurisdiction; and
b. The Mother obtained the written consent of the Department prior to commencing these proceedings consent pursuant to section 69ZK (1) (b) of the FLA; and
c. The Court has jurisdiction to hear a fresh Application about what is in X’s best interests pursuant to Part VII of the FLA.
21. The Father has not participated in the proceedings since filing responding documents in March 2020. The Father’s position, other than what is set out in his orders, is unclear.
22. The ICL does not consider the Father’s filing of documents can be considered to be acquiescence to the Court’s jurisdiction to hear the matter.
The ICL’s Position
23. X is the subject of orders made on or about 27 March 2017 by the District Court of NSW in the matter of Jaeger v The Secretary of Family and Community Services (NSW) … and pursuant to the Children and Young Persons (Care and Protection) Act 1998 NSW. which include, inter alia, that the Father have all aspects of parental responsibility, including contact, for X until she reaches the age of 18 years.
24. The Department has not consented to the Mother’s Initiating Application, conditionally or otherwise.
25. Section 69ZK of the FLA prevents the Federal Circuit Court from making orders about X that would override the orders currently in place pursuant to the Children and Young Persons (Care and Protection) Act 1998 NSW.
26. The Mother has standing to make an Application to the Children’s Court NSW pursuant to section 90 of the Children and Young Persons (Care and Protection) Act 1998 NSW for recession or variation of orders currently in place.
27. The ICL will refer the Court to the decision in Coleman & Hindle and Ors (Miscellaneous Application ) [2009] FamCA 1039 (23 October 2009) at paragraph 75, 222 – 223.
Supplementary written Submissions on behalf of the Applicant
Following the Hearing on 1st April 2021 the Court made Orders for the Applicant and Independent Children’s Lawyer to file additional written submissions, principally in relation to a judgment of the Family Court of Australia, Dunstan & Jarrod. The Applicant filed additional written submissions on 22nd April 2021. They were as follows (footnotes and Annexure A omitted):
APPLICANT MOTHER’S SUPPLEMENTARY SUBMISSIONS IN ACCORDANCE WITH ORDER 1 MADE ON 1 APRIL 2021
1. These are the supplementary submission pursuant to the Orders by his Honour, Judge Neville on 1 April 2021. The Mother also relies upon the submissions filed on 26 March 2021.
2. The decision of Dunstan & Jarrod [2009] FAM CA 480 was raised by his Honour as a decision to which submissions ought be made. It is important to note that in Dunstan, the Family Court proceeded to hear the matter to finality. The proceedings were commenced in 2006 and the hearing was conducted over 2 days on 11 and 12 May 2009. Judgement was delivered on 5 June 2009.
3. It is notable that there was no separate hearing with respect to the jurisdictional issues now raised by the Independent Children’s Lawyer before this Honourable Court. At paragraph [36] Justice Murphy in Dunstan identifies that the, “order made in State Magistrates Court in 2000 remained operative at the time of the hearing.”
4. At [38] his Honour records the following:
“a subsequent mention for the matter before the Magistrates Court in 2005 resulted in the Magistrate not disturbing the earlier order. But, at the same time, the court indicated that proceedings with respect to the best interest of the child were better dealt with by this Court.”
5. Having regard to the judgment of Judge Olsson SC commencing on page 6, second paragraph: “This is an unusual matter for this jurisdiction in some ways. As I commented during the hearing, it is more matter for the Family Court than this Court….”
6. There is no evidence from the ICL or the Department that the X is a child in need of protection within the meaning of the Children and Young Persons (Care and Protection) Act (NSW) 1998 and that the District Court is the most appropriate to hear and determine the matter.
7. In Dunstan, it is notable that Justice Murphy proceeded to hear and determine the parties’ matter to finality despite there being a Child Welfare Order in place. Whilst his Honour considered the question of the jurisdiction of the Court, his Honour was not required to consider the issue of whether the delegate can provide conditional or limited consent or withdraw such ‘conditional consent’ as is the case in this matter.
8. On 15 January 2019, Ms E on instructions by the Town D Community Services Centre wrote to the Mother’s solicitors confirming that the delegate agrees to consent to tan Application being made to the Court in relation to spend time with arrangements only. Annexed and marked “A” a copy of the letter dated 15 January 2019. The Mother acting upon this consent commenced proceedings on 6 September 2019.
9. The ICL, it is submitted fails to identify any authority or head of power in which the delegate has the authority to determine what matters this Honourable Court can hear and determine.
10. It is submitted that the Mother was reliant upon the consent obtained from the delegate’s legal representative of 15 January 2019 and that despite such consent being conditional consent the Court should adopt a pragmatic approach to the issue of consent. If the Court is against the Mother with respect to the issue of consent, the Court is still able to hear and determine the matter given the provisions of s69ZK(1)(a).
11. It is uncontroversial that s69ZK(1)(a) allows the Court to make Orders that will come into effect upon the revocation of a child protection order made by a state Court. The ICL fails to address s69ZK(1)(a) and the ability of the court to make orders to come into effect once the child ceases to be under the child welfare order.
12. At [47] of Dunstan, Murphy J states that, the attitude of the parties was ascertained with respect to them jointly applying to the State Magistrates court for revocation of the child protection order made by that Court. Each of the party readily indicated that they wish to do so and desired that outcome.” Whilst that has not occurred in this case, the Father has filed his Response setting out the various orders he seeks to be made in these proceedings. It is submitted that those Orders depart from the Orders made by the District Court Orders dated 27 March 2017 and thus there is a clear intention of the parties that they wish for this Court to hear and determine the matter.
13. It is submitted that the Court should adopt a pragmatic approach to the issue of consent especially in circumstances where the child the subject of these proceedings, and the parents have not had any involvement with the department since Judge Olsson SC delivered her Reasons on 27 March 2017.
14. The Mother relies on the written submission filed 26 March 2021.
Independent Children’s Lawyer’s supplementary written submissions
The Independent Children’s Lawyer filed additional written submissions on 22nd April 2021. They were as follows:
SUPPLEMENTARY SUBMISSIONS OF THE ICL
1. These submissions are made pursuant to Order 1 of the Orders made 1 April 2021 and are to be read in conjunction with the submissions filed by the Independent Children’s Lawyers (‘ICL’) on 22 March 2021.
2. At the final hearing of this matter on 1 April 2021, the parties’ and the ICL’s attention was drawn to the case of Dunstan & Jarrod [2009] Fam CA 480 (5 June 2009) (‘Dunstan & Jarrod’).
3. Having reviewed that case, the ICL submits that Dunstan & Jarrod is consistent with the ICL’s view set out in the Written Submissions filed 22 March 2021 for the following reasons:
a. The relevant state Department in Dunstan & Jarrod (the then Department of Child Safety) supported the parenting issues being determined by the Family Court and specifically deposed (in an affidavit filed by the ICL) to the child not being a child in need of care and protection as defined in the relevant Act (Child Protection Act 1999). There was therefore, written consent from the Department to the bringing of proceedings in the Family Court as is required by section 69ZK (1) (b) of the Family Law Act 1975 (‘FLA’).
b. Paragraph 54 of Dunstan & Jarrod confirms that the Department’s consent is the basis of the Family Court’s jurisdiction to make parenting orders in that matter.
c. The ICL in Dunstan & Jarrod took the view that even though consent was obtained from the Department, if the child welfare order remained in place, the Family Court did not have jurisdiction to make orders as to parenting.
d. The ICL in these proceedings does not take that view and indeed, Dunstan & Jarrod suggests she would be incorrect if she had. Had the Department consented (or not withdrawn its consent) in these proceedings, the ICL would not have considered there to be an issue as to jurisdiction (see page 14 and 16 of the ICL Tender Bundle).
e. As it currently stands, the Court in these proceedings cannot be satisfied that the child the subject of these proceeding is a child who is not in need of care and protection as it does not have the Department’s consent (which is presumably the reason why it is required).
f. All of the parties in Dunstan & Jarrod agreed that the child the subject of those proceedings was not in need of care and protection and, indeed, indicated to the Family Court that they would be agreeable to jointly applying to the relevant State Court (the Magistrates Court) for a revocation of the care and protection order. That is not the case in these proceedings where:
i. The Father’s position as to whether the child remains in need of care and protection or to an Application to the state court for revocation is unknown; and
ii. Where the Department’s position is that the child welfare order should stand.
4. The ICL’s position in these proceedings remains that the Court does not have jurisdiction to hear the mother’s Application and that, properly, an Application for revocation should be made to the Children’s Court NSW pursuant to section 90 of the Children and Young Persons (Care and Protection) Act 1998 NSW.
5. The ICL otherwise relies on the submissions filed 22 March 2021.
Consideration and disposition
Section 69ZK(1)(b) specifically requires (as highlighted above) that for Orders previously made under child welfare legislation to be varied under the Family Law Act, the written consent of the relevant child welfare officer of the relevant state or territory must be obtained. It is important to note here, although earlier mentioned briefly, that an alternative course open to the Applicant Mother was to seek a review of the current orders pursuant to s.90 of the New South Wales child welfare legislation earlier referred to.
It was never explained why this more straightforward course, which had none of the jurisdictional hurdles or impediments as there are under section 69ZK in this Court, was not pursued. That is the course that should have been undertaken. If that avenue had been pursued, all of the extra labour in the matter could have been avoided, including the consumption of further scarce resources of this Court.
The Mother did write on a number of occasions to the New South Wales Department of Communities and Justice. Initially, the approach was only to seek a variation of the “spend time with” orders. Consent to that very limited course was initially granted.
Later, however, the Mother’s Application and request to the Department was expanded to include a change in Orders that included parental responsibility. This later request was refused on a number of occasions. The letters of refusal are set out in the tender bundle that was provided by the Independent Children’s Lawyer. Perhaps the letter from the Department to the Court dated 16th October 2019, which should be taken to be admitted into evidence as Exhibit A, is the most complete in setting out the history of correspondence between the parties and more particularly, the Delegate’s position most relevantly refusing consent to the Application in this Court. As an aside, I note that the Father took little part in the proceedings apart from filing a Response and a short affidavit opposing the Mother’s Application.
Again, in my view, it is almost unfathomable how and why the Mother and her experienced lawyers expended so much time and energy on the Application to this Court in the face of the clear wording of section 69ZK and in the light of the consistent and clear written refusal of consent by the Delegate. Doubtless it consumed immense resources, and which forced the Department and the Court to do likewise. Because of the clear and repeated written refusal of the Delegate to give consent as required under the Act, once the Mother had widened her proposed Application, in my view it is quite extraordinary that she pursued this ill-fated course. This course was almost unconscionable when, as noted below (a) the relevant, albeit few authorities referred to in the Independent Children’s Lawyer’s submissions, did not support such a course, and (b) the high point of Counsel’s submissions for the Mother was that the Court should take a “pragmatic approach” to the relevant section.
It must follow that the Court finds it even more unfathomable that, apparently, the Mother’s experienced lawyers continued to pursue the Application in this Court. No less concerning is the lack of explanation, either by Affidavit from the Mother, or in submissions from her lawyers, why the review Application in the Children’s Court was not pursued. This was, and remains, a very concerning gap in the evidence, and in the proper explanation that should have been provided to the Court as a matter of course in the discharge of duties to the Court.
The Court is required to administer the law. The Court is required to interpret and to apply statutes in accordance with longstanding principle. That approach was inexplicably not advocated here, nor was authority pointed to which explained or justified why “a pragmatic approach” was the relevant principle to be applied. Both sets of submissions by the Independent Children’s Lawyer, and the limited submissions by the Mother, should be taken to be incorporated here.
More particularly, in addition to what has already been said, in order to expedite the delivery of these reasons and to avoid unnecessary duplication, I accept and adopt the submissions of the ICL as the reasons of the Court. In my view, they are detailed, helpful, sound and correct.
For the reasons given and those adopted from the ICL, the Application must be dismissed. As I have already said, it should never have been brought in this Court; it should have been pursued in the Children’s Court in NSW. In addition to the dismissal of the Application, the further Order of the Court is that, absent any Application being filed with the Court within 21 days regarding costs, there will be no Order as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 30 June 2021
0
1
0