Jaeger & Gaspari

This matter came before W J Neville J in the Federal Circuit and Family Court of Australia. The applicant mother, Ms Jaeger, sought to vary existing New South Wales Children's Court orders concerning the care and welfare of her child, X. These existing orders, made under the *Children and Young Persons (Care and Protection) Act 1998* (NSW) and upheld on appeal to the District Court of New South Wales, confirmed the father's sole parental responsibility for X until she turned 18. The respondent father, Mr Gaspari, opposed the mother's application.

The central legal issue before the court was the operation and effect of section 69ZK of the *Family Law Act 1975* (Cth). Specifically, the court had to determine whether the mother's application to vary the child welfare orders could proceed, given that the child was under the care of a person pursuant to a child welfare law and the necessary consent from a child welfare officer had not been obtained. The court also considered the mother's apparent lack of informed consent regarding the procedural requirements of the *Family Law Act* in this context, particularly in light of advice received from the New South Wales Department of Communities and Justice.

Justice Neville found that the mother's application was fundamentally flawed due to the absence of the written consent required by section 69ZK(1)(b) of the *Family Law Act*. The judge observed that the mother had been ill-advised in pursuing the application without this consent, especially given the formal opposition from the delegate of the Minister and the existing orders under the child welfare legislation. The court applied the principles of section 69ZK, which mandates that a court exercising jurisdiction under the *Family Law Act* must not make an order in relation to a child under the care of a person under child welfare law unless specific conditions, including obtaining the written consent of a child welfare officer, are met.

Consequently, the court ordered the dismissal of the Mother’s Initiating Application filed on 6 September 2019. The court also ordered that, absent any application concerning costs filed within 21 days, there would be no order as to costs. The Independent Children’s Lawyer was discharged.