M & B

[2004] FMCAfam 352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & B [2004] FMCAfam 352

FAMILY LAW – Jurisdiction – parenting proceedings – concurrent proceedings pursuant to Child Protection Act 1999 – s.60H does not amount to an absolute prohibition against orders under the Family Law Act 1975 when there are operative child welfare orders – an order must be expressed to come into effect when the child ceases to be subject to child welfare order care – matter adjourned – Department of Communities (Queensland) invited to intervene.

Family Law Act 1975

Child Protection Act 1999
Children’s Court Act 1992

Applicant: S L M

Respondent: D B

File No: PAM3387 of 2002

Delivered on: 15 July 2004

Delivered at: Parramatta

Hearing date: 13 July 2004

Judgment of: Ryan FM

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Allen

Solicitors for the Respondent: Lucas and Marshman Lawyers

ORDERS

1. That the matter be listed for further mention before me at 10.00 am on 27 August 2004.

2. The parties and the Department of Communities (Queensland) have liberty to apply for further orders and directions in relation to the matter on 72 hours notice.

3. Pursuant to s.91B of the Family Law Act 1975 that the Department of Communities (Queensland) intervene in these proceedings. Upon request the court provide to the Department of Community Services copies of all documentation relevant to the proceedings before the court to enable it to consider the request to intervene in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM3387 of 2002

S L M

Applicant

And

D B

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 15 June 2004 S L M (“the father”) filed an application in this court for parenting orders relating to the parties’ son Jamie born in 1997.  Simply put, he seeks the discharge of earlier parenting orders made with his apparent consent to the extent that those orders provide that Jamie lives with the respondent mother. 

2. The catalyst for his application is action taken by the Department of Communities (Queensland) under the Child Protection Act 1999.  In short, the department initiated care proceedings on 19 March 2004 in Hervey Bay, Queensland.  As a consequence of those proceedings Jamie and a half brother have been taken into care by the department pursuant to a care order.  Having conferred with officers of the department and attended Maryborough Children’s Court, the father understands that it is necessary for him to obtain a discharge of orders made in this court on 14 May 2003 as a precondition to having Jamie returned to his care.  He understands that there is a pre-trial conference scheduled for 20 July 2004 and then further proceedings listed in the Children’s Court at Maryborough some time in October 2004.  Understandably, he is distressed that Jamie is in foster care at a time when he is willing to assume the child’s care. 

3. When the matter came before me on 2 July 2004 I raised my concerns that this court did not have jurisdiction to make the orders sought.   That is because as a consequence of s.60H of the Family Law Act 1975 which provides, “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 or control or supervision, as the case may be”.

4. This does not amount to an absolute prohibition against orders under the Family Law Act 1975 when there are operative child welfare orders.  However, it does require that the order is, “expressed to come into effect when the child ceases to be under in effect departmental care”.  Thus, it would be possible for a court exercising jurisdiction under the Family Law Act 1975 to make an order that when a child ceased to be in care under a child welfare care order, that particular person should have parental responsibility for the child, or the child should live with the particular person and so on.  That order would become effective upon the discharge of the child from care.

5. On the evidence available to me Jamie is clearly a child in care under a child welfare law.  The father submitted that the court would make an order discharging the existing Family Law Act 1975 orders and giving him a residence order effective upon discharge of the child welfare care order.  The difficulty the court has is that it does not know when the child welfare proceedings or orders will end.  It is possible that an order could be made for as long as two years hence.  The child’s circumstances two years hence are too uncertain to make it a reasonable exercise of the court’s discretion to make orders that become operative at that future time.  If the department considers that this matter is better dealt with pursuant to the Family Law Act 1975, the department can intervene in the current proceedings and discontinue the Queensland action.  This would need to be carefully arranged so that a decision could be made concerning the child’s current circumstances immediately the Queensland proceedings were discontinued.  Alternatively, the Queensland proceedings can take their course as a consequence of which the department with the imprimatur of a court exercising jurisdiction under the Child Protection Act 1999 and Children’s Court Act 1992 may make an order placing the child in the father’s care.  Although this would be inconsistent with the Family Law Act 1975 order, by virtue of s.60H the child welfare order prevails.

6. The father and child find themselves in a very difficult situation, which needs resolution.  Rather than dismiss his application for want of jurisdiction, I will adjourn it so that in the event the department decides it will intervene in the proceedings it may do so.  The department and all parties will have liberty to apply to re-list this matter on 72 hours notice. 

7. This matter is adjourned until 10.30 am on 27 August 2004.  At that stage more should be known about the Queensland proceedings and the likely duration of any care order.  

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:  S. Mashman

Date:  15 July 2004