Messmer and Cable and Anor
[2011] FMCAfam 167
•15 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MESSMER & CABLE & ANOR | [2011] FMCAfam 167 |
| FAMILY LAW – Parenting – procedural – removal of party child welfare authority from proceedings – not intervening or consenting to involvement – not necessary party. |
| Family Law Act 1975 (Cth) ss. 64, 65, 67, 91B Federal Magistrates Court Rules 2001 (Cth) r.11.04 Children, Youth and Families Act 2005 (Vic) |
| Secretary of the Department of Health and Human Service & Ray and Others (2010) FamCAFC 258 |
| Applicant: | MS MESSMER |
| First Respondent: | MR CABLE |
| Second Respondent: | MS R, MANAGER, DEPARTMENT OF HUMAN SERVICES |
| File Number: | DGC 3913 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 15 February 2011 |
| Date of Last Submission: | 15 February 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 15 February 2011 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr Moisidis |
| Solicitors for the First Respondent: | Family Law Assistance Program |
| Counsel for the Second Respondent: | Ms McNaught |
| Solicitors for the Second Respondent: | Legal Services Branch, Department of Human Services |
ORDERS
Pursuant to Rule 11.04 of the Federal Magistrates Court Rules 2001 the second respondent be removed as a party to these proceedings and there be no order as to the costs as sought in the application against it.
The material obtained from the Department of Human Services pursuant to the subpoena filed on 23 December 2010 in relation to [X] born [in] 1999 (“the child”) be released for inspection only and the subpoena be otherwise set aside.
UPON THE UNDERTAKING OF THE APPLICANT THE COURT ORDERS:
The proceedings be adjourned to 22 March 2011 at 10.00 am for mention at the Federal Magistrates Court of Australia at Dandenong.
The applicant file and serve a minute of proposed interim orders and an outline of case addressing the relevant statutory criteria for the proposed orders by 8 March 2011.
The respondent file and serve a minute of proposed interim orders and an outline of case addressing the relevant statutory criteria for the proposed orders by 15 March 2011.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
AND THE COURT NOTES:
The Department of Human Services will appear as amicus curiae on the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Messmer & Cable & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 3913 of 2010
| MS MESSMER |
Applicant
And
| MR CABLE |
First Respondent
| MS R, MANAGER, DEPARTMENT OF HUMAN SERVICES |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today are proceedings commenced by application filed by Ms Messmer, nee Cable, on 12 November 2010. Ms Messmer is about 52 years of age. She filed an application which named as the first respondent, Mr Cable who is about 56 years of age. Also named as a respondent to the application was the Victorian Department of Human Services, albeit that Ms R, Manager, Southern Metro Region was named on behalf of the Department of Human Services.
It appears that the applicant and the first respondent were married in or around about 1976. Their date of separation is a matter of dispute between them but they were divorced in or around 2003.
There are four children of their relationship, all of whom are over 18 years of age, save for the child, the subject of the application who I will refer to [X], but whose first name is spelt [X] and who was born [in] 1999 and is around about 11 years of age (“the child”).
The application filed on 12 November 2010 sought the following orders:
“FINAL ORDERS SOUGHT
1.That this Honourable Court order this case be urgent and at all times be abridged.
2.That this Honourable Court re-Instate the Final Parenting Orders made at the Melbourne Registry of The Family Court of Australia on the 22 May 2003 including the amendment to paragraph 7 of those same Court orders filed in this Honourable Court.
3.In the event that Order No. 2 of these orders be unsuccessful, that the child [X] BORN [in] 1999 reside with the Applicant Mother.
4.In the event of Order No.2 of these orders be unsuccessful, the Applicant Mother and the Respondent Father be responsible for the long term care, health, safety and emotional well being of the child [X] BORN [in] 1999.
5.In the event of Order No. 2 not being successful, The Applicant Mother be responsible for the day to day care, health, safety and emotional well being of the child [X] BORN [in] 1999.
6.In the event of Order No.2 not being successful, The Respondent Father have access with the child [X] BORN [in] 1999 as per the following guidelines;
(a)Once a fortnight; from 4.00pm Fridays to 4.00pm days to commence 4th December 2010.
(b)Every alternative week; from 4.00pm Wednesday to 8.30am Thursday mornings, to commence 8th December 2010.
(c)For half of all school holidays; commencing Tuesday 28th December 2010 4pm to Friday 21st January 2011.
(d)For the first term school holidays of 2011 being from 3.15pm Friday 8th April 2011 to 26th April 2011, access shall commence from 4.00pm Friday 8th April 2011 to 4.00pm Saturday 16rn April 2011.
(e)For the second term school holidays of 2011 being from 3.l5pm Friday 1st July 2011 to 15th July 2011, access shall commence from 4pm Friday 1st July 2011 to 4.00pm Saturday 9th July 2011.
(f)For the third term school holidays of 2011 being from 3.15pm Friday 23 September to 9th October 2011, access shall commence from 4.00pm Friday 23 September to 4.00pm on the 30 September 2011.
(g)That for every year following, the above method of determination shall be applied in all access with the child [X] BORN [in] 1999.
7.The Respondent father and/or any of his agents be restrained from ever again removing the child [X] BORN [in] 1999 from Applicant Mothers care and residence without permission from the Applicant Mother, or without appropriate orders from this Honourable Court.
8The Respondent father be restrained from blaming, denigrating, and/or exploiting the child [X] BORN [in] 1999.
9.The Respondent Father be restrained form denigrating the Applicant Mother, and especially to, or In the presence of the child [X] BORN [in] 1999.
10.The Respondent Father do all things necessary to complete any and all counselling courses that he may have Initiated at the Positive Lifestyles Counselling Services, 147-151 Foster Street, Dandenong as set down in the Interim Order No.’s 11 and 12 of these orders.
11.In the event of Order No.2 or No.3 of these orders being successful, The Department Of Human Services do sign all documents necessary and do all acts necessary to ensure continued funding of counselling courses to completion, as set down in Interim Order No.’s 17 and 18 of these orders.
12.In the event of Order No.2 or Order No.3 of these orders being successful, The Department Of Human Services do sign all documents necessary and do all acts necessary to continue funding the education of the child [X] BORN [in] 1999, at the [C] School for the entirety of his Secondary Education as set down in Interim Order No, 21 of these orders.
13.The Department Of Human Services do pay far all Legal Representation incurred by the Respondent Mother In this case.
14.The Department Of Human Services do pay for all costs incurred by any and all Professional Witnesses, whether their testimony be obtained In writing and/or by personal appearance, for and on behalf of the Applicant Mother.
15.The Department Of Human Services do pay for any and all reports, as required, by the Applicant Mother as supporting evidence in this matter.
16.The Department Of Human Services do pay for all relevant personal costs and personal transport costs, as required, by and for the Applicant Mother to attend to all Court hearings relating to this case.
17.The Department of Human Services do pay all costs incurred by any and all Professional Witnesses, whether their testimony be obtained In writing and/or by personal appearance, as may required by this Honourable Court to assist in its determination of resolution to this matter.
18.The Department Of Human Services do pay all costs for any and all reports which may be required by this Honourable Court to assist with any and all determinations It may require in order to resolve this matter.
19.The Department Of Human Services do pay for all costs to any other Personnel this Honourable Court may need to nominate so as to assist in its determination of this matter.
20.The Department of Human Services do pay for all costs incurred by this Honourable Court and/or any other Court for any and all Court Hearings which may be required to determine resolution of matter.
21.Any and all such other orders as this Honourable Court may deem appropriate.
INTERIM OR PROCEDURAL ORDERS SOUGHT
1.That this Honourable Court order this case be urgent and at all times be abridged.
2. The Respondent Father return the Child [X] BORN [in] 1999, to the residence of the Applicant Mother at [address omitted], in the State of Victoria as soon as is practicable.
3.That this Honourable Court re-instate the Final Parenting Orders made at the Melbourne Registry of The Family Court of Australia on the 22nd May 2003 including the amendment to paragraph 7 of those same Court orders filed in this Honourable Court 24110/2003.
4.In the event that Order No.3 not being successful, that The Child [X] BORN [in] 1999 reside with the Applicant Mother.
5.In the event of Order No.3 not being successful, the Applicant Mother and the Respondent Father be responsible for the long term care, health, safety and emotional well being of the child [X] BORN [in] 1999.
6.In the event of Order No.3 not being successful, the Applicant Mother be responsible for the day to day care, health, safety and emotional well being of the child [X] BORN [in] 1999.
7.In the event of Order No.3 not being successful, The Respondent Father have access with the child [X] BORN [in] 1999 as per the following;
(a)Once a fortnight; from 4.00pm Fridays to 4.00pm Sundays to commence 4th December 2010.
(b)Every alternative week; from 4.00pm Wednesday to 8.30am Thursday mornings, to commence 8thDecember 2010.
(c)For half of all school holidays; commencing Tuesday 28th December 2010 4pm to Friday 21st January.
(d)For the first term school holidays of 2011 being from 3.l5pm Friday 8th April 2011 April 2011, access shall commence from 4.00pm Friday 8th April 2011 to 4.00pm Saturday 16th April 2011.
(e) For the second term school holidays of 2011 being from 3.15pm Friday 1st July 2011 to 15th July 2011, access shall commence from 4pm Friday 1st July 2011 to 4.00pm, Saturday 9th July 2011.
(f) For the third tem school holidays of 2011 being from 3.15pm Friday 23rd September to 9th October 2011, access shall commence from 400pm Friday 23rd September to 4.00pm on the 30th September 2011.
(g) That for every year following, the above method of determination shall be applied in all access with the child [X] BORN [in] 1999.
8.The Respondent father and/or any of his agents be restrained from ever again removing the child [X] BORN [in] 1999 from Applicant Mothers care and residence without permission from the Applicant Mother, or without appropriate orders from this Honourable Court.
9.The Respondent father be restrained from blaming, denigrating, and/or exploiting the Child [X] BORN [in] 1999.
10.The Respondent Father be restrained form denigrating the Applicant Mother, and especially to, or in the presence of the child [X] BORN [in] 1999.
11.The Respondent Father do all things necessary and sign all documents necessary to effect, attend and complete a one on one Positive Lifestyles Anger Management Course at the [centre and address omitted].
12.The Respondent Father do all things necessary and sign all documents necessary to effect, attend and complete a one on one Positive Living Skills Course at the [centre and address omitted].
13.The Department of Human Services including their agents and agencies be restrained from blaming and/or exploiting the child [X] BORN [in] 1999.
14.The Department of Human Services including their agents and agencies be restrained from any further contact with the child [X] BORN [in] 1999 unless in the presence of the Applicant Mother.
15.The Department of Human Services be restrained from any and all further persecution of The Applicant Mother.
16 In the event of Order No.3 or Order No.4 of these orders being successful, The Department of Human Services do all things necessary and sign all documents necessary to re-instate the Applicant Mothers Legal Guardianship of the child [X] BORN [in] 1999 within their own Departments as well as their to all their agents, agencies and partners.
17.In the event of Order No.3 or Order No.4 of these Orders being successful, The Department of Human Services do all things necessary and sign all documents to effect the payment of all relevant counselling Applicant Mother applies for on behalf of the child [X] BORN [in] 1999 at the [centre and address omitted]. NB. the [omitted] centre to determine the appropriate course/s.
18.In the event of Order No.3 or Order No.4 of these Orders being successful, the Department of Human Services do all things necessary and sign all documents necessary to effect payment for any counselling the Applicant Mother attends at the [centre and address omitted].
19.In the event of Order No.3 or Order No, 4 being successful, the Department of Human Services do all things necessary and sign all documents necessary to effect transport or cost of transport to and from the counselling services for the child [X] BORN [in] 1999 and for the Applicant Mother.
20.In the event of The Department of Human Services not being able to comply with Order No.18, the Department of Human Services do reimburse the Applicant Mother for fuel and parking costs at a rate of not less than $15.00 per week, to be reimbursed after each counselling appointment upon the attendance at the Dandenong Office of Department Of Human Services in Thomas Street, Dandenong of the Applicant Mother.
21.The Department of Human Services do all things necessary and do sign all documents necessary to Fund all costs relating to the education of the child [X] BORN [in] 1999 at the [C] School, located at [omitted] for the entirety of his secondary education.
22.The Department Of Human Services do pay for all Legal Representation Incurred by the Respondent Mother for the duration of this case, and until this matter is resolved.
23.The Department Of Human Services do pay for all costs Incurred by any and all witnesses, whether their testimony be obtained in writing and/or by personal appearance, for and on behalf of the Applicant Mother, for the duration of this case, and until this matter is resolved.
24.The Department Of Human Services do pay for any and all reports, as required, by the Applicant Mother as supporting evidence, for the duration of this case and until this matter Is resolved.
25.The Department Of Human Services do pay for all relevant personal costs and personal transport costs, as required, by and for the Applicant Mother to attend to all Court hearings relating to this case, for the duration of this case, and until this matter is resolved.
26.The Department of Human Services do pay all costs incurred by any and all Professional Witnesses, whether their testimony be obtained in writing and/or by personal appearance, as may required by this Honourable Court to assist In Its determination, for the duration of this case, and until this mailer is resolved.
27.The Department Of Human Services do pay all costs for any and all reports which may be required by this Honourable Court to assist with any and all determinations it may require in order to resolve this matter, for the duration of this case and/or until this mailer i resolved.
28.The Department Of Human Services do pay for all costs to any other Personnel this Honourable Court may need to nominate so as to assist in its determination of this matter, for the duration of this case and/ or until this matter is resolved.
29.The Department of Human Services do pay for all costs incurred by this Honourable Court and/or any other Court which may be required to determine resolution of this matter, for the duration of this case, and until this matter is resolved.
30.Any and all such other orders as this Honourable Court may deem appropriate.”
The application was given a first return date in the Court’s duty list on 21 December 2010. By the time the matter came before the Court the first respondent had filed a response which sought the following orders:
“1. All previous orders be dismissed.
2. That the wife’s application filed 12 November 2010 be dismissed.
3. That the parties have equal parental responsibility for the child of the marriage namely [X] born [in] 1999.
4. That the said child live with the husband.
5. That the wife’s time with the said child be supervised at a contact centre.
6. That the wife is restrained from consuming illicit drugs 24 hours prior to seeing the child and whilst the child is with her.
7. Any other orders that the Court deems fit.”
There had also been sent to the Court by or on behalf of the second-named respondent, a letter dated 17 December 2010 which said:
“We are one of the Respondents in these proceedings.
As a matter of courtesy, we are writing to inform the Court that we will be making an oral Application on the 21st December 2010 seeking to withdraw from these proceedings.
Ms Mara Ray of Counsel will appear on behalf of the Department of Human Services. We do no intend to file a Notice of Appearance in these proceedings.
The Department of Human Services supports the child’s placement with his father, Mr Cable and has no concerns with the child continuing to reside with his father. The Department of Human Services is of the view that contact between the mother, Ms Messmer and the child needs to be supervised.”
The matter came before the Court on 21 December 2010. On that day the applicant appeared in person. The first respondent appeared in person and the second respondent was represented by Counsel. Given the position of the applicant and the stated intention of the Second Respondent Orders were made as follows:
“1.The Second Named Respondent do file and serve an Application in a Case, Affidavit and Outline of Argument/Submissions by 17 January 2011.
2.The Applicant and the First Named Respondent do file and serve anything in reply by 31 January 2011.
3.The matter be otherwise adjourned for mention on 15 February 2011 at 10.00 a.m.
AND THE COURT NOTES THAT:
A.The letter from the Department of Human Services dated 17 December 2010”
Application to be removed as a party
In accordance with those orders, the second-named respondent filed the application that is referred to in the above orders. The orders sought by the second-named respondent in a response filed on 17 January 2011 are:
“1.The second-named respondent be removed as a party to this case.
2.That the second respondent not bear the costs, as sought, by the applicant in her initiating application filed on 12 November 2010.”
In support of that application the second-named respondent has caused to be filed two affidavits. There is the affidavit of Ms D which was affirmed on 12 January 2011. There is also the affidavit of Ms R which was sworn on 13 January 2011. The second-named respondent has also filed a case outline document which provided:
“A. Affidavits, Applications or Response intended to be relied on
1. The Second Respondent relies on its Response filed in January 2011 to the Initiating Application and its Application in a case filed in January 2011.
2. The Second Respondent relies on the following Affidavits:
(a)Affidavit of the Second Respondent, Ms R, sworn on 13 January 2011;
(b)Affidavit of Ms D, Child Protection worker, affirmed on 12 January 2011.
Final orders sought
1. That the Second Respondent be removed as a party to this case.
2. That the Second Respondent not bear costs as sought by the Applicant in her Initiating Application filed on 12 November 2010.
Submissions as to the final orders sought
1. This proceeding relate to parenting responsibilities for the child, [X] born [in] 1999, whose parents are the applicant and the first respondent.
2. The Second Respondent is a senior executive officer of the Department of Human Services (“the Department”) in the State of Victoria and has responsibilities delegated by the Secretary to the Department (“the Secretary”) for the overseeing and administration of the delivery of child protection services in the Southern Metropolitan Region of the department.
3. The Secretary has powers and functions under the Children, Youth and Families Act 2005 (Vic) (“CYFA”) in relation to the protection of children. Those statutory functions and powers include the responsibility to investigate reported welfare concerns about a child and the power to apply for a State child protection order from the Children’s Court of Victoria in relation to a child who has been assessed to be in need of protection.
4. The Secretary’s delegates in the Department’s Southern Metropolitan Region Child Protection Program were required to investigate a number of reported concerns made in October 2010 in respect of the wellbeing of [X]. Having investigated the reports, the child was residing with the First Respondent, who Child Protection Officers have assessed as a protective parent.
5. Rule 6.02 of the Family Law Rules 2004 states that:
(1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
(2)If an application is made for a parenting order, the following must be parties to the case:
(a) the parents of the child;
(b)any other person in whose favour a parenting order is currently in force in relation to the child;
(c)any other person with whom the child lives and who is responsible for the care, welfare and development of the child;
(d) if a State child order is currently in place in relation to the child — the prescribed child welfare authority.
(3)If a person mentioned in subrule (2) is not an applicant in a case involving the child, that person must be joined as a respondent to the application.
6.“State child order” is defined in the Family Law Act 1975 as an order under the law of a State:
(a)That (however it is expressed) has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18: or
(b)That (however it is expressed) has the effect of determining the person or persons to spend time with a child who is under 18: or
(c)That (however it is expressed) has the effect or providing for contact between a child who is under 18 and another person or persons, or that provides for a person or person to have access to a child who is under 18.
7.The Secretary is the prescribed child welfare authority for Victoria, as provided by regulation 12BA of the Family Law Regulations 1984.
8.There is currently no State child order in relation to the child. Accordingly, the Secretary in her role as the prescribed child welfare authority for Victoria or her delegate, the Second Respondent, is not a necessary party in this proceeding and should not be joined as a party to the proceeding.
9.The Secretary does not seek to intervene in this proceeding and does not consent to an order being made in her favour in this proceeding.
10.For the reasons advanced above, it is requested that the Second Respondent be removed as a party to this case.
11.It is also submitted that the Second Respondent not bear the costs as sought by the Applicant in her Initiating Application filed on 12 November 2010 and the issue of costs be decided in accordance with s117 of the Family Law Act 1975.”
It appears that the applicant was not actually served with those documents until 24 January 2011. That is seven days after the date in the orders of 21 December 2010. The applicant has had, nonetheless, three weeks between then and today to file some material as she was asked to do in accordance with the orders of 21 December 2010. She hasn’t filed anything further.
Today, 15 February 2011, the applicant has again appeared in person. Mr Moisidis has entered an appearance on behalf of the first respondent, and Ms McNaught has appeared on behalf of the second-named respondent. It was confirmed with the other parties that they understood the purpose of today’s mention, and that they received the material that the second respondent would rely on for the purposes of dealing with its application. The matter was stood down so the applicant could have the chance to see the duty lawyer. The matter came back to Court and it was confirmed that the second-named respondent wished to proceed with the application. The first-named respondent consented to the orders sought by the second-named respondent, and the applicant opposed those orders.
Approach to application
The rules of this Court relevant for the purposes of this application are those set out in Rule 11.04 of the Federal Magistrates Court Rules 2001:
“(1) A party to a proceeding may apply to the Court to be removed as a party.
(2) The party must file an affidavit stating:
(a) the relationship (if any) of the applicant to each other party; and
(b) the evidence in support of the application.
(3) The party must serve a copy of the application and affidavit on each other party in the proceeding.”
Also relevant for present purposes, at least for the purposes of the second respondent’s application, is a recent decision of the Full Court of the Family Court in Secretary of the Department of Health and Human Service & Ray and Others (2010) FamCA FC 258.
This decision was brought to the attention of the parties. Paragraphs 47 through to 96 of the Full Court’s decision in that matter are as follows:
“47.The Secretary’s first ground of appeal asserts that there was no power in the Family Court to order his joinder as a party to the proceedings in question. The second and third grounds are directed to asserted requirements for the Secretary to be willing to assume responsibility for the subject children, and to consent to being joined in the proceedings. The fourth and additional ground (added by leave at the hearing of the appeal) asserts that the provisions of the Act on their true construction, do not apply to a person such as the Secretary who exercises “powers and duties in right of the State of Tasmania”.
48.The fundamental question which arises out of the grounds when considered overall, and which is formulated in light of the submissions of the Solicitor-General for Tasmania, is whether a court exercising jurisdiction under the Act has the power to make an order concerning a child, in favour of (and thus order the joinder in the relevant proceedings of) a person, who is not “a necessary party” to the proceedings, who does not seek to intervene in the proceedings, and who does not consent to an order being made in his or her favour.
49.The expression “a necessary party” as used by the Solicitor-General when posing this fundamental question, is derived from r 6.02 of the Rules which is headed “Necessary Parties” and which although set out in part earlier, is now set out in full (but without including notes):
(1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
(2) If an application is made for a parenting order, the following must be parties to the case:
(a) the parents of the child;
(b) any other person in whose favour a parenting order is currently in force in relation to the child;
(c) any other person with whom the child lives and who is responsible for the care, welfare and development of the child;
(d) if a State child order is currently in place in relation to the child — the prescribed child welfare authority.
(3)If a person mentioned in subrule (2) is not an applicant in a case involving the child, that person must be joined as a respondent to the application.
50.A second question which, it was common ground, arises on the appeal is whether if the power referred to in the first question exists, was it properly exercised in the circumstances of this case.
51.At this point, we will provide only an outline of the submissions put on behalf of the Secretary in support of the appeal, and of the submissions put in opposition to the appeal, by the Solicitor-General for the Commonwealth on behalf of the Intervener Attorney-General (with those latter submissions being adopted by the Independent Children’s Lawyers). The submissions will, where necessary, be explained more fully in later discussion.
52.The submissions contained in the written summary of argument on behalf of the Secretary were principally directed to establishing that none of the three bases on which Benjamin J apparently relied to make the order joining the Secretary (being, s 31 coupled with Division 12A of Part VII of the Act; s 67ZC of the Act; or the accrued jurisdiction of the Family Court), would provide power to make the order.
53.In his oral submissions the Solicitor-General for Tasmania argued that the parens patriae power as exercised either through the “welfare” power in s 67ZC or through the accrued jurisdiction, could not be relied upon to join and make orders concerning a child against an unwilling stranger; otherwise that power would amount to a form of “civil conscription”.
54.Specifically in relation to s 67ZC, the Solicitor-General relied on the limits on the power in that provision arising from the High Court decision in MIMIA v B. The Solicitor-General also relied on the provisions of s 69ZK and of s 91B (both of which are earlier set out) as statutory recognition by the Commonwealth of the independence of the State child welfare systems from the federal family law jurisdiction.
55.Junior Counsel for the Secretary also relied on the existence of s 69ZK and s 91B in his submissions in support of the additional ground of appeal, which asserted that Part VII of the Act did not bind the State of Tasmania. Junior Counsel also made submissions directed to establishing (particularly from a historical perspective) that the parens patriae jurisdiction of the Tasmanian Supreme Court (if it could be exercised by the Family Court on an accrued basis) did not permit the joinder of a party in circumstances where he or she did not wish to participate, and also did not permit the making of an order against a party once joined which that party “specifically eschewed”.
56.We turn now to the submissions made on behalf of the Intervenor Attorney-General, which were supported and adopted by the Independent Children’s Lawyers, who had in addition also each filed their own written submissions.
57.Although it was conceded in the written outline of argument on behalf of the Attorney (paragraph 10), that there is a general presumption “that a Commonwealth Act does not intend to bind (in the sense of imposing obligations on) State officials”, it was submitted that this was not an inflexible rule, and whether or not a Commonwealth Act is intended to bind State officials is a matter of statutory interpretation to be determined largely by the subject matter and purpose of the relevant legislation. It was further submitted on behalf of the Attorney-General, that Part VII is binding on State officials as a matter of necessary implication, and that accordingly, a parenting order or order under s 67ZC (and consequently a joinder order) could be made against the Secretary even without his consent.
58.Support for the proposition that there is power to make an order binding the Secretary even without his consent, was submitted by the Solicitor General for the Commonwealth to be found: first, in s 65D(1) as applied by s 69ZH; secondly, in s 67ZC, again as applied by s 69ZH; and thirdly, and alternatively, in the parens patriae jurisdiction of the Tasmanian Supreme Court, which falls within the accrued jurisdiction conferred on the Family Court by s 31(1)(d) of the Act read with s 69H(1).
59.The first of these three arguments is based on s 65D(1) which provides:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
60.Also relevant to the Solicitor-General’s argument concerning the operation of s 65D(1) are:
· Section 64C which provides that a parenting order may be made in favour of a parent or other person.
· Section 64B(6) which provides that for purposes of the Act:
…
(d) a parenting order that:
(i) allocates parental responsibility for a child to a person; or
(ii) provides that a person is to share parental responsibility for a child with another person
is made in favour of that person.
…
· Section 65C which provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
61. It was the submission of the Solicitor-General that once the father of the subject children in this case and his partner had made an application under s 65C for parenting orders, the jurisdiction of the Court (provided for in s 31(1)(d); s 69H(1); and s 69ZH) was engaged, and the Court had the power under s 65D(1) to make such parenting order as it thought proper, including in favour of a person who was not an applicant and who did not consent.
62.The Solicitor-General was, however, prepared to concede that it would be an extremely rare case where it would be an appropriate exercise of the power to make an order in favour of a person who did not consent, but he submitted that such discretionary considerations would not limit the power.
63.In relation to s 67ZC (the so-called “welfare” power, which is earlier set out), the Solicitor-General endeavoured to distinguish such limitations as might be seen as having been placed on that provision by the High Court decision in MIMIA v B, on the basis that in that case, unlike in the present case, there was no application for parenting orders and the orders sought had nothing to do with “parental responsibility” (as defined in s 61B). However, as we understood the Solicitor-General’s submissions, he would only seek to rely on s 67ZC, if his first argument based on s 65D(1) failed.
64.The Solicitor-General did, however, make detailed oral submissions to us regarding the jurisdictional and constitutional basis provided by s 69ZH for the application in relation to children of a marriage of the sections of Part VII which he contended would bind the Secretary, being notably s 65D(1) and s 67ZC. We do not consider it necessary to repeat those submissions given our later conclusion in relation to the question of whether the sections just mentioned can be interpreted as permitting an order for parental responsibility to be made in favour of a person in the position of the Secretary, who does not consent to the order. We would, however, observe that the submissions of the Solicitor-General concerning s 69ZH well illustrate the difficulties with the drafting of Part VII, particularly in relation to the jurisdiction conferring provisions, referred to by Gleeson CJ and McHugh J in MIMIA v B at [2].
65.Finally, and as an alternative to the arguments based on s 65D and s 67ZC, the Solicitor-General submitted that by virtue of the accrued jurisdiction, the Family Court could exercise the parens patriae jurisdiction of the Tasmanian Supreme Court, which he submitted, had not been abrogated by Tasmanian Statute law.
66.In relation to the reliance placed on behalf of the Secretary on the provisions of s 69ZK and s 91B as imposing limitations on the power of courts exercising jurisdiction under the Act to make orders placing obligations on him absent his consent, the Solicitor-General submitted that s 69ZK did no more than reflect “a policy choice made by Parliament as to the application of the Act”, and that it would not operate to prevent that joinder order being made, as that was not an order in relation to a child, but merely a procedural order.
67.So far as s 91B is concerned, it was the submission of the Solicitor-General that such a provision providing for voluntary intervention by a State officer was not indicative of a lack of power to bind that officer in the absence of intervention by the officer.
Discussion of the issues arising on the submissions
68.It must be remembered that the only questions which arise on this appeal are whether a court exercising jurisdiction under the Act has the power to make an order in favour of the Secretary requiring him to assume parental responsibility in relation to a child, absent his consent to the order, and absent any current responsibility on his part for the child under State law, and thus to make an order joining the Secretary in the parenting proceedings in which the order in his favour might be made, and if there is such power, whether it was appropriately exercised in this case.
69.There appeared to be no issue before us that in a case in which the Secretary has chosen to intervene (either at the Court’s request or at his own initiative), there would be power to make an order in his favour. (See s 91B(2)(b).)
70.There would also appear to be no issue that in a case in which the child is already in the care of the Secretary under a State child welfare order, that an order can only be made under the Act when the Secretary has consented to the institution or continuation of the proceedings in which the order is to be made, unless the order is to take effect when the child is no longer the subject of State orders. (See s 69ZK.)
71.Thus, we repeat, the question for us is whether the Act would permit the making of an order vesting some or all aspects of parental responsibility for a child in the Secretary, absent the Secretary’s consent and any current involvement by him with the child under State law.
72.The Act does not give any express or immediately clear answer to this question. The submission made on behalf of the Secretary in this regard was that the terms of s 91B and of s 69ZK were indicative of an intention not to bind the Secretary. We think that there is considerable force in that submission given the language of invitation used in s 91B and the effective paramountcy which s 69ZK gives to State child welfare orders. So far as s 69ZK is concerned, it is important to bear in mind the following observation made about that section by Gummow, Hayne and Heydon JJ in MIMIA v B (at [109]):
... Section 69ZK is a limitation upon the exercise of jurisdiction otherwise exercised under the Family Law Act. It is designed to give some measure of insulation to the operation of the child welfare laws of the States and Territories …
73.Neither Benjamin J in his reasons, nor the Commonwealth Solicitor-General in his submissions to us, was prepared to accept that s 91B supports the conclusion that an order in relation to children cannot be made in favour of the Secretary without his consent at least to being involved in proceedings under the Act.
74.It is thus necessary that we consider the other provisions of the Act on which his Honour and/or the Commonwealth Solicitor-General and also the Independent Children’s Lawyers relied as possible sources of power for the orders appealed. The question – which was disputed before us – as to whether the sections of Part VII relied on for this power, can bind a State official is also relevant, indeed fundamental, in this context.
75.It will be recalled that the first possible source of power on which his Honour relied was Division 12A of Part VII of the Act in combination with s 31 of the Act.
76.As his Honour recorded in paragraph 54 of his reasons, Division 12A “gives the court broad powers in managing proceedings to give effect to the underlying determination as to where a child lives, who sees and communicates with the child and who has parental responsibility”.
77.But as his Honour also recognised in paragraph 57, the Division “does not give any specific express power to join a party”. Nevertheless, he concluded that given the jurisdiction conferred on the Family Court, and the Court’s duty to make orders in the best interests of the child, the power to join and make orders requiring the Secretary to take responsibility for a child “now arises to give real meaning to the provisions of division 12A of the Act”.
78.We do not agree with his Honour that Division 12A either alone, or in concert with any other provision of the Act, would support the order joining the Secretary. In our opinion, the Division (which is headed “Principles for conduct of child related proceedings”) is essentially concerned with procedure and evidence; it is not concerned with people who may be parties to proceedings. We note that the Solicitor-General for the Commonwealth did not seek to rely on this aspect of his Honour’s reasoning.
79.However, so far as the issue of parties is concerned, the Solicitor-General for the Commonwealth, endeavoured to persuade us, as we have earlier explained, that s 65D(1) in combination with s 64C, s 64B(6) and s 65C (supported by the conferral of jurisdiction in s 69H(1) and s 69ZH) would permit the Commonwealth to impose parental responsibility on a person (including a person in the position of the Secretary) who did not wish to undertake that responsibility, if that was considered by the Court to be in the subject child’s best interests.
80.We are not persuaded that the sections relied on by the Commonwealth Solicitor-General, or indeed any other section in the Act, confers power on the Court to make an order which would impose obligations or responsibilities (other than financial obligations) on a person in relation to a child without that person’s consent where that person does not already have parental responsibility for the child.
81.It is, of course, true that the Court can, and does, make orders under the Act against persons who have parental responsibility, but who not only do not consent to the orders, but may have actively opposed the making of the orders. But even then common sense dictates that it would not usually be in a child’s interests for the child to be placed in the care or under the responsibility of a person who did not wish to assume that care or responsibility. If the legislature had intended that obligations in relation to, and responsibility, for a child could be imposed on persons who do not already have parental responsibility for that child, it is only to be expected that it would have expressed such an intention in clear terms. It has not done so.
82.We consider that the conclusion we have just reached concerning the absence of power under s 65D(1) (in combination with the other sections relied on by the Commonwealth) to make a parental responsibility order “in favour of” a person who does not otherwise have parental responsibility and who does not consent to that order, applies not only to private persons, but also to a person in the position of the Secretary who has duties and responsibilities in relation to the care of children under State law. Support for the conclusion that an order conferring parental responsibility for a child on a person in the position of the Secretary can only be made where that person is willing to accept such responsibility, is to be found in the decision of the Full Court in Faulkner and McPherson, CJ v Rugendyke; Department of Community Services (1995) FLC 92-630.
83.Notwithstanding that decision, we note that it was suggested in the written submissions on behalf of the Independent Children’s Lawyer for A that there are considerations which would more strongly support the placement of a child within the care or responsibility of an unwilling government or public official or institution rather than placement with an unwilling private person. However, this suggestion overlooks the fact that there will be both State statutory and resource constraints on the freedom of action of a person in the position of the Secretary. In our view, it is not for a federal court to instruct the Secretary as to how he should prioritise the use of his resources or exercise his State powers.
84.Perhaps more fundamentally, however, the difficulty in the present case for those opposing the appeal remains the need to find an intention in s 65D(1) (and the other sections in question) to bind a State official, such as the Secretary. (See in this regard the decisions of the High Court in Bropho v State of Western Australia and Anor (1990) 171 CLR 1 and Jacobsen v Rodgers (1994) 182 CLR 572.) We cannot discern such an intention.
85.As will be recalled, it was the position of the Commonwealth Solicitor-General that if he failed to persuade us that s 65D(1) (and the other sections relied on by him in conjunction with that section) would support the power to order the Secretary to assume parental responsibility for a child absent the Secretary’s consent, then he would seek to rely on s 67ZC and its provision that the Court has in addition to other jurisdiction conferred in Part VII, the “jurisdiction to make orders relating to the welfare of children”. Again, it would be necessary to establish that this provision by necessary implication is binding on the Secretary as a State official.
86.We understood it to be accepted in the submissions made by both Solicitors- General that the High Court decision in MIMIA v B imposes some limits on the potential application of s 67ZC. However, the Commonwealth Solicitor-General sought to distinguish the present case from MIMIA v B on the basis that that case was not concerned with the parental responsibility of parties to a marriage for a child of the marriage, whereas the present case is concerned with the issue of the parental responsibility of parties to a marriage for their children.
87.But even if this distinction between the facts of MIMIA v B and the present case is accepted, the judgments of Gleeson CJ and McHugh J and also of Gummow, Hayne and Heydon JJ in the former case pose formidable difficulties for any attempt to rely on s 67ZC to support the orders appealed in the present case.
88.In MIMIA v B Gleeson CJ and McHugh J, observed at [13] that s 67ZC “does not itself impose any substantive liabilities or duties or confer rights or privileges on any person”. Then later at [52] their Honours further observed (emphasis added):
52. By necessary implication, the Family Court may also make an order under s 67ZC that is binding on a parent. Under that section it may also make orders such as those made in Marion’s Case or those analogous to orders traditionally made by courts exercising the parens patriae jurisdiction. Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes — expressly or inferentially — any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties — for example, ss 65M, 65N and 65P — that Part is concerned with the relationship between parents and children and parents’ duties in respect of their children. We have already set out s 60B(1), which states the object of Pt VII. Section 60B(2) declares:
‘‘The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.’’
89. Gummow, Hayne and Heydon JJ then observed at [105]:
… in its terms, s 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage …
90.In view of these observations in relation to s 67ZC by the various members of the High Court, it is difficult to understand how the section could be said to bind the Secretary by necessary implication.
91.We have thus concluded that there is no provision in Part VII of the Act which would provide power to make parental responsibility orders in favour of the Secretary to which he did not consent. This conclusion derives support from the following further observations by Gleeson CJ and McHugh J in MIMIA v B:
28. … Nor, when construed as a whole, does anything in Pt VII suggest that the Part was intended to give the Family Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.
92.We therefore turn to the remaining source of power relied on by both Benjamin J and the Commonwealth Solicitor-General, being the parens patriae jurisdiction of the Tasmanian Supreme Court which might be available to the Family Court through its accrued jurisdiction. We see two difficulties with the attempts to rely on this jurisdiction.
93.First, having regard to the detailed submissions made by Junior Counsel for the Secretary in relation to the history and context of the parens patriae jurisdiction of the Tasmanian Supreme Court, we are not persuaded that it would support an order which required the Secretary to assume parental responsibility for the children in question.
94.Secondly, we accept the submission made on behalf of the Secretary that there was, at the time of the making of the order appealed, no claim or proceeding in existence which involved the Secretary under State law and which might form part of the controversy between the children’s parents and other relatives which was pending in the Family Court. We understood the Commonwealth Solicitor-General to submit that no such State law claim or even dispute was actually required and that “the matter” pending in the Family Court could be said to encompass all aspects of the children’s welfare including State law aspects. We do not accept that submission. In our view, High Court authorities such as Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 and Re Wakim; Ex P McNally (1999) 198 CLR 511 all indicate that some dispute or claim or proceeding must be pending at State law in order for the accrued jurisdiction to be available. There was no suchim not o pending dispute, claim or proceeding existing under Tasmanian law at the time the orders appealed were made.
Conclusion
95.We have thus determined that none of the sources of power relied upon by Benjamin J, or on behalf of the Commonwealth Attorney-General and the Independent Children’s Lawyers, would be available to support the making of an order for parental responsibility in favour of the Secretary, absent his consent. Accordingly, the order joining the Secretary should not have been made. The appeal against that order and the consequential order should be allowed and the orders set aside.
96.By way of conclusion, we would also say that we appreciate the dilemma which Benjamin J found, or was concerned that he would find himself in, being what arrangements could be made for the care of the children if, and when, all private parties before him were to be found wanting as carers for the children. We acknowledge the co-operation that courts exercising jurisdiction under the Act regularly receive from various State and Territory child welfare departments and agencies, and we also understand the resource problems which such departments and agencies have. But notwithstanding these considerations, we consider it necessary to observe that this case illustrates the need for continuing attempts to harmonise in some way the administration of State and Federal laws concerned with the welfare of children.”
It is apposite for the purpose of these proceedings that at the end of paragraph 96 the Full Court in that decision said:
“We consider it necessary to observe that this case illustrates the need for continuing attempts to harmonise in some way the administration of state and federal laws concerned with the welfare of children.”
Submissions
Ms McNaught for the second respondent has identified the material that her client relied on which have been read. I incorporate into these reasons the submissions that counsel made in support of the orders that she sought on their behalf. Those submissions essayed in considerable detail firstly the factual dispute between the parents of the child the subject of the application, the involvement so far as the evidence on the Court file was able to illustrate it of the second respondent with the parties, and any protective concerns and actions that the second respondent had taken, as well as the status of the second respondent vis-à-vis any orders that could be made under the Family Law Act 1975 (Cth) (“the Act”). The first-named respondent had nothing to add in addition to the submissions made by counsel for the first respondent and confirmed that the second respondent, as the father of the child the subject of the application, did not oppose the orders sought that the second respondent be removed as a party to these proceedings.
The applicant was given an opportunity to make submissions in the face of the orders sought by the second respondent. The applicant said as she understood it both of the other parties appeared to have ignored the existence of what she said were orders of the Family Court in force in relation to the child. The applicant’s view was that the material relied on by the second respondent in the context of the orders that they sought was defamatory. Whilst the applicant acknowledged having had contact with at least one of the departmental officers referred to in the material, she says she only saw her for 15 minutes.
The applicant maintained that she says that she believed that they should still be party to these proceedings. When asked to identify the section in the Act which could be relied on to make the orders she sought against the second respondent given the issues referred to in the above case, she indicated she did not believe she was able to do so.
Conclusion
To make an order in the context of parenting proceedings this Court needs to be satisfied that there is jurisdictional basis for it to do so. The Full Court’s decision, the salient details of which I have already incorporated into these reasons, sets out the powers of a court exercising jurisdiction in parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”). It also identifies the basis upon which a party such as the second respondent may be a party for those proceedings.
Given that discussion and the orders sought by the applicant I note the second respondents submissions that:
“1.This proceeding relate to parenting responsibilities for the child, [X] born [in] 1999, whose parents are the applicant and the first respondent.
2.The Second Respondent is a senior executive officer of the Department of Human Services (“the Department”) in the State of Victoria and has responsibilities delegated by the Secretary to the Department (“the Secretary”) for the overseeing and administration of the delivery of child protection services in the Southern Metropolitan Region of the department.
3.The Secretary has powers and functions under the Children, Youth and Families Act 2005 (Vic) (“CYFA”) in relation to the protection of children. Those statutory functions and powers include the responsibility to investigate reported welfare concerns about a child and the power to apply for a State child protection order from the Children’s Court of Victoria in relation to a child who has been assessed to be in need of protection.
4.The Secretary’s delegates in the Department’s Southern Metropolitan Region Child Protection Program were required to investigate a number of reported concerns made in October 2010 in respect of the wellbeing of [X]. Having investigated the reports, the child was residing with the First Respondent, who Child Protection Officers have assessed as a protective parent.
5.Rule 6.02 of the Family Law Rules 2004 states that:
(1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
(2)If an application is made for a parenting order, the following must be parties to the case:
(a) the parents of the child;
(b) any other person in whose favour a parenting order is currently in force in relation to the child;
(c) any other person with whom the child lives and who is responsible for the care, welfare and development of the child;
(d) if a State child order is currently in place in relation to the child — the prescribed child welfare authority.
(3)If a person mentioned in subrule (2) is not an applicant in a case involving the child, that person must be joined as a respondent to the application.
6.“State child order” is defined in the Family Law Act 1975 as an order under the law of a State:
(a)That (however it is expressed) has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18: or
(b)That (however it is expressed) has the effect of determining the person or persons to spend time with a child who is under 18: or
(c)That (however it is expressed) has the effect or providing for contact between a child who is under 18 and another person or persons, or that provides for a person or person to have access to a child who is under 18.
7.The Secretary is the prescribed child welfare authority for Victoria, as provided by regulation 12BA of the Family Law Regulations 1984.
8.There is currently no State child order in relation to the child. Accordingly, the Secretary in her role as the prescribed child welfare authority for Victoria or her delegate, the Second Respondent, is not a necessary party in this proceeding and should not be joined as a party to the proceeding.
9.The Secretary does not seek to intervene in this proceeding and does not consent to an order being made in her favour in this proceeding.”
Given the orders sought in the initiating application, on the basis of the material filed on behalf of the second respondent in the context of this application I am satisfied that it is appropriate that the second respondent be removed as a party to this case. I am not satisfied they are a necessary party to these proceedings and note they do not consent to being involved.
The applicant prepared her material herself. However in order to be satisfied in the face of the second respondent’s position (which was confirmed as long ago as 17 December 2010) that they should remain a party the applicant needed to identify a section of the Act upon which the Court could rely to make an order continuing the involvement of or against the second respondent in these proceedings. On the material before the Court I am not satisfied it is appropriate or indeed necessary that the second respondent continue to be involved as a party in these proceedings. I will make orders in accordance with the orders sought in the response filed on 17 January 2011 for those reasons, and I so order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 15 February 2011
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