Naber and Grogan
[2018] FCCA 1562
•22 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NABER & GROGAN | [2018] FCCA 1562 |
| Catchwords: FAMILY LAW – Parenting – practice and procedure – where the Independent Children’s Lawyer seeks to join the Department of Family and Community Services to proceedings – where the application for joinder is opposed by the Department – consideration of whether the Court is vested with jurisdiction to join the Department to proceedings where such joinder is opposed – consideration of overlap between State and Federal jurisdiction. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60CG, 65C, 67ZBB, 68N, 68P, 68Q, 68R, 68S, 68T, 69C, 69ZK, 69ZX, 91B, div.12A |
| Cases cited: Secretary of Department of Healthand Human Services & Ray and Ors [2010] FamCAFC 258 Articles Cited: Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) Australian Law Reform Commission, Terms of Reference, Review of the family law system, 27 September 2017:
Rosalind Croucher, ‘Family law: Challenges for responding to family violence in a federal system’ in Alan Hayes & Daryl Higgins (eds), Families, policy and the law (Australia Institute of Family Studies, 2014) 207-214 Justice Michael Kirby, ‘Child Welfare Law Reform: A study in Incompatible Goals’ Paper presented at La Trobe University Department of Social Work Human Resource Centre Seminar, 9 June 1980 |
| Applicant: | MR NABER |
| Respondent: | MS GROGAN |
| File Number: | PAC 5066 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 22 January 2018 |
| Date of Last Submission: | 22 January 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 22 January 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Simpson of Sydney Family Law Specialists Pty Ltd |
| Solicitors for the Independent Children’s Lawyer | Ms Coady of Louise Coady Family Lawyers Pty Limited |
| Solicitors for the proposed Intervener: | Ms Heartstein of Crown Solicitors Office |
THE COURT ORDERS THAT:
The matter is listed for Final Hearing before Judge Harman at 10.00am on 12-13 March 2018 and to continue until completion.
Direct the Applicant to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 23 February 2018.
Direct the Respondent to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 23 February 2018.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Dismiss the Application in a Case filed 14 December 2017 and remove that Application from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Naber & Grogan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5066 of 2014
| MR NABER |
Applicant
And
| MS GROGAN |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today, as one would have it, for the penultimate Court event prior to the final determination of the proceedings.
The matter has been on foot for some little time now, having been commenced by an Application filed in the Local Court in the latter part of 2014. The matter has taken an unfortunately long time to reach this point. The matter will now be heard expeditiously given that there is real clarity as to the parties’ proposals, the issues in dispute and the parties to the proceedings. The last of those issues is relevant for today’s purposes.
At their commencement, these proceedings had a very different factual background to that presently presented. At that point in time, the young child, the subject of these proceedings, [X], was living with her father and was spending infrequent and sporadic time with her mother. That was through no fault of the mother.
Events took a substantial turn in 2016/17, at which time [X] commenced to reside with her mother. [X] then had little time with her father, but some regularity to those arrangements has now returned.
Thankfully, throughout, young [X]’s interests have been capably represented by an Independent Children’s Lawyer, who has sought to valiantly advance this child’s interests. Those exertions extend to and include the aspect of the matter that brings the proceedings before the Court today, being an Application in a Case that was filed on 14 December 2017 and which sought an Order for the joinder of the Department of Family and Community Services or the Secretary thereof. That Application had followed upon the most recent section 91B Family Law Act 1975 request for the Department’s intervention. That most recent request was made as the Department has had a long history of involvement with [X], and the evidence of each party, if taken on its face as more probably correct than not and ultimately established as proven, might suggest that neither party was an appropriate carer.
That statement is not made to cause any distress or upset to either of these parties, but simply to acknowledge that the allegations that they make, each of the other, are significant. Indeed, the allegations are of such significance as to have attracted the interest of the Department of Family and Community Services towards this family however constituted from time to time.
The request for intervention was declined by the Department. That is no criticism. The reasons for the Secretary of the Department having declined that are set out in correspondence forwarded to the Court on 19 October 2017. However, subsequent to that correspondence, communications occurred between the Independent Children’s Lawyer and a legal officer of the Department. That communication suggested that a new and “open” investigation was on foot with respect to [X].
It would seem that the investigation still remains on foot, although, at this point, the Court is advised that there is no intention by the Secretary to commence proceedings in the Children’s Court under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the NSW Act). That, perhaps, suggests that the threshold required for such action, a risk of serious harm,[1] has not yet been achieved.
[1] Sections 34 and 36 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The Department, having declined to intervene, and the Independent Children’s Lawyer, on the basis of the evidence available to them, clearly entitled to infer that if one or other of the parties was successful in proving that which they alleged that there would be no satisfactory carer for the child, has brought the Application. The Application is, perhaps, brought out of frustration or a desire to ensure, as is consistent with the high standard to which the office of the Independent Children’s Lawyer has been discharged in these proceedings, that this young person’s interests were met and abundantly so.
The Application is now before the Court for a second occasion. On the first occasion there was no appearance by the Department. On this occasion, all parties are present and the Application can be dealt with and disposed of.
The Court’s attention is drawn to the decision of the Full Court of the Family Court of Australia in Secretary of Department of Health and Human Services & Ray and Ors [2010] FamCAFC 258. Therein, their Honours dealt with a circumstance not dissimilar to that raised in this case. The sage and rational basis upon which the first instance Judge had proceeded to make an Order for joinder of a Child Welfare Agency without the Agency’s consent is summarised by the Full Court of the Family Court of Australia at paragraph 46 of the Appellate Judgment. Their Honours ultimately concluded that the Court was not vested with jurisdiction to join the Secretary over and above objection and absent consent.
The gravamen of the decision delivered by the Full Court of the Family Court of Australia is set out at paragraphs 82 onwards of the decision and in particular, at paragraphs 82, 91 and 93 thereof, which I incorporate and adopt herein.
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) 19 Fam LR 507 ; (1995) FLC 92-630.
91. We have thus concluded that there is no provision in Pt 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 ( at [28] ):
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.
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.
Their Honours were also particularly persuaded by comments made by various of the plurality of the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, (as summarised at paragraph 88 and which paragraph I also incorporate herein):
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.”
Ultimately, as would be apparent from the above passages, their Honours concluded, at paragraph 91, that there is no provision in Part VII of the Family Law Act 1975 which would give power to make parental responsibility Orders in favour of the Secretary in circumstances where the Secretary did not consent.
On that basis, the Application for non-consensual joinder must fail. However, I do not cavil with or criticise the motivation for the Application and, indeed, I express some sympathy for that motivation. I share Justice Benjamin’s frustration that because of the duality of systems, with Commonwealth and State systems operating, children’s interests can, sometimes, be less than ideally addressed. To the extent that the systems operate separate and largely in isolation, it must be noted that section 69ZK of the Family Law Act 1975, in fact, prioritises the State and Territory jurisdiction above the Federal, even though this Court and the Family Court are at a higher level in the hierarchy of Courts.
Justice Benjamin’s frustration, and mine if I might adopt his Honour’s sentiment, is apparent in his Honour’s words:
In cases such as this that a child is to be left without someone exercising parental responsibility … That cannot be the law in Australia in the twenty first century.
Regrettably, it is and will be if, ultimately, the parties are successful in demonstrating the lack of capacity that each has initially alleged of the other. That would then be the very circumstance that would arise. Thankfully it would seem, from the proposals that the parties now place before the Court, that such suggested incapacity is no longer pressed. It would seem that the issues for trial now comprise the allocation of parental responsibility as between the parents and the amount of time that this young girl will spend with her father, with whom, it must be remembered, she has spent a significant period of her life living with on a full-time basis.
The dispute would now seem to be largely focused upon whether mid-week, school term time should occur weekly or fortnightly, and what is to occur during school holidays. That is a matter abundantly capable of resolution now there is clarity as to proposals.
Before passing from the issue, it must be observed that these issues, regarding the division of work between State and Federal Courts, have the potential to cause real disadvantages for families and children. That is not to suggest that it is the intent of the legislation or anyone involved in the administration and the application of that legislation that it be so.
These difficulties were first discussed by the Australian Law Reform Commission in the early 1980’s in a Report under the hand of Justice Kirby.[2] In 2010, such difficulties were again discussed by the Australian Law Reform Commission in their Report on family violence and the national legal response,[3] particularly at paragraphs 19.31, 19.32, 19.35 and 19.37:
[2] Australian Law Reform Commission, Child Welfare, Report No 18 (1981).
[3] Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010).
19.31 At the same time as care proceedings are being contemplated or dealt with in state and territory children’s courts, there may also be applications in federal family courts for parenting orders. Criminal proceedings in relation to the same experiences of violence or abuse may also be pursued in state criminal courts. Related applications for protection orders may also be made, generally in state magistrates’ courts. Child protection cases may therefore potentially present themselves in three different jurisdictions.
The impact of multiple jurisdictions and services
19.32 That families may be involved in proceedings in more than one jurisdiction is a recurring theme of the interactions under review in this Inquiry. The need to go to multiple courts increases the possibility of inconsistent orders, and the possibility that people will drop out of the system without the protections they need, thus putting them at risk of further violence and abuse. It also increases costs and stress on families at a very difficult time. Children in particular may find the uncertainty and delay difficult to handle. One nine year-old child said:
I felt worried that mum was going to go back and forth and back and forth and it wasn’t going to stop … [I felt] freaked out, I couldn’t get to sleep, I had nightmares, I was crying a lot … [It was just all] horrible and frightening.
19.35 The tensions between different parts of the system have been attributed to the different cultures and histories of the different parts of the system. In the United Kingdom, Professor Marianne Hester refers to the three ‘planets’ of domestic violence, child protection and parenting orders:
Domestic violence work in the UK (and many other countries) has been influenced by feminist understanding of domestic violence as gender based, and tends to see the problem as (mainly) male perpetrators impacting on (mainly) female victims or survivors. The work of child protection services in the UK has a very different history to that of domestic violence, with the family, and in particular ‘dysfunctional’ families, as central to the problem. Within this approach the focus is on the child and her or his main carer, usually the mother. These structural factors, with domestic violence and child protection work on different ‘planets’, have made it especially difficult to integrate practice, and have resulted in child protection work where there is a tendency to see mothers as failing to protect their children rather than as the victims of domestic violence, and where violent male perpetrators are often ignored. These difficulties are made even more complex where both child protection and arrangements for child visitation post separation of the parents intersect. Within the context of divorce proceedings, mothers must be perceived as proactively encouraging child contact and must not be attempting to ‘aggressively protect’ their children from the direct or indirect abuse of a violent father. The child protection and child visitation/contact planets thus create further contradictions for mothers and children: there may be an expectation that mothers should protect their children, but at the same time, formally constituted arrangements for visitation may be implemented that do not adequately take into account that in some instances mothers and/or children may experience further abuse.
19.37 It is apparent from the discussion above that the fragmented nature of the system for dealing with child protection and family violence can create difficult problems for the families who must use the system. The system may make sense to those who work within it, but those who use it can find it confusing and intimidating.
Those comprising the Commission on that occasion concluded at paragraph 19.44 commenting that the need for review of the intersection of child protection laws, family laws and criminal laws is apparent:
19.44 The need for review of the intersections of child protection laws, family laws and criminal laws is apparent from the discussion above. This Report is by no means the only review of these problems. The interactions between the family law and child protection systems have been addressed by the Family Law Council in 2002 and in 2009; by the ALRC and the then Human Rights and Equal Opportunity Commission (HREOC) in the report, Seen and Heard: Priority for Children in the Legal Process (ALRC Report 84); and by Professor Richard Chisholm’s Family Courts Violence Review (Chisholm Review).
In 2014, Rosalind Croucher wrote an erudite essay: Family law: Challenges for responding to family violence in a federal system[4] including the view, under the heading “Different Planets” (an apt phrase when comparing the Federal and State jurisdictions):
…from the point of view of parents and children engaging with legal frameworks in which issues of family violence and child abuse arise, the system should be as seamless as possible, so that whatever point a child and his or her parents encounter the legal system they should not feel lost in a maze or be blocked by frequent dead ends.
[4] Rosalind Croucher, ‘Family law: Challenges for responding to family violence in a federal system’ in Alan Hayes & Daryl Higgins (eds), Families, policy and the law (Australia Institute of Family Studies, 2014) 207-214.
One would hope that the current Australian Law Reform Commission Review, headed by Professor Rhoades, might touch upon and lead to reform regarding the issue. There is some scope for it to be so from a consideration of the Terms of Reference[5] although, again, the nature of the division of powers between Commonwealth and State Agencies may well impede this. The Honourable George Brandis QC, Attorney-General of Australia, as he then was, had indicated that the Commission was called having regard, amongst other things, to:
the jurisdictional intersection of the federal family law system and state and territory child protection systems, and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation be dealt with in the same proceedings;
the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes;
[5]Australian Law Reform Commission, Terms of Reference, Review of the family law system, 27 September 2017:
Ultimately, one of the specific terms of reference is to review the extent to which present laws meet the desire for the protection of the best interests of children. It is an issue long overdue for review and consideration.
In 1975, when the Family Law Act 1975 was passed, there was a clear delineation of work. The Federal system, under the Family Law Act 1975, dealt with the children of marriage arising from matrimonial causes under section 51 of the Commonwealth of Australia Constitution Act 1900. All other children, whether in private or public disputes, were left to the State domain.
In 1987, the States and Territories collectively, (except for Western Australia with its own system), referred the power over private disputes regarding ex-nuptial children, as they were then referred commonly, to the Commonwealth, with the effect that all children involved in private family law disputes were dealt with in the Commonwealth system, whilst those involved in public dispute involving State and Territory Child Welfare Agencies, remained in a State system. Why such a duality arose at that time is unclear, and to adopt the language of Benjamin J, why it is necessary in the 21st century beggars belief.
The difficulties that arise for children given the difficulty of dual systems, (and I make clear there is no criticism whatsoever of the Department intended by these comments) are numerous and well documented. What is criticised is the duality of legislation.
That one child might be dealt with in two different systems, in two very different ways, must be seen by parents involved in proceedings as ludicrous. In reality, children are dealt with in potentially one or more of 10 different systems, (as every State and Territory within the Commonwealth has its own system of care and protection laws together with the Federal system (Family Court and Federal Circuit Court of Australia) and the Family Court of Western Australia).
There are a number of potentially significant benefits to children and their families if their needs and interests could be dealt with by one Commonwealth system. The most immediate benefit would be uniformity with one set of legislation, one standard, one test (the child’s bests interests[6] of which protection from harm is a significant consideration),[7] one set of proceedings with rules of evidence. All children irrespective of where they may be within the Commonwealth and irrespective of their needs would be dealt with on the same footing.
[6] Section 60CA of the Family Law Act 1975.
[7] See sections 60B(1)(b), 60CC(2)(b) and (2A), 60CC(3)(k) and (j), 60CG, 67ZBB, 68N-T and 69ZX of the Family Law Act 1975.
Under the Family Law Act 1975, Courts largely deal with disputes involving separated and dysfunctional families. The State system deals with dysfunctional families, whether separated or not. Thus, address of dysfunction is nothing new to the Federal system. The term, “dysfunctional” is not used to cause offence to these or any other parties. It is used in its broader sense, considering the family as a system and as a dysfunctional system that is not functioning optimally or so as to appropriately protect and produce benefit for children.
The present duality leaves a great hole for children’s welfare. This hole is filled with disadvantage. Children can be caught between systems when children are not yet at a point where a risk of serious harm is apprehended such as to compel action by a State Child Welfare Agency. It may leave the disadvantage of children without remedy or redress, where the parents do not see the need to bring proceedings and no action is taken by a Child Welfare Agency.
The present duality leaves the Federal system disadvantaged. The Federal system has no investigative capacity beyond that which is offered by Family Report Writers and Part 15 Experts. The investigative and prosecutorial role of the Department is not available to this Court. All that can be done by this Court is to obtain information from the Department by subpoena, a section 69ZW Order, or, as is increasingly beneficial, by utilising the provisions of Chapters 16 and 16A of the NSW Act to obtain information from, not only the Department, but a broad array of persons who come into contact with children (at least in NSW).
Proceedings under the Federal Act can be commenced by parents, grandparents, children or any person with a sufficient interest in the care and well-being of children.[8] Proceedings in the State jurisdiction can only be commenced by the Department. Parents cannot initiate care and protection proceedings. Only the prosecutorial and investigative body comprising the Department can.
[8] Sections 65C and 69C of the Family Law Act 1975.
The fundamental irony is that the two systems, in fact, often deal with the same families. The jurisdictions often overlap. Indeed, in recent research of my own (to shortly be published), approximately one third of cases before this Court involve significant investigation, if not past action, by State Child Welfare Agencies, albeit falling short of a care and welfare Order being made. Thus, in one third of cases, the two systems are dealing with exactly the same people. In reality, in approaching 93% of cases, the Police and this Court deal with exactly the same people. The Police similarly are a State Agency with an investigative and prosecutorial role.
Why there is a need, in a country with a population of 24 million people, to have two parallel processes, which divide the same children between them, often duplicating action in relation to their interests, is completely unclear but, in any event, is completely unnecessary.
That parents might be involved in Local Court proceedings for their personal protection, in Children’s Court proceedings in relation to some disputes with State Child Welfare Agencies regarding the care of their children and in this Court for disputes with each other, (or perhaps both Courts, at different points in time) is simply a waste of Government resources, the resources of parents (financial and emotional) and, ultimately, and most importantly, a significant disadvantage to children.
This Court’s jurisdiction is practised by reference to the primary considerations in section 60CC(2) of the Act, being that the best interests of children are promoted by meaningful relationships with their parents, provided that children are protected from subjection or exposure to family violence, abuse or neglect (the same three terms that are used in the legislative instruments of States and Territories in care and protection jurisdictions). Importantly, section 60CC(2A) of the Act, prioritises the need for protection over all else. The jurisdiction of State and Territory Children’s Courts to act with respect to children at risk of serious harm and requiring care and protection is remarkably similar to, if not identical, to this Federal jurisdiction in purpose. There is no difference between the two systems. They are simply different processes that deal with the same children but in different ways.
One of those ways is the application of the rules of evidence. Rules of evidence developed to protect and ensure the integrity of decision making and to protect the citizen from the might of prosecutorial bodies. Rules of evidence apply under the Family Law Act1975 subject to the restrictions of Division 12A. But, in any event, by reference to section 69ZX(3) of the Act, the rules of evidence essentially apply in all cases as the weight to be attached to evidence which is not otherwise admissible is little, if any. Non-application of the rules of evidence is a significant issue as it means a most important decision might be made with respect to a child without the integrative protections of the rules of evidence that are available in every other jurisdiction.
If one contemplates, for one moment, that the parents of a child who is suggested to be at serious risk of harm were facing criminal prosecution, then those parents would have something approaching a right to legal representation, particularly if a significant period of imprisonment were contemplated (see Dietrich v R (1992) 109 ALR 385). They would have the protection of the rules of evidence and they would have the protection of a burden of proof falling upon the prosecutorial Agency at the criminal standard, (i.e. beyond all reasonable doubt). And yet the removal of that family’s children, as no criticism of the Department and certainly not of my colleagues in the Children’s Court for whom I have the highest respect and admiration (their workload and, indeed, the nature of their workload is far more onerous than mine), is not subject to the protection of the rules of evidence.
Without rules of evidence, a matter proceeds on the basis of such material as is placed before the Court[9] weighed as best as can be done. It is a difficult task.
[9] This is, in part, what Kirby J alluded to as “the tension between the ‘interventionist’ approach and the ‘due process’ approach” which Kirby J noted may “…never be perfectly reconciled”: Justice Michael Kirby, ‘Child Welfare Law Reform: A study in Incompatible Goals’ Paper presented at La Trobe University Department of Social Work Human Resource Centre Seminar, 9 June 1980.
One would think that those very parents, if given the option of a period of imprisonment for themselves without trial, legal representation or rules of evidence, or the removal of their children, would elect a period of imprisonment.
There is no reason why this Court could not assume all jurisdiction with respect to children and, whilst it would require some constructive interpretation of the terms of reference, the present Australian Law Reform Commission inquiry might contemplate why it is not so.
This Court has an after-hours duty roster such that 24 hours a day, 365 days a year, (366 in leap years), there is a Judicial Officer available on-call to make emergency Orders. That would obviate against, for example, the need for powers of removal to be exercised without judicial oversight (analogous to the Police being required to obtain a Warrant of Arrest in many circumstances or, for that matter, a Warrant to obtain evidence).
This Court can make Orders regarding all aspects of a child’s care, welfare and development. There is a restriction in some States and Territories on the types of Orders that can be made by Children’s Courts, such that if one considers the type of Orders that might be made with respect to the continuation of a child’s relationship with a parent with whom they do not live, the two jurisdictions produce outcomes that are remarkably different. This Court has no caveat upon its ability to make Orders in relation to children and the time they spend with others, whilst there are some restrictions upon what might be referred to as contact Orders in some State jurisdictions.
Similarly, the jurisdiction to review Orders once made is similar in both. In this jurisdiction, the Rice & Asplund (1979) FLC 90-725 test, as it has come to be known, requires that a change in circumstances be demonstrated but with the child’s best interests always as the paramount consideration. Section 90 of the NSW Act allows an Application to be made for variation of an Order when there has been a significant change in relevant circumstances (although, section 90 goes on to give far more specific guidance as to what might be taken into account).
All of the above disadvantages could be resolved by investing the Federal jurisdiction with the capacity to deal with all children, irrespective of whether the Court’s intervention was a public dispute regarding care and protection or whether it was a private dispute. There is simply nothing logical about the division of work between the two systems. It is no more logical than the historical mistake of the City of Sydney being situated on the Southern shore of the Parramatta River rather than the North. If those who arrived in the First Fleet in 1770 had arrived on the North shore of the harbour, that might have become the focus of the city (with the construction of the Harbour Bridge, it became increasingly apparent that one can, in fact, do business on both sides of the harbour). However, we do not have two cities, North and South. We have one unified city with two areas.
There is no reason why children’s interests cannot, and should not be, dealt with in the same jurisdiction and one would hope that Professor Rhoades is able to, at least, comment on those issues.
It is a frustration that leads to this unsuccessful Application for joinder, motivated by a desire that all who have an interest in this young girl are able to have their say should they wish to, (and once they have had their say, that the matter is over rather than the subject of further proceedings in a different jurisdiction). I accept that, on this occasion, the Department does not wish to be involved and that is their right. However, one would hope that if these proceedings are now heard and determined in the next few months, that such Orders as are made are then respected by the parents and the Department and that there would be no Application in the State jurisdiction, either prior to or post those Orders, unless there was a substantial change in circumstances.
I am very grateful to the Department for having a legal representative attend before the Court today on short notice. It has been of great assistance and has clarified the issues and avoided further delay and inconvenience for these parties. That gratitude is genuine and sincere. However, the frustration that the matter cannot be dealt with in a fashion that enables all children – not just those of these parties – to have one Court that they turn to for all of the business that relates to their family is real as well.
For the reasons discussed above, the Application in a Case must be dismissed and removed from the list of cases awaiting hearing.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 21 June 2018
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