RICHTER & RICHTER

[2018] FamCA 1044

FAMILY COURT OF AUSTRALIA

RICHTER & RICHTER [2018] FamCA 1044

FAMILY LAW – CHILDREN – Jurisdiction – Where child subject to welfare law orders in Victoria – Where application dismissed for want of jurisdiction.

Family Law Act 1975 (Cth) s 69ZK
Children, Youth and Families Act 2005 (Victoria)

APPLICANT: Mr Richter

RESPONDENT: Ms Richter

FILE NUMBER: PAC 1266 of 2018

DATE DELIVERED: 20 November 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 20 November 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: No appearance

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders Made On 20 November 2018, Upon Noting There Is No Appearance By Or For The Applicant Father Or The Respondent Mother

1. The application initiating proceedings filed 23 March 2018 be dismissed for want of jurisdiction pursuant to section 69ZK of the Act.

2. The proceedings be removed from the active pending cases list.

3. The Applicant father, Mr Richter, be restrained from again commencing parenting proceedings in relation to the subject child, X born … 2013, without providing to this Court the written consent of a child welfare officer of the relevant State or Territory having jurisdiction over the child by reason of a care or child welfare law.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richter & Richter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1266 of 2018

Mr Richter

Applicant

And

Ms Richter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings, commenced by the applicant father, by way of an Initiating Application filed on 23 March 2018.  In that Initiating Application, the father sought various inelegantly expressed orders that in essence provide for the subject child, X, born 2012, to live with the father, and for the father to have sole parental responsibility for the said child.

2. The father’s application was first listed before a Registrar on 23 March 2018.  It appears that on that date, proceedings were adjourned by the Registrar to 4 April 2018, with the father ordered to amend his application so as to seek to add a further respondent to the proceedings, a Ms B.  Ms B, as it is apparent, is the person who, at the time of the application being commenced, had the care of the subject child.

3. Subsequently, on 15 May 2018, the application again came before a Registrar.  The application had not been served on either the respondent mother or the second respondent, Ms B.  On that date, it was brought to the attention of the father that there were care proceedings pending in relation to the child in the Children’s Court of Victoria, and the father was invited to withdraw his application on the basis that the child was subject to a relevant care order, as contemplated by the provisions of section 69ZK of the Act.

4. Section 69ZK relevantly provides as follows:

   (1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

   (a)the order is expressed to come into effect when the child ceases to be under that care;  or

   (b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

5. There is no evidence that the father has not obtained the written consent of the relevant child welfare authority in Victoria to the commencement by him of proceedings relating to the subject child.

6. On 15 May 2018, the father’s proceedings were further before a Registrar, and in chambers, the Registrar on that date directed the father to file with the Court orders made in the Children’s Court of Victoria on 28 June 2018.  Those orders and reasons for judgment of the presiding Magistrate in the Children’s Court of Victoria were duly provided to the Registrar on 28 August 2018.

7. The Registrar informed the father that as a consequence of orders made on 28 June 2018, this Court, by reason of the provisions of section 69ZK of the Act, has no jurisdiction to make orders in relation to the subject child.

8. The father then sought an adjournment of proceedings, informing the Registrar that he had made an application for Legal Aid, seeking to continue the proceedings with the assistance of a grant of aid.  The Registrar remitted these proceedings, on 28 August 2018, for judicial case management today, 20 November 2018.  There is no appearance by or on behalf of the applicant father today, and, in all of the circumstances, as outlined above, it is considered appropriate to resolve these proceedings promptly according to law.

9. Marked before the Court today as exhibit “A” is the certified extract of the orders made by the Children’s Court of Victoria on 28 June 2018.  The orders made by the Children’s Court of Victoria, pursuant to the provisions of the Children, Youth and Families Act 2005 (Victoria) are as follows:

   (1)The Court orders that parental responsibility for the child ([X], born … 2012) be conferred on the Secretary, to the exclusion of all other persons.

   (a)This order remains in force until 28 June 2020, but ceases to be in force when the child attains the age of 18 years, or when the child marries, whichever happens first.

   (b)The Court directs the Secretary to review the operation of this order before the end of the period of 12 months after the making of this order.  Following a review, the Secretary, with the agreement of the child (if the child is aged 10 years or older) and the child’s parent may determine that the order should end.  The Secretary must notify the Court of such a determination, and must notify the child (if the child is aged 10 years or older) and the child’s parent if the order ends.

10. Reasons of the presiding Magistrate of 28 June 2018 is marked into evidence as exhibit “B” in these proceedings.  It is readily apparent that the findings of the Children’s Court of Victoria were indeed adverse to the applicant father and the respondent mother, with the reasons finding that the child was at risk of serious harm in the care of either parent.

11. The second respondent to these proceedings is the person with whom the child has been placed in care.

12. Accordingly, in all of the circumstances, the only order that can be made by this Court is that the present proceedings be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 November 2018.

Associate:

Date:  20 November 2018