S and T
[2002] FMCAfam 215
•12 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & T | [2002] FMCAfam 215 |
| FAMILY LAW – Jurisdiction – child subject to Order of Supreme Court of Queensland and Family Court of Australia. |
Childrens Services Act 1965 (Qld), ss.49L, 102
Commonwealth Powers (Family Law – Children) Act 1990 (Qld), s.3
Supreme Court Act 1991 (Qld)
Family Law Act 1975, ss.60H, 692K
Re: Tobin (1995) QdR 89
Schorel v. Elms (2000) FLC 93-019
| Applicant: | S |
| Respondent: | T |
| File No: | ZB 4100 of 2002 |
| Delivered on: | 12 July 2002 |
| Delivered at: | Brisbane |
| Hearing date: | 1 July 2002 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Cassidy |
| Solicitors for the Applicant: | Neilson Stanton & Parkinson |
| Respondent: | In person |
ORDERS
That in respect of the objection by the MOTHER to the Court’s exercising jurisdiction, I find that the Court has jurisdiction to hear the matter.
That pursuant to section 62G of the Family Law Act, a short report be prepared for the Court by a Counsellor or Welfare Officer nominated by the Director of Court Counselling. In addition to any matters that the reporter considers important to the welfare of the CHILD, J born
10 January 1989 the following matter should be covered:(a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes.
That this matter be listed for further mention in the Court within
14 days of the report of the Court counsellor being released.
IT IS DIRECTED:
That the MOTHER file and serve by 26 July 2002 a short affidavit as to the current situation of the CHILD including he context of any expressions or wishes given to the MOTHER by the CHILD.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 4100 of 2002
| S |
Applicant
And
| T |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter has had a very complex history, concerning arrangements for a child, now 13 years of age, named J born 10 January 1989. The Applicant is the biological father of the child. He claims this Court has jurisdiction to make orders sought by him, for the initial appointment of a Child’s Representative and ultimately, a contact order.
The Respondent says this Court has no jurisdiction to make any orders for the reasons which I shall explore.
Background
J came into the temporary care and protection of the Director of the (then) Department of Family Services and Aboriginal & Islander Affairs on 9 April 1992 and a final order was made at the Murgon Childrens Court pursuant to s.49 of the Childrens’ Services Act 1965 (Qld) on 16 June 1992.
The child was placed with the Respondent (T) and her husband (as approved persons), by the Director on 8 May 1992.
On 20 October 1993, Justice White of the Queensland Supreme Court gave reasons in respect of the application made to the Court by the Ts, in the Court’s inherent jurisdiction (see Re: Tobin (1995) QdR 89).
It is clear from the decision of White J, that in making certain orders relating to J, Her Honour was exercising that inherent jurisdiction which had been preserved under s102 of the Children’s Services Act 1965.
After discharging the Children’s Court order, Her Honour ordered that:
“C & Tobin have joint guardianship and custody” of J
and further that the natural father S (the Applicant in the Application before me):
“have access to the child once in each 3rd months period in Brisbane for a maximum period of 2 hours” subject to various conditions.
As a result of the separation of C & T in 1996, on 17 April 1997, Jordan J in the Family Court of Australia at Brisbane made an order for the child to reside with T and have contact to C. This order was apparently made by consent.
In 1987 certain of the States referred powers to the Commonwealth in relation to ex-nuptial children and that referral was accepted by the Commonwealth. Queensland referred that power by means of the Commonwealth Powers (Family Law – Children) Act 1990 (Qld). The operative section of the Act came into force in August 1990 and s.3 of the Act provided, relevantly:
“(1) The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day this section commences and ending on the day fixed pursuant to section 4:
(a) the maintenance of children and the payment of expenses in relation to children or child bearing;
(b) the custody and guardianship of, and access to, children.
(2)The matters referred to the Parliament of the Commonwealth pursuant to subsection (1) do not include the matter of adoption of children or the matter of the taking, or the making of provision for or in relation to authorizing the taking, of action that would prevent or interfere with –
(a) a Minister of the Crown, an officer of the State or any other person having or acquiring the custody, guardianship, care or control of children under a provision of an Act specified in Schedule I;
(b) the maintenance of, or the payment of expenses in relation to, children who are in such custody, guardianship, care or control;
(c) the jurisdiction of the Supreme Court, or a Court of the State under a provision of an Act specified in Schedule I, to make Orders or take any other action in respect of –
(i)the adoption of children;
(ii)the custody, guardianship, care or control of children; or
(iii)access to children or the supervision of children.”
Her Honour considered the interpretation of s.3(2) of the Commonwealth Powers (Family Law – Children) Act 1990 (Qld) and after observing that the Queensland Act did not follow precisely the model of the other States' Reference of Powers legislation, concluded that:
“The better approach seems to be to read s3(2) as a whole which reveals that Parliament intended to exclude from reference matters relating, inter alia, to the custody, guardianship, care and control of children subject to the child welfare legislation set out in Schedule I.”
Schedule I, at the time, included the Children’s Services Act1965 (Qld) and now includes, in substitution, the Child Protection Act1999 (Qld).
White J specifically found –
(a)the applicants could not bring an action under the Children’s Services Act 1965 because the Act did not enable an application for custody to be made by other than an applicant entitled to parental rights where there is a living parent; and
(b)that she was able to exercise the inherent jurisdiction of the Supreme Court notwithstanding the referral of powers. Her Honour determined the inherent jurisdiction was preserved by s.102 of the Children’s Services Act1965 and the reference to that Act in Schedule I.
It seems to me, that by discharging the child from the orders made in the Children’s Court and then exercising the inherent jurisdiction of the Supreme Court the status of the child changed from being a child under the State Welfare law to a child dealt with under the inherent jurisdiction of the Queensland Supreme Court.
The decision of White J appears to be at odds with a decision of the Full Court of the Family Court in Schorel v. Elms (2000) FLC 93-019, where the Court considered similar Victorian legislation Commonwealth Powers (Family Law – Children) Act 1986 (Vic) and s.3(2) of that Act. The case concerned the jurisdiction of the Family Court to entertain an application relating to a child who had been made a ward of the Supreme Court of Victoria in 1988.
Sub-section 3(2) of the Queensland Act differs from the Victorian Act considered in Schorel’s case in that:
(a)sub-section 3(2)(c) and (d) of the Victorian Act is consolidated into one sub-section, 3(2)(c) in the Queensland Act.
(b)Relevantly in this case, the Victorian legislation specifically refers to “the jurisdiction of the Supreme Court to make orders in respect of children who are in such custody, guardianship care or control”.
Which seems to refer to children “under the provision of an Act specified in the Schedule”
Whereas the later Queensland legislation does not mention “such” children and says:-
“the jurisdiction of the Supreme Court, or a Court of the State under a provision of an Act specified in Schedule I…….”
As indicated White J did not believe the differences in the other States’ legislation affected its meaning or its intent.
The Full Court said, in respect of the Victorian referral of matters that:-
“As the Supreme Court’s wardship or inherent jurisdiction is not based on any of the Acts in the Schedule, but founded in the Supreme Court Act 1958 (Vic), the Commonwealth ‘acquired legislative power in relation to the custody and guardianship of and access to children who were wards of the Court as a result of the wardship jurisdiction by the Supreme Court’”. (at page 87,330).
I am bound by the decision of the Full Court which I find extends to J who was the subject of orders made in the inherent jurisdiction of the Queensland Supreme Court, upon the discharge of the order made under the Children’s Services Act 1965.
I cannot agree with the written submission by Counsel for the Respondent that
“Justice White of the Supreme Court exercised the inherent jurisdiction of that Court pursuant to s102 of the Children’s Services Act 1965 in making the order that J be placed in the guardianship and custody of the Respondents.”
Section102 of the Children’s Service Act 1965 is not the head of power for exercise of inherent jurisdiction – the Supreme Court Act 1991 (Qld) at the time was the source of the power. Section102 merely ensured that power was not affected by the enactment of the child welfare legislation.
The second part of this interesting matter relates to the impact of s.60H of the Family Law Act1975.
Ms Cassidy for the Applicant referred me to the commentary of the learned authors of the Australian Family Law Service (Butterworths) on s.60H and s.69ZK, in which after expressing a view as to why the old s.60H still applies in Queensland (with which I agree), said that the restriction in sub-section 60H(1) had caused difficulty in its operation.
Counsel did not refer me to any authority where the “difficulty” had been judicially considered. Certainly the view expressed by the said learned authors as to why s.60H still operates in Queensland was supported, so far as the analogous Victorian position was concerned, by the Full Court in Schorel v. Elms (ob cit @ paragraph 27).
Section 60H(1) provides that:
“(1) A Court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law……….”
The term “child welfare law” was defined in the former s.60 as meaning
“a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition”.
The prescribed laws are set out in Schedule 5 of the Family Law Regulations. The Children’s Services Act1965 was so prescribed at the time of the Order of White J.
In Schorel v. Elms, the Court expressed the tentative view that s.60H of the Family Law Act has no application
“to the exercise of jurisdiction under the Act relating to children who are wards of the Supreme Court or otherwise affected by orders made by the Supreme Court under its inherent wardship jurisdiction.”
Furthermore, although not argued before me, the order made by Jordan J (founded it should be assumed on an acceptance of available jurisdiction) may also be regarded as the basis upon which the child is in her “custody” and not a “child welfare law” as defined in s.60H.
For these reasons, I find that this Court has jurisdiction to consider applications relating to J and will now hear submissions as to the appropriate orders to be made by me.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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