Stuckey and Asquith

[2012] FamCA 994

FAMILY COURT OF AUSTRALIA

STUCKEY & ASQUITH [2012] FamCA 994

FAMILY LAW – JURISDICTION – application by the proposed interveners to adjourn the proceedings – where the children are in the care of child welfare authorities and therefore fall within the definition of s 69ZK – where the Court was of the view that the current proceedings in the Family Court should be concluded – application dismissed.

Family Law Act 1975 (Cth) s 69ZK

APPLICANT: Ms Stuckey

PROPOSED INTERVENERS:

Mr Asquith and

Ms Asquith

INTERVENER Office of Children and Families

INDEPENDENT CHILDREN’S LAWYER: Elliott Lawyers

FILE NUMBER: ASC 15 of 2012

DATE DELIVERED: 20 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Collier

SOLICITOR FOR THE APPLICANT: Central Australian Women’s Legal Service Inc

COUNSEL FOR THE INTERVENER: Mr Whitelum

SOLICITOR FOR THE INTERVENER:	Office of Children and Families
COUNSEL FOR THE PROPOSED INTERVENERS:	Mr Barry

SOLICITOR FOR THE PROPOSED INTERVENERS: Cecil Black Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICIITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Elliotts Lawyers

Orders

UPON NOTING the Court does not grant the adjournment of the proceedings sought on behalf of the proposed interveners and considers the proceedings to be at an end and the proceedings should therefore in this Court be concluded.

IT IS ORDERED THAT

1. The Initiating Application filed on 14 June 2012 by the maternal grandmother is dismissed.

2. The Application in a Case filed on 13 November 2012 by the proposed interveners is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ASC 15 of 2012

Ms Stuckey

Applicant

And

Ms Asquith and Ms Asquith

Proposed Interveners

And

Office of Children and Families

Intervener

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

1. In the matter which is currently before me, clear reference needs to be given to section 69ZK of the Family Law Act 1975 (Cth) (‘the Act’), which states quite clearly:

   (1) A court having jurisdiction 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.

2. I am told by counsel for the Chief Executive Officer (‘the CEO’) of the Office of Children and Families in the Northern Territory, that the children are now under the care of the CEO in the Northern Territory and, therefore, the children fall within the definition of section 69ZK.

3. The order that I am being asked to make today is to adjourn the matter, so that consideration can be given to whether the order in relation to the proceedings in the protection jurisdictions of the Northern Territory is going to be challenged. 

4. That is what could be described as purely a procedural or interim order. 

5. The provisions of section 69ZK(1)(b) has an alternative that the order may be made in proceedings relating to the child where there is the written consent of the relevant officer of the Northern Territory.

6. That is not the case in this matter. There is no written consent for the continuation of these proceedings within this Court. Therefore, section 69ZK(1)(b) does not apply.

7. It is correct that, in theory, the Court would have jurisdiction to make an order under section 69ZK(1)(a) to come into effect in two years time if the order of the Protection Court is not at that time extended and has expired. It would be possible, in a technical sense, to adjourn these proceedings.

8. However, when considering the principles in relation to both the specific provisions which relate to the best interests of the children and the common sense provisions to acknowledging the jurisdiction of the Northern Territory Family Division, I am not satisfied that it would be either appropriate or in the best interests of the children to continue this set of proceedings. 

9. It would be best if one Court had the matter in its jurisdiction and dealt with it appropriately. 

10. The orders of the Family Matters Court have been made.  If those orders cease, whether because of the time running or because of some sort of successful appeal or intervention, then the proceedings in this Court can be renewed and dealt with at short notice. 

11. I, therefore, do not grant the adjournment of the proceedings sought on behalf of the proposed interveners and consider the proceedings to be at an end.  The proceedings in this Court should therefore be concluded.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 November 2012.

Associate: 

Date:  29 November 2012