TANNER & WAGNER

[2011] FMCAfam 663

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TANNER & WAGNER [2011] FMCAfam 663

FAMILY LAW – Children – application for parenting orders.

PRACTICE & PROCEDURE – Jurisdiction – child welfare law – where an order under the Children and Young Persons (Care and Protection) Act 1998 (NSW) s.79 applies to the child – child welfare officer – where consent not obtained from a child welfare officer – application not competent – application dismissed for want of jurisdiction.

Family Law Act 1975 (Cth), ss.4, 69ZK
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss.78, 79
Family Law Regulations 1984 (Cth), Regs.12B, 12BA, Sch. 5

Applicant: MS TANNER

Respondent: MR WAGNER

File Number: SYC 2218 of 2011

Judgment of: Scarlett FM

Hearing date: 4 July 2011

Date of Last Submission: 4 July 2011

Delivered at: Sydney

Delivered on: 4 July 2011

REPRESENTATION

Solicitor for the Applicant: Ms Mantel

Solicitors for the Applicant: Bankstown Legal

Respondent: No appearance

ORDERS

1. The application is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Tanner & Wagner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2218 of 2011

MS TANNER

Applicant

And

MR WAGNER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for various parenting orders by the maternal grandmother of a child called [X] who is three years old. [X] was born [in] 2008. The orders are sought against the child’s father.

2. The orders that are sought are that:

   a)The child live with the Applicant;

   b)The child spend time with the Father each second Sunday, on the child’s birthday and at such other times as the parties agree;

   c)That the child be supervised by the Applicant during the time he spends with the Father; and

   d)Other ancillary orders.

3. Unfortunately, the Court has no jurisdiction to hear the application.

4. The Applicant has disclosed in her affidavit in support that on 6^th August 2008 the Children’s Court of New South Wales at Campbelltown made an Order under the provisions of s.79(1)(a)(iii) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), granting parental responsibility of the child [X] to the Applicant until the child attains the ago of 18. The Court also made an order accepting Undertakings by the child’s mother.

5. The Applicant also states that a Care Plan under s.78 of the Act was filed at the Children’s Court on 30^th July 2008. The Applicant deposes that the Care Plan provided that the Respondent Father should have supervised contact with the child on six occasions per year. A copy of the Care Plan was not provided to this Court.   

Jurisdiction

1. The Family Law Act 1975 imposes a limitation on the power of the Court to make orders concerning a child subject to a child welfare law of a State or Territory.

2. The Children and Young Persons (Care and Protection) 1998 (NSW) is a child welfare law under s.4(1) of the Family Law Act (see Family Law Regulations 1984 (Cth) Reg.12B(2), Sch.5).

3. Section 69ZK of the Family Law Act 1975 provides that:

   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.

4. Division 7 does not apply.

5. A child welfare officer is defined by s.4(1) as a person who holds or performs the duties of, a prescribed office of the particular State or Territory or a person authorised in writing by such person. Regulation 12BA states that, for New South Wales, the office of Minister for Community Services is a prescribed office in relation to the Children and Young Persons (Care and Protection) Act 1998.

6. The orders sought are not expressed to come into effect when the child ceases to be under the care of a person under the Children and Young Persons (Care and Protection) Act 1998. The Applicant has not obtained the written consent of a child welfare officer of the State of New South Wales, being an officer of the NSW Department of Family and Community Services.

7. Consequently, the Court has no jurisdiction to make the orders sought and the application must be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  5 July 2011