Templeton and Champion

[2013] FCCA 737

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEMPLETON & CHAMPION [2013] FCCA 737

Catchwords:
FAMILY LAW – Parenting proceedings – child subject to care order of NSW Children’s Court – father and maternal grandmother seeking parenting orders to take effect while care order in force – necessity for written consent of Minister for Community Services or his or her authorised delegate to continuation of proceedings.

Legislation:  

Family Law Act 1975, ss.4(1), 65C, 69ZK

Family Law Regulations 1984, Reg.12BA

Applicant: MR TEMPLETON

Respondent: MS CHAMPION

File Number: PAC 2058 of 2012

Judgment of: Judge Halligan

Hearing date: 12 June 2013

Date of Last Submission: 12 June 2013

Delivered at: Parramatta

Delivered on: 12 June 2013

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondent: In Person

ORDERS

I make the following order: 

1. The application in a case of Ms O is dismissed.

2. The proceedings will be listed for final hearing when hearing dates become available in relation to change of name and overseas travel.  Estimated hearing time:  two days.

3. Both parties shall file and serve all further affidavit evidence together with the list of documents to be relied on at the hearing not less than 21 days before the hearing, and neither party may rely on any affidavit filed otherwise.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 2058 of 2012

MR TEMPLETON

Applicant

And

MS CHAMPION

Respondent

REASONS FOR JUDGMENT

1. There are parenting proceedings pending before this court in relation to a child, X, born on (omitted) 2006.  Last year, X’s father filed an application seeking to change the child’s name and to have a passport issued for the child.  He sought permission to take the child out of Australia.  The mother has opposed that application.

2. X is the subject of orders of the New South Wales Children’s Court.  The orders in relation to X made by that court deal with the child’s parental responsibility and place the child in the care of the father, subject to conditions, and also provide for time that the child is to spend with the mother.

3. Because of the order of the Children’s Court - it was made on

   
   

   17 December 2007 to run until X is 18 - the power of courts under the Family Law Act to make parenting orders (other than child maintenance orders) is restricted (Family Law Act 1975, s.69ZK). The power to make a parenting order that takes effect while the Children’s Court order remains in force can only be exercised if there is written consent of the relevant state “child welfare officer” to the continuation of the family law proceedings. By virtue of the definition of “child welfare officer” in s.4(1) of the Family Law Act and Reg.12BA of the Family Law Regulations 1984, in New South Wales that means there must be written consent of the NSW Minister of Community Services or his or her authorised delegate to the continuation of the parenting proceedings.

4. This matter has been adjourned on a few occasions, once the need for that consent became apparent, for the father to obtain the relevant written consent, and he has only today filed an affidavit which attaches what appears to be an undated letter from a person from Community Services New South Wales indicating that the Director-General consents to the father’s application proceeding in this court.

5. On 7 June, the child’s maternal grandmother filed an application in a case seeking to be joined as a party in the proceedings and seeking a range of orders, including orders to spend time with the child on particular bases, to be kept informed by the father of certain things about the child, and related matters.  It is that particular application that I am now determining.

6. Grandparents have the right to bring proceedings for parenting orders under the Family Law Act, the same as a parent can, without first obtaining leave of the court to do so (Family Law Act, s.65C). But this court’s power to make any parenting orders under the Family Law Act on an application by a grandparent is subject to the same conditions as if the application was brought by a parent or anybody else, that is, if there is a relevant order of a state children’s court in force in relation to the child, as there is in this case, then the court cannot deal with the application absent the written consent of the relevant state child welfare authority to the continuation of the proceedings.

7. The grandmother has indicated that she does not have that consent.  The nature of the orders that she seeks bear no relation to the orders that are sought in the father’s application.  They are therefore not covered by the consent that he has obtained to the court dealing with his application.  That consent would be sufficient to cover any orders sought by another party to the proceedings that relate to the same matters, that is, the child’s name and issues of overseas travel by the child, but they go no further.

8. The orders that the grandmother would seek do not relate to either the child’s name or overseas travel by the child, and they are therefore outside the ambit of the consent from the Director-General.  In those circumstances, at the moment there is no point in the court granting the grandmother leave to be joined as a party to these proceedings or otherwise attempting to deal with the substance of her application, as the court cannot entertain the substantive application she seeks to bring.  In the circumstances, therefore, I propose to dismiss her application in a case.

9. If subsequently the grandmother obtains the consent in writing of the NSW Minister for Community Services or his or her authorised delegate to the maternal grandmother instituting and continuing proceedings for the orders she wishes to seek under the Family Law Act, then she may make a further application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Date:  5 July 2013