Wade & McPherson
[2013] FCCA 1583
•11 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WADE & MCPHERSON | [2013] FCCA 1583 |
| Catchwords: PRACTICE & PROCEDURE – Advisory opinion – where there is no controversy between the parties on a point – where there is no issue the Court declines to rule on the issue. PRACTICE & PROCEDURE – Case stated – where Applicant seeks that the substantive application is removed to the Full Court of the Family Court for a special case to be stated – the procedure under Family Law Act 1975 (Cth) s.94A should only be resorted to in exceptional circumstances – where factual issues neither long nor complex – question of law can be determined at first instance. |
| Legislation: Family Law Act 1975(Cth), ss.69ZF, 69ZG,69ZK, 70C, 94A, 94AAA, 121 Family Law Regulations 1984 (Cth), regs. 12B, 12BA, Sch 5 Commonwealth Powers (Family Law – Children) Act 1986) (NSW), s.3 |
| Fay & Turner [2008] FMCAfam 1508 In the Marriage of Daff (1982) 9 Fam LR 546; (1984) FLC 91-516 In the Marriage of Mullane (1980) 5 Fam LR 801; FLC 90-826 Re Felicity [2012] NSWSC 494 Re J (1990) 14 Fam LR 584 |
| Applicant: | MS WADE |
| Respondent: | MR MCPHERSON |
| File Number: | SYC 1930 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 23 September 2013 |
| Date of Last Submission: | 23 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Capellia Legal |
| Solicitors for the Respondent: | Little & Associates |
ORDERS
The Application in a Case filed on 8 May 2013 is dismissed.
The Initiating Application filed on 11 April 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wade & McPherson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1930 of 2013
| MS WADE |
Applicant
And
| MR MCPHERSON |
Respondent
REASONS FOR JUDGMENT
Application
The Respondent seeks an order for summary dismissal of the Application brought by the Applicant for parenting Orders concerning the parties’ daughter.
The Application seeks a declaration from the Court that s.69ZK of the Family Law Act 1975 (Cth) does not apply to orders of the Children’s Court of New South Wales made on 17 September 2010 concerning the child.
The Applicant has also brought an Application in a Case seeking removal of the proceedings to the Full Court of the Family Court under the provisions of s. 94A of the Family Law Act.
The Respondent has filed a Response seeking a dismissal of the Application for want of jurisdiction.
Background
The parties are the parents of a little girl who was born on (omitted) 2007. The parties were in a de facto relationship but separated in November 2007.
The child was removed from the mother’s care by the New South Wales Department of Family and Community Services in March 2009. On 17 September 2010 Orders were made by the Children’s Court of New South Wales placing the child in the shared parental responsibility of the father and the Minister for a period of twelve months. From and after that date the child was placed in the sole parental responsibility of the father.
A copy of the Orders made by the Children’s Court of New South Wales at Broadmeadow is annexed to the mother’s affidavit of 11 April 2013. The orders were made under the provisions of subparagraphs 79(1)(a)(ii) and 79(1)(a)(i) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The second of those Orders remains in force.
The thrust of the mother’s case is her claim that the father is not permitting her to have contact with the child.
The father deposed in his affidavit of 9 July 2013 that:
10. I say that this Court does not have jurisdiction to hear this matter under s69ZK.
11. The mother has not sought permission from Family and Community Services to have the matter determined by this Court and I do not consent to that occurring.[1]
[1] Affidavit of Mr McPherson 9.7.2013 at paragraphs [10]-[11]
Application in a Case
The mother filed an Application in a Case on 8 May 2013 in which she sought the following Orders:
1. That the hearing of this application is expedited.
2. Declaration that the applicant does not require written consent of a child welfare officer of the State of New South Wales.
3. That the question in (2) is removed to the Full Court of the Family Court pursuant to s 94A of the Family Law Act 1975.
4. Declaration that the respondent cannot preclude the applicant from continuing the substantive proceedings by registering in this Court orders of the Children’s Court at Broadmeadow of 17 September 2010 with respect to the child subject to the proceeding AB[2]DOB DD/MM/YY.[3]
5. That, optionally, the question in (4) is removed to the Full Court of the Family Court pursuant to s 94A of the Family Law Act 1975.
[2] The child’s name is not published under Family Law Act 1975, s. 121
[3] The child’s date of birth is not published
The Application in a Case is supported by:
a)the affidavit of the Applicant sworn 11 April 2013; and
b)the affidavit of her solicitor, Mr Potkonyak, sworn 8 May 2013.
The Applicant’s affidavit relates solely to the facts of her substantive Application.
The affidavit of Mr Potkonyak is in the form of a submission that there is a need for a case to be stated to the Full Court of the Family Court. In his affidavit he gives the following reasons at paragraphs [5], [6], [8] and [9]:
5. Since the current interpretation of s 69ZK of the Family Law Act 1975 appears to be that if there are any orders affecting a child under the provisions of a State welfare Act, any other court is precluded from making orders under the provisions of the Family Law act affecting that child unless those orders are to take effect upon the expiry of the first orders, or if a written consent is given by an authorised officer of a State welfare department. In my opinion such an interpretation is erroneous: if a child is subject to an order under s 79(1)(a)(i) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that child may be dealt with under the provisions of the Family Law Act, in a court of competent jurisdiction, without a written consent by an authorised officer to the NSW Family and Community Services or any other State department.
6. In order to avoid delay of the substantive proceedings it would be expeditious to deal with this preliminary issue as an early discrete event. Furthermore, the interpretation of s 69ZK should be removed to the Full Court of the Family Court pursuant to s 94A (Case stated) of the Family Law Act 1975.
…
8. Furthermore, there is a recent development in the Family Law jurisdiction that may affect the course of this proceeding. As of 1 January 2013, pursuant to s 70C of the Family Law Act 1975, Family Law Rules 2004 have introduced rule 23.01A authorising registration of a State child order in a court having jurisdiction under Part VII of the Family Law Act 1975. Such an order, after registration, has the same force and effect as if it were an order made by that court under Part VII of the Family Law Act 1975.
9. I have not sighted any recent decisions involving s 70C and rule 23.01A but, it appears, there is a need for an authoritative interpretation of the two provisions.[4]
[4] Affidavit of G. Potkonyak 8.5.2013 at [5]-[6],[8]-[9]
The Respondent filed a Response to the Application in a Case seeking an order that the Application be dismissed for want of jurisdiction and an Order for Costs.
Whether a Case should be stated to the Full Court of the Family Court
Section 94A provides at subsection (3):
If, in proceedings in the Federal Circuit Court of Australia, being proceedings in which a decree or decision to which subsection 94AAA(1) applies could be made, a question of law arises which:
(a) the Judge of the Federal Circuit Court of Australia; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:
(c) the Judge of the Federal Circuit Court of Australia must state the facts and question of law in the form of a special case for the opinion of a Full Court of the Family Court; and
(d) a Full Court of the Family Court must hear and determine the question.
Subsection 94AAA(1) provides that an appeal lies to the Family Court from a decree of this Court exercising original jurisdiction under the Family Law Act. Clearly, the Court is currently exercising original jurisdiction, as there is an Application for parenting orders by one party against the other (see in the Marriage of Daff[5], notwithstanding the fact that the Respondent seeks that the Application be dismissed for want of jurisdiction.
[5] (1982) 9 Fam LR 546; (1984) FLC 91-516
The question arises, though, as to why it would be preferable for this Court to state a Case to the Full Court of the Family Court rather than proceed to hear the case and make a decision, leaving it to whichever one of the parties is dissatisfied with the decision to appeal in the normal way.
I note the comments by Evatt CJ and Butler J about the procedure under s. 94A in In the Marriage of Mullane[6] where their Honours said at 802:
The use of this section can sometimes be an unsatisfactory way of resolving issues between parties to a matrimonial cause. Those issues are determined by the Full Court on the basis of a statement of facts agreed to by the parties or settled by the judge. Those facts may differ in some ways from those which are ultimately established by the evidence; alternatively, there may be factual information omitted from the case which the Full Court may consider important to its decision. There must, of necessity, be additional delay and cost involved in stating a case to the Full Court.[7]
[6] (1980) 5 Fam LR 801; FLC 90-826
[7] Emphasis added
Evatt CJ made further comments about the appropriateness of this procedure in In the Marriage of Daff[8] where her Honour said at 548:
I must…add that my view is that the procedure under s 94A should be resorted to only in exceptional circumstances, where it may be important to get a further opinion on a point of law before embarking on lengthy proceedings to determine complex facts. I very much doubt whether in the circumstances a case stated is appropriate, as the factual issues do not appear to me to be long or complex at all. It is a question of law which can well be determined at first instance.
[8] supra
It should be noted that it is only the Applicant who seeks that a case should be stated under s.94A. The Respondent does not consent. Under s.94A(3) the Judge and at least one of the parties must wish to have the question of law decided by the Full Court of the Family Court.
I am not satisfied that it is appropriate for a case to be stated. The facts of the matter are neither lengthy nor complex, in my view. The questions of law to be decided are in essence what the case is about, because if the Applicant is unsuccessful the Application will be dismissed for want of jurisdiction.
In my view, the procedure advocated by the Applicant will involve the parties in extra expense and, contrary to the submissions of the Applicant, will increase the delay rather than save time. The warnings by Evatt CJ in Mullane[9]and Daff are very apt, with respect.
[9] supra
I do not propose to accede to the Application to state a case to the Full Court of the Family Court. The Respondent seeks summary dismissal of the Application filed on 11 April 2013 and I propose to deal with the application for summary dismissal. The Respondent contends that this Court does not have jurisdiction to entertain the substantive Application.
In my view, the proper Court to decide whether the Federal Circuit Court has jurisdiction in this case is the Federal Circuit Court itself.
Section 69ZK of the Family Law Act
The Applicant, in her Initiating Application, seeks a declaration that s.69ZK of the Act does not apply to the Orders of the Children’s Court of New South Wales concerning the subject child. Section 69ZK states at subsection (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.
The editors of the CCH edition of the Australian Family Law Act 1975 32nd Edition have added a footnote to s. 69ZK(1) stating:
Section 69ZF provides for the Governor-General, by Proclamation, to declare that all child welfare provisions of Pt VII extend to a specified state. This section thus operates in its entirety only in the territories (under s 69ZG) and in those states in relation to which a proclamation has been made under s 69ZF.
A proclamation was made by the Governor-General on 4 December 1996 and gazetted on 11 December 1996 in respect of New South Wales.
The term “child welfare law” is defined by s.4(1) of the Act as meaning a law of a State or Territory prescribed for the purposes of the definition. The Children and Young Persons (Care and Protection) Act 1998 (NSW) is a prescribed law of a State for the purposes of s.4(1) (Family Law Regulations 1984 (Cth), subregulation 12B(2), Schedule 5).
The term “child welfare officer” is also defined by s.4(1) as a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory. Regulation 12BA provides:
For paragraph (a) of the definition of child welfare officer in subsection 4(1) of the Act, each of the following is a prescribed office:
(a) for New South Wales – the offices of:
(i) Minister for Community Services, in relation to the Adoption Act 2000 (NSW) and the Children and Young Persons (Care and Protection) Act 1998 (NSW);…
There is no issue in this case that the written consent of a child welfare officer of the State of New South Wales has neither been sought nor obtained.
Submissions
The Applicant submits that the dispute between the parents of the subject child falls to the jurisdiction of courts under the Family Law Act and there is no requirement for a written consent of a state welfare officer.
The basis of this argument is that there is no provision in the Children and Young Persons (Care and Protection) Act with reference to written consent by a State welfare officer.
Mr Potkonyak submits that under s.3(1) of the Commonwealth Powers (Family Law-Children) Act 1986 (NSW) the Parliament of New South Wales referred to the Commonwealth Parliament matters concerning ex-nuptial children, with the exception, under s.3(2), of powers with respect to children subject to some orders made under State welfare laws. Those matters which were not referred are set out in Schedule 1 to the Act.
As Mr Potkonyak points out, the provisions of s.79(1)(a)(i) are not listed in the schedule and, he submits, the power to make orders with respect to a child who is the subject of an order under that section was not withheld from the powers referred to the Commonwealth Parliament.
It is further submitted that s.3(2A) of the Commonwealth Powers (Family Law-Children) Act authorises the Minister or the Minister’s delegate to give a written consent for instituting or continuing a proceeding for the purpose of Part VII of the Family Law Act. However, the submission goes that s.3(2A) neither authorises nor compels anyone to consider whether to issue a written consent for a child who is not subject to one of the orders made under the Children and Young Persons (Care and Protection) Act listed in Schedule 1.
Mr Potkonyak submitted that the accepted interpretation of s.69ZK(1), which is that there is a need for a written consent in order to bring the matter concerning a child in that situation before a court exercising jurisdiction under the Family Law Act, is “absurd”, as nobody is authorised to issue such a consent.
The submission is that:
The only rational interpretation of s 69ZK is that, if the only order affecting a child is one of the orders that is not listed in the Schedule 1 of the Referral Act, including an order pursuant to s 79(1)(a)(i), there is no need for a written consent of a state welfare officer.[10]
[10] Applicant’s Written Submission, page 3 paragraph 14
In support of his argument, Mr Potkonyak noted that “the parental responsibility for (AB) has been purportedly[11] allocated to the father to the exclusion of the mother. That was under the provisions of s79(1)(a)(i) of the Act”. As the definition of parental responsibility is the same in the Children and Young Persons (Care and Protection) Act and the Family Law Act, why, he asks, should there be a need for written consent of a state welfare officer to bring the matter to a court exercising jurisdiction under the Family Law Act?
[11] Emphasis added. It is unclear why the word “purportedly” is used, as there appears to be no doubt that the Children’s Court acted within its powers to make the order that it did.
The Applicant relies on the decisions of Slack FM in Fay & Turner[12] and Rowlands J, in Re J[13] in support of his submission that the consent of a child welfare officer is not required in this matter.
[12] [2008] FMCAfam 1508
[13] (1990) 14 Fam LR 584
In Fay & Turner, Slack FM accepted the submission of the Director-General of the Department of Child Safety that s.69ZK did not apply and consequently no consent was necessary because the child concerned was under a protective supervision order under the applicable Queensland legislation which did not mean that the child was “under the care” of a person under that legislation. His Honour held that he had jurisdiction to make parenting orders under the Family Law Act.
In Re J[14], Rowlands J was dealing with the question of jurisdiction under the old section 60H of the Family Law Act, which was expressed in basically similar terms to the current section 69ZK. The child concerned was the subject of an order made by the Children’s Court of New South Wales under s.72(1)(b)(i) of the old Children (Care and Protection) Act 1987 (NSW), where the Children’s Court had accepted undertakings by the mother.
[14] supra
Rowlands J held that the existence of an order accepting undertakings under s.72(1)(b)(i) did not preclude the Family Court from exercising under s.60H of the Family Law Act. His Honour held at 586:
The learned magistrate’s acceptance of undertakings could not amount to a placing of the child “under…the care and control” or “supervision of a person under a welfare law”. Nor, clearly, does it affect “custody” or “guardianship”. A declaration that the mother is responsible for the child does not amount to a placing of the child under the “care and control” or “supervision of a person” as those terms are understood in welfare law extant in New South Wales.
Mr Potkonyak also referred the Court to the decision of White J in the Supreme Court of New South Wales in Re Felicity[15], which he conceded was identical to the case before this Court. There was an order of the Children’s Court in force under the provisions of s.79(1)(a)(i) of the Children and Young Persons (Care and Protection)
Act allocating parental responsibility for the child to the father and the mother claimed that the father was refusing to allow the child to have unsupervised contact with her.[15] [2012] NSWSC 494
As Mr Potkonyak submitted, a similar argument to that in the present case was put to the Court, but the Plaintiff was unsuccessful. It is submitted that the Court should not follow this decision.
The case put by the solicitor for the father is, simply, that the Supreme Court has already determined this matter in Re Felicity where the same solicitor, Mr Potkonyak, made an almost identical argument as has been put in this case. White J found at paragraph [72] of the judgment that none of the arguments advanced for the mother had any substance and dismissed the summons with costs.
It is submitted on behalf of the father that the Court should follow the decision in Re Felicity.
Registration of State and Territory Orders dealing with Children
The Applicant, in her Application in a Case, seeks a somewhat curious declaration:
Declaration that the respondent cannot preclude the applicant from continuing the substantive proceedings by registering in this Court orders of the Children’s Court at Broadmeadow of 17 September 2010 with respect to the child subject to the proceeding…
The application is perplexing in that there is no suggestion in the Respondent’s Responses or his affidavit of 8 July 2013 that he is seeking to have the Orders of the Children’s Court registered in this Court. The only reference to this matter from the Respondent’s side can be found in paragraphs [9] and [10] of his solicitor’s written submission on his behalf:
9. The applicant has not sought written permission from Family and Community Services to bring this current application, nor have the Orders from the Children’s Court been registered.
10. The respondent father would not support either course of action.
There is no other reference to registration of the Children’s Court Orders.
The Applicant refers to the fact that under s.70C of the Family Law Act the applicable Rules of Court may make provision for registration in a court having jurisdiction under the Act child orders made under a law of a prescribed State. Rule 23.01A of the Family Law Rules 2004 prescribes that a State child order may be registered in a court having jurisdiction under the Act by filing a sealed copy of the order in a registry of the court.
Rule 23.01A of the Family Law Rules applies in this Court by virtue of Rule 1.05 of the Federal Circuit Court Rules 2001, as it is a rule set out in Part 1 of Schedule 3 to the Rules.
In his submission on behalf of the Applicant, Mr Potkonyak queries whether:
a)Consent is required to the registration of those orders;
b)Whether the State Court that made the orders once registered in this Court still retains jurisdiction; or
c)If the State court loses jurisdiction, whether this ousts the provisions of s.69ZK.
With respect, this is a theoretical argument only. There is no issue between the parties as to registration of the Orders made by the Children’s Court. Neither party is seeking to do so.
There is, therefore, no issue to be decided. The declaration sought by the Applicant that the registration by the Respondent of the Children’s Court Orders cannot preclude the Applicant from continuing these proceedings does not constitute an issue between the parties as the Respondent is not seeking to register those orders.
In short, it appears that the Court is being asked to give an advisory opinion about a matter that is not in issue between the parties (see In the Marriage of Daff[16]per Evatt CJ at 548). That is not the function of this Court.
[16] supra
As there is no controversy between the parties on this point, I decline to rule on the issue.
Conclusions
In my view, the decision of Rowlands J in Re J[17] can be distinguished on its facts. The order of the Children’s Court was an order under s.72(1)(b) of the Children (Care and Protection) Act accepting certain undertakings by the child’s mother. The order did not place the child “in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law” thereby bringing the child into the area covered by the then s.60H of the Family Law Act. The order did no more than accept undertakings from the mother and did not disturb the mother’s situation as the person responsible for the child.
[17] supra
Similarly, in Fay & Turner[18], Slack FM accepted the submission of the Director-General of Child Safety that no consent was necessary for the Court to exercise jurisdiction under s.69ZK because the child was the subject of a “protective supervision order” under the Queensland child welfare law. His Honour was satisfied that the order did not mean that the child was “under the care of a person” within the meaning of s.69ZK.
[18] supra
In my view, the decision in Fay & Turner appears to be similar on its facts to the decision in Re J, and can also be distinguished.
I note that both of these decisions were cited to the Supreme Court in Re Felicity[19] and White J held:
I do not consider that either case suggests a different construction of s 69ZK from that which I have adopted.[20]
[19] supra
[20] [2012] NSWSC 494 at [67]
In my view, the decision in Re Felicity is entirely on point. The facts are essentially identical. There was an order of the Children’s Court of NSW allocating parental responsibility to the child’s father under the provisions of s.79(1)(a)(i) of the Children and Young Persons (Care and Protection) Act, just as in this case.
The issues argued by Mr Potkonyak on behalf of the plaintiff in Re Felicity are essentially similar to those being argued before this Court, including the contention that the consent of a child welfare officer to an application under the Family Law Act is not required where the only current order of the Children’s Court was one allocating parental responsibility to one parent to the exclusion of the other under s.79(1)(a)(i).[21] White J found that there was no substance to the plaintiff’s submission.
[21] [2012] NSWSC 494 at [25]
The argument that because the New South Wales Parliament had referred to the Commonwealth Parliament the maters of the custody or guardianship of children with no exclusion of matters under s.79(1)(a)(i) meant that the New South Wales Parliament had relinquished its own power to make laws on the subject. White J held at [45]:
There is nothing in the Commonwealth Powers (Family Law-Children) Act 1986 that purports to make the referral of matters to the Commonwealth Parliament exclusive of the legislative power of the State Parliament.
Importantly, his Honour said of s.69ZK:
The expression in s 69ZK “under the care (however described) of a person under a child welfare law” should be construed consistently with the evident intention of the section to preserve the operation of the child welfare laws of the States and Territories. It would not be consistent with that legislative purpose to construe the expression so that some aspects of care under a child welfare law were preserved to the States and Territories by s 69 ZK and some not. The words “care (however described)” indicate that a wide meaning is to be given to the expression. It seems to me that as the child is subject to the order allocating parental responsibility to the father and that order is properly described as a care order, the child should be said to be under the care of a person under a child welfare law.[22]
[22] Ibid at [60]
In my view, with respect, the decision in Re Felicity is directly on point.
I am, however, urged by Mr Potkonyak, who clearly does not agree with the decision and went so far in his submission as to find White J’s finding at [50] that there was no inconsistency between Commonwealth and State laws as shown by s.69ZK itself as “an absurd argument”[23]not to follow the decision.
[23] Applicant’s written submissions page 6 at [46]
True it is that a decision of the Supreme Court of a State is not binding on this Court, but the doctrine of judicial comity requires that a decision of another court that is directly on point should be followed, unless I were to be satisfied that it is plainly wrong.
The Applicant is in effect asking that I should find a recent judgment of the Supreme Court of New South Wales on the same facts and where essentially the same arguments have been advanced as wrong, and is inviting this Court not to follow it. I decline to accept that invitation.
In my view, with respect, the decision in Re Felicity is clearly on point and is highly persuasive. The decision should be followed.
The Application is incompetent. The Court has no jurisdiction to make parenting orders in this matter under the provisions of s.69ZK of the Family Law Act 1975.
The Applications, both for interim and procedural orders and for final orders, will be dismissed. I will hear submissions on costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 11 October 2013
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