Supreme Court New South Wales

• Medium Neutral Citation: Re Felicity [2012] NSWSC 494
• Hearing dates: 1 May 2012
• Decision date: 01 May 2012
• Jurisdiction: Equity Division - Protective List
• Before: White J

Decision

1. Order that the summons be dismissed.

2. Order that the plaintiff pay the 1st and 2nd defendants' costs.

• Catchwords: CONSTITUTIONAL LAW - powers to allocate parental responsibility - whether referral of matters to Commonwealth limits power of Children's Court to make orders - no effect of referral on operation of State laws - creation of additional power in Commonwealth Parliament - inconsistencies subject to s 109 of the Constitution; CONSTITUTIONAL LAW - statutory framework - interaction between State and Commonwealth laws - whether inconsistencies between State and Commonwealth powers to allocate parental responsibility - no effect on the operation of State child welfare laws - statutory mechanism for dealing with inconsistencies - Family Law Act 1975 (Cth) s 69ZK
• Legislation Cited: Children and Young Persons (Care and Protections) Act 1998; Family Law Act 1975 (Cth); Judiciary Act 1903 (Cth); Commonwealth Powers (Family Law - Children) Act 1986; Children (Care and Protection) Act 1987; Civil Procedure Act 2005
• Cases Cited: Louise v Director General of Community Services & Ors [2011] NSWSC 1646; Graham v Paterson (1950) 81 CLR 1; Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762; (2007) 37 Fam LR 595; Re J (1990) 14 Fam LR 584; Fay v Turner [2008] FMCA Fam 1508; Dunstan v Jarrod [2009] FAMCA 480; (2009) 41 Fam LR 535
• Category: Principal judgment
• Parties: Mother of Felicity (Plaintiff); Director General, Department of Family & Community Services (1st Defendant); Father of Felicity (2nd Defendant); Felicity (4th Defendant)
• Representation: Counsel: G Potkonyak, solicitor (Plaintiff); K Richardson (1st Defendant); In Person (2nd Defendant); K Shea, solicitor (4th Defendant); Solicitors: Capellia Legal (Plaintiff); Crown Solicitor's Office (1st Defendant); N/a (2nd Defendant); Legal Aid NSW (4th Defendant)
• File Number(s): 2011/407161

Judgment

1 HIS HONOUR: These proceedings concern a child who is to be known as Felicity to preserve her anonymity.

2 On 16 October 2009 the Children's Court at Bidura made an order pursuant to s 79(1)(a)(i) of the Children and Young Persons (Care and Protections) Act 1998 allocating parental responsibility for the child to the child's father. The child's father is the second defendant to these proceedings.

3 It is common ground that the effect of the order was to allocate parental responsibility for the child to the father to the exclusion of the child's mother. The order allocating parental responsibility was made until the child attains the age of 18.

4 In these proceedings, the plaintiff is the child's mother. The Director-General of the Department of Family and Community Services is the first defendant. As I have said the child's father is the second defendant. The child is also represented.

5 The plaintiff through her solicitor, Mr Potkonyak, contends that the order of the Children's Court allocating parental responsibility to the father was either invalid or has become inoperative. As I understand her submissions, the plaintiff says that at least in the circumstances that now exist, the power to allocate parental responsibility in respect of the child, where the dispute is one between parents, rests with courts having jurisdiction under Pt VII of the Family Law Act 1975 (Cth) and not with the Children's Court exercising jurisdiction under the Children and Young Persons (Care and Protection) Act.

6 The plaintiff also says that the laws governing the making of an order under s 79(1)(a)(i) of the State Act are invalid as being inconsistent with the provisions in the Family Law Act dealing with the same subject matter.

7 By her summons the plaintiff sought to invoke cross-vested jurisdiction of this Court to make a parenting order under, I assume, s 65D, and Div 6 of Pt VII of the Family Law Act. Under s 61DA there is a presumption of equal shared parental responsibility when parenting orders are to be made under the Family Law Act. There is no such presumption in the Children and Young Persons (Care and Protection) Act.

8 The Director General, whose submissions are supported by the father and by the child's representative, says that a Court could not make a parenting order under the Family Law Act in relation to the child because she is under the care of her father under a "child welfare law" as defined, and s 69ZK of the Family Law Act prohibits the making of parenting orders (other than child maintenance orders) in respect of such a child.

9 Notices were given pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the States and Territories. No Attorney-General has intervened or sought the removal of the cause.

10 The notices given under s 78B of the Judiciary Act describe the questions to be decided as follows:

"2. The question to be decided is whether an order allocating parental responsibility to one parent to the exclusion of the other made by the Children's Court pursuant to section 79(1)(a)(i) of the NSW Children and Young Persons (Care and Protection) Act 1998 can stand on its own without any other orders in force made under the said Act.

3. The orders of the Children's Court of 2 November 2009 expired on 5 November 2011 except the order allocating parental responsibility to the father of the child to the exclusion of the mother, the plaintiff in the proceedings.

4. The plaintiff contends that the order purportedly allocating parental responsibility to the father is ultra vires the NSW Commonwealth Powers (Family Law - Children) Act 1986 which referred such power to the Commonwealth Parliament pursuant to s 51(xxxvii) of the Constitution.

5. The plaintiff also contends that, even if the State Parliament purports to have retained the power to make orders under section 79(1)(a)(i) of the NSW Children and Young Persons (Care and Protection) Act 1998 concurrently with such powers as referred to the Commonwealth Parliament, the order allocating parental responsibility to one parent to the exclusion of the other would be invalid, pursuant to s 109 of the Constitution, if inconsistent with such an order made under the Family Law Act 1975."

11 The facts are within a narrow compass. The orders made by the Children's Court on 16 October 2009 included the following:

"1. Pursuant to Section 79(1)(b) Parental Responsibility for [the child] is allocated to the Minister for Community Services until she attains the age of eight (8) years.

2. Pursuant to section 81(1)(b) that Parental Responsibility for contact be allocated solely to the Minister until the child attains the age of eight (8) years.

3. Pursuant to Section 81(1)(a) that parental responsibility for all aspects except contact be allocated to [the father] until the child attains the age of eight (8) years.

4. Upon the expiration of Orders 1, 2 and 3 and pursuant to Section 79(1)(a)(i), the Court orders that the child be placed under the parental responsibility of the father until the child attains the age of eighteen (18) years."

12 Further orders were made pursuant to s 86 of the Children and Young Persons (Care and Protection) Act in relation to contact to be had between the child and her sibling, and between the child and her mother until the child attained the age of eight years.

13 Orders 7 and 8 provided that the Children's Court ordered the acceptance of undertakings given by the father and the mother. The orders included four notations, one of which was that upon the child attaining the age of eight years, contact move to unsupervised arrangement and occur at a frequency and for a duration based upon the child's expressed wishes. The child turned eight in November 2011.

14 On 15 August 2011, the child's mother commenced proceedings in the Federal Magistrate's Court. The application to the Federal Magistrate's Court was not before me, but I assume that the application was for a parenting order pursuant to s 65D of the Family Law Act.

15 On 10 October 2011, the application was dismissed. In his affidavit in these proceedings Mr Potkonyak deposes that the application was dismissed "for the lack of a written consent by the authorised officer of the Department of Community Services, as required by section 69ZK of the Family Law Act 1975". The judgment and orders of the Federal Magistrate's Court are not otherwise in evidence.

16 On 14 October 2011 the Department of Family and Community Services NSW wrote to the mother's solicitor referring to the mother's application in the Family Court and her solicitor's request for a letter stating that the Minister for Community Services agreed to the jurisdiction of the Family Court. The Department advised that Community Services did not consent to the jurisdiction of the Family Court. It continued:

"As there have previously been child protection concerns regarding the child, and there is a care order in place, it is considered the most appropriate course of action is for the mother to make an application in the Children's Court pursuant to section 90 of Children's and Young Persons (Care and Protection) Act 1998 to vary or rescind the orders".

17 Section 90 provides in substance that with the leave of the Children's Court an application can be made for the rescission or variation of a care order. Leave can be granted if it appears to the Children's Court that there has been a significant change in relevant circumstances since the care order was made or last varied. If the Children's Court is satisfied that it is appropriate to do so, it may vary or rescind an order for the care and protection of the child or young person, and if it rescinds the order, it can make any one of the orders it could have made in relation to the child had an application been made to it with respect to the child.

18 On 23 November 2011 the child's mother brought proceedings in the Children's Court at Parramatta for orders under s 90. I assume she sought leave to apply for the rescission or variation of the orders of 16 October 2009.

19 Directions were made in the Children's Court for the service of evidence including evidence of changed circumstances. Evidence was served, but on 16 December 2011 the mother's application was dismissed at the request of her solicitor. The circumstances in which the mother applied for the dismissal of her own application are described by Slattery J in a judgment given on 22 December 2011 on an application for relief in the Crown's parens patriae jurisdiction (Louise v Director General of Community Services & Ors [2011] NSWSC 1646 at [9]-[21]).

20 The mother commenced these proceedings on 19 December 2011. By her summons she sought declarations and orders including the following:

"1. A declaration that the Order 4 of the Orders of the Children's Court at Bidura, of 2 November 2009, In the Matter of [the child] (DOB [x] November 2003), file number 011-012/08, is invalid, or inoperative as of [x] November 2011.

...

4. An order against the first respondent, Director-General of the Community Services, to authorise an issue of a written consent to the plaintiff, pursuant to s 69ZK(1)(b) of the Family Law Act 1975.

5. That the controversy between the plaintiff and the second respondent, pertaining to the custody, guardianship of and access to the child ..., be heard by this Honourable Court under the provisions of the Family Law Act 1975.

...

8. That the filing of the application, under the provisions of the Family Law Act 1975, by the plaintiff for the final orders is delayed until after the determination of the matters raised by the paragraphs (1) to (5) above."

21 The plaintiff also sought relief in the parens patriae jurisdiction on an interim basis, but that application was refused by Slattery J. She also sought declarations that directions given by the Children's Court in relation to the filing of evidence were invalid to the extent they directed the plaintiff to file evidence of changes to circumstances since the making of the orders in question. As those directions were spent following the dismissal of the proceeding in the Children's Court, the issue in relation to the validity of those directions was moot. In any event, no separate issue was raised than was raised by the declaration in paragraph 1 of the summons.

22 In his submission to the Children's Court, Mr Potkonyak contended that following the child's attaining the age of eight years, the only remaining order of the Children's Court was the order allocating parental responsibility for the child to the child's father. He contended that the parenting responsibility order made by the Children's Court was ultra vires the Commonwealth Powers (Family Law - Children) Act 1986. In his submission to the Children's Court Mr Potkonyak described that Act as having referred certain matters "otherwise within the jurisdiction of the New South Wales State Parliament" to the Commonwealth Parliament.

23 He also contended that:

"The initial care and protection orders, whether genuine or otherwise, could have been accompanied by ancillary orders allocating parental responsibility to one parent to the exclusion of the other. However, it is a matter of pure logic and law, that, once the care and protection orders ceased to exist, the parental responsibility order is no longer a valid order. The issue reverts to the common law whereby the parental responsibility is equally shared by both parents. Any dispute about it falls to the province of the Family Law Act 1975."

24 He submitted that the factors taken into account in the making of care orders under the Children and Young Persons (Care and Protection) Act were "deficient" when compared with the factors to be taken into account by Courts acting under the Family Law Act.

25 Mr Potkonyak submitted that the consent of a child welfare officer to proceedings under the Family Law Act was 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. Inconsistently with that submission, he also contended that the refusal of the Director General to issue a certificate for the purposes of s 69ZK(1)(b) was invalid.

26 I have concluded that there is no substance to the submissions advanced for the plaintiff: either that order 4 made on 16 October 2009 had ceased to be operative or that it is invalid, or that the New South Wales Parliament lacked the power to confer the jurisdiction on the Children's Court conferred by the Children and Young Persons (Care and Protection) Act after the referral of powers to the Commonwealth, or that there is an inconsistency between the State and Commonwealth legislation that renders the former invalid.

27 It is necessary to deal with relevant provisions of the three relevant Acts. Section 79 of the Children and Young Persons (Care and Protection) Act relevantly provides:

"79 Order allocating parental responsibility

(1) If the Children's Court finds that a child or young person is in need of care and protection, it may:

(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:

(i) to one parent to the exclusion of the other parent, or

(ii) to one or both parents and to the Minister or another person or persons jointly, or

(iii) to another suitable person or persons, or

(b) make an order placing the child or young person under the parental responsibility of the Minister.

(2) The specific aspects of parental responsibility that may be allocated by an order of the Children's Court include, but are not limited to, the following:

(a) the residence of the child or young person,

(b) contact,

(c) the education and training of the child or young person,

(d) the religious upbringing of the child or young person,

(e) the medical treatment of the child or young person.

(3) The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (2) (c) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

(4) The Children's Court must not make an order allocating parental responsibility for a child or young person if the order would be inconsistent with any order in relation to the child or young person made by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children."

28 Section 81 sets out matters that must be determined by the Children's Court if it makes an order placing a child or young person under the parental responsibility of the Minister.

29 Section 86 empowers the Children's Court to make contact orders in respect of a child the subject of proceedings before that Court, including orders stipulating the frequency and duration of contact.

30 As noted earlier in these reasons, s 90 deals with the rescission or variation of a care order pursuant to leave if it appears there has been a significant change in circumstances.

31 Orders allocating parental responsibility are "care orders" within the meaning of the Act. A "care order" is defined as meaning:

"... an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86."

32 Section 71 sets out grounds upon which a Children's Court may make a care order. The Children's Court must be satisfied that the child or young person is in need of care and protection for any reason. A number of reasons is then listed, but these are not by way of limitation.

33 Part 1 of Chapter 2 sets out objects and principles to be applied in the administration of the Act. Section 7 provides that these do not create or confer rights or entitlements enforceable at law. Nonetheless, they are principles that must guide the Children's Court in the exercise of its powers.

34 It is true to say, as Mr Potkonyak submitted, that there are important differences between the matters stated in Part 1 of Chapter 2 and in the other provisions of the Act from those which are to be applied under the Family Law Act in determining whether parenting orders should be made under that Act.

35 In 1986 the New South Wales Parliament referred to the Parliament of the Commonwealth certain matters pursuant to paragraph 51(xxxvii) of the Constitution. It provides:

"51 Legislative powers of the Parliament [see Notes 10 and 11]

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

...

(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law."

36 The referral of powers with respect to, amongst other things, the custody and guardianship of children was made by the Commonwealth Powers (Family Law - Children) Act 1986. Section 3 of that Act (as amended) provides:

"3 Reference of certain matters relating to children

(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 on which this Act commences and ending on the day fixed, pursuant to section 4, as the day on which the reference under this section shall terminate, but no longer, namely:

(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,

(c) the determination of a child's parentage for the purposes of the law of the Commonwealth, whether or not the determination of the child's parentage is incidental to the determination of any other matter within the legislative powers of the Commonwealth.

(2) Subject to subsection (2A), the matters referred by subsection (1) do not include the matter of the adoption of children or the matter of the taking, or the making of provision for or in relation to authorising the taking, of action that would prevent or interfere with:

(a) a Minister of the Crown, an officer of the State, an officer of an adoption agency approved under a law of the State, or any other person or body, having or acquiring the custody, guardianship, care or control of children under a provision specified in Schedule 1,

(b) (Repealed)

(c) the jurisdiction of the Supreme Court to make orders in respect of children who are in such custody, guardianship, care or control, or

(d) the jurisdiction of a court of the State, or other body, under a provision specified in Schedule 1, to make orders, or take any other action, in respect of:

(i) the custody, guardianship, care or control of children, or

(ii) access to children or the supervision of children.

(2A) The matters referred by subsection (1) include the matter of the taking, or the making of provision for or in relation to authorising the taking, of action that would prevent or interfere with a matter referred to in subsection (2) (a)-(d) if:

(a) the Minister of the Crown responsible for the administration of the relevant provision specified in Schedule 1, or

(b) a person authorised, in writing, by that Minister of the Crown to act on his or her behalf for the purposes of Part VII of the Family Law Act 1975 of the Commonwealth, as amended and in force for the time being,

consents, in writing, to the taking of such action by way of instituting, or continuing, proceedings under that Act in a court having jurisdiction under that Act.

(3) In the preceding provisions of this section:

(a) the references to children shall be read as references to persons under the age of 18 years,

(b) the references to the maintenance of, and the payment of expenses in relation to, children shall be read as including references to the maintenance of, and the payment of expenses in relation to, persons who have attained that age and have special needs in respect of maintenance or expenses by reason of being engaged in a course of education or training or by reason of a physical or mental handicap, and

(c) the references to a provision specified in Schedule 1 shall be read as references to the provision as amended and in force from time to time, and as including a reference to any provision or provisions replacing that provision and as amended and in force from time to time."

37 The scheme of s 3 is that by subsection 1 there are listed the matters referred to the Parliament of the Commonwealth. Pursuant to s 3(1)(b) these include the custody and guardianship of children.

38 Subsection 3(2) excludes from the matters referred the matters of adoption of children and the matters of the taking, or the making of provision for, or in relation to authorising the taking of action that would prevent or interfere with specified conduct or matters, which may be summarised as the conduct of welfare agencies of the State, or jurisdiction of courts of the State, to make orders in respect of the custody, guardianship, care or control of children.

39 However, the matters which are the subject of the exclusion provided by subs (2) to what is otherwise the referral made by subs (1) are confined in relation to the matters in paragraphs (2)(a) and (2)(d) to conduct or jurisdiction under specified provisions of legislation set out in schedule 1.

40 As the Commonwealth Powers (Family Law-Children) Act was originally enacted, schedule 1 specified the whole of the Children (Care and Protection) Act 1987. However, as a result of amendments, the legislation specified in schedule 1, so far as relevant to the present proceeding, are certain sections only of the Children and Young Persons (Care and Protection) Act 1998. The sections of that Act that are listed within schedule 1 include s 79(1)(a)(iii) and (1)(b). They do not include s 79(1)(a)(i).

41 Other provisions included in schedule 1 are s 81 of the Children and Young Persons (Care and Protection) Act which is a section dealing with the exercise of parental responsibility by the Minister. Mr Potkonyak submits that the provisions specified in schedule 1 to which the "carve out" in s 3(2) applies are provisions that are generally concerned with child protection action that may be taken by welfare authorities. The carve-out in s 3(2) is itself qualified by subs (2A).

42 I understood Mr Potkonyak's initial position to be that because the New South Wales Parliament has referred to the Commonwealth Parliament the matters of the custody or guardianship of children, and as there has been no exclusion from that referral of matters arising under s 79(1)(a)(i) (or s 86) of the Children and Young Persons (Care and Protection) Act, the New South Wales Parliament had relinquished its own power to make laws with respect to the matters referred.

43 This also appears to be the position initially taken by the plaintiff in the notice given pursuant to s 78B of the Judiciary Act where it is said that the order purportedly allocating parental responsibility to the father is ultra vires the NSW Commonwealth Powers (Family Law-Children) Act 1986. Ultimately Mr Potkonyak disavowed that position, although I think certain of his submissions can only be understood on the basis that he still contended that to be the position.

44 The contention is clearly incorrect. As Latham CJ said in Graham v Paterson (1950) 81 CLR 1 at 19-20:

"... the reference of matters under s 51(xxxvii) does not deprive the State Parliament of any power. It results in the creation of an additional power in the Commonwealth Parliament. If the Commonwealth Parliament exercises such a power, s 109 of the Constitution may become applicable, with the result that if a law of the State with respect to a matter referred was inconsistent with a law of the Commonwealth, the Commonwealth law would prevail and the State law to the extent of the inconsistency would be invalid. But unless the Commonwealth Parliament exercises the power to legislate with respect to the matter referred, no effect whatever is produced in relation to the operation of State laws." (See also at 22, 24-25 and 26.)

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.

46 Accordingly, the power of the Children's Court under s 79(1)(a)(i) is unaffected by the referral of powers to the Commonwealth, unless there is a relevant inconsistency with Commonwealth law.

47 Nor is there any basis for saying that the order of the Children's Court of 16 October 2009 ceased to operate when the child attained the age of eight years.

48 As I understood the plaintiff's argument, it was that the Children's Court only had power to make an order allocating parental responsibility to one parent to the exclusion of the other as ancillary to some other order for the care and protection of the child. It was said that the other orders providing for the Minister to have parental responsibility for contact until the child attained the age of eight years, and the orders providing for contact until the child attained the age of eight years, were such care and protection orders. But it was said that when those orders ceased to operate by the child's attaining the age of eight years, there was no longer any legislative basis for the order under s 79(1)(a)(i) allocating parental responsibility for the child to the father until the child attained the age of 18 years. I was not referred to anything in the Children and Young Persons (Care and Protection) Act that would place such a limit on the power of the Children's Court to make an order under s 79(1)(a)(i). For the reasons I have given, the provisions of that Act are not to be read down by implication from the referral of powers to the Commonwealth.

49 Hence, the argument for invalidity must be based upon inconsistency between the Commonwealth and State laws. Section 109 of the Constitution provides:

"109 Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

50 However the argument for invalidity based on inconsistency between State and Commonwealth laws is met by s 69ZK of the Family Law Act. It provides:

"69ZK Child welfare laws not affected

(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.

(2) Nothing in this Act, and no decree under this Act, affects:

(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

(b) any such order made or action taken; or

(c) the operation of a child welfare law in relation to a child.

(3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first mentioned court may adjourn any proceedings before it that relate to the child."

51 The Children's and Young Persons Care and Protection Act is a "child welfare law" within the meaning of s 69ZK (Family Law Act, s 4; Family Law Regulations, reg 12B and schedule 5).

52 The effect of s 69ZK is to preserve the operation of State law by limiting the operation of the Commonwealth law and the jurisdiction of courts applying the Commonwealth law. Mr Potkonyak advanced two principal arguments in relation to s 69ZK. The first is that, so he contends, s 69ZK is to be read down by the Commonwealth Powers (Family Law - Children) Act 1986 so that it does not apply to those matters that were referred to the Commonwealth Parliament, or, alternatively, so that it applies only to those matters which would not be included in the reference by reason of s 3(2) by reason of subs (2A) of s 3 of that Act.

53 Mr Potkonyak submitted that if it were otherwise the purpose of the referral of matters to the Commonwealth and, as he put it, the acceptance of that referral by the Commonwealth Parliament by enacting amendments to the Family Law Act would be defeated. He submitted that if the consent of a Government body of the State were required, to commence proceedings for a parenting order under the Family Law Act, that would defeat the purpose of conferring on courts exercising jurisdiction under the Family Law Act the powers to make parenting orders by reference to the principles in Pt 7 of that Act. He submitted that such consent was only required if action by State welfare authorities was in issue. But, so he submitted, the Director General's role pursuant to the orders made in the Children's Court has now come to an end. Accordingly, its consent is not required before proceedings can be brought under the Family Law Act. In my view that submission is misconceived.

54 It can be accepted that the State Commonwealth Powers (Family Law - Children) Act 1986 described matters of sufficient width that the Commonwealth Parliament could have passed laws with respect to the custody and guardianship of children that precluded the Children's Court from making orders allocating parental responsibility under s 79(1)(a)(i). But the fact that the Commonwealth Parliament could have enacted such laws does not mean that it did so.

55 There is no implication from the terms of the State Act referring matters to the Commonwealth Parliament that the legislation enacted by the Commonwealth Parliament goes as far as it potentially could do. Nor is it correct to say that the purpose of the referral to the Commonwealth Parliament would be defeated.

56 The principal purpose of the referral of these powers in 1986 was to deal with the position of ex-nuptial children and to authorise legislation that would confer jurisdiction on the Family Court to make orders concerning ex-nuptial children that would otherwise not be within the marriage power of the Commonwealth. Unless such a child has been the subject of action under a child welfare law as defined, s 69ZK will have nothing to do. Thus there will be thousands of cases where the Family Law Act will have work to do without having to read down s 69ZK. Nor did this part of the submission attempt to justify the suggested reading down by the text of s 69ZK itself.

57 The second submission in relation to that section was that the child, Felicity, is not under the care of her father "under a child welfare law". One asks why not? The answer given is that the father has parental responsibility for the child at common law by virtue of the relationship between them. An order allocating parental responsibility to the father does no more than reflect the position that otherwise obtains pursuant to s 61C of the Family Law Act that each of the parents of a child who is not 18 has parental responsibility for the child. That, however, is subject to any order of a court for the time being in force, whether or not made under the Family Law Act, and whether made before or after the commencement of s 61C.

58 But it is common ground that the effect of order 4 of 16 October 2009 is to allocate parental responsibility for the child to the father to the exclusion of the mother. I think that is clear from the reference in the order itself to s 79 (1)(a)(i). The father's sole parental responsibility is derived from the orders of the Children's Court. An aspect of the parental responsibility is having the care of the child. (See Director-General, Department of Community Services (NSW) v D [2007] NSWSC 762; (2007) 37 Fam LR 595 at [32].)

59 Moreover, the father's duties now derive both from the simple relationship of parent and child and from the order of the Children's Court. A failure properly to exercise his parental responsibility could result in applications being made and subsequent orders being made under the Children and Young Persons (Care and Protection) Act, for example, pursuant to s 90.

60 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 69ZK 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.

61 It was then submitted that although in ordinary language, parents are persons for the purposes of s 69ZK, the reference to a "person" does not include a parent. In other words, it was said that the context suggested a different meaning to the word "person" than would otherwise arise.

62 This construction was sought to be justified by reference to the terms of s 79(1) of the Children and Young persons (Care and Protection) Act. That provision distinguishes between allocating parental responsibility to a parent, to a parent and the Minister, and between a parent, the Minister and another person. In that section a parent is distinguished from another person. But that is not a proper basis for construing s 69ZK. The legislation is different. The Family Law Act applies not only to the child welfare laws of New South Wales, but to all other prescribed child welfare laws. It is not to have a chameleon-like operation depending upon the provisions of legislation of the different States and Territories.

63 Mr Potkonyak referred to two cases that are said to support this construction of s 69ZK. In Re J (1990) 14 Fam LR 584 Rowlands J held that s 60H(1) of the Family Law Act (the predecessor to s 69ZK) did not preclude the Family Court from exercising jurisdiction where the Children's Court at Mudgee had accepted an undertaking from a child's mother in the exercise of a power under s 72(1)(b) of the Children (Care and Protection) Act 1987.

64 The effect of s 72(1)(b) of that Act (since repealed) was that if a care application were made with respect to a child, and the Children's Court was satisfied that the child was in need of care, it could make an order accepting such undertakings as it thought fit with respect to the care of the child that were given by a person responsible for the child.

65 By contrast to that power, s 72(1)(c) empowered the Children's Court to make an order placing the child under the supervision of an officer or placing the child in the custody of a suitable person. The power exercised in Re J by the Children's Court was to make an order accepting an undertaking given by a person responsible for the child (in that case the child's mother) rather than making an order placing the child under supervision of an officer or in the custody of a suitable person. Rowlands J noted that the giving and the receiving of the undertaking probably lessened the prospect of the magistrate's determining to go so far as to grant custody or guardianship of the child to some person, or to place the child under the care and control or supervision of a person under the Children (Care and Protection) Act. Rowlands J observed that if one of those things had been done, s 60H would have excluded the jurisdiction of the Court. But as the only order made was to accept the undertaking from the mother who had the care of the child by reason of being the child's mother, it was concluded that the child was not "in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law".

66 That case is plainly distinguishable. The relevant analogy to the order under s 79(1)(a)(i) of the current Children and Young Persons (Care and Protection) Act would be to orders under s 72(1)(c) of the former Act, rather than to the order accepting an undertaking which was accepted under s 72(1)(b).

67 The other authority relied upon was Fay v Turner [2008] FMCA Fam 1508 which concerned what was described as a supervision order made in the Children's Court at Toowoomba. Slack FM concluded that s 69ZK did not apply where the child was the subject of a "protective supervision order". But the reasons for that conclusion do not appear from the judgment. Rather, the learned magistrate simply said that he accepted the submissions of the Director General of the Department of Child Safety. There was no analysis in the argument before me of the relevant Queensland legislation. It does not appear whether his Honour was referred to the decision of Rowlands J in Re J. I do not consider that either case suggests a different construction of s 69ZK from that which I have adopted.

68 Finally, reference was made to the decision of Murphy J in Dunstan v Jarrod [2009] FAMCA 480; (2009) 41 Fam LR 535. That was a case in which the Director General gave consent to the exercise of jurisdiction pursuant to s 69ZK(1)(b). The interest of the case for present purposes was the observation of Murphy J at [55] and [56] that in substance s 69ZK(2) is to be read subject to subs (1) so that if the Court has jurisdiction by reason of the written consent of the child welfare officer of the relevant State or Territory having been obtained, s 69ZK(2) does not preclude the Court exercising the jurisdiction provided for by subs (1).

69 That, of course, is not the present case. Indeed, as matters presently stand, quite apart from s 69ZK(1) and (2)(a) and (b), the plaintiff's submission faces the obstacle of s 69ZK(2)(c). Section 69ZK(2)(c) expressly provides that nothing in the Act affects the operation of the child welfare law in relation to the child. That provision at least shows that there could be no basis for the contention that the Family Law Act made the orders of 16 October 2009 invalid.

70 In written submissions in reply the plaintiff indicated that she did not wish at this stage to pursue the exercise of cross-vested jurisdiction under the Family Law Act. For the reasons that I have given, s 69ZK would, in any event, preclude the exercise of such jurisdiction.

71 For these reasons, it is unnecessary to consider the consequences of orders having been made in the Federal Magistrates Court dismissing the mother's application for a parenting order by reason of s 69ZK. The parties to the proceedings in the Federal Magistrate's Court were the mother and the father. They did not include the Director-General. Prima facie, as between the parties to those proceedings the orders made created a res judicata, or at least an issue estoppel, in relation to the very matter which was litigated in this Court. However, that estoppel would not bind the Director General and I was expressly invited not to deal with the application on that basis.

72 For these reasons, I consider that none of the arguments advanced for the mother has substance. I order that the summons be dismissed.

73 I will hear the parties on costs. However, before hearing the parties on costs, I would add my concern to that expressed by Slattery J in his reasons of 22 December 2011 as to the course this litigation has taken. His Honour was of the view that irrespective of the merits of the arguments advanced for the mother with which I have dealt, the plaintiff ought not to have invited the dismissal of the proceedings in the Children's Court. His Honour also expressed reservations as to the strength of those arguments. It is to say the least unfortunate that the resolution of what are apparently the real issues between the parties should have been delayed by this application.

[Parties address.]

74 In my view, there is no reason that costs should not follow the event. The child's representative does not seek costs. The father is self-represented, but may have had expenses which will be recoverable.

75 I order that the plaintiff pay the first and second defendant's costs.

76 I direct that within 21 days the plaintiff's solicitor provide to my associate a written submission (if he wishes to make a submission) in relation to the question as to whether I ought to make an order under s 99 of the Civil Procedure Act 2005 directing payment of costs by the solicitor.

77 I direct that the plaintiff's solicitor notify the plaintiff that I am considering whether such an order should be made and I direct that a copy of the submissions to be provided to my associate, if any, be provided also to the plaintiff. If Mr Potkonyak wishes to be heard orally in relation to that matter, then the matter can be relisted for further argument by arrangement with my associate.

78 The exhibits in these proceedings can be returned, including the s 78B notices.

Amendments

04 November 2013 - s (3)2 corrected to s 3(2) (twice)
Amended paragraphs: 41

Decision last updated: 04 November 2013