At Richard Hoare & Co Solicitors, our experience in family law truly dictates and is exemplified by the type of tricky work that we do.
Not too long ago, our practice was embroiled in a matter involving s 69ZK of the Family Law Act 1975 (Cth). We know right... what a headache!
There were three hairy questions:
First, to what extent does s 69ZK of the Family Law Act 1975 (Cth) (the “FLA”) apply to the State Queensland;
Second, whether the subject children’s situation in the matter we were dealing with could be properly described as “a child who is under the care (however described) of a person under a child welfare law” pursuant to s 69ZK of the FLA;
Third, whether the Federal Circuit Court of Australia had jurisdiction under s 69ZK of the FLA.
The Queensland Government Department of Child Safety, Youth and Women (the “Department”) had intervened with a family pursuant to the power granted in s 51Z(b) of the Child Protection Act 1999 (Qld) (the “CPA”) and, with the consent of the one of the parents, allegedly implemented an Intervention with Parent’s Agreement (“IPA”) under the principles of s 51ZC of the CPA.
Pursuant to the IPA, the Department had required that the subject children remain in the day-to-day care of the Respondent parent and this had not changed since the Department’s intervention.
In mid 2018, the Applicant filed an Initiating Application seeking interim and final Orders in the Federal Circuit Court of Australia. That matter was stalled over the question of whether the IPA was a sufficient criterion under s 69ZK of the FLA to preclude jurisdiction of the Federal Circuit Court of Australia.
FIRST ISSUE – DOES SECTION 69ZK OF THE FLA APPLY IN QUEENSLAND AND TO WHAT EXTENT?
It was our submission that s 69ZK of the FLA applies to the State of Queensland.
In answering the question of the Courts jurisdiction under s 69ZK of the FLA, it was first necessary to determine the extent to which that section applied in the State of Queensland.
To determine the extent to which s 69ZK of the FLA applies in Queensland, Div 12 of Pt VII (ss 69A-69ZK) of the FLA, which is headed ‘Proceedings and Jurisdiction’ is of relevance. Subdivision F of that Division is concerned with the application of Pt VII of the FLA to the States and Territories of Australia. The subdivision contains six sections, ss 69ZE-69ZK.
Subject to the provisions of s 69ZF of the FLA, s 69ZE of the FLA also extends the operation of Pt VII to a State if the Parliament of that State refers to the Parliament of the Commonwealth certain matters concerning children or if it adopts Pt VII. Those matters include "the maintenance of children and the payment of expenses in relation to children or childbearing" and "parental responsibility for children". In that regard, the Part extends to a State to the extent that those matters are referred to the Parliament of the Commonwealth or are otherwise incidental to those powers.
Section 69ZE(3)(a)(i)-(ii) of the FLA stipulates even where a State (including Queensland) has referred the matters identified in s 69ZE(2)(a)(i) or (ii) of the FLA, there remains the need for a proclamation of the Governor-General to adopt the ‘child welfare law provisions’ of Part VII of the FLA for a State or Territory. This requirement is found in s 69ZE(1) of the FLA, which provides the section is ‘subject to’ the provisions of s 69ZF of the FLA. In the absence of such proclamation adopting the child welfare law provisions, then s 69ZF(2) of the FLA applies, which has the effect of modifying certain provisions, including s 69ZK of the FLA.
Section 69ZF of the FLA, which is headed “Unless declaration in force, Part's extension to a State has effect subject to modifications” provides that the Governor-General may, by Proclamation, declare that all the child welfare law provisions of Part VII of the FLA extend to a specified State.
Referral of Power by Queensland
Queensland enacted the Commonwealth Powers (Family Law – Children) Act 1990 (Qld) (“Referral Act”), which was assented to on 21 June 1990. That Act provides, inter alia, that certain matters are referred to the Parliament of the Commonwealth, including ‘the maintenance of children and the payment of expenses in relation to children or child bearing’ and ‘the custody and guardianship of, and access to, children’. This does not include ‘the taking, or the making of provision for or in relation to authorizing the taking, of action that would prevent or interfere with… the jurisdiction of the Supreme Court, or a Court of the State under a provision of an Act specified in Schedule I, to make Orders or take any other action in respect of – … (ii) the custody, guardianship, care or control of children…” (underlining added for emphasis).
It was submitted by us that the reference to ‘the custody and guardianship of, and access to, children’ in the Referral Act is equivalent or incidental to ‘parental responsibility for children’ under s 69ZE of the FLA and therefore referral has taken place subject to the reservations found in s 3(2) of the Referral Act. The intent of these provisions, when read together, is to reserve to the State certain powers under the relevant State child protection legislation. In the matter of Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor, Gleeson CJ and McHugh J applied the same approach and concluded that South Australia has not referred the matter of the welfare of children to the Parliament of the Commonwealth.
Proclamation of Governor-General
On 5 February 2004, then Governor-General, Phillip Michael Jeffrey, of the Commonwealth of Australia proclaimed pursuant to s 69ZF(1) of the FLA that “all child welfare law provisions of Part VII of that [Family Law Act 1975] extend to Queensland”.
‘Child welfare law’ is defined in s 4 of the FLA to include State laws as prescribed for the purposes of Part VII of the FLA; the prescribed Queensland laws being set out in sch 5 of the Family Law Regulations 1984 (Cth) (“the Regulations”).
Extent of Referral Act and Proclamation
The import of the Referral Act and proclamation is that:
(a) the proclamation extends s 69ZK of the FLA to the State of Queensland; and
(b) the Commonwealth has been referred powers in respect of child welfare; and
(c) the Commonwealth does not have power in respect of the non-referred matters set out in s 3(2) of the Referral Act.
It was strenuously submitted by us that the above is consistent with the very nature and extent of s 69ZK, which is much like a double-edged sword; on the one side it gives this Court jurisdiction to intervene and on the other it precludes jurisdiction where a child is ‘under care (however described) of a person under a child welfare law’.
SECOND ISSUE - CAN THE SUBJECT CHILDREN’S SITUATION BE PROPERLY DESCRIBED AS “A CHILD WHO IS UNDER THE CARE (HOWEVER DESCRIBED) OF A PERSON UNDER A CHILD WELFARE LAW” PURSUANT TO S 69ZK OF THE FLA?
Our submission was that the subject children’s situation can be properly described as ‘a child who is under the care (however described) of a person under a child welfare law’ pursuant to s 69ZK of the FLA.