That prickly little section 69ZK of the Family Law Act 1975
At RHC 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.
Section 69ZK of the FLA provides: -
(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.
It was submitted that s 69ZK of the FLA has two elements that the Court must interpret:
(a) First, whether a subject child is ‘under the care (however described) of a person”; and
(b) Second, if the first question is answered in the affirmative, whether the child ‘under care (however described) of a person’ is pursuant to a ‘child welfare law'.
The interpretation of statutory elements there required the Court to give meaning in accordance with the intentions of the Commonwealth Parliament in line with the Australian Constitution and common law principles.
Statutory and Common Law Interpretation Requirements
We asserted that the High Court of Australia has indicated the current approach to statutory interpretation involves the use of text, context and purpose.
As stated by DC Pearce and RS Geddes in their book on statutory interpretation:
Legislation is, at its heart, an instrument of communication. For this reason, many of the so-called rules or principles of interpretation are no more than common-sense and grammatical aids that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: 'What message is the legislature trying to convey in this communication?'
As Chief Justice Gleeson pointed out in 2001:
Legislation and the common law are not separate and independent sources of law; the one concern parliaments, and the other concerns courts. They exist in a symbiotic relationship.
The common law rule, requires that, a provision must not only be interpreted by reference to the statute viewed as a whole but so as to give effect to what is considered 'harmonious goals'. The assumption is that the legislature, which is a rational body, can be taken to have intended to give effect to a rational purpose in enacting any given legislation.
The role of the Court is expressed to interpret, rather than to make law, and to apply and interpret the FLA without reference to controversies or the pressures of arms of government such as the Department. It was therefore submitted that the meaning of section 69ZK of the FLA, whilst theoretically only capable of having one potential accurate meaning, does involve examination to find that meaning both in contemporary and former enactments, explanatory memorandum and the development of the common law.
It was then put forward in our case that the words and concepts in the law are often replete with history and the developments of common law and that the Courts have taken a cautious approach towards using explanatory materials in and of themselves. In Re Bolton; Ex Parte Beane it was said:
The words of a Minister must not be substituted for the text of the law.
Despite this, Susan Kenny J of the Federal Court of Australia recently said:
… When the judge says that the goal of statutory interpretation is to ascertain what the legislature intended, the judge is acknowledging her constitutional relationship with the legislature. So far as a judge is concerned, the concept of legislative intent provides the correct constitutional orientation. The effect of the recent redefinition of legislative intent is to draw attention to the function of the concept of legislative intent, rather than to undermine it.
However, in Catlow v Accident Compensation Commission it was said:
… it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction.
Drawing on the principles laid out in International Finance Trust Cos Ltd v NSW Crime Commission, French CJ warned against limiting or straining language that is used in relation to a provision simply to preserve constitutional validity. French CJ stated:
those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen.
French CJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue confirmed that the starting point in considering the question of construction was 'the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose'.
In summary, the High Court in Lacey v Attorney-General (Qld) and Zheng v Cai inform the importance of reliance on the approach taken by Parliamentary Counsel. Thus, in the former Judgment, it was stated:
[a]scertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.
The Use of Text – Ordinary Meaning
The first element, ‘under the care (however described) of a person”, has two operative words; ‘care’ and ‘person’.
In accordance with the Oxford English Dictionary, ‘care’ is defined as (where relevant):
The provision of what is necessary for the health, welfare, maintenance, and protection of someone or something.
In accordance with the Oxford English Dictionary, ‘person’ is defined as:
1. A human being regarded as an individual. 1.1. (in legal or formal contexts) an unspecified individual.
Further, under the Acts Interpretation Act 1901 (Cth), ‘person’ is defined in s 2C as:
(1) In any Act, expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no‑one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual. (2) Express references in an Act to companies, corporations or bodies corporate do not imply that expressions in that Act, of the kind mentioned in subsection (1), do not include companies, corporations or bodies corporate.
Section 2B of the Acts Interpretation Act 1901 (Cth) then provides ‘individual’ ‘means a natural person’.
Clearly, therefore, it was submitted that the subject children were ‘under the care (however described) of a person’, namely the Respondent in the proceeding. The question then for the Court was to determine whether that care was ‘under a child welfare law’.
It is submitted that it was not necessary or appropriate to apply the use of text and ordinary meaning to ‘child welfare law’ given that reg 12B of the Regulations directs attention to sch 5 which provide for the prescribed laws which are considered or defined as being a ‘child welfare law’, which under item 11 includes the CPA.