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That prickly little section 69ZK of the Family Law Act 1975

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:

  1. First, to what extent does s 69ZK of the Family Law Act 1975 (Cth) (the “FLA”) apply to the State Queensland;

  2. 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;

  3. Third, whether the Federal Circuit Court of Australia had jurisdiction under s 69ZK of the FLA.

BACKGROUND


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.[1]


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[2] or if it adopts Pt VII.[3] Those matters include "the maintenance of children and the payment of expenses in relation to children or childbearing" and "parental responsibility for children".[4] 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.[5]


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.[6] In the matter of Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor,[7] 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”.[8]


‘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:[9]

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:[10]

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'.[11] 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[12] it was said:

The words of a Minister must not be substituted for the text of the law.[13]

 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.[14]

However, in Catlow v Accident Compensation Commission[15] it was said:

… it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction.[16]

Drawing on the principles laid out in International Finance Trust Cos Ltd v NSW Crime Commission,[17] 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.[18]

French CJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[19] 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)[20] and Zheng v Cai[21] 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.[22]

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.[23]

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.[24]

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.


Context and Purpose


It was submitted by us that context must be seen in light of the history of s 69ZK of the FLA and the common law developments in relation to same.


Since the enactment of the FLA, there have been attempts by Parliament to prevent the potentiality of conflict between the State and Federal Courts regarding jurisdiction in respect of child residency and welfare.


The development of s 69ZK commenced with s 10 of the FLA: -

(1) Subject to sub-section (3), a court shall not make an order under Part VII or Part VIII for the maintenance, custody or guardianship of- (a) a child who, under the law of a State, is a ward of the State or a State child or is under the care and control of a Minister of State of the State; or (b) a child who has a similar status under a law of a Territory. (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 law of a State to make an order, or take any other action, whereby a child becomes a ward of the State or a State child, or is placed under the care and control of a Minister of State of a State or any similar jurisdiction or power under a law of a Territory; (b) any such order made, or action taken, or the operation, in respect of a child in relation to whom any such order has been made or action taken, of the law under which the order was made or action taken; (c) the jurisdiction of a court under a law of a State or Territory to make an order in respect of the maintenance of a child referred to in sub-section (1) in favour of an officer or authority of the State or Territory performing functions in relation to the welfare of children; or an order of a kind referred to in paragraph (c) made by a court. (3) The Family Court or the Supreme Court of a State or Territory may make an order referred to in sub-section (1) if it is satisfied that there are special circumstances that justify the making of the order.

Section 10 of the FLA was amended by s 6 of the Family Law Amendment Act 1976 as follows: -

6. Section 10 of the Principal Act is amended – (a) by omitting paragraph (a) of sub-section (1) and substituting the following paragraph: - "(a) a child who, under the law of a State, is a ward of the State or a State child or is under the guardianship or the care and control, of- (i) a Minister of the Crown of the State; (ii)  an officer of the State; or (iii) an officer of an adoption agency approved under a law of the State; or"; (b) by omitting paragraph (a) of sub-section (2) and substituting the following paragraph: - "(a) the jurisdiction of a court, or the power of an authority, under a law of a State to make an order, or take any other action, whereby a child becomes a ward of the State or a State child, or is placed under the guardianship, or the care and control, of- (i)  a Minister of the Crown of the State; (ii) an officer of the State; or (iii)an officer of an adoption agency approved under law of the State, or any similar jurisdiction or power under a law of a Territory;” and (c)  by inserting in sub-section (3), after the words "Family Court", the words", a Family Court of a State".

In 1977 and in relation to the amendment by s 6 of the Family Law Amendment Act 1976, Mason J (as his title was at the time) said:

… these sections… in my opinion… place a limitation on the authority of the Family Court to make orders for custody with respect to children who are wards of the State or who are State children or are in the care and control of a Minister of the State. In these cases, the Family Court can only make an order for custody if it is satisfied that special circumstances exist within the meaning of sub-s. (3)… It seems to me that the section was designed, as the marginal note "Child welfare law not affected" suggests, to preserve the independent operation of State child welfare laws and of orders with respect to the care and control of a child made under such laws."[25]

Section 10 was again amended by the Family Law Amendment Act (No 2) 1976 as follows –

3. "Section 10 of the Principal Act is amended – (a) by omitting from sub-section (2) the words 'Nothing in this Act' and substituting the words 'Subject to sub-section (3), nothing in this Act'; and (b) by adding at the end of sub-section (3) the words 'and an order made in accordance with this sub-section has effect notwithstanding any order or action of the kind referred to in paragraph (2)(6) or (d) made or taken before the making of the order made in accordance with this sub-section'."

In 1980 and in relation to the then s 10 (as amended), Gibb J stated:

If this amendment is valid, its effect is that an order made by the Family Court under s. 10 will prevail over an earlier order, of the kind mentioned in s. 10(2), made under the Children’s Services Act. The Director has accordingly renewed his attack on the validity of the section.

The Family Law Amendment Act 1983 then brought about further amendments and inserted definitions of "guardianship" and "custody". Notably, in the Family Law Amendment Bill 1983 (explanatory memorandum) the explanation in relation to the changes to s 10(2)-(3) attempt to avoid State welfare powers being ousted.


In 1986, the Full Court of the Family Court considered s 10 further in light of a submission that the section was broad and intended to cover children being dealt with, or formerly dealt with, by a State under child welfare legislation. In that regard, it was stated; -

We see no evidence in the Commonwealth Act, nor have we been directed, pursuant to sec 15AB of the FLAs Interpretation Act 1901 (Cth), to any other material, which persuades us that the Commonwealth Parliament had any such intent in enacting sec. 10 of the Commonwealth Act.[26]

Section 10 was again repealed by the Family Law Amendment Act 1987 and replaced with s 60H, which provided:

"60H. (1) A court having jurisdiction under this Act shall not make an order under this Act in relation to a child who is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare Jaw unless the order is expressed to come into effect when the child ceases to be in such custody or under such guardianship, care and control or supervision, as the case may be. (2) Nothing in this Act, and no decree made 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 in the custody of, or under the guardianship, care and control or supervision of, a person; (b) any such order made or action taken; (c) the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child; (d) an order of the kind referred to in paragraph (c); and (e) the operation in relation to the child of a child welfare law. (3) Where 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."

In the explanatory memorandum to the Family Law Amendment Act 1987 and as extracted (where relevant):

Section 10 of the Principal Act preserves to the States and Territories jurisdiction over children who are State or Territory wards or who are in the care and control of State or Territory welfare authorities. This clause repeals section 10 which is to be re-enacted, with some slight modifications, as section 60H…

Section 60H was then amended by the Law and Justice Amendment Act 1992 as follows (where relevant): -

Subsection 60H(1): Omit the subsection, substitute: "60H. (1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 6) in relation to a child who is under the guardianship, or in the custody or care and control, 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 such guardianship, or in such custody or care and control, as the case may be; 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." Paragraph 60H(2)(a): Omit "in the custody of, or under the guardianship, care and control or supervision of,", substitute "under the guardianship, or in the custody or care and control, of''

Part VII of the FLA was later repealed and replaced with a new Part VII by s 30 of the Family Law Reform Act 1995. The then s 60H was replaced with the current s 69ZK of the FLA. Section 69ZK(1)(b), along with other sections, did not apply in a State or Territory where a referral had not issued. 

Section 69ZK of the FLA now 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.

The explanatory memorandum to the Family Law Reform Bill 1994 states in relation to the present 69ZK of the FLA: -

425. The new section 69ZK re-enacts section 60H of. the Principal Act, and provides that a court having jurisdiction under the FLA must not make an order in relation to a child who is under the care (however described) of a person under a child welfare law. The circumstances where a court may make an order are: • when the order is expressed to come into effect when the child ceases to be under the care of the person under the child welfare law; or   • the order is made with the written consent of a child welfare officer of the relevant State or Territory. 426. The new subsection 69ZK(2) provides that nothing in the FLA or any decree under the FLA, affects the jurisdiction of a court or a power of authority under a child welfare law to make an order or to take any action by which a child is placed under the care (however described) of a person under a child welfare law. Also exempt from this provision is any order made or action taken or the operation of any child welfare law in relation to a child. 427. The new subsection 69ZK(3) provides that a court may adjourn proceedings if it appears that another court proposes to make an order in relation to a child.

Based on the above, it was put forward that s 69ZK of the FLA was “to preserve the independent operation of State child welfare laws and of orders with respect to the care and control of a child made under such laws."[27]


In Re Felicity [2012] NSWSC 494, the child’s representative in the proceeding and, more importantly, the Director General of the Department, supported a father in arguing the Court could not make a parenting order under the FLA in relation to the subject child because that child was under the care of her father under a ‘child welfare law’ as defined by s 69ZK of the FLA. It was further submitted by the mother that the reference to ‘person’ does not include a parent, but this submission was rejected. White J stated (where relevant):

… there will be thousands of cases where the Family Law Act will have work to do without having to read down s 69ZK.[28] 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.[29] 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.[30] 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.

In a matter concerning adoption, Brereton J stated: -

There is no doubt that the current provision in s 69ZK(1) is wider than the earlier provisions, and that it was introduced with a view to resolving the difficulties that had arisen under the earlier provisions. Essentially, the problem that the new section sought to remedy in respect of the earlier sections was that, where orders had been made under child welfare laws in respect of children in care, there continued to be ongoing doubt as to the extent of the exclusion of the role of the Family Law Act. The solution was to provide that, so long as or wherever a child was "under the care (however described) of a person under a child welfare law", the jurisdiction of courts under the Family Law Act would be excluded. But essential to that concept is that of being under the care of a person under a child welfare law. In my view, it could not have been intended that that provision would capture a person who was not under any form of care order, however described; whose residence with his or her parents was not limited by some condition imposed by a court, but who was living with and in the ongoing parental responsibility, care and control of the persons who were the child's legal parents for all purposes.[31]

In 2014,[32] Ainslie-Wallace J, in summarising a trial judge’s findings and dismissing an appeal noted:

His Honour then moved to consider the solicitor’s submissions in respect to the operation of s 69ZK of the FLA. The trial judge said: 37. Mr [Perov] 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. After considering the relevant authorities, including Re Felicity [2013] NSWCA 21, a case argued by the solicitor before White J in the Supreme Court, his Honour said: 62. 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.

THIRD ISSUE – DID THE COURT HAVE JURISDICTION UNDER SECTION 69ZK OF THE FLA?


We submitted that the Court did not have jurisdiction under s 69ZK of the FLA.


In our submission, we referred to regulation 12B of the Regulations which directed attention to sch 5 which provides for the prescribed laws that are considered a ‘child welfare law’. Under item 11, a ‘child welfare law’ includes the CPA.


The Dictionary in Schedule 3 of the CPA provides that a care agreement is defined in s 51ZD(1) of the CPA.


Section 51ZD of the CPA provides three (3) separate instances relating to care agreements: -

  • “care agreement” being an agreement between the Chief Executive and the child’s parents for the short-term placement of the child in the care of someone other than the parents;

  • “assessment care agreement” being an agreement entered into for a child whom s 51Z(a) of the CPA applies which relates to IPA’s; and

  • “child protection care agreement” being an agreement entered into for a child whom s 51Z(b) of the CPA applies which relates to there being no child protection order in force granting custody or guardianship of a child to anyone and the chief executive being satisfied that a child is in need of protection and needs ongoing support under the CPA.

It was submitted that the Chief Executive had already investigated the subject parent’s situation and was now assuming power under a State legislative instrument under s 51Z(b) of the CPA which is found under Part 3B of the CPA headed “Intervention with parents’ agreement’.


The expression "under the care (however described)” in s 69ZK of the FLA carries a wide meaning beyond ordinary language; intended to deviate from the antiquated versions of s 69ZK of the FLA and should not be read down from its broad description.


Reading the legislation in light of its ordinary meaning, context and purpose, and particularly the explanation given in Re Felicity,[33] if a wide meaning is to be given to the expression, then the subject children are subject to a ‘child welfare law’ merely by being represented in the IPA (even in the absence of decision of a State of Queensland Court under the CPA).


Section 51ZG of the CPA headed “Effect of particular agreement’ provides that whilst a ‘child protection agreement’ is in force relating to a child, the chief executive has custody of the said child. Therefore, on a proper analysis of the FLA, ‘care (however described) under a child welfare law’ is ‘expressly or impliedly required or authorised by the enactment’,[34] in this case the CPA.


Further, under s 51Z(b)(ii) of the CPA, power is being granted to the Chief Executive to intervene with the subject children and provide ‘ongoing help under this Act’.


Both s 51Z(b)(ii) and 51ZG of the CPA raise the issue of a State welfare body firstly assuming power and secondly being granted ‘custody’ by the implementation of the IPA. Both forms of power (and the subsequent intervention) are exclusively reserved to the State of Queensland under s 3(2)(a) Referral Act. Read in harmony with s 69ZK of the FLA and case law, this Court does not have jurisdiction.


It was further strenuously submitted that, as a matter of practicality, where the Department is intervening with a family and the Federal Circuit Court of Australia assumes jurisdiction, the inevitable result is that the Department can, and in our experience frequently does, bring proceedings in the Children’s Court to set aside or circumvent ‘unsatisfactory’ Orders made by this Court. Such outcome leads to the Court being placed in the untenable position of being unable to exercise their discretion in making Orders ‘in the best interests of the child/ren’. Instead, this Court must either ‘rubber stamp’ the orders agreed to by the Department or risk their intervention; hence the reservation in the Referral Act that the State retains power.


Therefore, in our opinion, it is prudent to read s 69ZK of the FLA in a way which prevents the likelihood of the Department bringing on proceedings in the Children’s Court to set aside Orders of the Federal Circuit Court of Australia, resulting in an increase in caseload and exhausting significant resources.


On our submission, we put forward that s 69ZK should read in light of the fact that the referral of powers to the Commonwealth have only been made insofar as those powers do not conflict with the State’s powers under a child welfare law, which are exclusively reserved.


CONCLUSION


When it comes to these prickly little matters, it is important to know the law and its history. That’s why here at Richard Hoare & Co Solicitors, we prepare properly and ensure we know the “ins and outs” of what we’re dealing with.


What should be taken from this article and our experience?


We found in the case in which we were dealing with was that there existed judicial controversy by the Judges of the Federal Circuit Court of Australia over the proper interpretation of s 69ZK of the FLA. That is because during the process different Judges expressed different opinions.


Whatever the case is, and however you may interpret s 69ZK of the FLA, we put it to the lawmakers that this section needs attention and change.


At the end of the day, bureaucracy can run supreme (perhaps on some occasions to the detriment of the law itself) and so the division of power between the executive and judiciary remains more important than ever.


Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.


REFERENCES

[1] Section 69ZE(1) of the Family Law Act 1975 (Cth).

[2] Section 69ZE(3) of the Family Law Act 1975 (Cth).

[3] Section 69ZE(3)(b) of the Family Law Act 1975 (Cth).

[4] Section 69ZE(2)(a)(i)-(ii) of the Family Law Act 1975 (Cth).

[5] Section 69ZE(4) of the Family Law Act 1975 (Cth).

[6] Child Protection Act 1999 (Qld).

[7] [2004] HCA 20 at 40-41.

[8] Family Law Act 1975 (Cth), Commonwealth of Australia Gazette, No. GN 6, 11 February 2004, 244.

[9] DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 146.

[10] Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31].

[11] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [70].

[12] (1987) 162 CLR 514.

[13] Ibid, 514 and 518 (per Mason CJ, Wilson and Dawson JJ).

[14] Justice Susan Kenny, 'Current Issues in the Interpretation of Federal Legislation' (Speech delivered at the National Commercial Law Series, Melbourne, 3 September 2013).

[15] (1989) 167 CLR 543.

[16] (1989) 167 CLR 543, 550 (Brennan and Gaudron JJ).

[17] (20) 240 CLR 319.


[18] Ibid, 349 [42].

[19] (2009) 239 CLR 27.

[20] Ibid.

[21] (2009) 239 CLR 446

[22] (2009) 239 CLR 27.

[23] Oxford University Press, Definition of person in English (2018), English Oxford Living Dictionaries <https://en.oxforddictionaries.com/definition/person>.

[24] Oxford University Press, Definition of person in English (2018), English Oxford Living Dictionaries <https://en.oxforddictionaries.com/definition/us/care>.

[25] Re Demack (1977) CLR 40 at 54.

[26] Sargent and Sargent; Director of the Department of Youth and Community Services and Linnane (1986) FLC 91-718.

[27] Re Demack (1977) CLR 40 at 54.

[28] Re Felicity [2012] NSWSC 494 at 56.

[29] Ibid, 56.

[30] Ibid, 61.

[31] Adoption Director-General, Department of Family & Community Services; Re TVK [2012] NSWSC 1629.

[32] Perov & McPherson [2014] FamCAFC 176 at 16-18.

[33] Ibid, 35.

[34] Adapted from the test of Gummow, Callinan & Heydon JJ which was laid down in Griffith University v Tang [2005] HCA 7, [89].


© Scott A. Green, Associate Solicitor

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