Department of Family and Community Services and the Eastway Children [2017] NSWChC 3

Children's Court New South Wales

Medium Neutral Citation: Department of Family and Community Services and the Eastway Children [2017] NSWChC 3 Hearing dates: 15 February & 16 March 2017 Date of orders: 16 March 2017 Decision date: 16 March 2017 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of NSW Decision: The Father's application under s 90 is dismissed Legislation Cited: Children and Young Persons Care and Protection Act 1998 Family Law Act 1975 (Commonwealth) Cases Cited: Dunstan v Jarrod (2009) FAMCA 480 Category: Principal judgment Parties: Department of Family and Community Services The Mother The Father Representation: Mr G Moore of counsel, instructed by Ms J Wong for the Secretary Mr Gardiner of counsel, and Mr Simpson for the Mother Ms H Breeze of counsel for the Father Ms J Griffin as Independent Legal Representative for the Children File Number(s): 2014/107-108 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties

Judgment

Reasons for decision 1. These Care proceedings concern the Eastway children Thomas and John, aged respectively 7 and 5 who were removed into the care of the State on 5 March 2014. The parents are Jane Eastway and Alistair Eastway who are no longer together in a relationship. Following removal of the children the Secretary of the Department of Family and Community Services of New South Wales (DFaCS) commenced these proceedings under the Children and Young Persons Care and Protection Act 1998 (the Care Act). 2. The relevant history of the proceedings in this court may be briefly stated: Final Care orders were first made on 3 June 2014 allocating parental responsibility to the Minister for a period of three months, upon the expiration of which parental responsibility was to revert to the parents with supervision and undertakings. On 16 January 2015 the Secretary filed a s 90 application pursuant to which ultimately the Children's Court made final orders on 18 December 2015 to the following effect: 1. That all aspects of parental responsibility for Thomas and John Eastway are allocated to the Minister for a period of six months from the date of the order; 2. On the expiration of order 1 all aspects of parental responsibility for the children are allocated to the father, Alistair Eastway to the exclusion of the mother, Jane Eastway until the children attain the age of 18. 1. There were other orders, including a Supervision Order which effectively expires on 17 June 2017, and a Prohibition Order under s 90A prohibiting the mother, Jane Eastway, from living with or staying overnight for any prolonged period of time in the same home as the father, Alistair Eastway and the children. There was then a series of contact orders which I do not need to detail here. The children thereafter remained in the exclusive care of the father and resided with him. 2. On 24 October 2016 the mother filed an application in this court under s 90 of the Care Act seeking rescission of the final Care orders of this court to which I have referred, seeking new orders that in effect would ultimately involve her having some parental responsibility for the children and, by implication, a discharge of the Prohibition Order. 3. By letter dated 1 December 2016 the Secretary by his delegate gave consent under s 69ZK(1)(b) of the Family Law Act 1975 (Commonwealth) to the exercise of jurisdiction by the Family Law Court. The terms of that letter were as follows: "Re Thomas and John Eastway, consent to exercise jurisdiction. The children Thomas Eastway born 7 September 2009 and John Eastway born 5 April 2011 are currently the subject of a Care order made by the New South Wales Children's Court. Please find enclosed a sealed copy of the Care order made by the New South Wales Children's Court at Parramatta on 18 December 2015. In view of this Order the Minister is the relevant 'Welfare Officer' for New South Wales under Regulation 12B(a) of the Family Law Regulations, for the purpose of giving consent to the Court exercising jurisdiction under the Family Law Act 1975 pursuant to s 69ZK(1)(b) of that Act. In my position as Manager, Client Services I am a delegate of the Minister for the purposes of this provision. Accordingly I hereby give consent on the Minister's behalf to the Court exercising jurisdiction under the Family Law Act 1975 in relation to the children Thomas and John Eastway. Yours sincerely Michelle Humphreys Manager, Client Services Chatswood Community Services Centre." 1. The mother then notified the father of her intention to commence proceedings in the Family Law Court and to proceed in that jurisdiction. Then on 13 December 2016 the father filed his own application under s 90 seeking a variation to the final Care orders directed principally at varying the contact arrangements but not varying the allocation of parental responsibility. 2. The mother commenced proceedings in the Family Court on 24 January 2017. In those proceedings she seeks new parenting orders effectively to replace the Children's Court orders and to involve the allocation of parental responsibility to her and the father, to be shared equally, but for the children to reside with her. 3. On 15 February 2017 the proceedings in the Children's Court came before me. The mother sought leave to withdraw her application under s 90. I gave her leave and dismissed her application. The father, however, sought to proceed in this court on his application under s 90 and that continues to be his position today. The mother asked the Children's Court to stay or dismiss the father's application on the basis that she had commenced proceedings in the Family Court and the Secretary had consented to those proceedings pursuant to s 69ZK(1)(b) of the Family Law Act. The Secretary opposed the granting of leave under s 92 of the Care Act and submitted that the father's application should be dismissed. 4. In written submissions the Secretary contended that it is desirable that one court deal with the issues in dispute between the parties and I will quote from some of his submissions. "17. The Secretary does not have any 'child protection concerns' apart from the parents' inability to communicate for the purpose of arranging and facilitating the mother's contact with the children. 18. The Secretary does not seek to be a party in the Family Court of Australia proceedings. 19. The Secretary does not anticipate playing an active role in the Children's Court proceedings given the Supervision Order and the Children's Court final orders made on 18 December 2015 expire on 18 June 2017. 20. It is respectively submitted therefore that the application for leave brought by the cross applicant Alistair Eastway ought to be dismissed." 1. The question for this court was, therefore, whether to proceed in this court to hear and determine the father's application under s 90 and in the first instance to grant him leave under s 90(2) to enable his application to proceed. During discussion on 15 February 2017 however, the Secretary sought to agitate an argument under s 109 of the Constitution and I therefore adjourned the proceedings to enable the parties to prepare and file written submissions on that issue and stood the hearing over to today for further hearing. 2. In the meantime the parties have filed their written submissions. 3. The mother does not seek to agitate an issue under s 90 of the Constitution. The Secretary, as I understand the written submissions, now concedes that there is "at the moment" no "operational inconsistency" that would attract s 109 of the Constitution because there is no order made under Part 7 of the Family Law Act relating to these children. The issue for determination therefore is whether the dispute between the parents should be agitated in the Family Law Court or the Children's Court. 4. The thrust of the father's submissions is that: "13. It is respectively submitted that the terms of s 69ZK are directly aimed at circumstances where there is or might be orders made under both the Family Law Act and the Care Act. That section could only be read to mean that where this does or might occur the jurisdiction and powers and orders under the Child Welfare Laws take precedence. 14. Importantly, where the precise issue for determination is the power of the Children's Court to entertain the applicant father's s 90 application as it is here that s 69ZK(2)(a) specifically directs that nothing in the Family Law Act affects the jurisdiction of the Children's Court to make an order. 15. It is further submitted that s 69ZK(3) should be read as indicating that a child welfare order should take precedence over a family law order. Under the subsection, if another court (relevantly the Children's Court) proposes to make an order or to make any other action or to take any other action (relevantly either grant leave or not grant leave under s 90 of the Care Act), the first-mentioned court in the subsection (relevantly the Family Court in which the mother has commenced proceedings) may adjourn any proceedings that relate to the child. Put another way, a Family Court can 'give way' to the procedures/orders/powers of the Children's Court to allow those proceedings to take precedence. 16. Importantly, it should be noted that there is no corresponding provision within the Care Act which allows the Children's Court to 'give way' to the procedures, orders, powers of a Family Court. 17. It is respectively submitted that s 69ZK(3) gives support to the proposition that s 69ZK is an authoritative statement as to the precedence that a Family Court must give to a court making a child welfare order. At the very least, the section is a statement that the jurisdiction of the Children's Court is not affected or undermined in any way. On this basis alone, the argument of the Department fails. 18. It is further submitted that s 69ZK(1) gives some indication of the way in which precedence should be allocated to the competing jurisdictions of the Family Court or the Children's Court. Section 69ZK(1) makes it clear that a court having jurisdiction of a Family Law Act must not make an order in relation to a child who is under the care of a person under a child welfare order unless either of the conditions precedent in (a) or (b) exist. 19. Whilst it is noted that the consent of a child welfare officer has been given under s 69ZK(1)(b) in the current matter, it does nothing to detract from the force of the submission that Parliament intended (subject to two discrete exceptions in s 69ZK(1)(a) and (b)) for a Family Court to be prohibited from making an order if a child is under the care, (however described), of a person under a child welfare Law." 1. In discussion with Ms Breeze of counsel for the father, she agreed that the effect of her submissions would be that only the Children's Court could discharge the orders that it has made, and there would be two competing sets of order if the Family Court proceeded to make an order of its own.