31 March 2017
Do you have any case law precedent that considers s 69ZK in terms of its potential conflict with s 109 of the constitution?
I have a case where the father is trying to keep proceedings in the NSW Children's Court, whereas we would prefer to move it to the Family Court. NSW Family and Community Services support the move to the Family Court, because they realise the Children's Court orders are not working due to conflict between the parents.
Many thanks.
Thanks for the question.
Section 109 of the Australian Constitution provides that when a law of a state is inconsistent with a law of the Commonwealth the latter shall prevail, and the state law shall, to the extent of the inconsistency, be invalid.
However, in the case of child protection legislation, the Family Law Act defers to orders under state legislation because the Commonwealth Parliament does not have legislative competence in relation to such matters.
Section 69ZK(1) of the Family Law Act provides that a court having jurisdiction under the Act must not make any order under the Act (other than a child maintenance order) in relation to a child who is under the care of a person pursuant to a state or territory child welfare law, except in the limited circumstances set out in the section.
The case of Re Felicity [2012] NSWSC 494 and confirmed on appeal Re Felicity [2013] NSWCA 21 may be of interest.
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