Re Felicity [2012] NSWSC 494

Re Felicity [2012] NSWSC 494

The order allocating parental responsibility to the father under s 79(1)(a)(i) of the Children and Young Persons (Care and Protection) Act 1998 remains valid and operative, unaffected by the referral of powers to the Commonwealth Parliament or alleged inconsistency, given that s 69ZK of the Family Law Act explicitly preserves the operation of State child welfare laws, and the applicant's arguments for invalidity are not substantiated.

Jurisdiction
Australia
Judgment Date
01 May 2012
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Dismissal of summons
Legal Topics
['parental Responsibility' 'referral of Powers' 'inconsistency Between State and Commonwealth Laws' "jurisdiction of Children's Court" 'interaction Between State and Commonwealth Laws']
['constitutional Law' 'child Welfare' 'family Law'] ['parental Responsibility' 'referral of Powers' 'inconsistency Between State and Commonwealth Laws' "jurisdiction of Children's Court" 'interaction Between State and Commonwealth Laws']

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ["Whether the order allocating parental responsibility to one parent by the Children's Court is invalid or inoperative" "Whether referral of powers by NSW to the Commonwealth Parliament limits the Children's Court's power to make such orders" 'Whether there is inconsistency between State and Commonwealth laws regarding parental responsibility' 'Whether s 69ZK of the Family Law Act precludes the making of parenting orders under Commonwealth law when a State care order is in force']

Ratio Decidendi

The order allocating parental responsibility to the father under s 79(1)(a)(i) of the Children and Young Persons (Care and Protection) Act 1998 remains valid and operative, unaffected by the referral of powers to the Commonwealth Parliament or alleged inconsistency, given that s 69ZK of the Family Law Act explicitly preserves the operation of State child welfare laws, and the applicant's arguments for invalidity are not substantiated.

Court Disposition

Dismissal of summons

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the first and second defendants' costs." "Directions given regarding potential costs order against the plaintiff's solicitor under s 99 of the Civil Procedure Act 2005." 'Exhibits, including s 78B notices, can be returned.']