Secretary of Department of Health & Human Services and Ray & Ors 2010 FamCAFC 258

The case involved an appeal against a decision by a trial judge in a Federal Circuit Court.  Allegations of sexual abuse were made about one child, and it was alleged that the mother had substance abuse and emotional problems, and that the father had shown domestic violence toward the mother.  The judge found that both parents were unable to care for two children aged 15 and 9 years, and that no other family members were suitable to care for the children.  The trial judge invited the Secretary of the state child protection department to intervene as a party who might accept parental responsibility.  The Secretary declined to accept any obligation under an order made by the Federal Circuit Court.  The judge issued an order and the Secretary appealed to the High Court.  Before the appeal was heard a Care and Custody order was taken out for the children in Children’s Courts under state child welfare legislation.

The Appeal Court ruled that the Family Court does not have jurisdiction to make orders about parenting responsibility that are binding on a third party, and the Secretary’s appeal was allowed.

This ruling established the independence of Federal Circuit Courts that operate under Commonwealth legislation from Children’s Courts that operate under State legislation.