ASUMAN - [2017] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
ASUMAN
[2017] SASC 123
Judgment of Judge Roder a Master of the Supreme Court
25 August 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - APPOINTMENT BY COURT
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION
Application to be appointed guardian of infant children - consideration of the Court's jurisdiction to grant order sought.
Held:
1. Court retains an inherent power to appoint guardians of infants.
2. Ms Asuman appointed guardian of MMK and AMK.

ASUMAN
[2017] SASC 123
JUDGE RODER:

On 14 July 2017 I made an order awarding custody of the infant children MMK and AMK. I had been asked to make an order appointing the plaintiff guardian of the children. I was satisfied that the evidence would warrant the making of such an order, but reserved to consider the question of jurisdiction to make such an order. I had no doubt that the evidence warranted the making of such an order, if there were jurisdiction.
I find that the Court retains an inherent power to appoint guardians and keepers of infants and therefore make an order that Ms Asuman is appointed guardian of MMK and AMK.
Background
Introduction
On 16 July 2013 Victor Majaliwa Kizamba (“Victor”) and Nadi Soda Asuman (“Nadi”) came to Australia as refugees with their two children, MMK and AMK, who are now 11 and 5 years old respectively. On 25 July 2014 Victor and Nadi had a third child, TMK.
On 15 February 2015, Victor, Nadi and the three children were involved in a motor vehicle accident. Victor, Nadi and TMK died. Both Victor and Nadi died intestate.
Since the accident, MMK and AMK have resided with Ms Asuman and her husband and their four children. Ms Asuman is Nadi’s sister. She arrived in Australia on 4 April 2014 – also as a refugee. Ms Asuman applied to the Court for an order that she be appointed as the guardian of MMK and AMK.
The application invoked s 6 of the Guardianship of Infants Act 1940 (SA). That section provides:
6—Power to make orders as to custody etc
(1)The court may, upon the application of a person who has a proper interest in the welfare of an infant, make such orders for the custody of, and access to, the infant as it thinks fit.
(2)The court may upon the application of any person who has the guardianship of an infant jointly with some other person (whether or not one or both of those persons are parents of the infant) make any order that it thinks proper in relation to a matter in dispute between those guardians affecting the upbringing or welfare of the infant.
(3)In exercising its powers under this section, the court shall have regard to the conduct of the parents of the infant, and of any other person who may be a party to the application.
(4)The court may vary or discharge an order made under this section.
(5)The fact that a person who seeks an order for the custody of an infant under this section is resident outside this State, or contemplates leaving this State, shall not of itself constitute a ground for denying custody of the infant to that person.
(6)The court may make such orders for costs in relation to proceedings under this section as it thinks fit.
(7)For the purposes of this section a person has a proper interest in the welfare of an infant if that person—
(a)is the mother or father of the infant; or
(b)is a guardian of the infant; or
(c)is a person who, in the opinion of the court, has in the circumstances of the case a proper interest in the welfare of the infant.
I do not understand s 6 to empower the Court to appoint a guardian. I was, however, satisfied that it was appropriate to make a custody order under that section and made such an order. I reserved the question of whether the Court could make an order for guardianship.
Jurisdiction of the Supreme Court to appoint a guardian for an infant
It is clear that the Court does have some powers in respect of guardians of infants. An example is s 16 of the Guardianship of Infants Act:
16—Power to remove guardian
The court may, in its discretion, on being satisfied that it is for the welfare of the infant, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if it deems it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed.
In the circumstances of this case, s 16 does not empower the Court to make the guardianship order sought. There is no guardian currently appointed or acting.
Section 21 of the Guardianship of Infants Act contains a saving provision as follows:
21—Saving provision
Nothing in this Act restricts or affects—
(a)the equitable jurisdiction of the Supreme Court to appoint or remove guardians; or
(b)the jurisdiction of any court in a matrimonial cause.
On its establishment, the Court was conferred with an equitable jurisdiction for the appointment of a guardian of an infant.[1] The historical background appears to be that the monarch was the guardian of infants and acted through the Court of Chancery.[2] That Court appointed guardians, who became officers of the Court on appointment.
[1] Ralph Mayerick Hague, Hague's History of the Law in South Australia 1837-1867 (Adelaide, University of Adelaide. Barr Smith Press, 2005) Vol 2, p 531.
[2] Joseph Story, Commentaries on Equity Jurisprudence (London: Stevens & Haynes, 13th ed, 1886) pp 672-673.
The Court of Chancery’s jurisdiction to appoint a guardian for an infant seems to beyond doubt – Johnstone v Beattie.[3]
[3] (1843) 10 Cl. & Fin. 42, H.L.
The jurisdiction was recognised in the first edition of Halsbury.[4]
[4] Butterworth & Co. (Australia) Ltd, The Laws of England, Vol. 17 (at 17 June 1911) Industrial Societies to Interpleader, 'Part VII - Guardianship of Person and Estate' [293].
As far as my researches go, it appears that that jurisdiction was not only conferred on this Court, but continues to be exercisable by the Court.
The Court was created by the Supreme Court Act 1837. Section 14 expressly provided that:
That the said Supreme Court shall have power to appoint guardians and keepers of infants and their Estates according to the order and course observed in that part of the United Kingdom called England and also guardians and keepers of the person and estates of natural fools and of such as are or shall be deprived of their understanding or reason of the act of God.
The same provision was repeated in the Act of 1855-1856.
The latter Act was repealed by the current Act. There is no express reference in the current Act to guardianship. However, s 28 expressly preserves the then existing rules of equity. In my opinion, that must include the jurisdiction to appoint guardians. That understanding is consistent with s 21 of the Guardianship of Infants Act.
It does not appear that any provision of any other legislation has removed the jurisdiction in question. It seems that the jurisdiction is an expression of the parens patrioae jurisdiction which is inherent in the Court.[5]
[5] H v H [1984] 1 NSWLR 694; G v G [2016] NSWSC 511.
In those circumstances I consider it appropriate to make an order appointing Ms Asuman guardian of MMK and AMK.