Brown, D.O. and Pedersen, L.F.

[1988] FamCA 14

In the marriage of BROWN, D.O. and PEDERSEN, L.F.

(1988) FLC ¶91-967

Other publishers' citations: (1988) 12 FamLR 506 (1988) 93 FLR 223

Full Court of the Family Court of Australia at Adelaide.

Judgment delivered 21 October 1988.

Before: Fogarty, Strauss and Burton JJ.

Fogarty and Strauss JJ.: This is an appeal from the order of Gun J. made on 23 May 1988 dismissing (inter alia) the following applications of the husband:

``(a) That the husband have leave of this honourable Court to have the infant child of the marriage D who was born on 7 October 1980 psychiatrically examined by Dr Keith Le Page and a report prepared for submission to this Court.

(b) That the wife do deliver up the said infant child of the marriage at a time to be appointed by the said Dr Le Page for the purposes of a psychiatric examination.''

The ground of appeal was that:

``The learned trial Judge erred at law in holding that he did not have jurisdiction to make an order granting leave to have the child of the marriage psychiatrically examined by Dr Keith Le Page and for the delivery up of the child by the wife to Dr Le Page.''

The application of the husband was made for the purpose of obtaining the evidence of Dr Le Page in pending proceedings concerning access to the child D. This child was in the custody of the wife. The husband's access to the child had been suspended on 26 November 1987 following a report from a court counsellor.

In 1984 by the consent of the husband, the wife and the child's separate representative, the Director of Court Counselling nominated a psychiatrist, Dr Gerrard to interview and assess the child. Dr Gerrard had made several assessments and given the child certain tests and he had made a number of reports. The husband might well have considered that the latest reports, particularly those made in November 1987 and April 1988, were not favourable to this cause.

The husband's application was opposed on behalf of the wife and the separate representative for the child. His Honour accepted a submission from counsel for the separate representative that the Court did not have the power or the jurisdiction to make the order which the husband sought. His Honour did not deliver a formal judgment but his reasons appear from the discussion during the submissions of counsel.

In the transcript his Honour said:

``There is unfortunately some sort of a gap in this — under the Family Law Act which, I think precludes us forcing people to subject children or indeed themselves to psychiatric examinations.''

Further, his Honour said:

``I believe myself that we have not got power to force either a party or a child to be psychiatrically examined. That is my view.''

His Honour said to counsel for the husband:

``... but where does it say in the Family Law Act that I have got power to force a child, or a party to be psychiatrically examined.''

Counsel for the husband:

``I cannot help your Honour on that matter.''

His Honour:

``No. Well, on that ground alone, apart from the merits of the case — and I am not saying one thing about the merits, because I do not think it is necessary — I just do not think I have got the power to force a person to be psychiatrically examined and the application is dismissed.''

Counsel for the husband submitted that the provisions of sec. 64(1)(c) of the Family Law Act 1975 authorised the Court to make an order for a psychiatric examination of the child at the husband's request and that the Court could make all necessary consequential orders to ensure that such an examination could be made.

Section 64(1)(c) is in the following terms:

``64(1) In proceedings in relation to the custody, guardianship or welfare of, or access to, a child —

...
(c) subject to section 60D and paragraphs (b), (ba) and (bb), the court may make such order in respect of those matters as it considers proper, including an order until further order.''

Counsel for the husband referred us to Chapman and Palmer (1978) FLC ¶90-510. This case was concerned with a change of a child's surname. In the course of their decision the Full Court (Evatt C.J., Asche and Marshall JJ.) referred to the wide general powers which the Court has by reason of its jurisdiction over the guardianship and custody of children. Counsel for the husband submitted that this wide jurisdiction has been enlarged further by the amendments which were made by Act No. 72 of 1983. These amendments added to the definition of matrimonial cause in sec. 4(1)(cf), (cg) and (ch). These definitions of matrimonial cause referred to proceedings between certain parties with ``respect to the welfare of a child''. At the same time sec. 64(1) was amended to add the word ``welfare'' to the matters concerning which the Court had power in proceedings relating to a child.

Until this amendment came into force, the opening words of sec. 64(1) had been: ``In proceedings with respect to the custody or guardianship of or access to a child of the marriage''.

Paragraphs (cf), (cg) and (ch) of the definition of ``matrimonial cause'' along with a number of other definitions of that expression have since been repealed. However, the power to make orders with respect to the welfare of a child has continued in sec. 64(1).

On p. 328 of the Family Law by Anthony Dickey the learned author discusses the meaning of the word ``welfare'' as follows:

``There is no statutory definition of the term `welfare' either in the context of the definition of `matrimonial causes' (cf), (cg) and (ch) in s. 4(1), or in the context of the associated power of courts to make orders `with respect to the... welfare of... a child of a marriage' under s. 64(1). The term `welfare' had previously been contained in the introductory words of s. 85(1) of the Matrimonial Causes Act 1959 (Cth), which corresponded in many ways with the introductory words of s. 85(1) referred to `proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage'. However, whatever may have been the meaning of the term `welfare' in that context, it is clear from statements made by the Commonwealth Attorney-General, Senator Gareth Evans, when opening the Second Reading Debate on the Family Law Amendment Bill 1983 in this Senate, that the term `welfare' in the context of the present Act is intended to signify wardship. This usage follows the recommendations of the Watson Committee in 1982, which sought in this way to provide for courts exercising jurisdiction under the Family Law Act to have the substance of wardship jurisdiction `without its archaic trappings'. It remains to be seen whether the courts will adopt this interpretation of the term `welfare', or whether they will interpret this word differently and in particular give it a broader meaning to include powers that have not traditionally been exercised by courts by virtue of wardship jurisdiction.''

For the purposes of this decision it is not necessary to explore the limits of the meaning of the term ``welfare'' in sec. 64(1).

In our opinion sec. 64(1) as it now is gives the Family Court the widest possible powers to make orders intended to safeguard and advance the physical and emotional well-being and the proper education of a child and to exercise such control over a child as it deems appropriate for these purposes: see Fountain & Anor v. Alexander & Anor (1982) FLC ¶91-218 at p. 77,191 per Mason J.

In our view the Court can direct (inter alia) that the child undergo medical or paramedical treatment or examinations. If for the purposes of the resolution of an access dispute, the Court is of opinion that it would be in the child's best interest that the child undergo psychiatric or like examinations then the Court may order them. It can make the requisite incidental and ancillary orders to ensure that the child attends such treatment or examinations.

Counsel for the separate representative and for the wife placed reliance upon Wood and Wood (1976) FLC ¶90-098. That case had many unusual aspects and features. However, in the course of their decision the Full Court, Evatt C.J., Marshall and Maxwell JJ. said at p. 75,448:

``Whilst this Court recognises and encourages the practice of Judges invoking the provisions of sec. 62 of the Family Law Act and asking for a welfare officer's report in contested custody cases, we do not condone and indeed we are critical of the procedure adopted by the learned Judge in this case. There is no provision in the Act authorising a Judge of the Family Court to order parties or children to attend before a psychiatrist, or to order a report from such a person and it is, of course, a mistake to refer to any person as a `court psychiatrist'. In an appropriate case where a Judge has to make a custody or access decision in respect of a child who appears to be emotionally disturbed or mentally ill, we think that the Judge should consider the advisability of drawing attention to the possible advantage of one party or the other presenting evidence from a qualified child psychiatrist, but the Court can go no further than to make the suggestion and if evidence is forthcoming, the Court must deal with it in the ordinary way.''

On p. 75,449 their Honours said:

``As mentioned earlier the Court cannot order parties or children to attend a psychiatrist or a counsellor. The Court may suggest this course of action and if the suggestion is followed the court counsellor may assist and advise the parties.''

The expressed view that the Court cannot order parties to attend a counsellor is, in our opinion, erroneous. Whilst sec. 62 of the Act has undergone a number of changes and additions by various amendments it always contained a provision that:

``... the court may, at any stage of the proceedings, of its own motion, upon the request of a party to the proceedings... make an order directing the parties to the proceedings to attend a conference with a... welfare officer to discuss the welfare of the child and, if there are any differences between the parties as to matters affecting the welfare of the child, to endeavour to resolve those differences.''

In Re Cook; Ex parte Twigg (1980) FLC ¶90-859 Gibbs J. pointed out at p. 75,464:

``If the failure appears to constitute a wilful disobedience of an order of the court, the party in default may be charged with contempt and, if found to be in contempt, may be punished...''

The decision in Wood and Wood may have depended on the extraordinary circumstances of that case but in our opinion the dicta in that case were never of general application. In any event, whatever doubts there might have been before the amendments which introduced the word ``welfare'' into sec. 64(1), these are now resolved.

Having regard to some submissions, we should add the following. In his letter of 21 April 1988 Dr Le Page requested that he be permitted to conduct an individual interview with the child and a joint interview with father and child. The mere fact that the father's access has been suspended would not prevent the Court from making orders facilitating a joint interview if such an interview appeared desirable to the Judge determining this application.

For these reasons the appeal should be allowed. The matter should be remitted to the primary Judge or another Judge in the Adelaide Registry depending on the listing arrangements, and the matter should be reconsidered in the light of this decision.

Burton J.: This is an appeal from a refusal by Gun J. of an application by the husband for orders in the following terms:

``(a) That the husband have the leave of this honourable Court to have the infant child of the marriage D who was born on 7 October 1980 psychiatrically examined by Dr Keith Le Page and a report prepared for submission to this Court.

(b) That the wife do deliver up the said infant child of the marriage at a time to be appointed by the said Dr Le Page for the purposes of a psychiatric examination...''

The order of Gun J. made on 23 May 1988 was:

``That the application for a psychiatric report be dismissed.''

While his Honour gave no reasons for his refusal it is clear from the transcript that his Honour's view was that there was no power granted by the Family Law Act to the Court to enable it to order a party or a child of a marriage to be examined psychiatrically.

The appellant relies on sec. 64(1)(c) to provide the source of such power. Counsel contended that the powers of the Court set out in that subsection in relation to custody, guardianship or welfare of, or access to, a child include the power to order a medical or psychiatric examination if the Court in its discretion considers such an order to be in the best interest of the child.

Section 64(1)(c) is general in its terms and the relevant portion is as follows:

``64(1) In proceedings in relation to the custody, guardianship or welfare of, or access to, a child —

...
(c) subject to section 60D and paragraphs (b), (ba) and (bb), the court may make such order in respect of those matters as it considers proper, including an order until further order.''

The words ``or welfare'' were added by amendments to the Act made in 1983.

In Wood and Wood (1976) FLC ¶90-098, the Full Court of the Family Court of Australia considered the question whether the Court of its own volition could order that a child be examined by a psychiatrist. In the following passage at p. 75,448 it expressed the view quite unequivocally that no such power existed:

``Whilst this Court recognises and encourages the practice of Judges invoking the provisions of sec. 62 of the Family Law Act and asking for a welfare officer's report in contested custody cases, we do not condone and indeed we are critical of the procedure adopted by the learned Judge in this case. There is no provision in the Act authorising a Judge of the Family Court to order parties or children to attend before a psychiatrist, or to order a report from such a person and it is, of course, a mistake to refer to any person as a `court psychiatrist'. In an appropriate case where a Judge has to make a custody or access decision in respect of a child who appears to be emotionally disturbed or mentally ill, we think that the Judge should consider the advisability of drawing attention to the possible advantage of one party or the other presenting evidence from a qualified child psychiatrist, but the Court can go no further than to make the suggestion and if evidence is forthcoming, the Court must deal with it in the ordinary way.''

At that time there was no power of wardship specifically granted to the Family Court.

It has long been held that courts having ``wardship jurisdiction'' have power to make orders with respect to children including orders for their welfare.

The wardship jurisdiction was considered by the High Court in Fountain & Anor v. Alexander & Anor (1982) FLC ¶91-218; 56 A.L.J.R. 321. At FLC p. 77,191; A.L.J.R. p. 328 Mason J. (as he then was) said:

``The origin of the wardship jurisdiction was the sovereign's feudal obligation as parens patriae to protect the person and property of his subjects, particularly those unable to look after themselves, such as infants. This obligation was delegated to the Chancellor, and passed to the Chancery Court (see Re D (a minor) (1976) 1 All E.R. 326, at p. 332; Hope v. Hope (1854) 4 De G.M. & G. 328, at pp. 344-345; 43 E.R. 534, at pp. 540-541). In New South Wales the jurisdiction is now exercised by the Supreme Court under sec. 23 of the Supreme Court Act, 1970. The jurisdiction to make a child a ward of Court is not dependent upon the child having property the subject of a suit (Meyer v. Meyer (1978) 2 N.S.W.L.R. 36, at p. 39). In exercising the jurisdiction the Court has a wide power in relation to the welfare of infants. It has always been recognised that the dominant matter for the consideration of the Court is the welfare of the child (Inre McGrath (Infants) (1893) 1 Ch. 143, at p. 148). In Re X (a minor) (1975) 1 All E.R. 697, Lord Denning M.R. (at p. 703) said:

`No limit has ever been set to the jurisdiction. It has been said to extend `as far as necessary for protection and education'... The court has power to protect the ward from any interference with his or her welfare, direct or indirect.'

In Re D [supra] the Court exercised the jurisdiction by making a child a ward of Court for the purpose of preventing the sterilization of the child which was to be carried out with the consent of the child's mother, the Court intervening on the ground that the operation was not in the child's interests. See also Inre B. (A Minor) (1981) 1 W.L.R. 1421.''

His Honour at FLC pp. 77,191-77,192; A.L.J.R. p. 328 then went on to consider whether at that time any ``wardship power'' was vested in the Family Court:

``To What Extent is the Wardship Jurisdiction Excluded by the Family Law Act?

Section 64(1) provides that:

`In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage —
...

(c) subject to paragraphs (a) and (b), the court may make such order in respect of those matters as it thinks proper, including an order until further order.'

The qualifications imposed on the wide discretion to make an order given to the Court by the subsection are: first, as the opening words indicate, that the proceedings must be `with respect to the custody or guardianship of, or access to, a child of a marriage'; secondly, that the welfare of the child shall be the paramount consideration (para. (a)); thirdly, that an order contrary to the wishes of a child who has attained the age of fourteen years shall only be made if, by reason of special circumstances, it is necessary to do so (para. (b)); and finally, that the power to make orders is limited to orders `in respect of those matters', referring to custody, guardianship or access.

The real problem is posed by the circumstance that the section, which arms the Court with the relevant power to make orders, speaks only of proceedings with respect to guardianship, custody or access. It makes no mention of wardship jurisdiction or of wardship proceedings. The power to make orders is therefore limited to the making of orders with respect to guardianship, custody and access.''

Although his Honour had no doubt that wardship jurisdiction and proceedings were excluded from the Family Court by its own Act he expressed doubt that the Court, pursuant to its then existing powers under sec. 64 was excluded form making orders which affected some aspects of a child's welfare. At FLC p. 77, 192; A.L.J.R. p. 329 he said:

``Wardship and custody have been recognised as different though alternative legal regimes. Wardship proceedings cannot be described accurately as proceedings for guardianship or custody. However, I do not exclude the possibility that the Family Court's power to make such order as it thinks fit with respect to the matters mentioned may enable it to make an order prohibiting a child from undergoing an operation in a Re D situation, if to do so falls within the limits of the marriage power as, for example, when the order would operate to qualify the rights and powers of a custodial parent arising from a custody order made in proceedings between the parties to the marriage. It would be necessary that the proceedings for the order fall within the description contained in sec. 64(1).''

In the year following Fountain & Anor v. Alexander & Anor (supra) the amendment to sec. 64(1) was made to add, ``or welfare'' to the jurisdiction of the Court. It is particularly relevant that the restriction of the Court's jurisdiction to matters of ``guardianship, custody and access'' in sec. 64 was uppermost in the reasoning of Mason J. in Fountain & Anor v. Alexander & Anor.

The power of wardship includes the power to protect and make orders for the welfare of the child. ``Welfare'' is not defined in the Act, but common sense dictates that it would include the physical and emotional security and well-being of a child. I am of the opinion that the extension of the Court's jurisdiction by the 1983 amendment did invest it with jurisdiction of a wardship nature which enables it to make valid orders of the kind sought in this matter which go to the welfare of the child. It is not necessary or relevant to consider whether the wardship jurisdiction of the Family Court extends to the power to make children ``wards of the court''. This jurisdiction was granted to the Supreme Court of South Australia by sec. 17 of the S.A. Supreme Court Act, 1935 (as amended). Whether legislation for referral of powers from the State courts to Federal courts includes this jurisdiction need not be considered in this case.

The appellant seeks leave to have the child examined by a psychiatrist of his choice and that a report be prepared. I am satisfied that the Court has power to make an order to enable a parent whether custodian or non-custodian to have a child examined if the Court in the exercise of its discretion considers that such an examination is for the ultimate benefit of the child.

I do not consider that the Court has jurisdiction to compel a psychiatrist to prepare a report following such an examination.

The Court should be satisfied therefore that the examining doctor is prepared to produce a report before it makes an order that a child undergo such an examination.

I would allow the appeal and refer the matter back to the learned Judge for consideration of whether or not in the circumstances of this case such an order would be for the welfare of the child.